Preview Newsletter
ACC AM 10/03/16
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Examining the Local Impacts of EPA’s Climate Regulations
Oct 5, 2016 | The Senate Environment and Public Works Committee Subcommittee on Clean Air and Nuclear Safety
Location: Chief Logan Conference Center, 1000 Conference Center Drive Logan, WV 25601 / 1:00 PM -
(ACC Mentioned) Chemical Saftey: A Challenging Road Ahead
Oct 1, 2016 | Chemical Engineering
On June 22, 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA) was signed into law with great fanfare as the successor to, and replacement for, the Toxic Substances Control Act (TSCA), which had not been updated since 1976. -
EPA Eyes Perchlorate SDWA Suit Settlement, Seeks Input On Risk Model
Sep 30, 2016 | Inside EPA
By Maria Hegstad
EPA and environmentalists have reached an undisclosed tentative settlement in a lawsuit claiming the agency has missed Safe Drinking Water Act (SDWA) deadlines for a perchlorate drinking water standard, while EPA is also floating for peer review and public comment the risk model that it will use to inform such a standard. -
Port of San Diego PCB Suit Survives Against Monsanto
Oct 3, 2016 | BNA Daily Environment Report
By Peter Hayes
The Port of San Diego's public nuisance claims against Monsanto over polychlorinated biphenyl contamination survived dismissal by the Southern District of California (San Diego Unified Port Dist. v. Monsanto Co., 2016 BL 323407, S.D. Cal., No. 15-cv-578, 9/28/16). -
District Court Backs Port's Standing In Test Case On PCB Runoff Nuisance
Sep 30, 2016 | Inside EPA
By Suzanne Yohannan
A federal district court has ruled a California port has legal standing to support a public nuisance claim against the former manufacturer of polychlorinated biphenyls (PCBs), a potential precedent in a test case of novel claims that a product's maker can be responsible for damages when a disposed product enters stormwater and pollutes water. -
EU Glyphosate Data Release Could Help Settle Classification
Oct 3, 2016 | BNA Daily Environment Report
By Stephen Gardner
The European Food Safety Authority's release of previously confidential scientific data about the safety of the herbicide glyphosate could help resolve disagreements among scientific bodies about whether or not the substance should be considered a carcinogen, an advocacy group said. -
States Weigh Financial Assurance Mandates For Fracking, Produced Water
Sep 30, 2016 | Inside EPA
By David LaRoss
State environmental regulators are considering financial assurance mandates for oil and gas exploration projects to safeguard against environmental harms when the wells are shuttered, but the Environmental Defense Fund (EDF) is urging them to expand that mandate to reuse of the industry's produced water, such as for irrigation. -
D.C. Circuit Appears Skeptical Of Industry's 'Notice' Claims In ESPS Suit
Sep 30, 2016 | Inside EPA
By Dawn Reeves
The 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit appeared largely unreceptive to potentially precedential industry arguments seeking to overturn EPA's power plant greenhouse gas rule because the final rule included many key components -- most importantly performance rates for coal and gas plants on a national basis -- that were never proposed. -
EPA Proposes First-Time Deadline For Shale Gas ELG
Sep 30, 2016 | Inside EPA
EPA is proposing to set a first-time deadline for some publicly owned treatment works (POTW) to implement the agency's zero discharge standard for wastewater from unconventional, or shale, oil and gas operations, saying that new information indicates some facilities could have difficulty meeting the standard. -
Cybersecurity: You Cannot Secure What You Cannot See
Oct 1, 2016 | Chemical Engineering
By David Zahn
In industrial facilities, cyber incidents typically result from three basic scenarios: a malicious attack from an outside individual or group; a cyber incident that results from an engineer making a mistake that alters a control process or diminishes safe operations; or the work of a disgruntled employee or ex-employee. -
Wash. Pans Oil Terminal; Army Corps Advances Coal Project
Sep 30, 2016 | E&E News PM
By Dylan Brown
Regulators in Washington state today criticized a proposed oil transport project, citing environmental concerns, while the Army Corps of Engineers announced it was moving forward with permitting for a coal export facility elsewhere in the state -
Countries Agree to EU's Ratification of Paris Climate Deal
Oct 3, 2016 | BNA Daily Environment Report
By Stephen Gardner
European Union environment ministers agreed Sept. 30 that the EU as a bloc should be allowed to ratify the United Nations Paris Agreement on climate change, even though most of its 28 member countries have not completed their national ratification procedures. -
EU Goes For Symbolic Win To Trigger Paris Climate Deal
Oct 30, 2016 | PoliticoPro
By Kalina Oroschakoff and Sara Stefanini
Not even the EU’s government structure could stop a set of determined environment ministers and a European commissioner who wanted a symbolic push to show the world that the bloc is at the forefront of fighting climate change.
Congressional Hearings
LCSA News
Chemical Management News
Energy News
Chemical Security News
Transportation News
Environment News
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Examining the Local Impacts of EPA’s Climate Regulations
Oct 5, 2016 | The Senate Environment and Public Works Committee Subcommittee on Clean Air and Nuclear Safety
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(ACC Mentioned) Chemical Saftey: A Challenging Road Ahead
Oct 1, 2016 | Chemical Engineering
Passage of the Lautenberg Chemical Safety Act has created a long and challenging road ahead for U.S. EPA rulemaking
On June 22, 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA) was signed into law with great fanfare as the successor to, and replacement for, the Toxic Substances Control Act (TSCA), which had not been updated since 1976. Among other provisions, the new law establishes a mandatory requirement for the U.S. Environmental Protection Agency (EPA; Washington, D.C.; www.epa.gov) to evaluate the safety risks associated with existing chemicals, creates a risk-based standard for determining whether the use of a chemical poses an “unreasonable risk” and lays the groundwork for a consistent source of funding for EPA to carry out its responsibilities under the law.
Although the law has enjoyed widespread support from many stakeholders, the details of how the law will be implemented are presenting a host of challenges, both philosophical and logistical, for the EPA and for industry. Among these challenges are how to conduct chemical safety evaluations, how to prioritize the chemicals up for review, and what fees will be assessed to chemical manufacturers. Developments over the last few months have moved toward resolving some of the questions, but a long and challenging road remains ahead.
“EPA has a big job in front of it,” says Steve Owens, a principal with the law firm Squire Patton Boggs (Phoenix, Ariz.;www.squirepattonboggs.com), and a former EPA assistant administrator, “but virtually all of the stakeholders have been supportive so far, and [EPA] has handled it well to this point.”
“So far, everybody has been ‘on their best behavior’ with the rollout of this law, but it is still early in the process, and there could be a lot of friction in the rulemaking process,” Owens says. “There are four major rulemakings that need to be accomplished in one year, and that is very difficult to do, even under ideal circumstances,” he explains. Lawsuits, Congressional action, or other unforeseen developments related to an election-year transition to a new administration could hinder the effort.STAKEHOLDER INPUT
In an environment of stubborn partisan opposition, the LCSA was a rare piece of legislation that enjoyed widespread support from both U.S. political parties, as well as from industry groups. The American Chemistry Council (ACC; Washington, D.C.; www.americanchemistry.com), an industry organization that supports the law, says “Thanks to the LSCA, America’s manufacturers will have the regulatory certainty they need to innovate, grow, create jobs and win in the global marketplace — at the same time that public health and the environment benefit from strong risk-based protections.”
Chemical producers are on board. Mark Silvey, senior manager for corporate and government affairs at PPG (Pittsburgh, Pa.; www.ppg.com) says “passage of the [LCSA]… has secured a much-needed overhaul of our nation’s chemical laws.” The modernized chemical safety law “puts the protection of human and environmental health and safety first, while also enabling America to retain its place as the world’s leading innovator,” he adds.
Environmental groups have also been generally supportive of the law’s intent to strengthen EPA’s authority to evaluate chemicals on a safety basis, and improving the existing TSCA law, which many have viewed as weak. However, some groups, including the public health advocacy organization Environmental Working Group (EWG; Washington, D.C.;www.ewg.org), think the law doesn’t go far enough.
While it acknowledges that the law makes significant improvements over the previous TSCA law, the EWG argues that the law “does not provide EPA with the resources or clear legal authority to quickly review and, if needed, ban dangerous chemicals linked to cancer and other serious health problems.”
Whether or not the law succeeds in its intent will be determined largely by how the rules and regulations associated with the law are developed, and the process of collecting stakeholder input for those rules is well underway. ACC says it wants to ensure that the rules developed under the LCSA are “written in a way that encourages effective and efficient implementation of the nation’s updated national chemical regulatory system.”
The EWG calls the rulemaking process for the LCSA “an unprecedented opportunity to perform robust risk evaluations and promulgate strong regulations to protect all Americans from the most toxic chemicals in our society.”
http://www.chemengonline.com/chemical-safety-challenging-road-ahead/
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EPA Eyes Perchlorate SDWA Suit Settlement, Seeks Input On Risk Model
Sep 30, 2016 | Inside EPA
By Maria Hegstad
EPA and environmentalists have reached an undisclosed tentative settlement in a lawsuit claiming the agency has missed Safe Drinking Water Act (SDWA) deadlines for a perchlorate drinking water standard, while EPA is also floating for peer review and public comment the risk model that it will use to inform such a standard.
The two actions signal that EPA is inching closer to the Natural Resources Defense Council's (NRDC) long-running push for the agency to regulate the rocket fuel ingredient perchlorate under the drinking water law. It follows a federal district court judge's Sept. 19 finding that the agency missed a two-year deadline under SDWA for issuing a proposed maximum contaminant level (MCL) goal and drinking water regulation for the substance.
U.S. District Court for the Southern District of New York Judge Edgardo Ramos said that EPA's Feb. 11, 2011, determination that it should regulate the substance under SDWA triggered the deadline for proposing a rule, but he did not address NRDC's claim that this means EPA also missed a deadline for finalizing the rule.
The potential settlement announced to the court earlier this week could resolve that dispute if it binds the agency to certain deadlines for proposing and issuing a drinking water standard for perchlorate.
On behalf of EPA, Department of Justice attorney Emily Bretz sent a Sept. 28 letter to Ramos saying the agency and NRDC “have reached a tentative resolution in this case, subject to final approvals from those with authority in the Government,” although the letter does not detail the terms of the pending pact.
Bretz's letter also addresses NRDC's claim that the agency missed a SDWA deadline for finalizing a perchlorate limit, saying both sides have agreed to extend by one week -- from Oct. 5 until Oct. 12 -- the deadline to submit briefs on this issue and move back by one week subsequent briefs on related issues. Ramos approved the deadline changes on Sept. 29.
One day later, on Sept. 30, EPA published in the Register a model and other materials to undergo peer review that will inform its SDWA decisionmaking on perchlorate, as well as a list of 19 potential peer reviewers and charge questions. The peer review will help guide the agency in weighing how to best regulate the substance. EPA is taking comment on the model through Nov. 14, and seeking input through Oct. 21 on the peer reviewers and their charge.
EPA first requested nominations for peer reviewers last March, for experts to peer review the biologically based dose-response (BBDR) model this fall as well as the draft model support document.
In June, EPA then called for more experts to consolidate and speed its peer review of the model. In a June 3 notice, the agency asked for additional nominations to be submitted by July 5 for experts who can “review . . . the application of the draft [BBDR] Model to develop a perchlorate maximum contaminant level goal.”
Perchlorate Model
The final panel of experts will peer review a physiologically-based pharmacokinetic/pharmacodynamic (PBPK/PD) model that agency staff will use to inform the level at which EPA should set a drinking water standard proposal. The agency's efforts at advancing the rule have been complicated because EPA's science advisors recommended that agency rule developers use the novel modeling approach to inform the future standard.
This method is possible as the biological mechanism by which perchlorate induces adverse effects is unusually well understood. Perchlorate reduces the body's ability to uptake iodine, necessary for proper regulation of the thyroid and thyroid hormones. Adverse effects can result if this perturbation is sufficiently severe and of sufficient duration, with fetuses and infants most susceptible -- but the model has taken longer than the advisors anticipated to develop.
Sources told Inside EPA last spring that EPA managers originally planned to conduct two separate peer reviews for the model: One examining the model, and a second examining its application to developing a maximum contaminant level goal (MCLG), the first step in developing a drinking water standard.
But, sources added, managers were debating consolidating the two peer reviews to hasten the process in light of the lawsuit. Now, it appears that EPA is going back to its original two-step peer review plan.
“EPA has reevaluated that [June] approach in response to concerns that a simultaneous review of a methodology to applying the model to develop a perchlorate MCLG would not allow the Agency or peer reviews to consider peer reviewer comments on the draft BBDR model prior to evaluating the alternative methodologies to applying the model to derive an MCLG,” says the Register notice on the peer reviewers.
“Today’s notice therefore seeks input only on the peer review of the model, not its application. EPA will seek input on a second peer review of methods for applying the model to inform development of a perchlorate MCLG in a future notice,” the notice adds.
EPA's draft charge questions to the peer reviews explain that the model it will ask the panel to review is a perchlorate PBPK model EPA developed in 2009 integrated with a trio of models developed by Food and Drug Administration modelers regarding iodine levels in pregnant women and fetuses, lactating rats and lactating mothers and nursing infants.
“The BBDR model predicts thyroid hormone perturbations for lactating mothers, breast-fed infants and bottle-fed infants resulting from exposure to perchlorate under different dietary iodine intake levels,” EPA says.
The agency adds that it “is relying on the Lumen et al. (2013) model, peer reviewed and published previously, to predict effects for pregnant mothers and fetuses. It is important to note a modification to a key parameter was made (Michaelis-Menten constant for the sodium-iodide symporter for perchlorate, Km) and the thyroid hormone predictions were adjusted for pregnant mothers and fetuses in this model report.”
'Scientific Rigor'
EPA says that it wants comment on “the scientific rigor of the BBDR model for evaluating the effects of perchlorate on thyroid hormones in lactating mothers, breast-fed infants and bottle-fed infants under different iodine intake levels. EPA is also seeking comment on modifications made to the Lumen et al. (2013) model for evaluating the effects of perchlorate on thyroid hormones in pregnant mothers and fetuses.”
The agency also released the model code and modeling reports for public comment, while warning that those experts seeking to serve on the peer review panel should not submit comments on the model.
The model report notes that EPA's Science Advisory Board in 2013 “recommended that the EPA focus the application of [PBPK] modeling on the condition of hypothyroxinemia in which free thyroxine (fT4) levels are decreased to the lower end of the normal range with TSH levels maintained in the normal range.”
The report describes the modeling's outputs for the lactating infant, formula-fed infants, pregnant women and nursing mothers. “In initial analyses for formula-fed infants, perchlorate reduced fT4 levels at [post natal day (PND)] 7 but not PND 30 to 90 for all formula concentrations of iodine,” it says. “For all postnatal days and formula iodine concentrations, the model predicted fT4 would be within the reference intervals (i.e., the range considered to be normal and healthy) for infants.”
For nursing infants, “the model predicted that maternal perchlorate exposure would reduce serum fT4 concentrations from PND 7 to 90, with the magnitude of the decrease dependent upon the maternal iodine intake. The model predicted that breast-fed infants from lactating mothers with iodine intake > 150 [micrograms per day (ug/d)] and perchlorate exposure up to 20 [micrograms per kilogram bodyweight per day (ug/kg/d)] would have serum fT4 levels within the reference intervals for infants (Lem et al., 2012) from PND 30 to 90; however, the lactating mothers were predicted to become hypothyroxinemic or hypothyroid at perchlorate exposures below 20 ug/kg/d, even with daily iodine intakes of 250 ug/d. For PND 7, serum fT4 levels in breast-fed infants would be below the reference intervals at lower perchlorate doses < 12 ug/kg/d, depending on maternal iodine intake.”
Dose-response analysis with the model was also performed for the pregnant woman and fetus, the modeling report notes. “The model predicts that a pregnant mother and a lactating mother at PND 60 or 90 who only ingest 75 ug/d of iodine would be hypothyroid with no perchlorate exposure. With an iodine intake of 100 ug/d (considered medically insufficient), both pregnant and lactating mother would be barely within or just below the reference range. The model does predict that at 150 ug/d iodine or higher, the mother stays within the reference range during both pregnancy and lactation as long as perchlorate exposures are below 4 ug/kg/d,” EPA says.
The report says that the “late-gestation fetus is predicted to be potentially more sensitive than nursing infants, since compared with the breast-fed infant, base-line fT4 levels are lower and the decrease in fT4 levels with increasing perchlorate dose is greater. . . . However, because there is not a well-established thyroid hormone reference range for fetuses, an absolute determination of the relative risk to the fetus vs. the breast-fed infant cannot be made.”
http://insideepa.com/daily-news/epa-eyes-perchlorate-sdwa-suit-settlement-seeks-input-risk-model
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Port of San Diego PCB Suit Survives Against Monsanto
Oct 3, 2016 | BNA Daily Environment Report
By Peter Hayes
The Port of San Diego's public nuisance claims against Monsanto over polychlorinated biphenyl contamination survived dismissal by the Southern District of California (San Diego Unified Port Dist. v. Monsanto Co., 2016 BL 323407, S.D. Cal., No. 15-cv-578, 9/28/16).
Several West Coast cities have brought public nuisance actions against Monsanto alleging that PCBs it made years ago have contaminated public waterways.
The suits represent an intersection of hazardous waste and product liability law that could have a far-reaching impact on industrial product manufacturers.
The suits are novel because they allege public nuisance against a manufacturer based on someone else's usage of the product—in this case PCBs were used as insulation in electrical transformers and equipment.
Though the port's claims survived, claims by the City of San Diego were dismissed because it failed to establish an injury to city property.
“Although the City alleges a property interest in the municipal stormwater system, the City does not allege facts sufficient to infer that the municipal stormwater system is ‘injuriously affected by the nuisance’ nor does the City seek damages based on the presence of PCBs in the sewer system,” the court said.
The port, however, does have authority to bring a public nuisance claim as trustee for the people of the State of California, the court said.
The power of the state and cities to bring a public nuisance claim was transferred to the port under the state Port Act, it said.
The other cities that have filed suit are Seattle and Spokane, Wash.; San Jose, Oakland and Berkeley, Calif.; and Portland, Ore.
Oakland, San Jose and Berkeley refiled their public nuisance claims Sept. 14 after the Northern District of California dismissed them for lack of standing Aug. 22.
Judge William Hayes issued the decision. Jackson Gilmour & Dobbs, PC represents San Diego Unified Port District. Baron & Budd PC represents the City of San Diego. Latham & Watkins LLP represents Monsanto.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98087085&vname=dennotallissues&fn=98087085&jd=98087085
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District Court Backs Port's Standing In Test Case On PCB Runoff Nuisance
Sep 30, 2016 | Inside EPA
By Suzanne Yohannan
A federal district court has ruled a California port has legal standing to support a public nuisance claim against the former manufacturer of polychlorinated biphenyls (PCBs), a potential precedent in a test case of novel claims that a product's maker can be responsible for damages when a disposed product enters stormwater and pollutes water.
The San Diego Unified Port District public corporation and the City of San Diego municipal corporation filed suit in the U.S. District Court for the Southern District of California against Monsanto spin-off companies Solutia, Inc. and Pharmacia, Inc. over alleged PCB stormwater contamination. Judge William Hayes in a Sept. 28 order backs the port district's ability to pursue its nuisance claims, but denies standing for the city over its similar claims.
The ruling follows a U.S. District Court for the Northern District of California decision that denied three northern California cities standing to bring a similar public nuisance suit against the PCB manufacturers.
Monsanto sees the San Diego case as a test case among several similar suits filed by West Coast cities seeking tort claims for alleged damages caused by PCBs that have flowed into the San Diego Bay through stormwater.
Hayes in his order also granted the defendants' motion to dismiss both the port district and city's equitable indemnity claims, saying both failed to produce sufficient facts to make an inference that Monsanto could be jointly liable to a state regional water board for alleged injury and failed to allege that a judgment or settlement was rendered as a result of the joint liability held by the municipalities and defendants. A judgment or settlement is required to bring an equitable indemnity claim.
The city and port, as stormwater dischargers, say they have paid substantial sums to curb the amount of PCBs that flow into San Diego Bay from stormwater, and say that PCBs were a “driving force” behind the need to remediate the so-called Shipyard Sediment Site in the San Diego Bay, overseen by state regulators.
The case is one of several filed by West Coast cities against Monsanto over PCB stormwater contamination. All of the cases allege the same wrongful conduct against the same defendants. The San Diego case was the first among the group to hold oral arguments, which took place on May 25.
Nuisance Claims
The cities allege that Monsanto produced, promoted and sold PCBs, knowing that they were toxic and could not be contained in their original application, and that the chemicals would persist, according to a Jan. 27 brief by San Diego. They argue that Monsanto continued its sales while “knowing PCBs were a ‘global contaminant,' polluting America's waterways, sediment, and wildlife, such as the stormwater and water bodies at issue in these cases," the brief says.
The city and port allege damages in public nuisance claims caused by PCBs that flowed into San Diego Bay. Specifically, the port is "seeking abatement of the PCB contamination from the tidelands, submerged lands and waters of the Bay that the Port District holds in trust for the public," the port argued in an earlier brief.
In its mixed ruling, the court says that "Because the authority of the State and cities to bring a public nuisance claim was specifically transferred to the Port District, [it] concludes that the [California] Legislature expressed its intention in specific and clear terms to grant the Port District the power to abate a nuisance.”
The court references a 2000 decision by the California Court of Appeal in Lamont Storm Water District v. Pavich, which said “only public bodies explicitly authorized to abate a public nuisance may bring an action.”
The appeals court held that “’when the Legislature has intended to grant the power to abate a nuisance, it has done so specifically and in clear terms.’” Hayes in his district court order cites this same passage, and “concludes that the Port District has standing to bring a representative cause of action.” The court goes on to say in a footnote that it is not addressing the damages that the port may recover at this point.
The court goes on to say that based on the allegations made by the port, it has "alleged sufficient facts to support a claim for public nuisance." The court points specifically to allegations made by the port that PCBs have become "global environmental contaminants," that Monsanto "knew that PCBs presented a health risk" and were widely contaminating the environment, that Monsanto promoted the sale of PCB products, and that it instructed customers to dispose of solid PCB-containing material in landfills, knowing the landfills were unsuitable for such waste.
Judge's Order
However, Hayes ruled that the City of San Diego lacks standing to bring a public nuisance claim. The city argued it has standing to bring a non-representative public nuisance claim because it alleged both a special injury and a property interest, according to the decision. But, the court says, the city cannot bring a public nuisance action alleging a "special injury" claim because such an injury claim is reserved only for private parties, rather than public entities.
The only type of public nuisance claim the city can establish standing for is by alleging its "'property is injuriously affected,'" the court says. But the city fails here as well. First, the court notes that the city does not argue that it has a property interest in the Bay.
Second, it says, "Although the City alleges a property interest in the municipal stormwater system, the City does not allege facts sufficient to infer that the municipal stormwater system is 'injuriously affected by the nuisance' nor does the City seek damages based on the presence of PCBs in the sewer system.”
In a footnote, the court says that while in recent opposition papers, the city asserts a property interest in the water that travels through the stormwater system, and that PCBs interfere with those property interests, those allegations are not contained in the plaintiff's first amended complaint, which it says -- earlier in the decision -- "are the operative pleadings in this case." Therefore, "the Court does not consider whether those allegations would give the City the requisite standing to state a claim for public nuisance.”
On other claims, the court sides with the port. It says the port "has alleged facts sufficient to plausibly support a cause of action for purpresture," and denies defendants' motion to dismiss. Purpresture refers to unlawful encroachment of a navigable waterway, according to the court. In the case, the port argued that PCB contamination that has accumulated in sediment in the Bay "interferes with navigation and the unobstructed use and enjoyment of the Bay by the people of California.”
The port also "has alleged sufficient facts to seek damages for 'the injury to and loss of use of natural resources deriving from the presence of PCBs in and around the Bay, including the cost of restoring those natural resources,'" Hayes finds.
The court also declined Monsanto's request to strike the port’s prayer of relief for attorney’s fees and punitive damages at this point in the proceedings.
http://insideepa.com/daily-news/district-court-backs-ports-standing-test-case-pcb-runoff-nuisance
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EU Glyphosate Data Release Could Help Settle Classification
Oct 3, 2016 | BNA Daily Environment Report
By Stephen Gardner
The European Food Safety Authority's release of previously confidential scientific data about the safety of the herbicide glyphosate could help resolve disagreements among scientific bodies about whether or not the substance should be considered a carcinogen, an advocacy group said.
The data would “enable scrutiny” of an evaluation of the hazard classification of glyphosate being carried out by the European Chemicals Agency (ECHA), Martin Pigeon, a researcher with the Corporate Europe Observatory, which monitors lobbying of European Union legislation, told Bloomberg BNA Sept. 30.
The European Food Safety Authority (EFSA) released the data in response to a Corporate Europe Observatory access to documents request, it said Sept. 29, adding that the data would be “sufficient to enable a third-party scientist to scrutinize the evaluation of glyphosate.”
In its November 2015 study, EFSA found that glyphosate was “unlikely to pose a carcinogenic hazard to humans,” contradicting an earlier finding from the International Agency for Research on Cancer (IARC), part of the World Health Organization, which said glyphosate was “probably carcinogenic” to humans.
Carcinogenicity Dispute
EFSA's study was done as part of the reauthorization of glyphosate at the EU level in line with the bloc's regulation on plant protection products on the market (Regulation (EC) No. 1107/2009). The EU authorization of glyphosate, the world's most widely used herbicide, was due to expire June 30.
The IARC finding that glyphosate was probably carcinogenic led environmental groups, some members of the European Parliament and some EU countries to oppose the reauthorization of glyphosate. The European Commission, the EU's executive arm, ultimately opted for an 18-month authorization extension, rather than a full reauthorization, while ECHA assesses if the substance is correctly classified in the EU.
Pigeon said EFSA would release the study data to Corporate Europe Observatory during the next two months and “we will share the data with competent toxicologists,” who would be able to provide an independent input into the ECHA classification check on glyphosate.
Pigeon said the release of data was welcome and EFSA “really went as far as they could to provide transparency and crucially to enable scientific scrutiny.”
ECHA's Risk Assessment Committee would have “access to the complete reports from those studies which they need for their decision-making on the proposed update of the harmonized classification for glyphosate,” ECHA told Bloomberg BNA Sept. 30.
Glyphosate is used in more than 750 products, including Monsanto's Roundup brand of herbicide. Although the substance is authorized at EU level, member countries have the right to refuse individual authorizations for products containing glyphosate.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98087080&vname=dennotallissues&fn=98087080&jd=98087080
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States Weigh Financial Assurance Mandates For Fracking, Produced Water
Sep 30, 2016 | Inside EPA
By David LaRoss
WHEELING, WV -- State environmental regulators are considering financial assurance mandates for oil and gas exploration projects to safeguard against environmental harms when the wells are shuttered, but the Environmental Defense Fund (EDF) is urging them to expand that mandate to reuse of the industry's produced water, such as for irrigation.
“I think we're moving towards some kind of bonding for spills and long-term remediation at legacy sites,” North Dakota Department of Health Environmental Health Section Chief David Glatt told Inside EPA at the Environmental Council of the States' (ECOS) fall meeting here Sept. 26, speaking about his state's efforts. However, he cautioned that any state financial assurance rule remains a long-term idea. “We just started that conversation.”
Glatt also said EPA officials have not yet weighed in on any possible financial assurance rules for the sector and seems unlikely to do so before President Obama leaves office -- though his successor, either Democratic nominee Hillary Clinton or Republican nominee Donald Trump, might have EPA assume a role after taking office.
“I haven't heard anything from EPA about stepping in. They right now do not have a whole lot of oversight on produced water, and from a state perspective I like it that way. Because we don't need more regulation,” Glatt toldInside EPA following an ECOS panel discussion on produced water reuse. He added, “I do think they're looking at it, to see if they should be more involved, but . . . there would be a lot of resistance to it.”
Discussion in North Dakota centers on planning for when oil reserves in the now-thriving Bakken Shale formation will eventually be depleted, based on the state's experience managing abandoned oilfields from previous booms, he said.
“You want to look at the full life cycle of oilfield development and how you get through that. We're seeing problems from the 1950s crop up now, and the issue we run into is that right now, at the Bakken they make a lot of money, but as those wells start to decline the profitablilty goes down, and they sell the facilities. You go two or three owners down the road, and they don't have the money to do the cleanup,” Glatt added.
The panel discussion at ECOS -- which represents many state environmental agencies -- did not address financial assurance requirements for hydraulic fracturing operations themselves.
However, speaker Holly Pearen, a senior EDF attorney, said states should be investigating financial assurance for produced water reuse, in order to protect against potential contamination from fracking-related pollutants.
“Financial assurance should be part of the beneficial use discussion. . . . It would be powerful incentive to make sure things go right, and that's very important in the absence of prescriptive regulations,” she said.
Produced Water
Underground oil and gas extraction, such as hydraulic fracturing, can produce large quantities of wastewater that contains potentially harmful constituents. Energy companies have traditionally injected the water underground in disposal wells, though some send the water to centralized waste treatment facilities for processing.
States and industry have eyed irrigation and other reuse paths as a way to avoid costly disposal or treatment while generating an economic benefit from the produced water, but have generally noted the need to pursue further research on issues such as the water's quality.
For instance, during ECOS' spring meeting in Nashville, TN, on April 10, another panel discussion on the subject led to a pledge from then-ECOS president Martha Rudolph, Colorado's environment chief, to host webinars and briefings to educate members on what can be done with produced water.
In an interview with Inside EPA following the Sept. 26 panel discussion, EDF's Pearen said as far as she is aware only Pennsylvania has required financial assurance bonding for reuse of produced water, and only at the permit level rather than in a statewide rule.
Pearen was reacting to discussions among the panel members of current practices for reusing produced water, such as for farmland irrigation and road cleaning.
Other speakers at the Sept. 26 panel included Glatt, Rudolph, California environment head Matthew Rodriquez and Southwestern Energy Company vice president Roy Harstein.
'Blind Spot'
Rodriquez said during the panel that while California has been reusing produced water “for years,” studies of its constituents “have raised this issue of do we know enough about this water that's being produced.”
He said a state panel is conducting a review of produced water studies to determine “what do we know about them right now,” and then develop a long-term research plan. He said the goal is to produce a report that would say, “these are the better chemicals, and these are the ones to stay away from.”
Pearen responded that such studies should not look solely at acute toxicity from the water, or “you'll be left with a big blind spot” -- noting that such tests historically missed the chronic effects of exposure to the now-banned pesticide DDT, among others.
However, she said environmentalists so far are not opposing reuse of produced water, instead calling for strict safeguards and a case-by-case review of whether individual uses of the water are appropriate. She said a transparent assessment of risks from reuse “is really going to help public buy-in later.”
http://insideepa.com/daily-news/states-weigh-financial-assurance-mandates-fracking-produced-water
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D.C. Circuit Appears Skeptical Of Industry's 'Notice' Claims In ESPS Suit
Sep 30, 2016 | Inside EPA
By Dawn Reeves
The 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit appeared largely unreceptive to potentially precedential industry arguments seeking to overturn EPA's power plant greenhouse gas rule because the final rule included many key components -- most importantly performance rates for coal and gas plants on a national basis -- that were never proposed.
If successful, the industry argument could have broader implications beyond the GHG rule because they apply to how EPA interprets procedural provisions in the Clean Air Act that govern how and when the agency and courts must consider stakeholder requests to amend proposed regulations.
One judge suggested the argument was “premature” in the GHG case because EPA is still considering administrative petitions for review.
After the arguments, one industry source said some of the judges appeared “troubled” by the lack of notice but declined to say whether a ruling on this was likely.
Another source said last week that if the court does get to the notice issue, “It could be pretty important but mostly for other Clean Air Act rules,” since that is the only EPA statute that requires a person to have commented on a proposed issue in order to challenge a final version -- a requirement this source says EPA has abused in a “bait-and-switch” manner.
Ahead of the arguments, the first source called the notice concerns the “great sleeper issue of the case,” because a win on it could have broad ramifications for administrative law, and because the ESPS “violates the express provisions of the Clean Air Act, which requires notice and comment. . . . It could require vacatur of the rule without consideration of the actual merits.”
In the Sept. 27 argument in the case challenging EPA's existing source performance standards (ESPS) -- West Virginia et al. v. EPA, et al. -- industry attorney Thomas Lorenzen asked the en banc court to address prior conflicting rulings and finally make it clear that a failure by EPA to properly notice and take comment on such issues are not subject to reconsideration petition requirements under section 307 of the Clean Air Act.
That section of the law requires opponents of final agency actions to request administrative reconsideration before bringing an issue to a court, and also includes the unique provision that bans legal challenges over issues in a final rule that a plaintiff did not comment on in the proposed version.
But Lorenzen and other industry sources argue that EPA “abuses” this authority on a routine basis by making final rules significantly different from the proposed version without providing opportunity for notice and comment.
If the industry groups were to win here, the ramifications would be felt in every Clean Air Act regulation the agency promulgates.
However, the judges in their questioning suggested they were not interested in addressing the issue, which came near the end of nearly seven hours of oral arguments.
Three Prior Cases
Lorenzen cited three prior cases where the court has incrementally moved the ball toward industry's side on section 307 issues, including most significantly a 1983 ruling in Small Refiner Lead Phase-Down Task Force v. EPA.
In that case, the court said EPA's final lead in gasoline rule violated notice requirements of the Administrative Procedure Act because in the proposal the agency said it would provide sufficient lead time for small refiners while the final rule included immediate interim standards.
He also cited two other cases, the first a 1981 ruling in American Petroleum Institute v. Costle that upheld an EPA rule that relied heavily on a key report put into the docket one week before finalization. While the court noted the practice was “disturbing,” it nevertheless upheld the measure.
The other case was the 1982 decision Kennecott Corp. v. EPA, where the court said a petition for reconsideration -- which the agency had denied -- could not be an adequate substitute for the opportunity to comment because a comment can affect a rule's trajectory.
Lorenzen told the court it made no sense to apply the 307 reconsideration requirements to EPA's failure to allow comment on changes in a final rule, because after a new requirement is included in a final rule, “it is too late.”
However, Judge Judith Rogers asked Lorenzen if the argument is not “premature” since EPA had yet to respond to the pending petitions for reconsideration on the ESPS.
Lorenzen said the petitioners were not premature because EPA in the briefing in West Virginia defended its decision to include the national rates in the final rule and argued that petitioners had adequate notice. “So there is no reason to think they're going to grant our petition.”
Judge Thomas Griffith asked Lorenzen if he was asking the court to overturn other prior precedent that did not favor their position. Lorenzen replied that he was and that option became available when the full court announced it would hear the case, rather than a three-judge panel.
Also, Lorenzen said the only notice of a possible national rate in the proposal was language from EPA saying that was one thing it was not considering.
But defending EPA, Norman Rave, a Justice Department attorney, said the claims of unlawful differences between the proposed and final rule “are greatly exaggerated.” He added that petitioners are wrong in claiming EPA said in its proposal that it would not include a national rate in the final rule, noting that the proposal said it was “considering alternatives.”
He pointed out that the court was precluded from ruling on the notice claim until EPA completes the reconsideration process, which he said is in the works. EPA received 38 petitions raising hundreds of issues, he said, and that there is no time line to answer them.
Case Law
Rave added that petitioners would have to show that the rule would have changed based on their comments on the issue in the proposal, “and they have not.”
Further, he said there is “a lot” of case law that backs EPA's position, to which Judge Brett Kavanaugh responded, “I agree with you on that."
Finally, Rave explained that the agency added the coal and gas national rates after it was “inundated” with comments asking it to change the state-by-state applicability that created an uneven playing field and disadvantaged early actors. Also, the final rule includes an option to use a uniform blended rate that was included in the proposal.
In rebuttal, John Barker for state petitioners encouraged the judges to review the Small Refiners ruling and said they should require EPA to re-propose the rule to solicit comment on the national coal and gas rates.
C. Boyden Gray, White House counsel to former President George H.W. Bush, told Inside EPA Sept. 29 that some on the panel were “clearly nervous” about the issue.
He added that while the “government made good points” about EPA's unprecedented outreach for the rule, the question for the court will be, “Does that cure the fact that they didn't technically come out with a new sub-proposal” on the numbers. “Was that [obligation] rendered unnecessary by the fact that they were in constant communications/consultation with stakeholders and that answer to that, I just don't know.”
http://insideepa.com/daily-news/dc-circuit-appears-skeptical-industrys-notice-claims-esps-suit
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EPA Proposes First-Time Deadline For Shale Gas ELG
Sep 30, 2016 | Inside EPA
EPA is proposing to set a first-time deadline for some publicly owned treatment works (POTW) to implement the agency's zero discharge standard for wastewater from unconventional, or shale, oil and gas operations, saying that new information indicates some facilities could have difficulty meeting the standard.
In a Sept. 30 Federal Register notice, EPA proposes and issues a direct final rule that would extend until Aug. 29, 2019, the compliance date for existing sources that were discharging to POTWs between the date of the April 7, 2015, proposed version of the shale gas effluent limitation guideline (ELG) and the June 28 final ELG. The agency will withdraw the direct final rule if it receives any adverse comments on the proposal.
The June 28 ELG was aimed at ensuring that POTWs do not start receiving wastewater from the sector in the future, though EPA acknowledged that the practice had largely ceased and said it did not expect that the rule would impose any new costs or lead to any pollutant reductions.
The agency in the new Register notice suggests that some facilities could encounter problems meeting the standard. “EPA proposes these revisions in response to new information received after promulgation of the rule suggesting that there are likely facilities subject to the final rule not presently meeting the zero discharge requirements in the final rule,” the agency says in the Register notice, taking comment through Oct. 31.
If no adverse comments are received, the rule will take effect immediately after the close of the comment period. If adverse comment is received, EPA will withdraw it and revise the regulation.
http://insideepa.com/news-briefs/epa-proposes-first-time-deadline-shale-gas-elg
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Cybersecurity: You Cannot Secure What You Cannot See
Oct 1, 2016 | Chemical Engineering
By David Zahn
Follow this guidance to understand today’s cybersecurity risk landscape and take the necessary steps to create a sound industrial control system cybersecurity program, including the development of a comprehensive, in-depth cyber-asset inventory
In industrial facilities, cyber incidents typically result from three basic scenarios: a malicious attack from an outside individual or group; a cyber incident that results from an engineer making a mistake that alters a control process or diminishes safe operations; or the work of a disgruntled employee or ex-employee. No matter which of these scenarios you believe is real or presents the most risk, companies must take steps to protect their industrial control systems (ICS) from cyber incidents. What should companies do and how far should they go to ensure that risk is managed to a sufficient level? This article addresses the fundamental elements that an ICS cybersecurity program must contain, and shares guidance on how to develop an in-depth cyber asset inventory.
CYBER INCIDENTS
A malicious attack from an outside individual or group. Although such attacks have affected physical operations in a number of well-publicized cases, most outsider attacks to date have focused on proliferation and reconnaissance (get in, spread, gather information, and report back) as their primary objectives. The passive nature of these attacks has lulled many into believing there is more hype than reality in the likelihood of a malicious attack. Most cybersecurity experts would agree that attacks of this type to date are merely a prelude to attacks that will take more directed action in the future. The attack on a power plant in the Ukraine in December 2015 in which hundreds of thousands of people lost power in the dead of winter is a testament to what is to come.
A cyber incident resulting from human error. These mistakes can go undetected until it is too late. Most engineers who have worked in chemical process industries (CPI) facilities long enough can share stories of when such incidences have occurred.
The work of a disgruntled employee or ex-employee. With the spate of layoffs during the last several years — particularly in the oil-and-gas sector — the potential for an insider threat is a rising concern for chief information security officers. Georgia-Pacific recently incurred the wrath of a fired employee who, soon after being laid off, accessed and altered control systems from his home. The company required a significant amount of time to recover from the damage he had inflicted. That employee was successfully prosecuted.
KNOW YOUR CYBER ASSETS
In the race for better ICS cybersecurity, CPI companies all face the same challenge — knowing what cyber assets they have in the plant. Operators and managers tend to have good insight into the non-proprietary assets, such as workstations and routers, but they often lack sufficient visibility into the proprietary assets that run critical processes and keep plants safe. This lack of visibility introduces a level of risk that negatively impacts cybersecurity, safety and compliance efforts.
To what extent does this lack of visibility exist? In one real-world example, an inventory at a plant site showed that 20% of the cyber assets were traditional information technology (IT) systems that standard protocols — for example, Windows Management Instrumentation (WMI) and Simple Network Management Protocol (SNMP) — could interrogate for detailed configuration information. These systems include Microsoft Windows workstations, servers, routers and switches that sit in front of the proprietary control systems. An inventory of these is important to have, but it only paints a partial picture of what is happening within the overall control network.
In our example, the remaining 80% of cyber assets came from the proprietary industrial control systems, such as distributed control systems (DCS), programmable logic controllers (PLC), or safety instrumented systems (SIS). Unlike a workstation, ICS systems have no standard protocols to pull detailed configuration information (such as I/O cards, firmware, software installed, and control strategies).
There is also no option to put an agent on such systems to push data out, as doing so invalidates vendor support. These systems give hackers the greatest opportunity to wreak havoc in a plant, and they also create opportunities for well-intentioned engineers to make mistakes that adversely affect operations.
CREATE A CYBER ASSET INVENTORY
Efforts to collect an inventory of cyber assets within a control network typically take three forms — manual, vendor-supplied, and IT-only. The following discussion examines the positives and negatives of each approach.
Manual inventory. Manual gathering of inventory data is the most prevalent approach used today. Companies will send engineers into plants to perform a physical inventory, and they will gather a limited set of common data points, related to such information as manufacturer, model and version. The data are consolidated in a spreadsheet and used organizationally.
This approach is convenient, but is not economical, because engineers walking a plant are expensive resources and having them carry out inventory duty has high opportunity costs. Similarly, the manual gathering of inventory data is inherently prone to errors due to the human element, and this approach will typically yield an incomplete assessment, potentially missing swaths of important information, including control logic and shutdown interlocks. Such a data inventory can also quickly become outdated over time. Finally, there are few options for automation using a simple spreadsheet, as such a tool does not enable security policy monitoring and management- of-change processes.
Vendor-supplied solutions. Control system vendors often provide a managed service offering that essentially throws additional outside help at manual inventory efforts. All of the problems with a manual inventory still exist, but internal resources noted previously are freed to do other high-value duties. Many vendors will also offer tools to manage cyber asset inventories, but these tools rarely extend beyond their own control systems. Companies that adopt such tools run the risk of creating solution silos that ultimately add complexity to a cybersecurity environment. Complexity is counterproductive to building an effective ICS cybersecurity program.
IT-only solutions. There are many solutions available that can discover non-proprietary systems and provide detailed configuration information, as well as advanced analytics. Such products are quite good at these tasks and given the number of solution providers with such capabilities, this has become a commodity offering. CPI companies must have non-proprietary information as part of their cybersecurity program.
However, they must also recognize that the resulting data come from only about 20% of the cyber assets in a process control network. Ultimately, IT-only solution architectures cannot scale to include the much more complex, proprietary systems that comprise the remaining 80% of cyber assets in a plant.EXPLORING ‘INVENTORY IN DEPTH’
A best practice solution must overcome the limitations of today’s approaches to inventory. It must gather inventory data for both non-proprietary and proprietary cyber assets, it must contain deep configuration information, and it must break down data silos so that the wide variety of manufacturer control systems are made visible.
Next, we explore the elements for developing a best practice, comprehensive cyber asset inventory. We’ll refer to the end product as Inventory in Depth.
One database to rule them all. The first element of an Inventory in Depth approach is to have both non-proprietary (IT) and proprietary operational technology (OT) data in a single repository. The ability to carry out automated vulnerability assessments, security policy enforcement, unauthorized change investigations, patch management processes, analytics and more is only as good as the breadth and depth of the inventory such efforts utilize. Gathering OT and IT assets into a single database ensures breadth; ensuring depth requires having all configuration data, such as I/O cards, firmware, software installed, and control strategies. Detailed configuration information gives engineers and cybersecurity personnel the same view of data, which translates into more consistent, coordinated, and speedier decisions — important capabilities when the goal is to prevent potential plant upsets or harm to personnel. Finally, the costs to maintain an inventory can decrease by as much as 90% as Inventory in Depth relies on automated data gathering; depending on the frequency, an evergreen inventory is also achievable.
Criticality, priority, and interdependency.Not all cyber assets have the same risk profile in light of plant processes. Therefore, when an unauthorized change happens on a critical asset, such as a safety instrumented system (SIS), the incident- response protocol will have different steps and degrees of urgency than protocols for other systems, such as a data historian. Discriminating between cyber assets means having a method of categorizing the systems so that each can receive appropriate scrutiny and responsiveness if an incident occurs.
Since few systems act independently in a plant, it is also important to understand how systems are related to each other. Should the system go down due to a cyber attack or engineering mistake, personnel can make better recovery decisions based on knowing what other systems are affected. Having this information is a good engineering practice that also allows cybersecurity personnel to better manage risk across the entire enterprise.
New device discovery. While a simple “ping sweep” will identify new assets on a network, finding new or changed proprietary cyber assets relies on a different tactic — digging into the configuration files of proprietary systems and finding system references that are not currently inventoried. Once an asset is recognized, cybersecurity or engineering personnel should ideally receive notifications of a new device, as well as missing ones (for instance, those resulting from a system upgrade). Then, established workflows can guide them through the process of updating data imports, policies, processes and other cybersecurity functions.
ENABLING NEW USAGE SCENARIOS
An OT and IT inventory opens up new ICS cybersecurity use cases that were previously unavailable or difficult to achieve. Cybersecurity and operations personnel can now perform the following tasks:
1. Identify exposure to published vulnerabilities
Scenario: ICS-CERT (Box, p. 62) [ 2] published a critical vulnerability advisory in early 2015 concerning multiple models and versions of a specific transmitter. This transmitter works across any manufacturer’s control system and not just the manufacturer’s. The advisory describes the vulnerability as critical, noting that it has the potential to impact operations if left unaddressed.
Solution: If a comprehensive OT inventory exists, a simple query will immediately identify every control system that has this transmitter. Only an inventory that spans the heterogeneous, proprietary control systems in a plant will provide complete results. Once the situation is remediated, to prevent future occurrences of this vulnerability, an automated policy can look for and flag instances of when that same transmitter is reintroduced into the control environment (for example, through the spares inventory).
2. Unauthorized change to a control strategy
Scenario: An engineer connects to a particular safety system to make a simple change. The engineer mistakenly removes the ability for the operator to recognize the availability of that safety system.
Solution: Inventoried configuration data are analyzed for changes, with unauthorized changes flagged for investigation. An incident-response protocol drives remediating actions needed to restore the safety system. The next data import captures evidence that the safety system’s configuration was properly restored.
3. Preparing for the inevitable breach
Scenario: Hackers gain access to systems in Level 1 and below. A multi-threaded attack includes firmware updates to serial-to-Ethernet devices, similar to the Ukrainian power plant hack carried out in December 2015.
Solution:Change detection utilizing a security baseline will surface the malicious firmware updates, and change management procedures and automated workflows will drive needed actions. If a worst-case scenario occurs, automated backups taken during the Inventory in Depth process will speed recovery, as part of a comprehensive disaster recovery plan.
Today, the majority of CPI operating companies cannot effectively execute these three use cases. Where they stumble is not having an accurate, comprehensive inventory of all their cyber assets, which hinders swift, consistent action when these security policies are violated.
A COMPREHENSIVE SOLUTION
A best-in-class inventory management solution deciphers and integrates control-system configuration data from both proprietary and non-proprietary systems into a single repository. Such a solution detects new or missing devices, provides a facility for asset classification, enables appropriately leveled incident response protocols, and accurately captures system interdependencies in sufficient detail.
An automated, normalized inventory data across all major IT and OT assets in the control network presents a holistic view of control system assets — beyond the reach of traditional manual, vendor-supplied, or IT-only solutions. Plant personnel monitor and detect unauthorized changes centrally and then investigate, remediate, and mitigate through automated policies and workflows. The result is greater operational efficiency, improved audit capabilities for compliance, closed-loop patch-management processes, and a speedy recovery in the event of a lost production system.
http://www.chemengonline.com/cybersecurity-cannot-secure-cannot-see/?pagenum=3
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Wash. Pans Oil Terminal; Army Corps Advances Coal Project
Sep 30, 2016 | E&E News PM
By Dylan Brown
Regulators in Washington state today criticized a proposed oil transport project, citing environmental concerns, while the Army Corps of Engineers announced it was moving forward with permitting for a coal export facility elsewhere in the state.
The Washington Department of Ecology and city of Hoquiam's final environmental impact statement for Westway Terminal Co.'s proposed oil project at the Port of Grays Harbor said it would cause significant and unavoidable environmental impacts to health and safety. The company wants to expand a crude-by-rail facility.
State and local regulators cited the potential for an oil spill, fire or explosion. They also said it would cause significant impacts regarding noise, tribal resources, and vehicle traffic and safety.
The crude-by-rail facility, which Westway estimated could receive up to one 120-car train every three days, is one of several in Grays Harbor that could store up to 1.6 million barrels of oil at a time (EnergyWire, Oct. 22, 2015).
The Quinault Indian Nation, commercial fishing interests and conservationists have protested the proposals. The risks, they said, are similar to those that prompted the Washington attorney general to block a project along the Columbia River.
"Clean beaches, birds and wildlife, scenic beauty, and recreation opportunities are not only some of our most important economic assets, they also [are] the reasons many of us choose to live, work and play in Grays Harbor County," said Arnie Martin, president of Grays Harbor Audubon.
"We know from experiences like the catastrophic Deepwater Horizon spill in the Gulf of Mexico that one major oil spill is one too many," he said.
The final EIS does not amount to a permit rejection. Instead, different agencies will use it to inform the project's future.Millennium coal project
Separately, the Army Corps of Engineers also today released a long-awaited draft environmental impact statement for the controversial Millennium Bulk Terminals coal project in Longview, Wash.
Capable of handling up to 44 million tons of coal annually, the project would be the largest coal shipping facility in North America.
Millennium is one of several coal terminal proposals in the Pacific Northwest. Most of them have faded away because of regulatory and public opposition, or the steep decline of coal markets. Arch Coal Inc., once a major Millennium backer, pulled out earlier this year (Greenwire, May 27).
The draft EIS has been in the works since 2012. During that time, environmentalists and terminal supporters have battled over the proposed scope of the analysis. Washington leaders opted for a tougher, more global look than the corps.
The draft federal report said the project would increase local greenhouse gas emissions. However, it would only produce 0.8 percent of carbon dioxide releases allowed under the Clean Power Plan and about 0.2 percent of the 2035 emissions goal set by state lawmakers.
"Vessel trips related to the export terminal and cumulative projects would increase greenhouse gas emissions," said the document, "but emissions related to nitrogen oxide would be expected to decrease relative to existing Columbia River vessel emissions."
Environmentalists blasted the proposed review as "shortsighted," arguing it ignored the broader applications for the climate resulting from burning coal exported from the facility.
"If Millennium built their coal export terminal, the greenhouse gas emissions would be equivalent to adding at least seven coal-fired power plants, according to the DEIS," said Beth Doglio, co-director of the Power Past Coal coalition.
"Our climate can't afford a project that flies in the face of our region's investment in clean energy," she said. The coalition has been fighting the terminal for years.
Kate French, chairwoman of the Northern Plains Resource Council, a Western landowner group, also blasted the document for not accounting for the impacts of mining in Montana and Wyoming.
"We'd have to live with the harmful effects of additional coal mining, and dozens of Montana rail towns would have to endure the traffic delays, diesel exhaust and air pollution as private corporations ship Montana coal to Asia," she said.
"In much of Montana, our coal seams are our aquifers," said French, "and we don't want to sacrifice our water resources for the sake of private coal companies' profits or Asian economies."'First-class export facility'
Kathryn Stenger, spokeswoman for the Alliance for Northwest Jobs & Exports, hailed the step forward for the coal terminal — "even if it took an unprecedented four years to complete."
"It is a fact that Millennium is spending millions of dollars cleaning up a former industrial site and transitioning the property into a first-class export terminal capable of shipping all sorts of commodities to destinations around the globe," she said.
Lee Newgent, the executive secretary of the Washington Building and Construction Trades Council, said: "There's no doubt that we need the jobs in this area, and that the economy isn't as vibrant here as it is in Seattle and King County.
"The Millennium team should be commended for their commitment to building a first-class export facility that exceeds the state's high environmental standards while also providing jobs that can support families in southeastern Washington."
The release of the draft document today kicks off a public comment period that will last until Nov. 29. During that time, the Army Corps will also hold two public meetings.
Earlier this year the agency blocked the Gateway Pacific coal export project because of concerns from the Lummi Nation.
http://www.eenews.net/eenewspm/2016/09/30/stories/1060043726
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Countries Agree to EU's Ratification of Paris Climate Deal
Oct 3, 2016 | BNA Daily Environment Report
By Stephen Gardner
European Union environment ministers agreed Sept. 30 that the EU as a bloc should be allowed to ratify the United Nations Paris Agreement on climate change, even though most of its 28 member countries have not completed their national ratification procedures.
The ministers' agreement, which the European Parliament is expected to confirm in the coming days, means that the EU will be able to deposit its instruments of ratification on Oct. 5 or Oct. 6 with the UN in New York, taking the Paris Agreement over its thresholds for entry into force.
The Paris Agreement can enter into force 30 days after at least 55 countries representing 55 percent of global emissions have accepted or ratified it. As of Sept. 30, 61 countries representing 47.79 percent of global emissions had deposited notification documents, according to a UN tally.
The EU is responsible for about 12 percent of global emissions.
The EU's ratification would mean the Paris Agreement will enter into force around Nov. 6—just in time for the 22nd Conference of the Parties to the UN Framework Convention on Climate Change, which will start Nov. 7 in Marrakech, Morocco. Consequently, participants in the COP will be able to start at least preliminary discussions on substantive details related to the implementation of the Paris Agreement.
Deal Hailed as Breakthrough
EU officials and member country representatives applauded the environment ministers' agreement as a significant step in implementing the international climate deal.
László Sólymos, environment minister of Slovakia, who chaired the environment ministers' meeting, said the green light for the EU ratification of the Paris Agreement was “of historic importance” and the EU was demonstrating “responsibility, engagement and interest” in tackling global warming.
Miguel Arias Cañete, the European Commission's climate action and energy commissioner, said the environment ministers reached a “momentous agreement” and the EU was “again showing global leadership on climate action.”
If the Paris Agreement enters into force ahead of the Marrakech COP, it will trigger the first meetings of the so-called Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, or CMA, which will make decisions under the agreement.
Cañete said the Marrakech CMA meeting will likely be short, pending the setup of subsidiary decision-making formations, but it was “symbolic” and “has a value” that the first CMA meeting could take place at Marrakech.
Countries have been quicker than expected to ratify the Paris Agreement. As recently as Sept. 15, the lead U.S. climate negotiator cautioned that the deal might not enter into force by the Marrakech COP.
European Parliament Vote
To be finalized, EU ratification of the Paris Agreement must be rubber-stamped by the European Parliament. The ratification decision then would return to the Council of the European Union, which represents member countries, for formal acceptance.
The European Parliament said Sept. 30 that a “consent vote” would take place Oct. 4, meaning that EU finalization of a ratification decision and subsequent notification to the UN could be completed on Oct. 5 or Oct. 6.
Fast-tracking approval shows that “in difficult times we get our act together,” and EU countries have “shown lots of flexibility” in agreeing to allow the EU to ratify the Paris Agreement, Cañete said.
Giovanni La Via, an Italian center-right lawmaker who chairs the European Parliament's environment committee, said it “would have been unthinkable” for the Paris Agreement to enter into force without the EU.
Julie Girling, a center-right British member of the European Parliament, said “China and the U.S. have ratified, and now it is Europe's turn to show global leadership and ratify this agreement, so that we can get on and implement it with the urgency it deserves.”
Unusual Process
EU-level ratification of the Paris Agreement reverses the usual process under which each member country should complete its ratification before a joint EU ratification is possible.
The EU had “departed from the best practice of simultaneous deposit” by the EU and its member countries of notifications of acceptance of international agreements, Cañete said.
The possibility that the Paris Agreement might enter into force without the EU, however, was a “unique context” that justified the unusual procedure, he said.
There was “no controversy” between EU countries over the bloc's ratification of the Paris Agreement and, following the EU-level ratification, the idea that a national parliament in an EU country would step in to block the ratification was “unbelievable,” Cañete added.
The environment ministers' issued a statement saying the reversal of the usual process in the case of the Paris Agreement does not set a precedent for other international agreements and does not “pre-empt or prejudge the role of national parliaments in their respective national ratification processes.”
Coal-reliant Poland in particular raised concerns about national sovereignty ahead of the environment ministers' meeting, saying the EU should not take on climate change commitments at the international level before the 28 member countries agreed on the internal split of emissions reductions that should be achieved.
After the environment ministers' meeting, however, Poland's environment minister, Jan Szyszko, said the country's ratification of the Paris Agreement was underway and the Paris Agreement “protects Polish energy interests” by allowing sufficient flexibility in the use of carbon sinks such as forests to absorb emissions, for example.
Leaders' Commitment
EU leaders had agreed in October 2014 to a range of climate goals and targets for the bloc, including that the EU should cut its emissions overall by 40 percent by 2030 compared to 1990.
These commitments subsequently became the EU's Intended Nationally Determined Contribution to the Paris Agreement, which was submitted by the bloc in March 2015.
In agreeing on Paris Agreement ratification, “what counts is the October 2014 council language," an EU official who asked not to be named told Bloomberg BNA Sept. 30.
Cañete said countries that had individually ratified the agreement could submit their national notifications to the UN at the same time as the EU deposits the blocwide notification.
So far, Austria, France, Germany, Hungary, Malta, Portugal and Slovakia have completed their national ratifications.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98087081&vname=dennotallissues&fn=98087081&jd=98087081
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EU Goes For Symbolic Win To Trigger Paris Climate Deal
Oct 30, 2016 | PoliticoPro
By Kalina Oroschakoff and Sara Stefanini
Not even the EU’s government structure could stop a set of determined environment ministers and a European commissioner who wanted a symbolic push to show the world that the bloc is at the forefront of fighting climate change.
They agreed Friday to fast-track the EU’s ratification of the Paris climate agreement, meaning the EU can submit its instrument of ratification to the United Nations before the 28 national governments have approved the deal separately.
Story Continued Below
“Today clearly shows that we mean business,” Climate Action and Energy Commissioner Miguel Arias Cañete said. “The responsibility of the global challenge has made all of us flexible.” Now that Brussels succeeded in getting all countries on board and preventing damage to its reputation on the global stage, it’s back to making sure policies get implemented, he said.
“Ratification is a crucial step towards implementing the Paris agreement, but let us be clear — ratification is not the end goal, it is a first step,” Arias Cañete said.
It’s now up to the European Parliament to give its consent early next week, which will then require final Council adoption, so the bloc can finalize its approval process by Oct. 7.
The date matters: Ratifying by then means the EU could trigger the Paris agreement taking effect, making it possible for the first meeting of formal parties to take place at the COP22 climate summit in Morocco in November — a political triumph.
“Europe has shown leadership in Paris and will participate in its implementation in Marrakesh,” said László Solymos, Slovakia’s environment minister. “The early ratification is our common responsibility of all EU countries,” Solymos had said earlier Friday.
EU in the spotlight
The EU has been under growing pressure to quickly ratify the climate pact, which comes into force 30 days after being approved by at least 55 countries responsible for 55 percent of global emissions. As of Friday, 61 countries accounting for 47.8 percent of emissions had ratified, according to the United Nations Framework Convention for Climate Change. India is also expected to ratify in October.
Getting approval from all 28 member countries plus the Council and the European Parliament would have taken much longer, jeopardizing the agreement getting to the finish line in November. That’s why Slovakia, which holds the Council’s rotating presidency, and the European Commission pushed for a shortcut.
The bloc’s ratification would only cover EU countries that have completed their national approvals by the October date, including Germany, France, Austria, Hungary, Portugal and Slovakia. Even that could be enough to push the Paris agreement past the threshold needed to take effect.
However, fast-tracking ratification created concern among some member countries, who worried that the process could set a precedent that could be applied to other international treaties. According to diplomatic sources, countries said the Paris shortcut should be “unique,” have no implications on how decision-making responsibilities are divided in the bloc and should not affect EU countries slower to ratify.
National concerns
Poland has been one of the most vocal hold-outs. In a letter earlier this week, Polish Environment Minister Jan Szyszko told other member countries that his country would only ratify the Paris climate deal if its interests — especially where coal is concerned — are taken into account.
To get everybody on board, the Commission and the Council also drafted a joint statement for sign-off by EU environment ministers that was intended to address member state concerns.
Ratification of the Paris climate deal by the EU before the bloc’s members have done so “cannot be interpreted as a precedent” that would apply to other treaties, the statement reads, adding that the process also won’t affect the “division of competences” or prejudge the role of parliaments. Lagging countries also won’t be left out of the EU decision-making process during climate talks.
“I would like to cite Poland’s national hymn: Poland is not yet lost. It’s about wanting to already pre-negotiate the effort sharing [the national emission reduction targets]. But I think that you can accommodate that very well in the statement,” Austrian Environment Minister Andrä Rupprechter told reporters before heading into the meeting.
The latest version of the statement now includes a reference to say emissions levels under the 2030 climate goals would need to take into account the specifics of countries’ national energy sources.
NGOs welcomed the decision but said the real goal is implementing ambitious policies to fight climate change. That includes raising the 40 percent emission reduction target to hit the Paris deal’s ambition of keeping global temperature rises to well below 2 degrees.
“The EU has the moral imperative to not only ratify the Paris Agreement, but to enhance the level of ambition and to scale up action as soon as possible,” said Wendel Trio, Director at Climate Action Network Europe.
This is echoed by leaders from Pacific Islands, who’ve been on the speaking circuit for years to raise awareness of how a changing climate is affecting their livelihoods.
“A lot of promises were made” in Paris, H.E. Anote Tong, the former president of Kiribati, recently told reporters in Brussels. “Now the question is, is it just a set of words” or will countries deliver on their climate commitments.
https://www.politicopro.com/energy/story/2016/09/eu-goes-for-symbolic-win-to-trigger-paris-climate-deal-132314
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