Preview Newsletter
ACC AM 10/14/16
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(ACC Mentioned) Survey Says Political Attacks, Donations May Undermine Fed Independence
Oct 14, 2016 | The Wall Street Journal
By Kate Davidson
Political attacks on the Federal Reserve could undermine its independence—but so could political donations from Fed officials to politicians. -
(ACC Mentioned) Green Biologics Introduces BioPure Brand, GreenInside Trademark
Oct 13, 2016 | Biomass Magazine
Green Biologics Inc., the U.S. subsidiary of Green Biologics Ltd., a U.K. industrial biotechnology and renewable chemicals company, recently announced the branding and product development strategy for its high-purity biobased n-butanol and acetone, as well as associated downstream products. -
(ACC Mentioned) An October Tradition: Teaching Kids About Manufacturing
Oct 13, 2016 | Tonica News
Manufacturing supports more than 18.5 million U.S. jobs, and hundreds of those jobs exist in the Illinois Valley area. This month, Carus Corporation is joining manufacturers across the country in helping kids explore a wide array of career opportunities. -
Role of ‘Conditions of Use' Under Sections 5 and 6 of Amended Toxics Law
Oct 14, 2016 | BNA Daily Environment Report
By Charles M. Auer and Lynn L. Bergeson
The concept of “conditions of use” plays an important role in the Toxic Substances Control Act (TSCA) as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act. -
Judge Tosses TSCA Claims in Elk River Lawsuit
Oct 14, 2016 | BNA Daily Environment Report
A federal judge dismissed claims from West Virginians affected by a 2014 chemical spill that the maker of the chemical violated federal toxics law (Good v. Am. Water Works Co. In., 2016 BL 340304, S.D. W.Va., No. 2:14-cv-01374, 10/12/16). -
EPA Approves Two More New Microbes, One Chemical
Oct 14, 2016 | BNA Daily Environment Report
The Environmental Protection Agency approved the commercialization of two more microbes and one chemical, it announced Oct. 13. -
Costs of Proposed Seismic Survey Rules Concern Oil Group
Oct 14, 2016 | BNA Daily Environment Report
By Alan Kovski
The oil and gas industry is worried that federal regulators will impose additional marine life protection measures that will unnecessarily increase costs of seismic surveys in the Gulf of Mexico and reduce the number of surveys. -
Senators Ask Obama to Order EIS for Dakota Access Pipeline
Oct 14, 2016 | BNA Daily Environment Report
By Mark Wolski
Sen. Bernie Sanders (I-Vt.) and four Democratic senators asked President Barack Obama on Oct. 13 to order an environmental impact statement for the Lake Oahe crossing of the Dakota Access Pipeline in North Dakota. -
Tale of Two Tribes: Utes Want to Drill as Sioux Battle Pipeline
Oct 14, 2016 | BNA Daily Environment Report
By Catherine Traywick
The Southern Ute Indian Tribe of southwestern Colorado has a higher long-term credit rating than Wells Fargo & Co., and more oil and natural-gas wells than it has members. -
Refinery, Chemical Plant Emission Estimates to Be Revised Again
Oct 14, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency agreed to once again update its tool used to estimate emissions of ozone precursor pollutants from flares at refineries and chemical plants to resolve litigation brought by environmental advocates. -
EPA Agrees To Review Refinery Flare 'Emission Factors'
Oct 13, 2016 | Inside EPA
EPA is proposing a settlement agreement with environmentalists that would commit the agency to review and potentially update its “emission factors” -- air pollution estimates -- for oil refinery flares that burn off excess emissions, following another recent settlement binding the agency to review other industrial emissions factors. -
EPA To Tighten Formula Measuring Refinery, Plant Emissions
Oct 13, 2016 | E&E News PM
By Sean Reilly
U.S. EPA is again moving to tighten the formula for calculating emissions of volatile organic compounds from oil refinery and petrochemical plant flaring operations. -
Tribal Air Permitting to Be More Efficient, EPA Says
Oct 14, 2016 | BNA Daily Environment Report
Concrete plants, printing facilities and other “minor” pollution sources located on tribal lands will soon be able to obtain Clean Air Act permits more efficiently, thanks to a new Environmental Protection Agency rule. -
AP Explains: Why Potent Greenhouse Gases Are Meeting's Focus
Oct 14, 2016 | AP (In The New York Times )
Greenhouse gases that are more powerful than carbon dioxide are the focus of a global gathering this week in Africa. Experts say cutting hydrofluorocarbons, or HFCs, is the fastest way to reduce global warming. -
Growing Optimism for Global Deal to Cut Hydrofluorocarbons
Oct 14, 2016 | BNA Daily Environment Report
By Dean Scott
Negotiators from nearly 200 nations are cautiously optimistic they'll reach a long-sought global deal by week's end to cut super-polluting hydrofluorocarbons that could prevent as much as a half-degree Celsius of planetary warming by the end of the century. -
India Triggers Split On HFC Cuts At Montreal Protocol Talks
Oct 13, 2016 | PoliticoPro
By Elana Schor
Talks to cut emissions of hydrofluorocarbons in Kigali, Rwanda, bogged down as a splinter group of nations led by India pressed for a slower phase down of the powerful greenhouse gas, breaking with their developing nation allies like China and Brazil. -
EIA Reports Lowest CO2 Emissions From U.S. Energy Sector Since 1991
Oct 13, 2016 | Natural Gas Intelligence
By Charlie Passut
Mild weather, coupled with a steep decrease in coal consumption, contributed to the lowest level of carbon dioxide (CO2) emissions from the U.S. energy sector since the first six months of 1991, the Energy Information Administration (EIA) said Wednesday.
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(ACC Mentioned) Survey Says Political Attacks, Donations May Undermine Fed Independence
Oct 14, 2016 | The Wall Street Journal
By Kate Davidson
Political attacks on the Federal Reserve could undermine its independence—but so could political donations from Fed officials to politicians.
That is the consensus from a recent Wall Street Journal survey of economists, 94.3% of whom said independent central banks perform somewhat better or much better than central banks controlled directly by government executives or finance ministries.
Rhetorical attacks on central banks could undermine this independence, 69.2% of economists said. But 70.6% of them also said campaign donations from Fed policy makers to politicians undermine the institution’s independence as well.
More than one-third of economists also said that if the next president asks Fed Chairwoman Janet Yellen to resign before her term is up in February 2018, she should do so.
The questions are more than hypothetical: the Fed has faced intense criticism in recent months from Republican presidential candidate Donald Trump, who has accused the central bank of keeping interest rates low ahead of the November election to help Democrats, allegations Ms. Yellen has repeatedly rejected.
Mr. Trump has said he would not reappoint Ms. Yellen if he is elected president. He hasn't said whether he would ask her to resign.
Republicans in Congress have criticized Fed governor Lael Brainard for donations she made to the campaign of Democratic presidential nominee Hillary Clinton. The barbs from politicians could undermine the Fed’s credibility with the public and weigh on officials’ actions, economists said. But donations from Fed officials to politicians are “terrible optics,” said Stephen Stanley, chief economist for Amherst Pierpont Securities.
“In this political environment, this action was ill-advised,” said Sean Snaith of the University of Central Florida, referring to Ms. Brainard’s donations.
The donations have put Fed Chairwoman Janet Yellen in the awkward position of having to defend Ms. Brainard, while at the same time fending off charges of a partisan tilt at the central bank.
Ms. Yellen told House lawmakers last month that Ms. Brainard, a top Treasury Department official in the Obama administration and an adviser to President Bill Clintonbefore joining the Fed in June 2014, had not violated any federal rules.
But Rajeev Dhawan, an economics professor at Georgia State University, said the move “doesn’t pass the common sense smell test.” Most economists agreed such donations are a bad idea.
“Like Caesar’s wife, Fed policy makers must be above suspicion,” said Thomas K. Swift of the American Chemistry Council.
Some economists went so far as to say Fed officials should be prohibited from making political donations while they serve at the central bank. Nearly a third, however, said such donations didn’t compromise the institution’s independence.
After policy makers join the Fed, “certain biases remain, that are reflective of leanings politically,” said Allen Sinai of Decision Economics. “But overt decisions for political reasons—no.”
Some observers have speculated that Mr. Trump, if elected, might ask Ms. Yellen to resign immediately.
Though 63.3% of economists said the Fed chief has a duty to stay in the job until the end of her term, 36.7% said she should step down as chairwoman if asked by the next president, if only to avoid the turmoil that would accompany a showdown between the central bank and the White House.
“Open warfare between the Fed chairman and presidents would terrify markets,” saidLynn Reaser, an economist at Point Loma Nazarene University, who said Ms. Yellen should step down.
Several said the move would set a dangerous precedent, and could knock the economy off its already low-growth course.
“The Fed by design has a deep bench, but it would be a very unorthodox and market destabilizing move of the next president,” said Constance Hunter, chief economist at KPMG, who said Ms. Yellen should step down if asked to by the president.
The Wall Street Journal surveyed 61 economists, but not every economist answered every question.
http://www.wsj.com/articles/survey-says-political-attacks-donations-may-undermine-fed-independence-1476439203
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(ACC Mentioned) Green Biologics Introduces BioPure Brand, GreenInside Trademark
Oct 13, 2016 | Biomass Magazine
Green Biologics Inc., the U.S. subsidiary of Green Biologics Ltd., a U.K. industrial biotechnology and renewable chemicals company, recently announced the branding and product development strategy for its high-purity biobased n-butanol and acetone, as well as associated downstream products. The company aims to market all 100 percent biobased chemicals under the brand BioPure, a descriptive brand name that encapsulates both the purity and sustainability of its biobased chemistry. Green Biologics has also registered the trademark GreenInside for co-branding opportunities with its collaboration partners, who will use the mark on a wide range of consumer and industrial products making sustainability claims based on Green Biologics’ technology.
“We believe branding is an essential part of value creation,” said David Anderson, Global Vice President of Marketing for Green Biologics. “Differentiating our high purity biobased products from commodity petroleum-based alternatives underscores our strategy to drive value in customer applications and downstream products.”
The company aims to offer a full slate of 100 percent biobased products both through its own manufacturing and through third-party contract manufacturing. In addition to n-butanol and acetone, Green Biologics is set to market high purity 100 percent bio-based isopropyl alcohol and a range of specialty esters of n-butanol, isopropanol and other bio-based alcohols. Through current and anticipated collaborations, the company is actively pursuing opportunities in cosmetics, food ingredients, plasticizers, monomers and specialty solvents.
“We’re focused on identifying and securing opportunities in markets that can leverage the value of our sustainable products,” said Timothy Staub, Global Vice President of Business Development. “Our future is driven by collaborations with brand and market leaders in a range of chemical, consumer and industrial markets where we believe our technology adds value.”
Green Biologics, a member of the American Chemistry Council, is in the early start-up of its first commercial production facility for BioPure renewable n-butanol and acetone in Little Falls, Minnesota, and aims to be in commercial production by late 2016.
“Our core product strategy is driven by opportunities in the $450 billion specialty chemicals market,” adds Anderson. “We’re a new-products-focused company and we aim to develop and introduce a number of exciting new products for both consumers and industrial customers in the coming weeks and months under our own brands and with our value partners.”
http://biomassmagazine.com/articles/13784/green-biologics-introduces-biopure-brand-greeninside-trademark
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(ACC Mentioned) An October Tradition: Teaching Kids About Manufacturing
Oct 13, 2016 | Tonica News
Manufacturing supports more than 18.5 million U.S. jobs, and hundreds of those jobs exist in the Illinois Valley area. This month, Carus Corporation is joining manufacturers across the country in helping kids explore a wide array of career opportunities.
The first Friday of each October is Manufacturing Day, the kick-off to a month of outreach activities involving companies across the country aimed at introducing young people to the many jobs associated with manufacturing.
“Every year, students are fascinated to learn about all the ways people make a living in manufacturing, at Carus and at other local businesses. We employ chemists and engineers, mechanics and electricians, as well as professionals in finance, sales, marketing, safety, information technology,” said Ralph Moshage, engineering manager for Carus.
Moshage also serves as co-chair of the North Central Regional Betterment Coalition’s Manufacturing Career Expo. The event, which takes place at Illinois Valley Community College Oct. 27, brings together 300 local high school students to tour local manufacturing facilities, meet industry professionals, and learn what they need to study now to pursue rewarding careers in the future. Carus has been a sponsor and participant since the Expo’s first year in 2013.
But before opening their plant to students for the Expo, Carus volunteers brought hands-on science mini-lessons to Chicago’s Museum of Science and Industry on Oct. 13-14. A long-time member of the Chemical Industry Council of Illinois (CICI), Carus participates annually in the CICI Careers Conference, which introduces thousands of Chicago-area students to careers in chemistry.
“This is an opportunity for us to promote the science behind manufacturing, and to attract young talent to the Illinois Valley. Every product we make for water treatment or air purification begins in our lab, and for a young person interested in chemistry, a career with Carus may be a perfect fit,” said human resources generalist Phil Taylor.
In the October outreach activity at Carus, you could consider National Chemistry Week the grand finale. Carus volunteers take their show on the road, visiting middle schools throughout the area with demonstrations, and getting young people excited to learn.
“That’s really what all of this is about,” said Taylor. “ (It's about) building a young person’s enthusiasm for their future, for learning, and for the great job opportunities that exist all around them.”
About Carus: Founded in LaSalle in 1915, Carus produces and supplies specialty chemistries, technologies and services for water treatment, soil remediation and air purification. Carus is a member of the American Chemistry Council and actively participates in the industry’s award-winning Responsible Care initiative, sharing a common commitment to improve environmental, health, safety and security performance.
http://www.tonicanews.com/2016/10/10/an-october-tradition-teaching-kids-about-manufacturing/ab1pnv/
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Role of ‘Conditions of Use' Under Sections 5 and 6 of Amended Toxics Law
Oct 14, 2016 | BNA Daily Environment Report
By Charles M. Auer and Lynn L. Bergeson
Charles M. Auer is a senior regulatory policy adviser with Bergeson & Campbell PC. Auer, a chemist by training, was formerly the director of the Environmental Protection Agency's office of pollution prevention and toxics (EPA/OPPT).
Lynn L. Bergeson is managing partner of B&C and practices extensively in all matters involving the Toxic Substances Control Act and related global chemical notification programs.The concept of “conditions of use” plays an important role in the Toxic Substances Control Act (TSCA) as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act. In this paper, the amended TSCA statute (Pub. L. No. 114-182) is referred to as “new TSCA,” versus “old TSCA” (Pub. L. No. 94-469).Conditions of use is a centralizing concept under which the U.S. Environmental Protection Agency (EPA) determines how a chemical is made, processed, used and disposed. The term is defined in Section 3 and also appears one or more times in the following Sections: 5, 6, 9, 14, 18, 21 and 26. The term is not used in Sections 4 and 8. This paper explores the use and application of the term conditions of use under new TSCA Sections 5 and 6, and provides insights into the implications of what may be its unusual use in Section 5 in comparison to Section 6.
Background
Conditions of use is defined in new TSCA Section 3(4) as follows: the term “conditions of use” means the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used or disposed of. This definition lays out an EPA role in determining the circumstances involved in a chemical's conditions of usewherever the term appears. “Intended” seems applicable in the case of new chemicals or Significant New Uses (NC/SNU) under Section 5 given the premanufacture status of such chemicals and uses. “Known” seems to fit best in Section 6 where the conditions of use would be informed by reporting or other information obtained by EPA. “Reasonably foreseen” may be defined disparately. Black's Law Dictionarydefines “reasonable” to mean “agreeable to reason; just; proper” and “foreseeability” as the “ability to see or know in advance; the reasonable anticipation that harm or injury is a likely result from certain acts or omissions.” “Reasonably foreseen conditions of use” might be interpreted to mean “conditions of use that are known in advance.”
Section 5. Manufacture and Processing Notices. Under Section 5(a), companies are required to submit premanufacture notifications (PMN) to EPA for new chemicals or Significant New Use Notifications (SNUN) for chemicals that are subject to notification based on a EPA SNU Rule (SNUR). As amended, Section 5 retains much of old TSCA, but makes changes that strengthen the regulation of new chemicals. EPA must review all NC/SNUs and make one of three TSCA Section 5(a)(3) determinations (henceforth referred to as “initial determinations”) concerning the potential risks or other issues relating to a NC/SNU. EPA must then take required regulatory actions resulting from that initial determination. EPA also has authority under Section 5(h) to grant exemptions. The role of conditions of use is outlined below.
Section 5(a). Section 5(a)(3) initial determinations that include the concept of conditions of use consist of those at subsections (A) and (C) (emphasis added to highlight the use of conditions of use):
•The Section 5(a)(3)(A) determination (referred to as an “(A) initial determination”) is relevant when EPA determines that a NC/SNU “present[s] an unreasonable risk…without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by [EPA] under the conditions of use” (PESS/COU); and
•The Section 5(a)(3)(C) determination (“(C) initial determination”) is relevant when EPA determines that a NC/SNU is “not likely to present an unreasonable risk…without consideration of costs or other nonrisk factors, including an unreasonable risk to a [PESS/COU].”
Conditions of use does not appear in the initial determinations under Section 5(a)(3)(B) (“(B) initial determination”), including the following initial determinations (emphasis added; note that these provisions are not quoted):
(i) That the information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the NC/SNU (an “insufficient information initial determination”); or
(ii)(I) That in the absence of sufficient information to make “such an evaluation,” the NC/SNU may present an unreasonable risk, without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible population identified as relevant by EPA (a “may present initial determination”), or
(ii)(II) That the chemical will be produced in substantial quantities and it either enters or may be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure (an “exposure-based initial determination”).
If EPA makes the (A) initial determination, it must regulate under Section 5(f). If EPA makes any of the three (B) initial determinations, it must regulate under Section 5(e). For both (A) and (B) initial determinations, EPA is required to consider the need for a SNUR, or to publish reasons for deciding otherwise. If EPA makes the (C) initial determination, the notifier can commence manufacture or processing under Section 5(g) “notwithstanding any remaining portion of the applicable review period” and EPA is required to publish its finding.
Section 5(e). Section 5(e)(1)(A) involves two steps. The first concerns the initial determination and the second concerns decisions as to the “extent necessary” control measures that are needed to protect against unreasonable risk. Interestingly, PESS/COU is included in the may present determination at Section 5(e)(1)(A)(ii)(I) (but not in the Section 5(e) determinations for “insufficient information” and “exposure-based”) and in the “extent necessary” regulatory decision. Section 5(e)(1)(A) reads as follows regarding the use of “conditions of use”):
If the Administrator determines that—
(i) [insufficient information determination]; or
(ii)(I) in the absence of sufficient information… the manufacture, processing, distribution in commerce, use, or disposal of such substance… may present an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a [PESS/COU]; or
(II) [exposure-based determination],
[EPA] shall issue an order, to take effect on the expiration of the applicable review period, to prohibit or limit the manufacture, processing, distribution in commerce, use, or disposal… to the extent necessary to protect against an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors,including an unreasonable risk to a [PESS/COU], and the submitter of the notice may commence… manufacture or processing… including while any required information is being developed, only in compliance with the order.
While it does not play a role in the (B) initial determinations, conditions of use is included in the “5(e) ‘may present’ determination” and in EPA's “5(e) ‘extent necessary’ regulatory decision.” In both cases, conditions of use modifies the meaning of “unreasonable risk” by clarifying that it includes an unreasonable risk to a PESS/COU, thus reaffirming the application ofconditions of use in EPA's 5(e) decisions regarding the “extent necessary” control measures for “may present” cases. As structured, it also applies to EPA decisions regarding the control measures for cases involving insufficient information and exposure-based Section 5(e) determinations.
Section 5(f). Section 5(f)(1) involves a determination that the NC/SNU presents an unreasonable risk (“5(f) determination”) and an “extent necessary” decision (“5(f) ‘extent necessary’ regulatory decision”). This section references conditions of use in the 5(f) determination. The term is cross-referenced in the “extent necessary” regulatory decision. Section 5(f)(1) reads (emphasis added):
If the Administrator determines that a [NC/SNU] presents an unreasonable risk of injury to health or environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a [PESS/COU], [EPA] shall… take the action authorized by paragraph (2) or (3) to the extent necessary to protect against such risk.
Section 5(f)(2) describes how EPA can issue an immediately effective proposed rule under Section 6(a) while Section 5(f)(3) provides order authority. Conditions of use does not appear in either provision.
Section 5(h). This provision concerns exemptions and has references to conditions of use at Section 5(h)(1) concerning test marketing exemptions and at Section 5(h)(4) concerning exemptions that notifiers can request from EPA. Interestingly, the relevant wording is different in the two provisions: subsection (4) uses a PESS/COU formulation similar to that discussed above, but does not include the “as relevant” phrase; subsection (1) speaks to “specific conditions of use identified in the application” (emphasis added). Other than substituting “information” for “data” where it appears, these were the only changes to this TSCA section.
In summary, under Section 5, conditions of use is relevant to the initial determinations for (A) “presents” and (C) “not likely to present an unreasonable risk.” The term is not relevant to the (B) initial determinations. Conditions of use is, however, a relevant consideration in the risk management provisions at Sections 5(e) and (f) regarding unreasonable risks to potentially exposed or susceptible subpopulations, although its role in the former is varying and complex, as discussed above. The term is relevant to consideration of unreasonable risks to a PESS/COU in Section 5(h). A final point to note is that while conditions of use can be relevant to evaluating exposures and health risks to potentially exposed or susceptible subpopulations in Section 5, the statute is silent on the application of the concept of conditions of use to environmental organisms and to human exposures that do not involve potentially exposed or susceptible subpopulations and, thus, the concept (and its “reasonably foreseen” aspect) is not relevant when conducting exposure and risk assessments for environmental organisms or general population exposures, or in determining control measures needed to protect such organisms/populations from unreasonable risks.
See Table 1, summarizing the use in Sections 5(e) and (f) of conditions of use.
Section. 6. Prioritization, Risk Evaluation, and Regulation of Hazardous Chemical Substances and Mixtures. New TSCA revises Section 6 by adding prioritization and risk evaluation stages, deleting the “least burdensome requirement,” and including timelines for completion of the key steps, including prioritizations, risk evaluations and control actions. Conditions of use appears in Section 6(b) concerning prioritization and risk evaluations, Section 6(c) concerning consideration of alternatives when taking a control action that “substantially prevents a specific condition of use,” Section 6(g) concerning the granting of exemptions from a Section 6(a) requirement for a “specific condition of use,” and in Section 6(h) concerning expedited action on certain Persistent, Bioaccumulative, and Toxic (PBT) chemicals. In these instances, conditions of use appears to be relevant to human and environmental aspects of the various stages. Conditions of use does not appear in Section 6(a) concerning the scope of regulation. Its use in Section 6 is outlined below.
Section 6(b)(1). This section concerns prioritization for risk evaluation and includes several references to conditions of use, including (emphasis added):
• In the rulemaking required to establish the prioritization process, EPA is to include consideration of “the conditions of use or significant changes in the conditions of use” of the chemical; and
• Concerning identification of high-priority substances, EPA is required to designate as high-priority chemicals that EPA concludes, without consideration of cost and other nonrisk factors, “may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use,including an unreasonable risk to a potentially exposed or susceptible subpopulation” that EPA identifies as relevant.
• Conditions of use is included in the determination that EPA makes in identifying low-priority chemicals by the cross reference to the Section 6(b)(1)(B)(i) standard on designating high-priority chemicals.
Section 6(b)(4). This section concerns the risk evaluation process and deadlines and has several references to conditions of use, including the following (emphasis added):
• In conducting risk evaluations, EPA shall determine whether a chemical substance “presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by [EPA], under the conditions of use.”
• In publishing the scope of the risk evaluation six months after its initiation, EPA must include “the hazards, exposures,conditions of use, and the potentially exposed or susceptible subpopulations [EPA] expects to consider.”
In conducting a risk evaluation EPA shall, among others:
• Integrate and assess available information on hazards and exposures for the conditions of use of the chemical substance;
• Describe whether aggregate or sentinel exposures to a chemical substance under the conditions of use were considered, and the basis for that consideration; and
• Take into account, where relevant, the likely duration, intensity, frequency, and number of exposures under the conditions of use of the chemical substance.
Section 6(c)(2)(C). This provision requires that EPA consider “to the extent practicable, whether technically and economically feasible alternatives… will be reasonably available as a substitute” when actions that “prohibit or restrict in a manner thatsubstantially prevents a specific condition of use of a chemical” take effect.
Section 6(g), regarding the criteria for exemptions, states that EPA may by rule grant an exemption from a Section 6(a) rule requirement concerning a “specific condition of use” if EPA makes any of several findings that are available for granting such an exemption.
Section 6(h)(1), concerning expedited action on PBT chemicals, requires that EPA shall propose Section 6(a) rules not later than three years after enactment for certain PBT chemicals on the 2014 update of the TSCA Work Plan for which “exposure… under the conditions of use is likely to the general population or to a potentially exposed or susceptible subpopulation identified by [EPA], or the environment.”
In summary, under Section 6, conditions of use is relevant to the prioritization and risk evaluation stages of the new TSCA Section 6 process. Unlike the situation in Section 5 where conditions of use was relevant to evaluating exposures and unreasonable risks to potentially exposed or susceptible subpopulations in certain provisions, in Section 6 conditions of use is relevant to both human and environmental aspects of exposures and risks in the prioritization and risk evaluation stages, including in the latter with regard to “aggregate or sentinel exposures” and the “duration, intensity, frequency, and number of exposures.” When taking risk management actions involving “specific conditions of use,” EPA is required to consider the availability of technically and economically feasible alternatives when deciding whether a ban or phase-out action should be taken. The concept of “specific conditions of use” also appears in Section 6(g) concerning the granting of exemptions from ban or phase-out actions. Finally, Section 6(h) requires that EPA, in taking expedited action against certain PBT chemicals, consider conditions of use regarding exposure of such PBT chemicals to the general population, to a potentially exposed or susceptible subpopulation, or to the environment.
See Table 1 for a tabular summary of the use of conditions of use in Section 6, and in relation to Section 5.
Discussion
Conditions of use appears to play a distinctly different, narrower and more complex role in Section 5 of new TSCA as compared to its much broader use in Section 6. Under Section 6(b) EPA's determination of the conditions of use for both human and environmental aspects is directly tied to EPA's prioritization determinations of “may present an unreasonable risk” in regards to both high- and low-priority designations and to the “presents an unreasonable risk” determination that applies in conducting a risk evaluation. Section 6(b)(4) concerning the risk evaluation process includes several additional references to conditions of usethat make clear how central the concept is to this process. Specifically, EPA must:
• Include conditions of use in its risk evaluation scope document;
• Integrate and assess the available information on “hazards and exposures for the conditions of use”;
• Discuss the need to describe whether “aggregate or sentinel exposures” to a chemical under the conditions of usewere considered, and the basis for that consideration; and
• “Take into account, where relevant, the likely duration, intensity, frequency, and number of exposures under the conditions of use.”
At Sections 6(c) and 6(g), the term is used in the context of the need to consider the availability of alternatives when evaluating ban and phase-out control actions and possible exemptions from those actions, respectively. The term also appears in Section 6(h) concerning PBTs where EPA is required to consider whether exposure of the PBT chemical under the conditions of use is likely to the general population, to a potentially exposed or susceptible subpopulation, or to the environment.
In contrast, while conditions of use appears multiple times in Section 5, it is not consistently applied in the initial determination provisions at Section 5(a)(3). When used in the (A) and (C) initial determinations (“presents” and “not likely to present,” respectively), the term is narrowly applied and does not include consideration of environmental organism or general population exposure and risk aspects, but is limited to considerations revolving around potentially exposed or susceptible subpopulations. This general approach is continued elsewhere in Section 5 where the concept of PESS/COU is considered in unreasonable risk determinations made under Sections 5(e) and (f), in the risk management “extent necessary” regulatory decision made under Section 5(e) and (f) and in granting exemptions under Sections 5(h)(1) and (4) (the particulars differ in each of these four areas). The term does not appear at all in the three (B) initial determinations.
What are we to make of the distinctly different use of conditions of use in Section 5 versus Section 6? While Section 6 clearly envisions and requires that EPA determine and apply conditions of use as such in its human and environmental organism prioritization and risk evaluation analyses and in subsequent stages as discussed above, the situation is very different in Section 5 where conditions of use is, at best, inconsistently applied.
Hints that may help to illuminate what may be going on can be found in the chapeau to Section 5(a)(3) which requires that EPA “shall review such notice and determine…[(A), (B), or (C)]” (emphasis added). The “such notice” provision can be interpreted as potentially limiting EPA's flexibility in considering information beyond that in the notice except possibly as allowed in those provisions that include the concept of conditions of use and, thereby, the “reasonably foreseen” aspect included in the term's definition. This limitation would not apply in the case of the (A) and (C) initial determinations, for which an unreasonable risk to a PESS/COU and its “reasonably foreseen” consideration is applicable. Read this way, “such notice” might apply a de facto conditions of use concept that does not envision an EPA conditions of use role in such a determination regarding environmental organism and general population exposures and risks in making (A) and (C) initial determinations, and all aspects of the (B) initial determinations. Rather, under this reading, it is the submitter that determines the uses and exposures to be reviewed based on what is actually reported in the PMN/SNUN (we use the term “submitter's de facto conditions of use” when referring to this concept). Thus, in making a (B) initial determination, EPA would be limited to reviewing the uses, releases, and exposures reported in the notice. When making (A) or (C) initial determinations, on the other hand, EPA would also consider conditions of use as they relate to a potentially exposed or susceptible subpopulation that would bring ”reasonably foreseen” uses and exposures into that aspect of the human exposure and risk assessment elements of the determination. This same submitter's de facto conditions of use aspect would apply generally in Section 5(a)(3) initial determinations in the case of human exposure and risk assessment aspects that did not involve PESS/COU, an example of which is general population exposure.
The next steps of the Section 5 process raise the question of how the concepts of conditions of use and “such notice” play through to the required risk management actions under Sections 5(e) and (f). This aspect is also complicated, particularly with regard to Section 5(e), but seems to operate as follows:
Section 5(e)
• In the case of Section 5(e) control actions to protect environmental organisms such as fish or to limit human general population exposures that do not involve potentially exposed or susceptible subpopulations, it appears that EPA can consider and regulate only the uses and exposures reported in the PMN/SNUN. To the extent other possible uses beyond those in the notice raise concerns, such uses could be addressed subsequently as appropriate through a SNUR, after considering the factors contained in Section 5(a)(2)(A-D). Further, it appears that this SNUR aspect could apply, depending on the specifics under all of the (B) initial determinations.
• In the case of control actions triggered by the initial determinations concerning “insufficient information” and “exposure-based” cases, because they do not involve an unreasonable risk, these determinations appear to flow directly through to the “extent necessary” regulatory provision in Section 5(e). EPA is required under this section to regulate to protect against an unreasonable risk, including an unreasonable risk to a PESS/COU. Insofar as EPA has earlier determined (unless it makes multiple initial determinations under Section 5(a)(3)(B)) that the chemical does not satisfy the “may present” initial determination, the regulatory actions are expected to be limited possibly to requiring the testing needed to permit a reasoned evaluation or, for the “exposure-based” initial determination, to develop test data such as that which EPA has required historically for such new chemical cases (see https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca/tsca-section-5e-exposure-based). As part of the 5(e) “extent necessary” regulatory decision on such cases, if EPA identifies an unreasonable risk to a PESS/COU, it appears EPA can take additional regulatory actions to the extent necessary to protect against that unreasonable risk.
• In the case of control actions triggered by the “may present” initial determination, EPA was limited in making the (B) initial determination to considering the uses and exposures reported in the NC/SNU, including risks to a potentially exposed or susceptible subpopulation. In making the 5(e) determination and the 5(e) “extent necessary” regulatory decision, however, EPA is required to consider unreasonable risks to a PESS/COU. These two steps, with their reference to conditions of use, appear to inject “reasonably foreseen” circumstances of exposures (involving such a subpopulation identified as relevant by EPA) into these determinations. This suggests that the control action could extend to include “reasonably foreseen” uses that present an unreasonable risk to such a potentially exposed or susceptible subpopulation.
On the other hand, when determining the controls needed to protect adequately against such “may present” risks to environmental organisms and to the general population, EPA appears to be limited to controlling the uses and exposures that were reported in the PMN/SNUN. To the extent other possible uses of the NC/SNU raise potential issues in such cases, they could be addressed subsequently as appropriate through a SNUR, as discussed above.Section 5(f)
• In the case of Section 5(f) control actions to protect environmental organisms or to limit general population exposures that do not involve potentially exposed or susceptible subpopulations, EPA appears to be limited to considering and regulating the uses and exposures reported in the PMN/SNUN.
• For Section 5(f) actions that include an unreasonable risk involving potentially exposed or susceptible subpopulations identified as relevant by EPA under the conditions of use, EPA could consider and take actions to prohibit or limit reasonably foreseen exposures and uses to the extent necessary to protect adequately against the unreasonable risk.
In the case of the (C) initial determination of “not likely to present an unreasonable risk,” the notifier can commence commercialization once the determination has been made. To the extent EPA believes there may be other uses and exposures beyond those described in the PMN/SNUN that may warrant future notifications, however, EPA can determine whether a SNUR is needed to ensure that EPA has a chance to review such uses and exposures, if they arise in the future. EPA could possibly use the so-called “non-5(e) SNUR” procedure at 40 C.F.R. § 721.170 in such cases. The regulatory text at subsection (a) of this procedure makes clear that it applies in cases “if EPA determines that activities other than those described” in the notice may result in significant changes in exposure or release.
Examples of New Chemicals Under Section 5
The following examples illustrate how the points discussed above might operate in the case of initial determinations under Section 5(a)(3) and 5(e) determinations, and in the case of 5(e) “extent necessary” regulatory decisions on NCs submitted as PMNs.
• EPA's review indicates low health concerns, but moderate environmental toxicity concerns are identified. Production and use of the new chemical as reported in the PMN do not include environmental releases, however. On this basis, the NC is determined “not likely to present an unreasonable risk.” Production and use of the NC by other companies could involve environmental releases, however, and, based on structurally related NCs previously reviewed by EPA, there are possible future uses of the NC that could involve environmental release. The likely outcome is that the notifier can commence manufacture once the initial determination is made and a SNUR, including a non-5e SNUR, could be used as needed, to allow future consideration of production/uses involving environmental releases.
• EPA's review indicates that insufficient information is available to support a reasoned evaluation of the environmental hazards, while EPA considers the NC to present a low concern for health effects. The case receives an initial determination of “insufficient information” and is referred for regulatory action under Section 5(e). In considering the 5(e) “extent necessary” regulatory decision, EPA does not consider possible PESS/COU issues because the low health concern indicates that health risks are likely to be low. The control action involves screening level ecotoxicity and environmental fate testing needed to provide a reasoned evaluation of the NC's environmental effects. The notifier can commence manufacture at the end of the applicable review period in compliance with the consent order. EPA will also need to consider whether a SNUR is needed. Based on the experience of one of the authors while serving as EPA's OPPT Office Director, under old TSCA EPA would typically not implement a SNUR on cases involving a Section 5(e) “exposure based” consent agreement but would consider the need for a SNUR after the required testing was received by the agency. Such an approach may be merited here.
• EPA's review of the NC leads to identification of a possibly significant health concern for inhalation exposure to fine particulates of the NC based on structurally analogous PMN cases, but low concern for environmental toxicity. The NC is manufactured and used strictly as a liquid suspension and the use and exposure information in the PMN indicates no potential for human exposure to fine particulates. These lead to an initial determination of (C) “not likely to present an unreasonable risk.” EPA, however, identifies that there are reasonably foreseen uses of the NC that could involve fine particulate worker exposure (a possible PESS/COU) and this precludes satisfying the (C) initial determination. EPA considers possible (B) initial determinations that could be relevant and believes that the insufficient information initial determination best fits the case. EPA proceeds to take up Section 5(e) and, when making the 5(e) determination, considers the PESS/COU issues identified previously. After considering these aspects, EPA concludes that it can meet the 5(e) determination regarding “may present an unreasonable risk” to PESS/COU, but not otherwise. EPA proceeds to the 5(e) “extent necessary” regulatory determination and decides to require that the NC be manufactured and used as a liquid suspension, and to require testing to understand better the inhalation hazards and the dose/response. Alternatively or in addition, EPA might require an exposure screening study to provide information on inadvertent worker exposures to particulates of the NC. EPA thus requires testing in the Section 5(e) order and that the NC be manufactured/used as a liquid suspension. EPA subsequently decides to issue a “5(e) SNUR” for manufacture/processing/use other than as a liquid suspension (e.g., uses involving powders or fine particulates). The notifier can commence manufacture at the end of the applicable review period in compliance with the order.
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Judge Tosses TSCA Claims in Elk River Lawsuit
Oct 14, 2016 | BNA Daily Environment Report
A federal judge dismissed claims from West Virginians affected by a 2014 chemical spill that the maker of the chemical violated federal toxics law (Good v. Am. Water Works Co. In., 2016 BL 340304, S.D. W.Va., No. 2:14-cv-01374, 10/12/16).
A group of residents living near the state's Elk River sued Eastman Chemical Co., alleging that it violated the Toxic Substances Control Act by withholding data from the Environmental Protection Agency when the company began making the chemical MCHM (4-Methylcyclohexanemethanol) in the late 1990's.
Had Eastman Chemical supplied the EPA with this data at the time, the plaintiffs argued, more precautions would have been taken for its storage that could have prevented the spill that made drinking water in and around the city of Charleston unpotable.
However, John Copenhaver, a U.S. District Court judge in West Virginia, dismissed these claims in an Oct. 12 opinion. He said the plaintiffs’ arguments that a lack of TSCA regulation continues to directly lead to water contamination in West Virginia were unprovable and, even if this could be proved, it is unclear whether more regulation under this statute would be able to solve the problems they were raising.
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EPA Approves Two More New Microbes, One Chemical
Oct 14, 2016 | BNA Daily Environment Report
The Environmental Protection Agency approved the commercialization of two more microbes and one chemical, it announced Oct. 13.
The agency's announcement, posted online, said the two microorganisms and one chemical were “not likely to present an unreasonable risk.” That is the best finding the EPA can make under the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. La. No. 114-182), which amended the Toxic Substances Control Act as of June 22.
The announcement means the agency has completed 28 reviews of new chemicals or new microbes since June 22. It has allowed all to enter the market because it concluded they were unlikely to present an unreasonable risk. Hundreds more new chemicals and microbes remain under review.
Chemical manufacturers and their representatives said the Lautenberg Act's passage has prompted the EPA to seek more human and ecological toxicity data in its reviews. The agency has yet to announce any decision about a chemical that it concludes may or does pose an unreasonable risk.
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Costs of Proposed Seismic Survey Rules Concern Oil Group
Oct 14, 2016 | BNA Daily Environment Report
By Alan Kovski
The oil and gas industry is worried that federal regulators will impose additional marine life protection measures that will unnecessarily increase costs of seismic surveys in the Gulf of Mexico and reduce the number of surveys.
The proposed regulatory restrictions may rely on “astronomically” high and unjustified estimates of harm to marine mammals from the sound waves used for surveys, said Andy Radford, an American Petroleum Institute policy adviser, during a teleconference with reporters Oct. 13.
The industry group is concerned about proposed protection measures for mammals the Bureau of Ocean Energy Management (BOEM) included in a draft environmental impact statement released Sept. 30 on its permitting program for geological and geophysical work in the gulf. Seismic surveys, using airguns, sonar and other technologies, are the most controversial part of the geophysical work.
The draft impact statement lists seven alternative policy options and subdivides one of them to effectively make it eight options. One would reduce the number of surveys by 10 percent, and another would reduce the number by 25 percent. Radford said he saw no reason to reduce the seismic survey work, saying it is an essential part of exploration efforts and has never been shown to harm marine mammals.
Additional mitigation measures beyond those already established will add to costs needlessly, Radford said. As an example, he pointed to an option that would require a temporary shutdown of operations not only when whales are within the operational “exclusion zone” but also when dolphins are spotted in the zone, except for dolphins riding a ship's bow wave.
The agency estimated its provisions would add an annual incremental cost to industry ranging from $93.6 million to $185 million, excepting only a “status quo” option with no new requirements.
High-Impact Estimates Criticized
The assumptions built into models used to estimate the cumulative harm to the animals need to be looked at carefully, Radford said.
In the past, assumptions built into the models led to overestimates of potential harm from seismic surveys by as much as 1,000 percent, he said.
Opponents of seismic surveys in recent years presented estimates of potential harm from them in ways that frustrated industry and BOEM officials. In March 2015, during a debate over the prospects for oil and gas exploration work in the Atlantic offshore, William Brown, BOEM chief environmental officer, issued a statement saying people were exaggerating BOEM estimates of potential harm.
The example given by Brown was of misrepresentations of what the agency expected in terms of harm to species. An estimate by his agency of potential cumulative impacts was being repeated without the cautionary note that mitigation policies would reduce the numbers of actual impacts, he said.
Agency Downplays Some Risks
The draft environmental impact statement was issued after more than 10 years of BOEM work with industry and the National Marine Fisheries Service to develop a regulatory framework to guide seismic surveying in the gulf. The final version will be used not only as a framework for BOEM project permit considerations but for the fisheries service's enforcement of the Marine Mammal Protection Act and the Endangered Species Act.
A common fear is that strong sonic waves could deafen whales, animals that rely heavily on hearing. That kind of possibility exists but is not a probability, according to the federal agency.
The BOEM draft programmatic environmental impact statement for geological and geophysical work in the Gulf of Mexico said no data indicate seismic activities have caused direct physical injury to organ systems and tissues in marine mammals.
“A marine mammal would have to be very close to the source for direct physical injury to occur, and BOEM believes that mitigation and monitoring measures would prevent marine mammals from being close to the source,” the document said.
The public can comment on the draft programmatic EIS until Nov. 29. Comments can be filed through thehttps://www.regulations.gov website by using the identification number BOEM-2016-0068.
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Senators Ask Obama to Order EIS for Dakota Access Pipeline
Oct 14, 2016 | BNA Daily Environment Report
By Mark Wolski
Sen. Bernie Sanders (I-Vt.) and four Democratic senators asked President Barack Obama on Oct. 13 to order an environmental impact statement for the Lake Oahe crossing of the Dakota Access Pipeline in North Dakota.
In a letter, the five senators said the pipeline's long-term climate effects should be studied, as Oil Change International has estimated that the pipeline could have the same environmental impact as 30 new coal-fired power plants.
The letter said the pipeline, which Energy Transfer Partners LP maintains is nearly completed, is a violation of Native American treaty rights. It said that until there is full and meaningful tribal consultation, all pipeline permits and easements should be revoked or deleted.
In addition to Sanders, the letter was signed by Sens. Patrick Leahy (D-Vt.), Dianne Feinstein (D-Calif.), Edward J. Markey (D-Mass.) and Benjamin L. Cardin (D-Md.).
Vicki Granado, spokeswoman for Energy Transfer Partners of Dallas, said the company had no comment on the letter. She said Energy Transfer has complied with the regulatory requirements for the pipeline. Further, it is committed to protecting cultural resources, the environment and the public safety.
The Dakota Access Pipeline, which crosses most of North Dakota, is awaiting the approval of an easement by the U.S. Army Corps of Engineers. The easement would allow pipeline work beneath the Missouri River.
Corps Looking at Tribal Issues
The corps has indicated, however, that it is also reviewing issues raised by the Standing Rock Sioux Tribe in its opposition to the project. It has said it will not authorize any pipeline construction until it finishes examining the tribe's issues (see related story).
The senators’ letter said it appreciated the Obama administration's decision to deny the authorization of construction on corps land near Lake Oahe, but noted that Energy Transfer has indicated it is still committed to completing construction of the project in the near future.
The letter said continued construction would violate tribal treaty rights and would have the potential to cause damage to sacred lands. Until the tribe is consulted, it said, further permits and easements should be revoked or denied.
The letter said that the project is akin to the Keystone XL pipeline, whose extension was rejected by the Obama administration, arguing that it would have a “significant impact” on greenhouse gas emissions. Long-term climate impacts should be considered, the letter said, before the corps acts on any permits or easements.
In a statement, the Standing Rock Sioux Tribe acknowledged that an environmental impact statement would analyze all the potential impacts of the pipeline. It continues to maintain that the project would desecrate its sacred lands and contaminate its water source.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98841664&vname=dennotallissues&fn=98841664&jd=98841664
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Tale of Two Tribes: Utes Want to Drill as Sioux Battle Pipeline
Oct 14, 2016 | BNA Daily Environment Report
By Catherine Traywick
The Southern Ute Indian Tribe of southwestern Colorado has a higher long-term credit rating than Wells Fargo & Co., and more oil and natural-gas wells than it has members.
Welcome to the other side of the tribal land energy conundrum.
While the Standing Rock Sioux have drawn considerable media coverage for their fight against the Dakota Access Pipeline project, theSouthern Utes have attracted scant attention for their 15-year push to make it easier to drill on American Indian land. Their goal: Extend financial opportunities that have already given them control of 1,600 wells across four states, and helped make them one of the richest tribes in the U.S.
“Without a prolonged effort to take control of our natural resources, the Southern Ute Indian Tribe would not be the economic powerhouse it is today,” Tribal Council Treasurer James Olguin told lawmakers in a congressional hearing last week. “We are the best protectors of our own resources and the best stewards of our own destiny.”
Lobbying Push
Since 2012, the Southern Ute tribe has spent $1.6 million lobbying Washington to ease energy permits, ensure tribal sovereignty and lighten U.S. Interior Department rules on fracking and methane emissions, according to the Senate's Lobbying Disclosure Act database. That's three times more than Pioneer Natural Resources Co., a shale driller with more than $32 billion in market value.
While the Standing Rock Sioux vowed last week to keep fighting the Dakota Access Pipeline after a federal court declined to halt construction, the Southern Utes met with U.S. lawmakers in Santa Fe, New Mexico, to argue for new laws loosening federal control over their drilling operations. They were joined by representatives of the Navajo Nation, the largest U.S. tribe, and the Arctic Slope Regional Corp., owned by Alaska natives.
The three groups called on Congress and the Interior Department to streamline permitting on American Indian lands and give tribes more control over energy leasing and environmental reviews.
The argument resonated with some Republican lawmakers.
Old Notions
“Nearly every aspect of energy development on tribal lands is influenced or controlled by the federal government, a policy stemming from old notions that Indian tribes are incapable of or unwilling to manage their resources,” Utah Republican Rob Bishop, chairman of the House Natural Resources Committee, said during the hearing.
For Democrats, environmental concerns outweigh questions about sovereignty. Last year, only 11 Democratic representatives voted in favor of legislation to streamline tribal energy permitting.
The Southern Ute reservation, tucked into Colorado's San Juan Basin, sits atop one of the most productive coal-bed methane gas fields in the country. The tribe, with about 1,500 members, manages energy resources through the Red Willow Production Co. It was founded in 1992 to develop wells on the reservation, and has expanded into the Delaware Basin in Texas, the Green River Basin in Wyoming and the Gulf of Mexico.
Little Big Horn
The tribe has had a long and complex history with the U.S. government.
A Ute named Yellow Nose was credited with killing General George Custer at the Battle of Little Bighorn in 1876, according to a tribal history. Four years later, following two key battles that left dozens on both sides dead, the tribe's leader Ouray traveled to Washington for treaty negotiations that cost the Utes tribal land. In 1905, then-chief Buckskin Charley met President Theodore Roosevelt in Washington, and rode in his inaugural parade.
More recent efforts to influence policy have yielded limited success. Congress has passed bills to streamline the permitting process on tribal lands and trim project delays. That's a positive step, the tribe has said, but it does not address a fundamental problem: the federal government treats tribal lands as public lands, exercising the same level of oversight as over national parks.
“Some of it is historic artifact,” said Eric Henson, a fellow at the Harvard Project on American Indian Economic Development. “It wasn't that long ago that the non-tribal world viewed tribes as incompetent, incapable, unable to manage their own affairs. So we have this treaty framework where we say ‘We'll take care of it for them.’”
Competitive Disadvantage
That puts tribes at a competitive disadvantage, the tribe's argument goes: Why invest in tribal lands, requiring years of costly environmental review and a lengthy permit process, when you can be in operation elsewhere within weeks?
Colorado typically issues drilling permits within two months of receiving applications, and charges no permit fee. To drill on Southern Ute land, the U.S. Bureau of Land Management charges a $9,500 fee and on average takes seven months to process permits on public lands. In the case of tribes, there may be additional delays related to the Bureau of Indian Affairs's role in the permitting process.
That's problematic for development, the Harvard Project's Henson said. While some tribes have access to considerable oil and gas reserves, few develop them, hindered by a lack of capital and technical experience, or waylaid by the permitting process.
Tax Base
For tribes rich in natural resources, energy production can create the tax base needed to provide crucial services for members.
Olguin emphasized this at last week's hearing. “Today, the tribe provides health insurance for its tribal members, promises all members a college education and has a campus dotted with state-of-the-art buildings,” he said at the hearing. This is “despite the federal government's stifling role in Indian energy development.”
Tribal officials say the Obama administration is attuned to Native Americans’ concerns, as evidenced by its response to the controversial Dakota Access pipeline. Shortly after a U.S. district court denied a request to stop construction of the $3.8 billion project, the Obama administration halted work on the contested stretch of land.
But tribe-sanctioned production of fossil fuels remains a quagmire for the administration, which has adopted a strong stance on climate change.
“There's tension even within the Obama administration on the issue of tribal sovereignty,” said Thomas Shipps, legal counsel to the Southern Ute Indian Tribe. “Especially when exercising that sovereignty involves the development of fossil fuels.“
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Refinery, Chemical Plant Emission Estimates to Be Revised Again
Oct 14, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency agreed to once again update its tool used to estimate emissions of ozone precursor pollutants from flares at refineries and chemical plants to resolve litigation brought by environmental advocates.
The agency committed to issuing by Dec. 16 a revised flaring emissions estimate for volatile organic compounds, known as an emissions factor, according to Environmental Integrity Project attorney Sparsh Khandeshi.
The proposed settlement, posted online Oct. 13, would resolve a July 2015 lawsuit filed by Air Alliance Houston and other environmental organizations (Air Alliance Houston v. EPA, D.C. Cir., No. 15-1210, 7/10/15).
The emissions factor for flaring at refineries and petrochemical plants was updated in 2015, when the agency raised its estimate of how much pollution was released by flares at those facilities from 0.14 pound to 0.57 pound of volatile organic compounds per one million British thermal units (MMBTU).
Under the proposed settlement, the new emissions factor would be 0.66 pound per MMBTU, according to Khandeshi.
Khandeshi, who is representing the environmental petitioners, told Bloomberg BNA that the EPA made an error in calculating the 2015 updated emission factor, a mistake that would be resolved under the settlement. Ensuring that industries accurately report their emissions is important to several Clean Air Act programs, including permitting and determining the correct level of pollution controls that should be required, Khandeshi said.
“In this case, it was just a clear mathematical error,” he said.
EPA Would Clarify Conditions for Flares
In addition to revising the emission factor, the proposed settlement also would require the EPA to clarify the conditions under which flares must be operated in order to be subject to the emissions factor and to review 20 “standard classification codes.”
These are used by industry to classify various activities in their emissions reporting, such as wastewater treatment and unclassified flaring. The EPA will review the codes, which Khandeshi said industry sometimes uses to classify flares, to determine if those activities also should be subject to the updated emission factor.
While the version of the proposed settlement posted online said the EPA would take that action by Nov. 15, Khandeshi said that was an error, with the true deadline for EPA action being in December.
The agency will accept public comments on the proposed settlement through Nov. 14 at https://www.regulations.gov/docket?D=EPA-HQ-OGC-2016-0582.
The EPA is represented by Michele Walter, an attorney in the Justice Department's Environment & Natural Resources Division.
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EPA Agrees To Review Refinery Flare 'Emission Factors'
Oct 13, 2016 | Inside EPA
EPA is proposing a settlement agreement with environmentalists that would commit the agency to review and potentially update its “emission factors” -- air pollution estimates -- for oil refinery flares that burn off excess emissions, following another recent settlement binding the agency to review other industrial emissions factors.
In the most recent proposed settlement, published in the Oct. 13 Federal Register, EPA seeks to settle a suit filed by advocates to force an update to the factors for flares, wastewater treatment systems, tanks and other equipment found at oil refineries. The agency commits to review, and if necessary revise, the factors by Dec. 15, although an early draft of the deal erroneously lists that date as Nov. 15.
However, the agency already appears committed to an increase in the refinery flare emission factor, to 0.66 pounds per British Thermal Units (lbs per MMBTU) according to a document released with the proposed settlement -- but the settlement does not bind the agency to increasing the factor.
EPA is taking comment on the pact through Nov. 14. If finalized, the deal will settle a suit environmentalists filed in July 2015 in the U.S. Court of Appeals for the District of Columbia Circuit seeking judicial review of EPA's May 11, 2015, rule in which the agency updated emission factors for volatile organic compounds (VOCs) emitted by refinery flares, but made no changes to other factors associated with other equipment.
Emission factors are used by air regulators and industry to estimate projected air pollution emitted by various pieces of equipment. Those estimates are used for issuance of permits and other regulatory purposes, such as compilation of emissions inventories. Old, outdated factors often underestimate emissions, resulting in regulatory decisions that allow excess pollution, environmental groups say.
EPA's 2015 rule responded to an earlier legal action by the groups, who argued that the refinery factor updates were long overdue. However, they took issue with EPA's rule on several grounds.
An attorney with the Environmental Integrity Project, a law firm representing petitioners in the case, in an Oct. 13 statement said, “While we applauded EPA’s decision to issue the new emission factors in 2015, based on a careful review of the data we found that VOC emissions from these flares are even higher than the 2015 update.
“The original emission factor we sued on in 2013 assumed that flares released 0.14 lbs. of VOCs per MMBTU. EPA’s 2015 update increased than number to 0.57 lbs. of VOCs per MMBTU. Today’s settlement agreement will further increase the value to 0.66 lbs. per MMBTU.”
The groups contested EPA's decision to continue to rely on total hydrocarbons as a “surrogate” for VOCs. They also challenged the minimum heat value of the gas in the combustion zone of the flare test data used to develop the VOC emissions factors; the average destruction efficiency of the flare test data used to develop the VOC emissions factor; and the molecular weights used in the calculation of the VOC emissions factor in the source classification codes (“SCCs”) associated with the flare emissions factors, according to the settlement agreement.
Under the agreement, EPA will by Dec. 15 consider whether to review and clarify the applicability of emissions factors for 20 SCCs, and include them in its master list of factors, known as AP-42. Many, but not all, are associated with refineries. The SCCs are for the following industry sectors or equipment: natural gas flares; process gas flares; fuel fired equipment; flares 'not classified;' catalytic cracking units; petroleum products not classified; chlorobenzene; miscellaneous manufacturing industries; fugitive emissions; blowdown systems; and several more.
The proposed settlement follows a similar move by EPA to settle a lawsuit brought by the same environmentalists over outdated emission factors for flares in oil and gas production.
In a proposed consent decree lodged Oct. 7 with U.S. District Court for the District of Columbia, Air Alliance Houston, Community In-Power and Development Association, Louisiana Bucket Brigade and Texas Environmental Justice Advocacy Services propose to settle a lawsuit they filed only a day earlier over the issue.
The decree sets a deadline of June 5, 2017, for EPA to propose a rule either revising the factors for VOCs emitted by gas drilling operations in flares, or leaving them unchanged, and a deadline of February 5, 2018, to finalize the rule.
http://insideepa.com/news-briefs/epa-agrees-review-refinery-flare-emission-factors
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EPA To Tighten Formula Measuring Refinery, Plant Emissions
Oct 13, 2016 | E&E News PM
By Sean Reilly
U.S. EPA is again moving to tighten the formula for calculating emissions of volatile organic compounds from oil refinery and petrochemical plant flaring operations.
Last year, under a consent decree ending a 2013 lawsuit brought by four environmental groups, EPA effectively agreed to increase that formula from 0.14 pound of volatile organic compounds per million British thermal units of gas burned to 0.57 pound per MMBtu, according to the Environmental Integrity Project, which provided legal representation to Air Alliance Houston and the other three plaintiffs in the suit (Greenwire, April 21, 2015).
The same four groups, arguing that the formula — technically known as an emission factor — should be stronger still, then filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit that led to a follow-up settlement agreement published in today'sFederal Register.
Under the latest deal, the flaring emission factor would rise further to 0.66 pound of VOCs per MMBtu, Sparsh Khandeshi, an attorney for the Environmental Integrity Project, said in a phone and email exchange today. The proposed change, Khandeshi said, is based on industry-conducted tests on various flares, which are used to burn waste gas from industrial operations. If implemented, the stricter formula could subject more plants to federal permitting requirements — including Best Available Control Technology and Lowest Achievable Emission Rate — for new and modified facilities, he said.
Overall, the tentative agreement will "help assure that industry estimates of VOC emissions from flares are reported as accurately as possible and demonstrate that stricter regulation of these sources is in fact cost-effective," he added.
In sunlight, VOCs react with nitrogen oxides to form ozone, a lung irritant that is the ingredient in smog. The public comment period on the proposed agreement ends Nov. 14; if EPA puts the changes in place by Dec. 16, the plaintiffs will drop their suit.
Besides Air Alliance Houston, those groups are Community In-Power and Development Association Inc., the Louisiana Bucket Brigade, and Texas Environmental Justice Advocacy Services.
EPA uses a variety of emission factors as stand-ins for direct pollutant monitoring. In another draft settlement to a separate lawsuit lodged in court last week, the agency agreed to revisit the factor used to estimate VOC emissions from natural gas production flaring (Greenwire, Oct. 10).
http://www.eenews.net/eenewspm/2016/10/13/stories/1060044243
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Tribal Air Permitting to Be More Efficient, EPA Says
Oct 14, 2016 | BNA Daily Environment Report
Concrete plants, printing facilities and other “minor” pollution sources located on tribal lands will soon be able to obtain Clean Air Act permits more efficiently, thanks to a new Environmental Protection Agency rule.
The EPA, in a final rule scheduled for publication Oct. 14, established general permits for six different categories of industrial pollution sources. The general permits, which contain standardized requirements that multiple facilities can use, will be used to fulfill New Source Review permitting requirements for new and modified minor sources, which are typically smaller sources of emissions.
The general permits will protect air quality on tribal lands, while minimizing the burden of the permitting process for industry and the permitting authorities, according to the EPA.
“General permits offer a cost-effective means of issuing permits and provide a quicker and simpler mechanism for permitting minor sources than the source-specific permitting process,” the agency said.
The industrial source categories covered by the EPA's action are:
• concrete batch plants;
• boilers and emergency engines;
• stationary spark ignition engines;
• stationary compression ignition engines;
• graphic arts and printing operations; and
• sawmill facilities.
The final rule (RIN:2060-AR98) establishing the general permits will go into effect Nov. 14.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98841645&vname=dennotallissues&fn=98841645&jd=98841645&split=0#98841645
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AP Explains: Why Potent Greenhouse Gases Are Meeting's Focus
Oct 14, 2016 | AP (In The New York Times )
JOHANNESBURG — Greenhouse gases that are more powerful than carbon dioxide are the focus of a global gathering this week in Africa. Experts say cutting hydrofluorocarbons, or HFCs, is the fastest way to reduce global warming. The United States is among the countries that want the world to quickly phase out the use of HFCs, and Secretary of State John Kerry is there to encourage a deal. Here's a look at a potential global climate agreement that has been described by the Natural Resources Defense Council as "the world's biggest climate protection achievement in the year after Paris."
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IT'S NOT ABOUT THE OZONE LAYER
The ozone layer has been healing for a while, thanks to the global agreement known as the Montreal Protocol. In 1987, countries alarmed by the discovery of a huge hole in the ozone layer over Antarctica signed the treaty to eventually end the use of chlorofluorocarbons, which at the time were used in refrigerators and aerosols like hair spray. HFCs were introduced to replace CFCs, and scientists realized only later that they have a strong effect on global warming. Although HFCs don't harm the ozone layer, their ability to trap the heat radiating off the Earth is hundreds or thousands of times more potent than that of carbon dioxide. The U.N. Environment Program says that reducing HFCs under the treaty could reduce global warming by .5-degree Celsius by the end of this century and environmental groups say the step is essential to meeting the goals of the Paris Agreement on climate change.
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WHERE THE U.S. AND CHINA AGREE
The United States and China have their difficult issues, but the world's two worst polluters have pushed to fight climate change. The two heavyweights agreed in 2013 to pursue a deal to phase out HFCs, which are used in air conditioners, refrigerators and insulating foams. The U.S. and China are urging the countries gathered this week in Kigali, Rwanda, to extend the Montreal Protocol to include HFCs. They also want agreement on an "early freeze date" for when countries must cap their use of them. The U.S. and India, the world's third worst polluter, also have agreed to try to use the treaty to phase out the chemical.
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A THREAT AS URGENT AS EXTREMISTS?
HFCs have been called the world's fastest-growing climate pollutants, though they are less plentiful than carbon dioxide. The growth comes as more people in developing countries make enough money to buy appliances. Last month, Kerry said HFCs currently emit as much pollution as 300 coal-fired power plants. At an international climate meeting in July for state parties to the Montreal Protocol, Kerry stressed the urgency of fighting climate change, saying it is as dangerous as the threat posed by the Islamic State and other extremist groups, if not more so.
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AFRICAN, ISLAND STATES IN A HURRY
Small island states and other countries, including many in Africa, that say they face the biggest threat from climate change are urging action on HFCs, and soon. At the July meeting by states parties to the treaty, many countries favored capping the growth of HFCs in 2021. China was said to prefer later in the decade, with India aiming at the end of it or beyond. Whatever the timing, less-developed countries are seeking help from richer ones to help them implement the treaty.
http://www.nytimes.com/aponline/2016/10/14/world/africa/ap-af-ap-explains-africa-climate-meeting.html?mtrref=query.nytimes.com&gwh=DE4AE8728C584B1CA7C917969B35996C&gwt=pay&_r=0
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Growing Optimism for Global Deal to Cut Hydrofluorocarbons
Oct 14, 2016 | BNA Daily Environment Report
By Dean Scott
Negotiators from nearly 200 nations are cautiously optimistic they'll reach a long-sought global deal by week's end to cut super-polluting hydrofluorocarbons that could prevent as much as a half-degree Celsius of planetary warming by the end of the century.
The compounds are used in refrigeration and air conditioning units across the world.
Secretary of State John Kerry arrived at the talks, which are being held in Kigali, Rwanda, on Oct. 13, joining other ministers in the final hours of negotiations on a new amendment under the Montreal Protocol.
Environmental Protection Agency Administrator Gina McCarthy, heading the U.S. delegation, said negotiators are now in the final stretch toward an agreement on what year to begin freezing and then reducing HFC production, as well as crucial details such as how much technical assistance is to be provided to developing nations such as India.
“Now we are very much in the meat of the amendment discussions, with clear concise proposals on the table and opportunities for those proposals to come together into a very ambitious agreement,” McCarthy said at an Oct. 13 panel in Kigali that included representatives from the European Union, Micronesia and the Marshall Islands.
Increased Funding Key
The deal hinges in part on whether developing nations, which need affordable alternatives to HFCs for refrigeration but also to meet growing demand for air conditioning, are convinced that there is sufficient technical and financial assistance on the way.
Funding is to be made available under an existing Montreal Protocol multilateral fund but got a boost in September when philanthropic groups and several countries pledged an additional $80 million in hopes of producing a deal from the Rwanda talks, scheduled to conclude Oct. 14.
Mattlan Zachhras of the Marshall Islands said his and other nations that are the most vulnerable to sea level rise and other climate change impacts are pushing for a deal that makes good on the global goal under the Paris climate pact to keep global warming “well below” a 2-degree Celsius (3.6 degrees Fahrenheit) rise compared to pre-industrial levels. Countries also agreed under the Paris Agreement to “pursue efforts” toward an even more aggressive 1.5 degree Celsius limit (2.7 F).
“This is a very personal issue for myself and others from the region where I come from [because] without an ambitious amendment from here, it will be impossible to stay within the 1.5 C” goal the nations agreed to strive for in Paris, he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98841661&vname=dennotallissues&fn=98841661&jd=98841661
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India Triggers Split On HFC Cuts At Montreal Protocol Talks
Oct 13, 2016 | PoliticoPro
By Elana Schor
Talks to cut emissions of hydrofluorocarbons in Kigali, Rwanda, bogged down as a splinter group of nations led by India pressed for a slower phase down of the powerful greenhouse gas, breaking with their developing nation allies like China and Brazil.
The offshoot group led by India includes Pakistan, Iran, Iraq and the Gulf States, and is negotiating to create a separate track to reduce HFCs for some nations that would include no date for them to cap consumption of the gas, according to a Thursday proposal.
Story Continued Below
Another group of "high-ambition" developing nations, made up of China, Brazil, African states and most other developing countries, is seeking much more aggressive targets, though still less aggressive than the proposal from the rich countries.
The split among developing nations will make it difficult for top ministers, including Secretary of State John Kerry and EPA Administrator Gina McCarthy, who arrived at the talks today, to win a global agreement to phase down use of the coolant used in air conditioning and refrigeration.
Observers at the talks said developing countries appeared to be hardening their stances, and the divide may lead to a three-track system that sets different deadlines for countries to meet.
"It’s possible that those two developing countries groups will come together still, but it’s seeming less likely by the hour," said Paul Bledsoe, a former Clinton White House climate official who is observing the talks in Kigali. "A bifurcated developing country response into more ambitious and less ambitious looks increasingly likely."
Negotiations for the measure that would become an amendment to the landmark Montreal Protocol are focused on establishing the baseline year from which reductions will be measured, the year that HFC emissions will be capped and the speed that countries will cut their use.
The Air-Conditioning, Heating and Refrigeration Institute, which represents commercial freezer and air conditioning manufacturers, provided POLITICO with a document showing the group that includes China and Brazil has proposed capping HFC emissions for developing nations in 2024 or 2025, and cutting their use by 10 percent in 2030.
In contrast, the group led by India proposes an optional freeze date of 2028 for developing countries, with the first 10 percent usage cut taking place in 2032. The two groups jointly proposed that rich nations begin stepping down HFCs by 10 percent in 2019. The State Department would not confirm the authenticity of the proposal, although other observers in Kigali did.
Negotiators hope that rift can be healed by the top ministers. At a roundtable for reporters held this morning, McCarthy declared her intention push for both ambitious and speedy cuts that draw support from all 150 countries at the meeting.
"I look forward to continuing my work with the high-ambition coalition and expanding that coalition so that every country, every member, every party is doing what they need to do to take clear action and quick action," she said at the event.
Much like the climate talks in Paris, India appears to be the linchpin of the negotiations. It is by far the largest country of the developing nations' group, and it is expected to see massive growth in air conditioning and refrigeration in coming years.
Rich countries hope to ease the concerns of India and other counties by offering them financial help. The Montreal Protocol, which was first created to eliminate chemicals that destroy the ozone layer, includes a Multilateral Fund that provides cash to countries to switch chemicals or technologies. In addition, the U.S. and other countries have joined with private philanthropic sources to pledge $80 million to implement energy efficiency. The World Bank has promised $1 billion in loans for the same purpose.
"We are waiting to see where India lands in the end," David Doniger, head of NRDC's Climate and Clean Air Program and who is in Kigali, told POLITICO in an email. "Will the lure of earlier funding, and the desire to be seen a leader, be enough to get them into the same group with China, Brazil, South Africa, Argentina and a hundred others."
The Montreal Protocol has been used to regulate numerous chemicals, and while rich and poor countries often reduce pollutants at different rates, the developing economies have never sought to split into two tracks, a very real possibility at the Kigali talks.
"There’s hope for increased ambition across all proposals," Bledsoe said. "Ministerial negotiations are just beginning."
https://www.politicopro.com/energy/story/2016/10/developing-nations-may-divide-in-kigali-133646
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EIA Reports Lowest CO2 Emissions From U.S. Energy Sector Since 1991
Oct 13, 2016 | Natural Gas Intelligence
By Charlie Passut
Mild weather, coupled with a steep decrease in coal consumption, contributed to the lowest level of carbon dioxide (CO2) emissions from the U.S. energy sector since the first six months of 1991, the Energy Information Administration (EIA) said Wednesday.
EIA said energy-related CO2 emissions totaled 2,530 million metric tons during the first six months of 2016. In its Short-Term Energy and Winter Fuels Outlook, released Thursday, EIA projects that emissions will fall to 5,179 million metric tons in 2016, the lowest annual level since 1992 (see related story).
During the first six months of 2016, the U.S. had the lowest number of heating degree days since at least 1949, the earliest year that EIA began keeping track of monthly data for all 50 states. Warmer weather during the winter months led to an overall 2% decline in total primary energy consumption compared to the first six months of 2015. EIA said the decrease was especially noticeable in the residential and electric power sectors, where primary energy consumption declined by 9% and 3%, respectively.
According to EIA, coal and natural gas consumption by power generators both declined compared to the first six months of 2015, but coal had the steeper drop-off at 18%. Natural gas use fell 1%. The agency added that the declines by coal and gas more than offset a 1% increase in total petroleum consumption, which had been buoyed during the first six months of 2016 by low gasoline prices.
Power generators continued to embrace renewable sources of energy. During the first six months of 2016, consumption of renewable fuels increased 9% compared to the same period in 2015. Wind energy accounted for nearly half of the increase, while hydroelectric power accounted for 35% and solar power 13%. EIA said it expects solar to see the largest capacity additions of any fuel in 2016.
Last March, EIA said wind accounted for the largest share of U.S. electric generation capacity additions in 2015, followed by natural gas and solar (see Daily GPI, March 24). Natural gas made up 30% of capacity additions in 2015, adding around 6 GW -- a lower addition than in previous years. Meanwhile, wind made up 41% of capacity additions in 2015 with more than 8 GW.
http://www.naturalgasintel.com/articles/108091-eia-reports-lowest-co2-emissions-from-us-energy-sector-since-1991
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