Preview Newsletter
ACC PM 9/29/16
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(ACC Mentioned) PE, PP Prices Take Big Jump
Sep 29, 2016 | Plastics News
By Frank Esposito
North American selling prices for polyethylene resins have jumped by a nickel per pound since Sept. 1, with polypropylene resin prices up 6 cents. -
(ACC Mentioned) Plastics Makers, County Officials Team Up to Increase Plastic Film Recycling
Sep 29, 2016 | Environmental Leader
By Jessica Lyons Hardcastle
A plastic film recycling campaign has plastic makers and retailers partnering with city and county officials in North Carolina to increase recycling rates. -
Prepare Now for TSCA Inventory Reset, Advise Legal Experts
Sep 29, 2016 | Chemical Watch
By Kelly Franklin
Legal experts agree that now is the time for companies to begin investigating their chemical inventories and clearing up nomenclature issues, in preparation for the inventory reset that will take place under the new TSCA. -
EPA Eyes Swift Issuance Of TSCA Proposals To Guide Next Administration
Sep 29, 2016 | Inside EPA
By David LaRoss
EPA's toxics chief says the agency plans to propose a suite of chemical review rules required under the revised Toxic Substances Control Act (TSCA) before President Obama leaves office, in order to give the next administration enough time to continue work on the rules and meet statutory deadlines to finalize them. -
EPA Extends Comment Deadline On Plan To Align TSCA SNUR Standards
Sep 29, 2016 | Inside EPA
By Maria Hegstad
EPA has extended by one month -- from Sept. 26 to Oct. 26 -- the comment deadline on its proposed Toxic Substances Control Act (TSCA) rule to align its rules on significant new uses of chemicals with Occupational Safety and Health Administration (OSHA) standards, after stakeholders asked for more time to provide their input. -
Deadline for TSCA Chemical Data Reporting Extended to October 31, 2016
Sep 29, 2016 | National Law Review
By Stephen A. Owens, Allen A. Kacenjar Jr., and Danelle Gagliardi
Last week, US EPA announced in the Federal Register that it hasextended the deadline for companies subject to its Chemical Data Reporting (CDR) rule to submit data on the chemical substances they manufacture and import pursuant to the Toxic Substances Control Act (TSCA) from September 30, 2016 to October 31, 2016. -
US Stopgap Budget Bill Includes $3m for TSCA
Sep 29, 2016 | Chemical Watch
The stopgap spending bill, passed by the House and Senate this week, includes $3m for the US EPA to fund the newly reformed TSCA. -
(ACC Mentioned) Texas Issues Novel Chromium Risk Finding Using Data Under EPA Review
Sep 28, 2016 | Inside EPA
By Maria Hegstad
Texas has finalized a novel cancer risk estimate for ingested hexavalent chromium (Cr6) that is based on chemical industry-funded data EPA is reviewing while it crafts the latest draft of its delayed risk assessment of the substance, which could potentially increase pressure on the agency to use the information for its review that is now in its sixth year. -
US EPA Advisory Board Sets RDX Review Meeting Dates
Sep 29, 2016 | Chemical Watch
The US EPA Science Advisory Board (SAB) has announced two meetings for review of the draft Integrated Risk Information System (IRIS) assessment of the explosive RDX. -
House Oversight Committee Probes IARC Funding
Sep 29, 2016 | Chemical Watch
A US congressional committee has begun a review into the National Institute of Health's (NIH) financial support of the International Agency for Research on Cancer (Iarc). -
EU-ToxRisk and US Tox21 Define Collaboration
Sep 29, 2016 | Chemical Watch
Two major toxicity testing initiatives from the EU and the US have agreed on areas of collaboration, following a workshop in Mainz, Germany on 12-14 September. -
Chemical Watch Publishes Second Alternatives Assessment Report
Sep 29, 2016 | Chemical Watch
Chemical Watch has published a second edition of its Business Guide to Safer Chemicals, which aims to give readers a comprehensive analysis of the use of safer chemicals in products. -
Member States Support decaBDE Restriction
Sep 29, 2016 | Chemistry Watch
By Luke Buxton
The majority of member states have voted in favour of the European Commission’s draft Regulation for the restriction of the brominated flame retardant decaBDE. -
Echa Round-Up
Sep 29, 2016 | Chemical Watch
There are two newly submitted harmonised classification and labelling (CLH) dossiers... -
Echa Publishes List of Lead Registrants
Sep 29, 2016 | Chemical Watch
Echa has followed up on its promise in July and published a list of substances for which there is an appointed lead registrant. -
Data-Sharing Guidance ‘Critical’ to Avoid Legal Uncertainties, Cefic Says
Sep 29, 2016 | Chemical Watch
In the run up to the 2018 REACH registration deadline, clear and comprehensive guidance on data sharing can be “critical” for legal clarity, Cefic says. -
In Debate Over Legal Standard, 'How Transformative is Transformative?'
Sep 29, 2016 | E&E Energywire
By Ellen M. Gilmer
Critics of the Obama administration's Clean Power Plan are not likely to win on the threshold issue of whether Congress gave U.S. EPA authority to craft such a regulation, lawyers defending the rule said yesterday. -
At Standing Rock, a Wake-Up Call on Fossil Fuels
Sep 29, 2016 | The Hill - Pundits Blog
By Erik Molvar
In early September, during a diplomatic visit to the southeast Asian nation of Laos, President Obama fielded an unusual question: "My question is in solidarity with the indigenous people of, not my country, but in America itself," explained an audience member. "This group of people is fighting to protect ancestral land against the Dakota Access pipeline. ... So my question is what ... can you do to ensure the protection of ancestral lands and clean water, and also, that environmental justice is [upheld]?" -
Clinton Wants to Close a Fracking 'Loophole,' But Then What?
Sep 29, 2016 | E&E Energywire
By Mike Soraghan
Closing what's known as the "Halliburton loophole" is the clearest oil and gas policy goal of Democratic presidential nominee Hillary Clinton. But it's not clear what her proposal would do. -
Inside the Judges' Questions on Carbon Trading
Sep 29, 2016 | E&E Climatewire
By Emily Holden and Debra Kahn
Coal-heavy states and companies have centered their political challenges to U.S. EPA's Clean Power Plan on arguments that the rule is unachievable. But those arguments didn't fare well this week in front of federal judges. -
White House Completes Review of Ozone-Compliance Plan
Sep 29, 2016 | E&E Greenwire
By Sean Reilly
U.S. EPA could soon publish a proposed blueprint for implementation of its 2015 ozone air quality standards now that the White House Office of Management and Budget has completed its review.
Industry and Association News
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(ACC Mentioned) PE, PP Prices Take Big Jump
Sep 29, 2016 | Plastics News
By Frank Esposito
North American selling prices for polyethylene resins have jumped by a nickel per pound since Sept. 1, with polypropylene resin prices up 6 cents.
PE prices had been flat for four straight months before the September hike. Supplies of the material have tightened as a result of several planned maintenance turnarounds and unplanned outages in the region, market sources recently told Plastics News.
Companies that have had production issues for PE or ethylene feedstock — or both — at Gulf Coast locations in recent months include LyondellBasell Industries, ExxonMobil Chemical Co., Formosa Plastics Corp. USA and Westlake Chemical Corp., sources added.
“The 5 up seems to be pretty strong this month,” one major U.S. PE buyer said. “I would have thought we would have seen some [price decreases] over the summer, but I think there are fairly reasonable and legitimate reasons why that didn’t happen.”
Lower PE inventories also played a role in the September hike, according to Mike Burns, PE market analyst at Resin Technology Inc. in Fort Worth, Texas. He added that, without further supply disruptions, regional PE prices likely are at their peak for the year.
“PE suppliers will desperately fight to keep any margin gains and might hold on to the [September] increase through December as they did last year, not considering downward pressure from the global price,” Burns said.
U.S./Canadian PE demand growth was mixed in the first eight months of 2016, according to the American Chemistry Council in Washington. Regional sales of high density PE were up more than 4 percent, while sales of linear low density PE grew more than 1 percent and those of LDPE declined by almost 1 percent.
Domestic HDPE sales growth of almost 2 percent was boosted by export sales growth of almost 15 percent in the eight-month period. For LLDPE, a domestic sales jump of more than 2 percent was lessened somewhat by a drop of almost 2 percent in the export market. The regional LDPE field saw domestic sales growth of 2 percent wiped out by a drop of almost 10 percent in export sales.
With the 5-cent September hike, regional PE prices now are up a net of 9 cents per pounds since Jan. 1, according to the PN resin pricing chart.
Polypropylene roller coaster
The regional PP market continued its roller coaster ride through 2016, with prices climbing 6 cents per pound in September. The 6-cent amount was expected by market watchers, even though price settlements for polymer-grade propylene (PGP) feedstock hadn’t officially settled as of Sept. 27.
Regional PP prices had increased by 3.5 cents per pound in August. The combined August-September increase of 9.5 cents came after prices had declined for five consecutive months, lowering selling prices by a total of 10 cents per pound.
Tight supplies of PP resin allowed imported material from around the world to enter the North American market in the first part of 2016, which played a role in driving prices down. Market sources said that although import material remains available in the region, supplies of it have decreased, allowing PP prices to rise again. Taking into account prior increases and decreases, regional PE price now are up a net of 3 cents per pound since Jan. 1.
North American PP sales were up 1.3 percent in the first eight months of 2016, according to ACC. Domestic sales growth of 0.4 percent was helped out by an upsurge of almost 31 percent in export sales.
Domestic PP sales growth through August was led by the sheet market, where sales were up just over 5 percent, and injection molded rigid packaging, where sales bumped up 2.5 percent. The injection molded rigid packaging category includes cups, containers, caps and closures.
http://www.plasticsnews.com/article/20160929/NEWS/160929759/pe-pp-prices-take-big-jump
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(ACC Mentioned) Plastics Makers, County Officials Team Up to Increase Plastic Film Recycling
Sep 29, 2016 | Environmental Leader
By Jessica Lyons Hardcastle
A plastic film recycling campaign has plastic makers and retailers partnering with city and county officials in North Carolina to increase recycling rates.
The American Chemistry Council’s Flexible Film Recycling Group joined Mecklenburg County, North Carolina and Charlotte city officials yesterday at a Harris Teeter store to kick off the campaign. The grocery store accepts plastic wraps and bags for recycling in storefront bins. It’s one of more than 18,000 grocery and retail stores nationwide that collects flexible plastic wraps and bags for recycling.
Consumer awareness, however, about how to recycle plastic film remains low.
A recent survey of Mecklenburg County residents found that only half are aware that certain plastic items should be brought to grocery or retail stores to ensure proper recycling. Plus, few residents are aware of the many types of plastic wraps and bags that can be recycled.
The Mecklenburg County campaign aims to change this. The campaign includes advertising on billboards, buses, newspapers, radio and social media. The goals are to increase the amount of plastic wraps and bags being returned to retailers for recycling, reduce unwanted wraps and bags in curbside bins, and reduce litter.
Plastic film and bags can be recycled into new products such as lumber for backyard decks, fences and benches, and new bags and packaging.
The Mecklenburg County campaign is part of WRAP (Wrap Recycling Action Program), a public-private partnership that promotes recycling of plastic film beyond bags. WRAP has set a goal to double plastic film recycling — reaching about 2 billion pounds — by 2020. The partnership includes the Flexible Film Recycling Group, GreenBlue/the Sustainable Packaging Coalition, the Association of Plastics Recyclers, brand companies, retailers, states, cities and others.
Plastic makers expect the county campaign to serve as a model for other areas in North Carolina and eventually the entire state.
In other efforts to advance effort plastic film recycling, the Closed Loop Foundation recently awarded about $300,000 in grant money to two plastic recycling companies.
Zzyzx, pronounced “ziziks,” is a Pennsylvania-based company that makes recycled plastic pellets from hard-to-recycle plastics. The company says it will use the funding to purchase equipment, ultimately allowing it to process 7 million pounds of film per year per machine.
Drought Diet Products is a California-based company that plans to use post-consumer film plastic feedstock in its irrigation piping products. The company estimates that its technology and business could divert up to 1.4 billion pounds of plastic film from landfills annually.
http://www.environmentalleader.com/2016/09/29/plastics-makers-county-officials-team-up-to-increase-plastic-film-recycling/
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Prepare Now for TSCA Inventory Reset, Advise Legal Experts
Sep 29, 2016 | Chemical Watch
By Kelly Franklin
Legal experts agree that now is the time for companies to begin investigating their chemical inventories and clearing up nomenclature issues, in preparation for the inventory reset that will take place under the new TSCA.
As prescribed under the Lautenberg Chemical Safety Act, the EPA must establish a rule before 22 June 2017 outlining how it will designate substances as "active" or "inactive" on the TSCA inventory.
And once the EPA establishes this inventory reset rule, manufacturers and importers will have only 180 days to report to the EPA on substances manufactured, imported or processed within the ten years prior to Lautenberg’s enactment on 22 June 2016.
James Votaw, a partner with law firm Manatt, Phelps & Phillips, says it may be a “particularly auspicious time” to start a review, as companies are in the midst of the 2016 Chemical Data Reporting (CDR) rule process.
“Companies should start now to investigate and inventory their current and past nonexempt chemical manufacturing and processing,” he wrote in an American Bar Association newsletter. “A complete listing of these substances will assure compliance with the anticipated reporting obligation, but also will assure that companies can continue to manufacture and use all chemical substances important to their operations, without entering the currently uncertain ‘reactivation’ notice process.”
CDR similarities?
The 2016 CDR is a “good place to start”, Kathleen Roberts of B&C Consortia Management told a recentChemical Watch webinar, but there are substances exempt from the CDR, such as polymers, that are also likely to require reporting under the reset.
Speaking in a recent Keller & Heckman seminar, firm partner Tom Berger noted that there is no volume threshold outlined in the statute. “This means that, theoretically, if you import one gram of a chemical in 2007, then guess what: you need to report [it].”
Lautenberg prescribes that an interim list of active substances be derived from reports submitted under the 2012 CDR. Thus substances exempt from the reporting may be a good area for companies to focus their internal investigations on now, said Mr Votaw.
Reactivation considerations
Michael Boucher, a partner at law firm Dentons, told Chemical Watch companies have “strong incentives” to get substances listed as active under the EPA’s 180-day reporting window, rather than waiting for the active list to be published and then reactivating a substance [by submitting a notice to move a substance from the inactive to active list].
This is not only to avoid being out of compliance with the law’s reporting requirements. As Mr Boucher explained, the law requires notice to be provided to the EPA prior to an inactive substance being imported, manufactured or processed. Continuing such an activity for a substance listed as inactive would violate the law – and a notice requesting its reactivation may well be a false claim to the government, if a company is already knowingly importing, manufacturing, or processing it.
However, it is uncertain what information will be required in a reactivation notice, or how long it will take the agency to switch a substance from inactive to active.
The statute says the EPA cannot require a regulated party to submit a pre-manufacture notice (PMN) to reactivate a substance. But, it also does not preclude the agency from subjecting that substance to a significant new use rule (Snur) or other requirements.
Mr Votaw said it is possible that, during a substance reactivation, the EPA will require, by rule, submission of “reasonably ascertainable health and safety information concerning the inactive substance and its intended use to help [it] screen the particular risks of these existing chemicals re-entering the marketplace.”
Nomenclature concerns
There are also concerns about the nomenclature used to describe the some 85,000 substances on the existing inventory.
In a recent webinar, K&H partner Martha Marrapese said "there are many errors on the inventory" and that “these issues will come up during the reset process.”
It is a good time for companies to identify its active commercial substances, and do a nomenclature audit of these to identify possible issues, said Dentons’ Mr Boucher.
The EPA’s nomenclature correction process is a “powerful tool” that companies could use before the reset begins, said K&H’s Mr Berger. But issuing a large number of corrections between now and June “could be a significant undertaking” – both for industry and for an already burdened EPA.
But Ms Marrapese said she is “hopeful that EPA will establish a process to resolve any differences they may have with companies, other than enforcement, so that this process will go smoothly.”
https://chemicalwatch.com/49962/prepare-now-for-tsca-inventory-reset-advise-legal-experts
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EPA Eyes Swift Issuance Of TSCA Proposals To Guide Next Administration
Sep 29, 2016 | Inside EPA
By David LaRoss
EPA's toxics chief says the agency plans to propose a suite of chemical review rules required under the revised Toxic Substances Control Act (TSCA) before President Obama leaves office, in order to give the next administration enough time to continue work on the rules and meet statutory deadlines to finalize them.
During a Sept. 27 panel discussion at the Environmental Council of the States' (ECOS) fall meeting here, EPA Office of Chemical Safety & Pollution Prevention Assistant Administrator Jim Jones said the proposals include rules for: How to take inventory of chemicals in commerce the agency has not yet assessed; how to implement the new TSCA mandates for prioritizing chemicals for review; and how to manage industry fees to help pay for implementing the law.
All three rules are slated to be finalized by June 22, which Jones told Inside EPA after the panel puts the next administration on a tight deadline. The law sets the specific date for the chemical review final rule and the inventory rule. The fees rule has no statutory deadline, "but we're treating it as if it does," Jones added.
"If we don't get it done by Jan. 20, then the next administration is going to be confronted by so many issues that their ability to focus on this in the first month is going to be pretty challenged," he continued.
Jones said releasing the proposals on schedule is vital to EPA meeting the June 22 deadline, since the rules require 90-day public comment periods, and time to consider those comments, between proposal and final action.
Proposing them before Jan. 20, the final day of the Obama administration, "will allow the person who will be sitting in my chair to get into my chair while the comment period is going on," giving them time to evaluate the proposal after taking office rather than needing to advance it quickly for publication, Jones said during the panel.
It is unclear how the election of either Democratic presidential candidate Hillary Clinton or GOP nominee Donald Trump might affect EPA's plans for implementing the revised TSCA. But the measure drew broad bipartisan support in Congress, suggesting both administrations will likely push ahead with its implementation.
Jones told Inside EPA that even with ample time to advance the Obama administration's proposed rules, EPA's new leadership under a Clinton or Trump administration might delay finalizing the rules or even develop completely new proposals. "They could re-propose. That's within their discretion. They'd miss the one-year deadline [from enactment of the reform law] but they could do that," Jones said.
EPA would face no material penalties for missing the statutory target, although stakeholders -- such as chemical industry groups or environmentalists -- could file suit against the agency for failure to meet a mandatory deadline, which could if successful result in a court-ordered deadline for issuing the rules.
Inventory Rule
While the rule on prioritizing chemicals for assessment will have a significant, ongoing effect on which chemicals EPA will ultimately regulate, and industry is closely watching the agency's decision on fees, Jones told the panel he believes the inventory rule could 'fly under the radar" by comparison.
"There's a lot of rhetoric flying around" about the number of chemicals that are in use and subject to TSCA evaluation thanks to the reform law, he said, noting that figures as high as 86,000 such chemicals have been floated.
"How many are actually in commerce right now? This rule will make that clear. . . . It's not going to be 86,000, and there's some social value to knowing that -- how many chemicals we need to be focusing around."
Beyond the rules due June 22, the agency will also have to craft a policy for dealing with confidential business information (CBI) such as the exact composition of products, and Jones at the Sept. 27 panel pledged to seek input from ECOS on how EPA will approach that rule.
He said that of all the TSCA implementation rules in development the CBI policy "is perhaps the most amenable" to collaboration with the state agencies thanks to their experience gathering CBI to inform rules they developed in the absence of strong federal topics authority.
"I think that is a topic that deserves an ECOS dialogue. . . . We're hoping in December, after we get some of these requirements a little more down the road, that we'll be able to put more energy into a state-federal dialogue," he said.
ECOS, which represents many state environmental agencies, recently released a chart outlining the complicated steps the agency must take in implementing the TSCA law.
EPA faces a Dec. 22 deadline to propose the first slate of 20 chemicals it will evaluate under the reformed TSCA program. That proposal is expected to be a bellwether not just for how EPA will use its new chemicals authority but which substances states will be able to regulate, thanks to the new law's complex preemption scheme.
"Once it's clear to you as states what we're doing, you can then make choices with your eyes wide open," Jones said during the Sept. 27 panel.
Regulatory 'Pause'
The law requires most state chemical restrictions enacted after it came into effect to "pause" for as long as three-and-a-half years after EPA announces the scope of a TSCA safety evaluation for the same substance. Thus, states are expected to focus their attention on chemicals EPA has not targeted for evaluation.
However, state regulators and advocates at the ECOS panel said the long time frame for EPA to evaluate and regulate chemicals under TSCA still poses a concern.
A Vermont official in the audience said the delay created by the law's upper limit of seven years for the agency to complete the full process "is a huge lift for those of us who have to do similar kinds of assessments in our states."
Panelist Andy Ingrejas, of Safer Chemicals, Healthy Families, said the reformed TSCA's long time frame combined with limiting the agency to selecting 20 chemicals at a time for evaluations means federal regulators should not rely on those evaluations as their only tool to control risks. "The scope of the work is too limited to justify stepping back in other areas," he said.
Finally, Jones told the panel that he expects EPA use a "record of decision" built over time to establish precedent on what constitutes an "unreasonable risk" -- a key standard for chemicals to meet under the new TSCA that the law does not define.
However, other stakeholders have said they expect that standard to be defined through litigation over early TSCA findings, before the agency would have a chance to build up precedent of its own.
http://insideepa.com/daily-news/epa-eyes-swift-issuance-tsca-proposals-guide-next-administration
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EPA Extends Comment Deadline On Plan To Align TSCA SNUR Standards
Sep 29, 2016 | Inside EPA
By Maria Hegstad
EPA has extended by one month -- from Sept. 26 to Oct. 26 -- the comment deadline on its proposed Toxic Substances Control Act (TSCA) rule to align its rules on significant new uses of chemicals with Occupational Safety and Health Administration (OSHA) standards, after stakeholders asked for more time to provide their input.
The extension, announced by EPA Sept. 22, follows concerns raised in earlier comments raising a host of issues with the proposed significant new use rule (SNUR) update, including concerns about handling of confidential business information.
EPA's draft rule proposes a series of changes to SNUR rules to better align them with standards adopted by the OSHA and National Institute of Occupational Safety and Health (NIOSH) in their efforts to adopt an international labeling system to better inform workers and bystanders of chemicals they may be exposed to. The proposal also details changes to worker protection standards and how the agency handles trade secret information.
Following the agency's publication of the proposal in the July 28 Federal Register, B&C Consortia Management sent a Sept. 9 letter to EPA asking for a 30-day extension of the comment period.
"When the proposal was issued in late July, industry stakeholders were already steadfastly focused on addressing the EPA request for input on amended TSCA implementation activities associated with prioritization, risk evaluation, risk management and industry fee structures," says the letter. It describes efforts associated with EPA's ongoing process of crafting implementing rules for the overhaul of TSCA. "Significant time and resources were spent in responding to this request," it says.
The letter adds that "additional time should be afforded for industry groups to properly focus on the critical changes related to protection of confidential business information in the July 28, 2016, proposal, so that they can provide thoughtful and reasonable comments to EPA. Given the criticality of the proposed changes for industry groups, we believe the requested additional 30 -days, to ensure comprehensive stakeholder review, are warranted."
The group is associated with the law firm Bergeson & Campbell, which published a pair of memos over the summer critiquing aspects of the SNUR proposal. In the first memo, issued July 29, the firm identifies "several issues" with EPA's proposal, including that Congress did not address the "hierarchy of controls" (HOC) approach to engineered and other protections for workers that the agency is proposing to adopt.
"Congress decided in its wisdom not to include the concept of HOC in TSCA as amended," the firm's memo says. "The re-emergence of HOC embedded in a proposed rule issued with no fanfare, and which studiously avoids reference to any of these important implications, raises many questions, not the least of which is if Congress declined to pursue this approach in amending TSCA, is it at least worth discussing the wisdom of its inclusion in this proposed rule?"
Despite its concerns, there "may well be good reasons for several of the proposed changes," the memo notes.
CBI Concerns
Bergeson & Campbell followed up with a second memo, released Aug. 8, raising concerns that the draft EPA rule appears to have the potential to violate confidential business information (CBI) provisions of TSCA. "We do not read provisions in either old or new TSCA to authorize EPA to disclose CBI in the way that is proposed in this notice," the firm writes. "Importantly, this change means that EPA is switching from a presumption of protecting CBI in the SNUR to actively informing later submitters of information proprietary to the original submitter."
EPA's proposed rule would generally require the use of internationally-harmonized chemical labels, the use of protective measures for workers and specific respiratory protections -- all standards that OSHA has also adopted -- when developing SNURs. The worker protection provisions would require that all facilities use a philosophy of worker protection called HOC, which prioritizes the use of engineering and administrative controls in facilities to protect workers from harmful exposures, only using personal protective equipment (PPE) as a last resort.
Regarding the changes to SNURs' trade secret provisions, the draft rule would impact companies with chemicals whose names or uses are considered trade secret and which are the subject of SNURs.
A company seeking to introduce what it thinks is a new chemical or new use of a chemical to the market must ask EPA whether there are any CBI SNUR uses of that chemical that might be a trade secret, as part of the bona fide notification process of providing proof they intend to begin market production of a chemical for a specific use.
The proposed rule would allow EPA, once the company has established bona fide intent, to disclose specific information about the existing CBI uses of the requested chemical rather than just acknowledging whether a SNUR exists, the memo says.
http://insideepa.com/daily-news/epa-extends-comment-deadline-plan-align-tsca-snur-standards
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Deadline for TSCA Chemical Data Reporting Extended to October 31, 2016
Sep 29, 2016 | National Law Review
By Stephen A. Owens, Allen A. Kacenjar Jr., and Danelle Gagliardi
Last week, US EPA announced in the Federal Register that it hasextended the deadline for companies subject to its Chemical Data Reporting (CDR) rule to submit data on the chemical substances they manufacture and import pursuant to the Toxic Substances Control Act (TSCA) from September 30, 2016 to October 31, 2016.
Under the rule, regulated companies must disclose certain information on the chemical substances they manufacture or import. This information can include specific production volume, processing and use, or other relevant technical data. Additionally, upfront substantiation is required for Confidential Business Information (CBI) claims for processing and use information, as well as for site identity and chemical identity. CBI claims must be made and substantiated at the time the information is submitted. Otherwise, the information reported will not be confidential.
Because all data must be submitted electronically using US EPA’s web-based reporting tool (e-CDRweb) through EPA’s Central Data Exchange (CDX), we recommend uploading the required data to US EPA well in advance of the October 31, 2016 deadline to avoid any last-minute problems. If a company fails to submit and upload all applicable data by the deadline, it could face potential enforcement action and penalties.
http://www.natlawreview.com/article/deadline-tsca-chemical-data-reporting-extended-to-october-31-2016
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US Stopgap Budget Bill Includes $3m for TSCA
Sep 29, 2016 | Chemical Watch
The stopgap spending bill, passed by the House and Senate this week, includes $3m for the US EPA to fund the newly reformed TSCA.
Bill HR 5325 funds the government until 9 December, and was passed as Congress wraps up its activities prior to the November election. It passed in the Senate by a 72-26 margin, and cleared the House in a 342-85 vote.
Section 137 of the bill appropriates $3m for the EPA “for necessary expenses of activities described in section 26(b)(1) of the Toxic Substances Control Act”.
https://chemicalwatch.com/49973/us-stopgap-budget-bill-includes-3m-for-tsca
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(ACC Mentioned) Texas Issues Novel Chromium Risk Finding Using Data Under EPA Review
Sep 28, 2016 | Inside EPA
By Maria Hegstad
Texas has finalized a novel cancer risk estimate for ingested hexavalent chromium (Cr6) that is based on chemical industry-funded data EPA is reviewing while it crafts the latest draft of its delayed risk assessment of the substance, which could potentially increase pressure on the agency to use the information for its review that is now in its sixth year.
The Texas Commission on Environmental Quality's (TCEQ) assessment of Cr6's oral cancer risks, published Sept. 23, includes a risk estimate of 0.0031 milligrams per kilogram bodyweight per day (mg/kg-day). The estimate relies on industry consultants' publications to use non-linear cancer risk modeling -- often a less-strict approach than EPA's default linear modeling. Relevant documents are available on InsideEPA.com. (Doc. ID: 194965)
The risk estimate represents a rare use of a reference dose (RfD), the maximum amount of a substance not anticipated to cause adverse effects if consumed daily over a lifetime. Such values are traditionally used for non-cancerous health effects, but in the case of the Cr6 assessment, TCEQ has calculated an RfD to protect the public from both cancer and non-cancer risks. TCEQ did so using information generated from a multi-year, industry-financed research project into how, biologically, Cr6 could cause cancer when ingested and how to model that dose-response.
The research resulted in a hypothesized mode of action (MOA) that was not mutagenic, and TCEQ adopts the result in its assessment. EPA, however, reached the opposite conclusion its 2010 draft risk assessment that it is still revising, that Cr6 is mutagenic.
EPA's cancer risk assessment guidelines require the use of strict linear modeling -- which assumes that there is no safe level of exposure to the contaminant -- if it is mutagenic or if its MOA is unknown.
However, if a non-mutagenic MOA can be shown, non-linear modeling, generally conducted only for non-carcinogenic chemicals, can be used instead. Non-linear or threshold modeling is generally considered less stringent than linear because it assumes that there a threshold dose below which causes no harm.
In public comments that TCEQ also released Sept. 23 alongside the final assessment, the chemical industry association American Chemistry Council (ACC) and toxicology consulting firm ToxStrategies generally praised TCEQ's approach and urged the Lone Star State to finalize the draft risk estimate.
TCEQ "has proposed an [RfD] that is protective against both non-cancerous and cancerous effects of [Cr6] in drinking water," wrote ToxStrategies' Chad Thompson in Sept. 19 comments. "The derivation of the proposed RfD of 0.0031 mg Cr(VI)/kg-day relies on 1) evidence for a non-mutagenic threshold-based [MOA] for intestinal tumors observed in mice, 2) target tissue pharmacokinetic data, and 3) the application of conservative uncertainty factors. . . . It is our opinion that the available science fully support the TCEQ's proposed RfD of 0.0031 mg Cr(VI)/kg-day."
Thompson, a managing scientist at ToxStrategies, co-authored some of the studies that the consulting firm published on Cr6. Two of them are cited in TCEQ's final assessment.
ACC's Ann Mason, a senior director, wrote in Sept. 20 comments, "ACC encourages TCEQ to adopt its proposed oral reference dose for hexavalent chromium."
ACC funded much of the ToxStrategies' multi-year research program into the biological mechanism of how ingested Cr6 could cause cancer, as suggested in the NTP's 2008 toxicology study.
When TCEQ released the draft version of its assessment for comment last June, it suggested in a press release that the draft risk number -- the same figure adopted in the final assessment -- indicates EPA's 1991 drinking water standard for total chromium, of 100 parts per billion (ppb) is adequately protective of public health (Risk Policy Report, July 12).
Environmentalists questioned the safety of that maximum contaminant level (MCL) after the National Toxicology Program published studies in 2008 suggesting that Cr6 was carcinogenic when ingested, as well as the results of tap water spot testing in locations across the country published by the Environmental Working Group in 2010.
Since that time, California finalized in 2014 a drinking water standard based on an assessment similar to EPA's 2010 draft review, and the states is implementing its new state-wide drinking water standard of 10 ppb, slated to be fully in effect by 2020.
EPA's 2010 draft used linear modeling to assess Cr6's oral cancer risk, finding that Cr6 was mutagenic and proposed a strict oral cancer slope factor, or estimate of cancer potency, of 0.5 per milligram per kilogram bodyweight per day (mg/kg-day). The number prompted concerns that EPA would significantly strengthen its total chromium MCL.
EPA continues to work on its new draft Integrated Risk Information System (IRIS) assessment of Cr6's human health risks, expanded to address inhalation risks as well as ingestion risks.
The work comes after several members of a peer review panel that considered the agency's 2010 public draft in 2011 called on EPA to wait until industry contractors completed their then-pending Cr6 publications before finalizing the assessment.
EPA management heeded their call, though environmentalists protested the industry connections of two of the peer reviewers, leading to an agency re-write of policies for contractor-managed peer review panels.
An industry source says that the next public draft Cr6 IRIS assessment is scheduled for release for public comment in 2017.
With EPA's work on its Cr6 assessment ongoing, industry representatives requested a pair of meetings with IRIS staff over the summer, to discuss additional work on modeling components of their research as well as an update consultants published earlier this year regarding a cohort of workers exposed to Cr6 by inhaling it.
IRIS managers and staff met with ToxStrategies consultants and representatives of the Electric Power Research Institute July 26 to discuss the consultants' recent publication in the peer-reviewed Journal of Exposure Science and Environmental Epidemiology and Toxicology describing their efforts to update an epidemiological study of a cohort of workers at a chromate production plant in Painesville, OH.
"The exposure-response for hexavalent chromium (Cr(Vl))-induced lung cancer among workers of the Painesville Ohio chromate production facility has been used internationally for quantitative risk assessment of environmental and occupational exposures to airborne Cr(VI)," according to the paper's abstract. "We updated the mortality of 714 Painesville workers (including 198 short-term workers) through December 2011 … the occupational unit risk was 0.00166 (95% Cl 0.000713-0.00349), and the environmental unit risk was 0.00832 (95% Cl 0.00359-0.0174), which are 20% and 15% lower, respectively, than values developed in a previous study of this cohort."
An 1975 study of this cohort by Mancuso et al is the basis for EPA's existing IRIS assessment of inhalation risks only, with a cancer potency estimate of 1.2x10^-2 per ug/m^3.
In their presentation slides, ToxStrategies consultants cite a 2012 paper from TCEQ's author of the new Cr6 assessment, Joseph Haney, noting that his paper proposed an "approach for threshold based risk assessment with Reference Value = 240 ng/m3."
Some of the same ToxStrategies consultants met with ACC and IRIS staff Aug. 10 and regarding the human health risks of ingested Cr6, and in particular, their ongoing efforts to update modeling the consultants have developed. Two of the group's more recent studies provide additional differences between ingesting Cr6 when fed and when hungry, because questions linger over Cr6's ability to reduced to other, non-toxic valance states depending on stomach content.
http://insideepa.com/inside-epa/texas-issues-novel-chromium-risk-finding-using-data-under-epa-review
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US EPA Advisory Board Sets RDX Review Meeting Dates
Sep 29, 2016 | Chemical Watch
The US EPA Science Advisory Board (SAB) has announced two meetings for review of the draft Integrated Risk Information System (IRIS) assessment of the explosive RDX.
The SAB’s Chemical Assessment Advisory Committee (CAAC) will hold a public meeting on 12-14 December in Washington DC to conduct a peer review of the draft toxicological review of hexahydro-1,3,5-trinitro-1,3,5-triazine (RDX).
It will also convene a teleconference on 17 November to learn about the development of the IRIS review, and to discuss draft charge questions ahead of the peer review.
The public may submit information for the SAB’s consideration. There will also be the opportunity for oral statements, at both meetings.
https://chemicalwatch.com/49971/us-epa-advisory-board-sets-rdx-review-meeting-dates
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House Oversight Committee Probes IARC Funding
Sep 29, 2016 | Chemical Watch
A US congressional committee has begun a review into the National Institute of Health's (NIH) financial support of the International Agency for Research on Cancer (Iarc).
The House Committee on Oversight and Government Reform has written to the institute saying Iarc's carcinogenicity determinations appear inconsistent with other scientific research. And, it says, they have "generated much controversy and alarm".
A committee letter, to NIH Director Francis Collins, says Iarc has a record of "controversy, retractions and inconsistencies." Despite this, the agency receives substantial taxpayer funding through the NIH.
The committee asks the NIH to detail its standards for awarding grants, and the vetting and oversight of grantees. It also requests it to disclose the funds given to Iarc or spent in relation to its activities.
And the letter expresses concern that Iarc's determinations influence American policymaking, even though Iarc "avoids having to meet the strict scientific standards and government scrutiny afforded to science advisory committees in America". The committee cites California's Proposition 65 as one such example.
California's use of Iarc as an 'authoritative body' for determining substances as being known to the state to cause cancer is subject to litigation with agrochemical firm Monsanto.
https://chemicalwatch.com/49943/house-oversight-committee-probes-iarc-funding
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EU-ToxRisk and US Tox21 Define Collaboration
Sep 29, 2016 | Chemical Watch
Two major toxicity testing initiatives from the EU and the US have agreed on areas of collaboration, following a workshop in Mainz, Germany on 12-14 September.
The workshop included representatives from two key programmes: EU-ToxRisk, a programme with Horizon 2020 funding, that aims shift toxicological testing away from animal testing and towards assessment based on human cell responses and a comprehensive mechanistic understanding of cause-consequence relationships of chemical adverse effects; and Tox21, a US inter-agency collaboration using high-throughput robotic screening system to quickly test whether certain chemicals can disrupt processes in the human body that may lead to negative health effects. The two agreed to work together to:
develop ways to share data;
work on “core methodology” for read-across and high-throughput transcriptomics;
use in vitro tissue models and computer-based predictions of drug concentrations for risk assessment; and
develop joint case studies for applying alternative approaches.
“This workshop marks the start of what is expected to be a fruitful collaboration between EU-ToxRisk and the ongoing American efforts in Tox21 and ToxCast,” says chair Andy White from Unilever.
“We are looking forward to collaborating with our international partners in many areas, including transcriptomic strategies, toxicodynamics, toxicokinetics and computational approaches,” adds Richard Paules from Tox21.
The two programmes take different but complementary approaches to testing. Tox-21 tests thousands of chemicals with high-throughput testing. EU-ToxRisk focuses on mechanism-based test methods that will be incorporated into test batteries.
EU-ToxRisk began in January. The six-year project has 39 partner organisations and a budget of over €300m.
https://chemicalwatch.com/49961/eu-toxrisk-and-us-tox21-define-collaboration
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Chemical Watch Publishes Second Alternatives Assessment Report
Sep 29, 2016 | Chemical Watch
Chemical Watch has published a second edition of its Business Guide to Safer Chemicals, which aims to give readers a comprehensive analysis of the use of safer chemicals in products.
The report covers the latest developments in the emerging practice of assessing alternatives to hazardous and risky chemicals in products. It also considers current approaches and established practices.
It provides practical case studies from companies operating in diverse sectors, including:
Kaiser Permanente;
Levi Strauss;
Skanska;
Hoffman La Roche;
H&M;
Seventh Generation; and
DSM.
These illustrate current industry activities and the key challenges companies face.
https://chemicalwatch.com/49904/chemical-watch-publishes-second-alternatives-assessment-report
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Member States Support decaBDE Restriction
Sep 29, 2016 | Chemistry Watch
By Luke Buxton
The majority of member states have voted in favour of the European Commission’s draft Regulation for the restriction of the brominated flame retardant decaBDE.
At the REACH Committee meeting on 20 September, 26 member states voted in favour and two voted against the proposal.
This restricts its manufacture or placing on the market as a substance. It also restricts the chemical's use and marketing on its own, as a constituent of other substances, in mixtures or in articles, in a concentration equal to or greater than 0.1% by weight.
These restrictions will come into force 24 months after the Regulation takes effect.
https://chemicalwatch.com/49820/member-states-support-decabde-restriction
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Sep 29, 2016 | Chemical Watch
Submitted CLH proposals
There are two newly submitted harmonised classification and labelling (CLH) dossiers:
octamethylcyclotetrasiloxane. Submitted by Germany this is proposing a future Annex VI entry of reprotoxicity 2 and two counts of aquatic chronic toxicity 1; and
diisooctyl phthalate. Submitted by France this is proposing a future Annex VI entry of reprotoxicity 1B.
PACT tool
Echa has added O,O,O-triphenyl phosphorothioate to its public activities coordination tool (PACT) for hazard assessment. The substance evaluation is under development by the Netherlands. It is assessing it for persistent, bioaccumulative and toxic (PBT) properties.
Update to CLP list of substances
And the agency has updated its list containing the harmonised classification and labelling (CLP) of hazardous substances, to take account of the ninth adaptation to technical progress (ATP).
The changes are:
two substances were deleted from table 3.1 (of Annex VI to CLP);
22 substances had their classification updated; and
26 substances have a harmonised classification and labelling, for the first time.
The latest ATP entered in force in July.
REACH 2018 statistics
An update of Echa's REACH statistics has revealed that nearly 7,000 registrations have now been submitted for the May 20178 deadline. They cover 3,510 substances. Germany has submitted the most.
Guidance
The agency has sent a draft update of its Guidance on registration to the Competent Authorities for REACH and CLP (Caracal) for consultation. It has also sent the Guidance for identification and naming of substances under REACH and CLP to Forum, MSC and Rac for consultation. The update involves a new appendix on substance identification and joint submission of data.
And it has released two practical guides and made them available in 23 languages. Its Practical guide for SME managers and REACH coordinators is aimed at those responsible for collecting information needed in registration dossiers.
The other guide – How to use alternatives to animal testing to fulfil your information requirements – brings together five guides on how to use alternative approaches and report data in the registration dossier.
Downstream user webpages
The agency has reminded downstream users that their pages on the website have been updated, based on customer feedback. They can also follow the downstream user showcase page on LinkedIn, it says.
REACH benefits
The agency says that in order to show how REACH "benefits human health, the environment and the economy", it has published new infographics and a subsection on its website.
They show how a restriction on a substance can avoid damage to children’s brain development, keep the environment green and clean, and save money.
Maintenance work
Finally, the agency is to carry out technical maintenance work next week. The following searchable chemicals databases will be unavailable from Thursday 6 October to Monday 10 October:
REACH;
CLP;
biocides;
Pic information; and
substance infocards and brief profiles.
The agency says all submission tools will function as usual.
https://chemicalwatch.com/49881/echa-round-up
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Echa Publishes List of Lead Registrants
Sep 29, 2016 | Chemical Watch
Echa has followed up on its promise in July and published a list of substances for which there is an appointed lead registrant.
The list includes around 7,000 substances, spread over all three registration deadlines, that have an active lead registrant declared in REACH-IT.
The agency hopes that companies planning to register any of the substances will contact the lead registrant, and start negotiating to get access to the joint submission.
The list identifies the substances by name and includes information about their identifiers, registration type and whether or not the lead dossier has been submitted.
Currently it only contains information on the substances that were preregistered by end of 2008. Later this year, says Echa, it will update the list to include information of the late-preregistered substances and new substances where the lead registrant has accepted the publication of its name and the substance identity information has not been claimed confidential in existing registrations.
This, it says, will increase the number of substances by around 1,300. It will also update the list regularly as new joint submissions are formed and leads declared.
Echa is concerned that there are many companies which have yet to decide whether to register some of their substances. They may even be unaware of the REACH Regulation's “no data, no market” provisions, and the need to register by 31 May 2018 substances manufactured or imported in annual volumes above one tonne.
The agency first tried asking potential lead registrants to advise their nomination but received few responses. Taking the information directly from REACH-IT, and publishing it on the agency's website if the company agrees, is a more effective and efficient approach, it says.
Asked how many are in addition to those that have already submitted lead registration dossiers under the 2010 and 2013 deadlines, Echa said 651 of the 7,800 joint submissions belong to such firms. But it also pointed out that a company can appear on the list several times, for each joint submission it has created, so the number of substances covered by 651 lead registrants will be higher.
By contrast, in July Cefic's REACH forum heard that only around 100 additional lead registrants were known.
Because only the pre-Siefs, which were created automatically from the preregistrations, are in REACH-IT, rather than actual Siefs, Echa does not yet have reliable information on which substances will be registered by 2018, and therefore cannot check if they have a lead registrant.
As of 23 September, there are 6,766 registrations for 3,510 substances relevant to REACH 2018. Some 85% of the registrations have been made by large companies, and 15% by SMEs.
https://chemicalwatch.com/49974/echa-publishes-list-of-lead-registrants
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Data-Sharing Guidance ‘Critical’ to Avoid Legal Uncertainties, Cefic Says
Sep 29, 2016 | Chemical Watch
In the run up to the 2018 REACH registration deadline, clear and comprehensive guidance on data sharing can be “critical” for legal clarity, Cefic says.
The trade group’s comments come ahead of the release of Echa’s updated guidance, incorporating the European Commission’s Regulation on joint submission of data and data sharing under REACH. This came into force in January.
The first edition of Echa’s guidance on data sharing was published in September 2007 with a revision in April 2012. The next version is due in January 2017, and will be a full revision mainly to take into account and implement the provisions laid down in the Commission’s Regulation. Cefic, along with other stakeholders, have worked with Echa in the run up to its release.
In parallel with Echa’s publication, the council will update its own support template agreements. These will include, for instance, sections to help companies itemise costs and data and gives registrants, particularly SMEs, 18 months to “digest and prepare” for the 2018 deadline.
Cefic says legal certainty on data sharing is important in order to avoid:
duplication of work;
unnecessary costs; and
more animal testing.
By sharing data on studies – about safety and applications of substances, for example – companies are “spreading the burden”, it says.
At Echa’s 11th annual stakeholder day in May, Daniel Sompolski, from Echa’s substance identification and data sharing department, said data sharing is not for profit and that teamwork is essential for cost management.
Law firm Mayer Brown recently said some consultants are "exploiting gaps" in the Regulation on the joint submission of data and data sharing for REACH registrations.
https://chemicalwatch.com/49957/data-sharing-guidance-critical-to-avoid-legal-uncertainties-cefic-says
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In Debate Over Legal Standard, 'How Transformative is Transformative?'
Sep 29, 2016 | E&E Energywire
By Ellen M. Gilmer
Critics of the Obama administration's Clean Power Plan are not likely to win on the threshold issue of whether Congress gave U.S. EPA authority to craft such a regulation, lawyers defending the rule said yesterday.
Attorneys from both sides agreed that the marquee question from Tuesday's oral arguments centered on whether the rule is "transformative." Challengers say it is and argue that it triggers a stricter standard of review from the U.S. Court of Appeals for the District of Columbia Circuit (Greenwire, Sept. 28).
At panel discussions rehashing the arguments, attorneys siding with EPA conceded that the court would have to grapple with the issue but argued that the judges seemed to understand their argument that the rule merely plays off the interconnected nature of the power sector.
"Once you kind of understand that, the idea that this rule is a radical, grasping kind of initiative starts to dissolve," environmental attorney Sean Donahue said at a Georgetown University Law Center forum. "It looks instead like a sober and reasonable effort to reduce carbon dioxide emissions from the largest sources of those emissions."
At issue is whether the Clean Power Plan triggers the "major question" standard established in the Supreme Court's Utility Air Regulatory Group v. EPA, which held in 2014 that EPA could not exercise major, transformative power without a "clear statement" from Congress on the issue.
According to West Virginia Solicitor General Elbert Lin, arguing on behalf of states against the rule, the Clean Power Plan also triggers a separate clear statement standard based on federalism issues, as established in another Supreme Court case, Bond v. United States.
"What was interesting is that I think the court got what the rule does, and I think the court understood — you had judges, I think, both Republican and Democratic appointees — who understood that this was qualitatively different from what's been done before," he said, noting discussion on the issue from Obama appointees Judge Patricia Millett and Judge Nina Pillard. "I think the question they're going to have to grapple with is: How transformative is transformative?"
Paul Hastings LLP attorney Kevin Poloncarz, representing a group of power companies in support of the Clean Power Plan, argued that the rule is not transformative because it merely accelerates a downward trend in reliance on coal-fired power plants. The plan's ultimate goal is a 32 percent decrease in carbon dioxide emissions from power plants — a decrease that, according to recent data, is already well underway.
"How transformative can that be if the emissions standards don't go into effect until 2022 and we're already two-thirds of the way there?" he asked.
Threshold questions
But according to Lin, the standard depends not on real-world impacts but on legal authority. The Clean Power Plan meets the standard, he said, because it relies on transformative legal authority from Section 111(d) of the Clean Air Act — drawing extensive authority from the little-used provision.
"Is this the kind of power that Congress would implicitly delegate through ambiguous language, through this kind of a statute?" he said. "That's going to be the threshold question."
Natural Resources Defense Council attorney David Doniger argued that most judges seemed unpersuaded that the rule triggered the stricter standard.
"I don't see how the major question or even the federalism approach gets you into a different form of judicial review," he said at an American Bar Association event. "The problem with the argument being made about the intrusion into the states' energy sphere is that it is no different than what happens under all these other power-sector rules."
If the court decides EPA's rule meets that threshold, it will then have to weigh whether Congress gave that clear authority in the Clean Air Act. Doniger said he remained skeptical that any of those arguments would get traction.
"The overall take is that — let's knock on wood and be cautious about this — I find it hard to see a coalition of six members voting against EPA on any of the key issues," he said.
'The stuff dreams are made of'
With the courtroom showdown behind them, the attorneys from opposing sides were chatty with one another yesterday, openly commiserating over Tuesday's seven hours of oral arguments.
"My big thought is that it was really long and the chairs were uncomfortable," Lin joked at the ABA discussion.
Multiple lawyers, plus one D.C. Circuit judge, characterized the case as a marathon. Crowell & Moring attorney Tom Lorenzen, representing industry against the rule, asked a crowd of policy experts, reporters and students at the Georgetown event yesterday morning to raise their hands if they attended the long court session.
"Congratulations for making it through the marathon," he told the group.
Poloncarz maintained a sunny disposition, noting that while it was a "very long day of paying attention and reading the judges," it was also fun and exciting.
"This is the stuff dreams are made of for us," he said, adding later: "From a civics lesson perspective, seeing how the system works with all of us in the courtroom there, trying out all these ideas in a court of 10, it was a really great day."
http://www.eenews.net/energywire/2016/09/29/stories/1060043607
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At Standing Rock, a Wake-Up Call on Fossil Fuels
Sep 29, 2016 | The Hill - Pundits Blog
By Erik Molvar
In early September, during a diplomatic visit to the southeast Asian nation of Laos, President Obama fielded an unusual question: "My question is in solidarity with the indigenous people of, not my country, but in America itself," explained an audience member. "This group of people is fighting to protect ancestral land against the Dakota Access pipeline. ... So my question is what ... can you do to ensure the protection of ancestral lands and clean water, and also, that environmental justice is [upheld]?"
"It's a great question," Obama replied, but he had no answer. "I can't give you details on this particular case. I'd have to go back to my staff and find out."
Back in the Dakotas, another standoff was brewing between big oil and tribal sovereignty. This time, it was the Dakota Access pipeline, another major conduit to move crude oil from western North Dakota to markets in the Midwest. Near the Standing Rock Indian Reservation, this pipeline was poised to disturb sacred burial grounds and burrow beneath the Missouri River, risking contamination of vast quantities of fresh water.
For weeks, Lakota leaders have been gathering at the northern border of the Standing Rock reservation, together with thousands of people representing 280 tribes and sovereign nations, to speak out for sacred waters and demand that their treaty be honored.
The tribes' concerns are valid. Crude oil pipelines leak at river crossings, sometimes causing catastrophic spills. On the Yellowstone River alone, pipelines spilled thousands of gallons of crude into the water in 2011 and again in 2015.
The Dakota Access pipeline is just one toxic tentacle of a fossil fuel industry that continues its inexorable poisoning of the planet. The dark legacy of past spills continues to remind us of the gravity of the situation.
In 1969, thanks to oil slicks from industrial discharge, the Cuyahoga River in Ohio caught on fire for the 13th time, spawning a nationwide environmental movement. Congress passed bedrock laws like the Clean Water Act, the Clean Air Act, the National Environmental Policy Act and the Endangered Species Act.
With federal regulators keeping watch, we were led to believe we didn't have to worry about those disasters anymore.
Then, in 1989, the Exxon Valdez ran aground in Prince William Sound, spilling millions of gallons of crude into Alaskan waters, fouling seabirds and marine mammals and crippling the local fishing industry. In 2001, the George W. Bush administration unleashed large-scale drilling, turning millions of acres of the American West into wasteland, driving the sage grouse to the brink of extinction. In 2010, the Deepwater Horizon drilling rig exploded and sank in the Gulf of Mexico, spewing millions of gallons of burning crude. Our nation's environmental laws could not prevent three global-scale environmental disasters in three decades — and these are only the tip of the oil-fouled iceberg. A spill on the scale of what is feared in North Dakota would likely go unnoticed.
Apparently, our environmental laws could use some strengthening.
Fossil fuel impacts often seem intentionally focused on resource-poor communities, such as the petrochemical pollution of "Cancer Alley" in Louisiana. An entire field of activism is emerging called "environmental justice," with the goal of preventing, and cleaning up, the mess that big polluters have been making in the poorest and most disenfranchised communities.
Although we remember major spills like the Exxon Valdez, the truth is, that and others like it were just the minor disasters. Thanks to our global addiction to coal, oil and natural gas, our tailpipes and smokestacks pump millions of tons of carbon dioxide into the air. This traps the heat of the sun, causing a global climate disruption, and warms the seas, killing vibrant tropical coral reefs and spawning bigger, fiercer "superstorms" at sea. The resulting disasters and billions of dollars in economic damage are a price we all are paying, but no clean-up effort can remediate planet-wide damage.
The impacts of the fossil fuel industry are spreading. Communities from Dimock, Pennsylvania to Pavillion, Wyoming to Broomfield, Colorado have had their groundwater imperiled by poisonous fracking fluids. Smog from the drilling fields near Pinedale, Wyoming has turned once-pristine air into an industrial brown cloud. Near the gas fields of Vernal, Utah, infant mortality has spiked. In western Colorado, nurses poisoned by fracking fluids were unable to learn what fracking chemicals were used so they could be treated.
Today, it is the Lakota who find their communities and heritage imperiled by fossil fuel development. And, although Laos is one of the most remote nations on the planet, a woman from Malaysia stumped the world's most powerful leader by proving he had not heard about the Dakota pipeline controversy. Days later, federal agencies temporarily halted pipeline construction in a limited area near Standing Rock.
In fairness, thanks to a near-total news blackout, most Americans hadn't heard about Standing Rock, either.
The world is watching now. Indigenous peoples are coming to Standing Rock from as far away as the Amazon Basin. Tribes are coming together in support of this common cause. As the Dakota Access Pipeline becomes a global indigenous rights cause célèbre, the injustices are becoming harder to ignore.
What can we do, Americans who live in middle- or upper-class comfort, or who struggle at working-class jobs that barely pay the bills?
We can pay attention. We can express our gratitude for the bravery of these original Americans who stand for clean water. The Lakota and 280 other assembled tribes at Standing Rock, from whom America has taken so much yet given so little, are taking a brave stand on behalf of all of us.
We owe them solutions that honor their rights and sovereignty.
And we can work toward dispensing with the fossil fuel industry, and move our society forward, adopting the clean and renewable energy sources of the future. Until we begin to lead the energy world away from fossil fuels, we remain the source of these unnatural disasters.
Molvar is the Sagebrush Sea Campaign Director for WildEarth Guardians, a nonprofit conservation group working to protect wildlife, wild places, wild rivers and the health of the American West. He visited the encampment at Standing Rock in late August.
http://www.thehill.com/blogs/pundits-blog/energy-environment/298428-at-standing-rock-a-wake-up-call-on-fossil-fuels
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Clinton Wants to Close a Fracking 'Loophole,' But Then What?
Sep 29, 2016 | E&E Energywire
By Mike Soraghan
Closing what's known as the "Halliburton loophole" is the clearest oil and gas policy goal of Democratic presidential nominee Hillary Clinton. But it's not clear what her proposal would do.
On one hand, it would appear to not matter much. When it was passed in 2005, the oft-misunderstood environmental exemption for hydraulic fracturing merely cemented the legal status quo.
On the other hand, regulatory experts say small tweaks in wording could transform regulation of oil and gas by putting U.S. EPA in charge.
Either way, though, it is unlikely to happen if Republicans retain either chamber of Congress in the November elections. Increased regulation of oil and gas drilling is a non-starter for the GOP.
"It looks like a tough legislative lift," said Kevin Book, analyst at Washington, D.C.-based ClearView Energy Partners LLC.
But during the Democratic primary, Clinton's end-the-loophole proposal was a way to blunt the appeal of rival Bernie Sanders' call to "ban fracking."
"It's a great campaign line," Book said. "If you want to appeal to the environmental base, it's helpful to use terms like 'Halliburton' and 'loophole.'"
The proposal to kill the loophole surfaced at a party platform committee meeting in June. Former U.S. EPA chief Carol Browner, representing Clinton, rejected a full ban on fracking proposed by Sanders' supporters. Instead, she suggested reversing the exemption.
"We believe it needs to be regulated," Browner said.
During the Democratic National Convention in July, Clinton energy adviser Trevor Houser reiterated that Clinton wants to take aim at the "Halliburton loophole."
Clinton's support for such legislation is clearer than her assertion that "by the time we get through all of my conditions, I do not think there will be many places in America where fracking will continue to take place" (E&E Daily, March 7).
Strong as it sounded at a debate in March, the statement left Clinton with a lot of room to maneuver. Her conditions included local support, but most drilling occurs in areas where it enjoys strong political backing. She also said she would oppose it where "contamination of water is present." Groundwater contamination is a recognized hazard in drilling, but it's difficult to prove, and it doesn't happen with every well.
Republican nominee Donald Trump has been even less clear in his positions on oil and gas. He's said he wants to cut regulations on fossil fuel production, but he's perplexed energy executives by supporting local control of drilling and seeking a "piece of the action" in exchange for approving the Keystone XL pipeline.
How a paragraph changed industry
What has come to be called the "Halliburton loophole" was a one-paragraph section of the 551-page Energy Policy Act of 2005. It exempted hydraulic fracturing from the Underground Injection Control (UIC) provisions of the Safe Drinking Water Act (SDWA). The UIC portion of the law regulates holes drilled to inject industrial waste deep underground.
EPA had never sought to regulate fracking under that part of SDWA. But in 1997, a federal appeals court ruled that the UIC provisions of the law applied to fracturing coal-bed methane wells in Alabama. State drillers started using drinking-quality water to frack coal seams. The rules also required companies to survey for drinking water wells near where they planned to drill.
On Capitol Hill, industry backers drafted language to undo the appeals court ruling and exempt fracturing from the UIC portion of the safe drinking water law.
Halliburton Co., the oil field services firm that became a target of liberals during the Iraq War, lobbied for the exemption while Dick Cheney ran the company. After becoming vice president under President George W. Bush, Cheney shepherded the energy bill for the Bush administration. The bill, including the fracking exemption, passed when Republicans controlled both chambers of Congress. President Obama, then a senator, voted for the bill. Then-Sen. Clinton voted against it.
The exemption stopped the precedent from spreading to other states, although Alabama kept most of its rules.
Repealing the exemption would restore the legal state of affairs from 1997. Litigation would be required to expand the precedent beyond Alabama. Until then, little would change, if anything.
"It's always been much ado about nothing," said John Veil, an expert on energy and water issues who used to manage the water policy program at the Argonne National Laboratory. "It put into statute what states were already doing."
Subtle changes with big impact
But subtle changes in wording can make a big difference in this debate. The main legislative proposal for closing the "loophole" wouldn't just end the exemption. It would reverse it and decree that hydraulic fracturing must be covered by the underground injection portion of SDWA. That would put EPA in charge and could shift permitting times from days to months.
"The industry would be devastated," Veil said.
The legislation is Rep. Diana DeGette's "FRAC Act" (H.R. 1482). The acronym stands for "Fracturing Responsibility and Awareness of Chemicals." It also includes a provision requiring disclosure of fracking chemicals, except for trade secrets.
DeGette (D-Colo.) disagrees with the idea that her bill would devastate the industry. She considers it to be "just creating a minimal federal standard." And she sees it as a sensible middle ground compared to the demands of constituents who tell her fracking must be banned.
DeGette notes that she has the support of one Republican member, Rep. Chris Gibson of New York. And she said at least two oil and gas companies have been at least "positive" about the legislation in her conversations with them. She said Noble Energy Inc. has been "supportive of the concept" while Anadarko Petroleum Corp. has been "positive" about the bill.
"This is a common-sense, middle-of-the-road compromise," she said.
An Anadarko spokesman referred questions about the bill to a spokesman for the American Petroleum Institute, who reiterated the group's preference for state regulation. Noble didn't provide a response to a question from EnergyWire.
What would happen
If DeGette's bill were to pass, the result would likely fall somewhere between devastation and business as usual.
Such a law would give EPA authority to oversee fracking operations all over the country. In most oil and gas states, state agencies would continue to regulate fracking, but with EPA supervision. That's because EPA already has agreements with those states to enforce underground injection laws. In Pennsylvania, where no such agreement exists, permits for fracturing would have to come straight from EPA.
Injection rules generally require more scrutiny than rules covering production wells and fracturing. They require a "mechanical integrity test" and a search for other wells in a quarter-mile radius around the proposed well.
But what might shock the industry most is that the rules allow for opponents to demand a public hearing on each injection well. That's one reason that permits for wells to inject wastewater can take months or longer. Most state governments issue permits to drill and "frack" production wells in a matter of days or weeks.
Any such slowdown wouldn't happen right away. Current UIC rules don't cover production wells, so EPA would probably need to write new rules. That would take two or three years. EPA might decide to do a study before starting the rulemaking process — another two or three years. And most new rules of that magnitude get challenged in court; again, two or three more years.
On the other hand, an environmental group could sue to shut down all fracking in the country until rules are approved — a long shot. Such a sweeping moratorium would put a stop to most drilling activity (more than 65 percent of new wells are fracked), although production could continue from existing wells.
But even without such a dramatic ruling, a new cloud of legal uncertainty would hang over the industry until rules were in place.
"It would certainly be chaos," said Rep. Kevin Cramer (R-N.D.), whose state has been transformed by shale oil drilling and who is advising Trump on energy issues. "The effect is always the uncertainty it creates for future investment."
But supporters, such as John Noël of Clean Water Action, say that when it comes to ensuring that drinking water is safe, inconvenience shouldn't matter.
"It should not be anyone's job to dilute protections," Noël said, just to "accommodate the industry's schedule."
http://www.eenews.net/stories/1060043570
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Inside the Judges' Questions on Carbon Trading
Sep 29, 2016 | E&E Climatewire
By Emily Holden and Debra Kahn
Coal-heavy states and companies have centered their political challenges to U.S. EPA's Clean Power Plan on arguments that the rule is unachievable. But those arguments didn't fare well this week in front of federal judges.
A range of studies have shown that many states' power companies are already near the 2030 greenhouse gas levels EPA has assigned. Those that are not could use carbon trading to get there while keeping costs low for consumers.
The rule would allow companies that do not shut down enough coal units to reach their own carbon levels to purchase allowances or credits from companies with greener portfolios.
The lawyers for the 27 states and many trade groups opposing the rule Tuesday told the 10 judges at the U.S. Court of Appeals for the District of Columbia Circuit that might not work. But judges seemed to disagree.
Judge Brett Kavanaugh, a Republican appointee, suggested other EPA rules and many states have used trading programs successfully. He questioned whether now is the right time for opponents of the rule to argue that trading wouldn't work.
"It's simply too early in the game" to address these very specific state concerns, added Judge Judith Rogers, a Democratic appointee.
Judge Patricia Millett, an Obama appointee, added that states could always come back to EPA if trading doesn't work out.
While concerns about carbon trading don't seem to be key to the legal outcome for the Clean Power Plan, they are incredibly important to the rule's success if it moves forward. Power companies largely want the flexibility that carbon trading would allow. But coal states say they continue to worry a system may not materialize because states have big philosophical disagreements about how trading should work. They say if green states that will hold the most credits don't want to work with them, the rule could be much more expensive.
Calif. linking rules at issue
Questions over the value of "generation shifting" and carbon trading have divided the opponents of the rule, lawyers noted this week.
Jeff Holmstead, an attorney and industry lobbyist with Bracewell LLP, said that "all the challengers agree that EPA is not allowed to use generation shifting to set the standard." But some want to be able to use generation shifting to comply with the rule, he said.
From just minutes into arguments Tuesday, judges seemed to back EPA's view that the regulation is really advancing a shift that's already happening (ClimateWire, Sept. 28).
Challengers to the rule this week, though, argued EPA doesn't have authority to make coal plant owners depend on a build-out of cleaner power to reach their goals. And they questioned whether carbon trading would work, focusing on the idea that greener states might withhold their allowances or set strict rules for trading partners.
Hunton & Williams LLP attorney F. William Brownell told judges that 18 or 19 states are facing goals that are tougher than a national performance rate that EPA set. Those states are most likely to need out-of-state allowances.
EPA decided what states must achieve based on how much coal power they use. In a change from the draft to final rule, EPA gave states with more coal power harder goals, responding to complaints from states that have been working to lower their emissions.
Brownell pointed to Kentucky in particular, arguing power owners there could not reach their assigned goal without buying credits. He said some states, including California, have signaled they don't want to sell those credits to coal states.
Both sides of the case traded legal briefs in the days before court over California's plan for complying with the Clean Power Plan (E&ENews PM, Sept. 26).
A California market expert said the state's rules on linking could very well limit the use of trading under the Clean Power Plan. A 2012 state law specifies that California's Air Resources Board may only link markets with other jurisdictions that are as or more environmentally strict as its own, a requirement that has so far been satisfied only by the Canadian province of Quebec.
"I think ARB's going to keep an open mind only because they don't want to be seen as stifling national ambitions for cap and trade, but all other things being equal, the threshold California has to reach for anybody to link with them is very significant," said Andre Templeman of the consulting firm Alpha Inception LLC. "I don't think the concept of them selling their surplus into an outside jurisdiction is very politically palatable or even feasible."
California is currently considering how and whether to link to jurisdictions like Washington state, which has adopted a market-based system that would allow Washington emitters to use California carbon credits for compliance. But California utilities are wary of such a linkage, arguing that it could increase costs for in-state market participants.
Templeman said the Regional Greenhouse Gas Initiative among Northeast states would be better suited to mesh with the Clean Power Plan.
"I could see people emulating RGGI because it's power-only," he said. "California's really doesn't work unless you take a California approach: economywide and essentially equivalent regulations. CPP is more of a RGGI clone, so it makes more sense to link up with RGGI."
RGGI insiders, however, have raised similar concerns about linking with other states under the Clean Power Plan as they work through a program review (ClimateWire, July 12).
'I think we're going to see a lot of fights'
Ray Gifford, an energy lawyer with Wilkinson Barker Knauer LLP, said while as a legal matter the argument on carbon trading didn't seem to help challengers, "as a practical issue, it's huge."
"I don't think it's appreciated by EPA. I don't think it's appreciated at the state level either," Gifford said.
While environmental advocates and industry insiders insist that companies will figure out a way to make carbon trading work, some aren't so sure.
RGGI, for example, took years to set up, and the nine states involved had similar policy goals and ideas about how carbon trading should work, Gifford noted.
That power-sector cap-and-trade program auctions allowances and distributes revenue to states to use for green energy and electricity-saving programs. Conservative states aren't so sure that allowances should be put up for sale. Some think they should be distributed to power companies based on how much they emit now. They say that will cut back on compliance costs for customers.
Environmental groups say that not auctioning allowances would give a "windfall profit" to polluters, basically giving them allowances that have monetary value because they currently emit a certain amount of carbon.
The design of carbon-trading systems could also divide companies.
"I think we're going to see a lot of fights between utilities, if I'm in good shape and you're in bad shape," Gifford said. "I've got one political play if I'm in bad shape. Get your credits for free."
Jim Matheson, the former Democratic congressman from Utah who is now CEO of the National Rural Electric Cooperative Association, said carbon trading is vulnerable to people gaming the system. He voted against a national economywide cap-and-trade system in 2009. He said allowances wouldn't have been divided fairly.
"The devil's in the details," Matheson said. "Whenever you create a new trading structure, watch out. There are a lot of trapdoors. It's a market with a lot of smart people trying to get an advantage."
http://www.eenews.net/climatewire/2016/09/29/stories/1060043590
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White House Completes Review of Ozone-Compliance Plan
Sep 29, 2016 | E&E Greenwire
By Sean Reilly
U.S. EPA could soon publish a proposed blueprint for implementation of its 2015 ozone air quality standards now that the White House Office of Management and Budget has completed its review.
The draft covers the timing of state implementation plans, the potential revocation of the previous 2008 standards, and other issues important to the state and local air agencies charged with putting the new benchmarks in place.
EPA had sent the plan to OMB's Office of Information and Regulatory Affairs (OIRA) early last month. OIRA finished the review yesterday, according to the reginfo.gov website.
While publication in the Federal Register would typically follow, an EPA spokeswoman had no immediate comment this morning on the agency's next move.
Ozone, a lung irritant that is the main ingredient in smog, is produced by the reaction of nitrogen oxides and volatile organic compounds in sunlight.
EPA Administrator Gina McCarthy lowered both the primary and secondary standards to 70 parts per billion last October, citing the need to protect public health and welfare.
States and tribes are supposed to submit their area attainment designation recommendations for compliance with the new rule by Saturday, according to a memo from acting EPA air chief Janet McCabe.
The previous 75 ppb standards had been set in 2008 under former President George W. Bush. But it was only last year that EPA issued final instructions to states on implementation of those earlier standards, meaning they could simultaneously have to juggle two sets of rules, congressional critics have argued.
A House-passed bill by Texas Republican Rep. Pete Olson, H.R. 4775, would delay implementation of the 70 ppb thresholds by eight years.
The Senate, however, has taken no action on the measure. A companion bill by West Virginia Republican Sen. Shelley Moore Capito, S. 2882, has also not advanced after a June committee hearing revealed Democratic opposition.
http://www.eenews.net/greenwire/2016/09/29/stories/1060043634
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