Preview Newsletter
ACC AM 11/23/16
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(ACC Mentioned) EPA Research Managers Narrow NCEA Director Candidates List To Three
Nov 22, 2016 | Inside EPA
By Maria Hegstad
EPA research managers have narrowed to three the list of candidates to fill the open slot of director of the agency's National Center for Environmental Assessment (NCEA), a key position within the agency's research office responsible for some of its most influential risk analyses of air and other environmental pollutants. -
(ACC Mentioned) Chemical Activity Barometer Sees 8th Consectutive Monthly Gain, ACC Says
Nov 22, 2016 | ChemEngOnline
By Scott Jenkins
The Chemical Activity Barometer (CAB), a leading economic indicator created by the American Chemistry Council (ACC; Washington, D.C.; www.americanchemistry.com), featured another solid gain of 0.3 percent in November, following a gain of 0.3 percent in October and a 0.4 percent gain in September and August. -
Boeing to Defend Asbestos Claims in Federal Court
Nov 23, 2016 | BNA Daily Environment Report
By Peter Hayes
Boeing Corp. may defend asbestos claims in federal court because it made a sufficient showing that it was acting under a federal officer when it allegedly failed to warn of the product's dangers, a federal appeals court ruled. -
Formaldehyde Emissions Rule Due in 2013 to Be Published: EPA
Nov 23, 2016 | BNA Daily Environment Report
By Pat Rizzuto
A final rule restricting formaldehyde emissions from composite wood products will be published in the Federal Register within 10 days, the Environmental Protection Agency told Bloomberg BNA Nov. 22. -
EPA Sends Decision On Regulating Solvent As Air Toxic For OMB Review
Nov 22, 2016 | Inside EPA
By Stuart Parker
EPA has sent for White House Office of Management & Budget (OMB) review its decision on whether to grant petitions from the state of New York and some chemical makers to regulate the solvent n-propyl bromide (nPB) as a hazardous air pollutant (HAP) subject to the Clean Air Act's requirements for reducing air toxics. -
Little Support From National Authorities For Potency In EDC Criteria
Nov 23, 2016 | Chemical Watch
By Philip Lightowlers
The UK Health and Safety Executive (HSE) was the only regulatory voice supporting the inclusion of potency in the European definition of endocrine disrupting compounds (EDCs), at an international conference on 15-16 November. However, its position was strongly backed by pesticide industry representatives. -
EU Commission Notifies WTO Of Proposed RoHS2 Exemptions
Nov 23, 2016 | Chemical Watch
The European Commission has advised the WTO Committee on Technical Barriers to Trade of its proposals to amend Annex III of RoHS2 - the EU Directive on the restriction of hazardous substances - to allow exemptions from substance restrictions. -
Efsa Issues Opinion On FCM Use
Nov 23, 2016 | Chemical Watch
The European Food Safety Authority (Efsa) has concluded its safety assessment of (butadiene, styrene, methyl methacrylate, butyl acrylate) copolymer cross-linked with divinylbenzene or 1,3-butanediol dimethacrylate - for use at up to 40% w/w in blends of styrene acrylonitrile copolymer (SAN)/poly(methyl methacrylate) (PMMA). -
New Fracking Studies Not Fueling Toxic Tort Cases—Yet
Nov 23, 2016 | BNA Daily Environment Report
By Steven M. Sellers
Scientists warn that chemicals used in oil and gas fracking wells may pose serious health risks. -
Trump Has Options in Utility Emissions Battle
Nov 23, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
States and industry organizations engaged in a years-long legal battle over federal air pollution standards covering power plants may soon have a new ally: the incoming administration of President-elect Donald Trump, which attorneys said could take various actions to weaken or try to overturn the regulation. -
Perry's Bid for Trump Cabinet Raises Concern Over Pipeline Role
Nov 23, 2016 | BNA Daily Environment Report
By Ari Natter
Rick Perry, the former Republican Texas governor being considered for a spot in President-elect Donald Trump's cabinet, faces questions over a potential conflict of interest because he served on the board of a company building an oil pipeline that was delayed by protests. -
Tribe: Police Conducted ‘A Deliberate Act Of Terror’ At ND Pipeline Protest
Nov 22, 2016 | The Hill - E2 Wire
By Devin Henry
Police conducted a “deliberate act of terror” while confronting Dakota Access Pipeline protesters over the weekend, the chairman of the Standing Rock Sioux Tribe said Tuesday. -
Environmental Group Sues Over Alaska's LNG by Rail Program
Nov 22, 2016 | Natural Gas Intelligence
By Joe Fisher
The Center for Biological Diversity (CBD) opposes rail shipments of liquefied natural gas (LNG) in Alaska, and now it's suing to learn more details about the practices after its requests for information were rebuffed by the Federal Railroad Administration, it said. -
(ACC Mentioned) Chemical Industry, EPA Settle Waste Recovery NESHAP Case
Nov 22, 2016 | Inside EPA
EPA and the chemical industry have reached a settlement agreement that will end a legal challenge of an agency rule to reduce air toxics from off-site waste and recovery operations, according to legal filings by parties in the case. -
Arkansas Challenges EPA's Federal Plan to Reduce Haze
Nov 23, 2016 | BNA Daily Environment Report
By Nushin Huq
Arkansas is challenging a federal plan to improve air quality in parks and wilderness areas that the state has called unreasonable (Arkansas v. EPA, 8th Cir., No. 16-04270, 11/22/16). -
EPA Aims To Narrow Air Law Waiver For Internationally Transported Ozone
Nov 22, 2016 | Inside EPA
By Stuart Parker
EPA's proposed rule detailing how states should implement the agency's 2015 ozone standard aims to narrow the potential uses of a waiver that allows areas to exclude internationally transported ozone from NAAQS compliance calculation, which could complicate Western states' plans to come into attainment with the standard. -
Trump Open-Minded on Paris Deal
Nov 23, 2016 | BNA Daily Environment Report
By Rachel Leven, Andrew Childers, Rebecca Kern and Renee Schoof
Donald Trump Nov. 22 softened his opposition to the blockbuster international climate agreement, even as he has continued to staff his transition team with opponents of regulating greenhouse gases. -
Trump Keeping 'Open Mind' On Paris Deal
Nov 22, 2016 | E&E News PM
By Hannah Hess
President-elect Donald Trump seemed to soften his stance on the Paris climate agreement today, saying he has "an open mind" after previously pledging to withdraw from the accord.
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(ACC Mentioned) EPA Research Managers Narrow NCEA Director Candidates List To Three
Nov 22, 2016 | Inside EPA
By Maria Hegstad
EPA research managers have narrowed to three the list of candidates to fill the open slot of director of the agency's National Center for Environmental Assessment (NCEA), a key position within the agency's research office responsible for some of its most influential risk analyses of air and other environmental pollutants.
Sources say the three finalists include: Tina Bahadori, who is currently director of EPA's Chemical Safety for Sustainability research program; Gary Ginsberg, a senior toxicologist with the Connecticut Department of Health; and Kristina Thayer, director of the National Toxicology Program's (NTP) Office of Health Assessment and Translation (OHAT). An agency source says that managers leading the search hope to have a new director installed by the end of 2016.
EPA spokespersons declined to comment. They issued a statement, saying, "EPA does not comment on hiring processes or pending personnel actions. EPA recognizes the critical role played by the director of NCEA and is moving forward to identify the next center director."
Long-time agency scientist and manager Michael Slimak has been serving as the acting NCEA director after Ken Olden retired July 31.
Bahadori, who has been with EPA since 2012, directs one of six cross-cutting research programs created by the last appointed agency science advisor, Paul Anastas. Bahadori's portfolio as director of the Chemical Safety for Sustainability research program includes overseeing EPA's National Center for Computational Toxicology, an area of heavy investment for the agency. The technologies that it is developing and validating are seen as key to implementing EPA's new authorities under the overhauled Toxic Substances Control Act.
Bahadori, an exposure scientist, is past president of the International Society of Exposure Science and is an associate editor of the Journal of Exposure Science and Environmental Epidemiology, according to the agency's website. She has served on several National Academy of Sciences (NAS) committees, as well as advisory committees to the Centers for Disease Control and Prevention and the ill-fated National Children's Study. Prior to joining EPA in 2012, she was managing director for the chemical industry association American Chemistry Council's Long Range Research Initiative for nearly a dozen years.
Ginsberg has been with Connecticut Department of Health for more than 20 years, and is also an assistant clinical professor at the University of Connecticut School of Community Medicine and an adjunct faculty member at Yale University, according to a press release from the Constitution State last March.
He has served on EPA's Children's Health Protection Advisory Committee and on several National Academy of Sciences committees, including the committee that wrote the influential 2009 report "Science and Decisions: Advancing Risk Assessment." Ginsberg, who has appeared on television and has his own radio show discussing various environmental issues, last spring won the Society of Toxicology's public communications award.
Risk Reviews
Thayer has played a key role in responding to calls from NAS and others for EPA and other agencies assessing environmental health risks to adopt systematic review methodologies to improve the transparency and logic of their analyses. Thayer and her staff were involved in crafting the systematic review approach the office now uses in its monographs, and have assisted EPA's Integrated Risk Information System (IRIS) program in its efforts to craft a systematic review approach for that program as part of its reform efforts.
Prior to her current role, Thayer held positions in the NTP Office of Liaison, Policy, and Review and the National Institute of Environmental Health Sciences (NIEHS) Office of Risk Assessment Research. Before joining the NTP/NIEHS, she was a senior scientist at the World Wildlife Fund and the Environmental Working Group, according to NIEHS' website.
Olden, who led NCEA for four years, was brought to the agency with a mission to reform the influential but controversial Integrated Risk Information System (IRIS) program. Agency leaders selected Olden, a former NIEHS director, to reform the program after a damning review of a draft assessment of formaldehyde's human health risks by NAS.
Meanwhile, NCEA Deputy Director Mary Ross announced to staff in a Nov. 10 email a new assistant center director for scientific support. It is unclear if the position is new.
The role was filled by Emma Lavoie, who was previously alternatives assessment senior specialist at EPA's Design for Environment Program, now known as Safer Choice. Lavoie had been with that program for nine years, the email says.
In her new role, Lavoie will coordinate "reviews or responses to scientific questions raised by Programs or Regions, and providing advice or recommendations to NCEA management on science policy and Programmic support issues," according to the email.
http://insideepa.com/daily-news/epa-research-managers-narrow-ncea-director-candidates-list-three
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(ACC Mentioned) Chemical Activity Barometer Sees 8th Consectutive Monthly Gain, ACC Says
Nov 22, 2016 | ChemEngOnline
By Scott Jenkins
The Chemical Activity Barometer (CAB), a leading economic indicator created by the American Chemistry Council (ACC; Washington, D.C.; www.americanchemistry.com), featured another solid gain of 0.3 percent in November, following a gain of 0.3 percent in October and a 0.4 percent gain in September and August. Accounting for adjustments, the CAB is up 4.2 percent over this time last year, a marked increase over earlier comparisons and the greatest year-over-year gain since August 2014. All data is measured on a three-month moving average (3MMA). On an unadjusted basis the CAB climbed 0.3 percent in November, following a 0.2 percent gain in October.
The Chemical Activity Barometer has four primary components, each consisting of a variety of indicators: 1) production; 2) equity prices; 3) product prices; and 4) inventories and other indicators.
In November, three of the four core categories for the CAB improved. Production-related indicators, equity prices, and inventory were positive, while product prices were stable at best.
The Chemical Activity Barometer is a leading economic indicator derived from a composite index of chemical industry activity. The chemical industry has been found to consistently lead the U.S. economy’s business cycle given its early position in the supply chain, and this barometer can be used to determine turning points and likely trends in the wider economy. Month-to-month movements can be volatile so a three-month moving average of the barometer is provided. This provides a more consistent and illustrative picture of national economic trends.
http://www.chemengonline.com/chemical-activity-barometer-sees-8th-consectutive-monthly-gain-acc-says/
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Boeing to Defend Asbestos Claims in Federal Court
Nov 23, 2016 | BNA Daily Environment Report
By Peter Hayes
Nov. 22 — Boeing Corp. may defend asbestos claims in federal court because it made a sufficient showing that it was acting under a federal officer when it allegedly failed to warn of the product's dangers, a federal appeals court ruled (Papp v. Fore-Kast Sales Co Inc, 3d Cir., No. 15-02851, 11/22/16).
The estate of Mary Papp alleges that she was exposed to asbestos on her husband's work clothes while he was employed sandblasting landing gear on WWII planes.
A federal trial court applied the wrong standard for federal officer removal when it ruled the case should return to state court, the U.S. Court of Appeals for the Third Circuit said.
The trial court ruled that Boeing failed to meet a “special burden” of establishing that a federal officer or agency affirmatively prohibited Boeing from warning third parties of the dangers of asbestos found in planes manufactured in the mid-20th century, the appeals court said.
Boeing Faced ‘Special Burden’
“The Court wrongly believed that, because Boeing was a federal contractor and not a federal officer, it faced a ‘special burden’ to demonstrate that it was acting under the control of the federal government,” the Third Circuit said.
“Considered under the proper standard, it is plain that the allegations against Boeing all involve conduct that occurred when it was ‘acting under’ the direction of a federal officer or agency,” the court said.
Judge Kent A. Jordan wrote the opinion, joined by Judges Thomas I. Vanaskie and Cheryl Ann Krause.
Szaferman Lakind Blumstein & Blader represents the estate of Mary Papp.
Gaynor & Manning represents Boeing.http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=100832132&vname=dennotallissues&fn=100832132&jd=100832132
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Formaldehyde Emissions Rule Due in 2013 to Be Published: EPA
Nov 23, 2016 | BNA Daily Environment Report
By Pat Rizzuto
A final rule restricting formaldehyde emissions from composite wood products will be published in the Federal Register within 10 days, the Environmental Protection Agency told Bloomberg BNA Nov. 22.
Under the 2010 Formaldehyde Standards for Composite Wood Products Act (Pub. L. No. 111-199), which amended the Toxic Substances Control Act to require the EPA to set formaldehyde emissions limits, the agency was supposed to issue final limits by Jan. 1, 2013.
“Barring any substantive changes from the pre-publication version, we look forward to the release of the final EPA rule and its implementation,” Jackson Morrill, president of the Composite Panel Association, told Bloomberg BNA in a Nov. 22 e-mail.
Morrill referred to the pre-publication version of the rule (RIN:2070-AJ44) that the agency released on July 27. At the time, EPA said the official, final version would soon be published in the Federal Register, but to date it has not been released.Delay Prompts Questions
The delay has prompted people and trade associations familiar with the regulation to wonder what caused the delay and how the Federal Register version might differ from the pre-publication version.
Only non-substantive changes needed to prepare the final regulation for publication in the Federal Register have been made in the preamble and regulatory text, the EPA told Bloomberg BNA by e-mail.
The Office of the Federal Register completed its preparation of the regulation on Nov. 17, the agency said.
The pre-publication rule limited formaldehyde emissions from U.S. manufactured or imported plywood, medium-density fiberboard and particle board.
The Composite Wood Products Act required the EPA to set emissions limits that were largely consistent with those the California's Air Resources Board began to implement in 2009. The state's current limits range from 0.05 part per million (ppm) to 0.13 ppm, depending on the product covered.
As authorized by the act, however, some provisions of EPA's pre-publication regulation went beyond California requirements.
For example, companies that make or import laminated hardwood plywood products are not automatically exempt, as they have been from California's requirements.
Trade Enforcement Critical: Industry
Morrill encouraged the Trump administration to enforce the final rule's requirements.
“Strong enforcement not only provides important health and environmental benefits to the public, but it also strengthens U.S. manufacturing by ensuring a level regulatory playing field and fair competition,” Morrill said.
“Domestic industries that have made major investments over the last several years are already complying with the rule and should not be disadvantaged by non-compliant products manufactured offshore,” he said.
Congress passed the formaldehyde emissions law after Hurricane Katrina hit the Gulf Coast causing displaced victims to live in trailers that released high concentrations of formaldehyde.
A nationwide outcry to limit formaldehyde emissions arose again in 2015 following a 60 Minutes report that alleged Lumber Liquidators Inc.'s China-made laminated wood flooring exceeded California's limits.
In March, Lumber Liquidators agreed to pay $2.5 million as part of an administrative settlement with the California Air Resources Board.
The proposed rule will affect thousands of small and large domestic manufacturers and companies working with composite wood. Among the larger companies that produce composites, which Morrill said already comply, include Georgia-Pacific Wood Products LLC, Uniboard and the Weyerhaeuser Co.
Online Release As Official Notice?
Mark Duvall, an attorney with Beveridge & Diamond, P.C.'s Washington, D.C. office, told Bloomberg BNA the four-month delay between EPA's release of the pre-publication rule and anticipated publication of it in the Federal Register “is ample evidence of the importance of publication in the Federal Register for providing public notice, as required by law.”
That longstanding practice differs from a policy the agency recently adopted when it published direct final new use rules for 57 chemicals (RIN:2070-AB27), Duvall said (81 Fed. Reg. 81, 250).
In the case of the 57 new use rules, the EPA designated Nov. 9—the date it released those rules online—as the cut off date that determined whether a new use was ongoing. The EPA's rules acknowledge “this designation varies slightly from EPA's past practice of designating the date of Federal Register publication as the date for making this determination.”
The agency said it chose the new approach “to ensure that a person could not defeat a significant new use rule by initiating a significant new use before the effective date of the direct final rule.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=100832123&vname=dennotallissues&fn=100832123&jd=100832123
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EPA Sends Decision On Regulating Solvent As Air Toxic For OMB Review
Nov 22, 2016 | Inside EPA
By Stuart Parker
EPA has sent for White House Office of Management & Budget (OMB) review its decision on whether to grant petitions from the state of New York and some chemical makers to regulate the solvent n-propyl bromide (nPB) as a hazardous air pollutant (HAP) subject to the Clean Air Act's requirements for reducing air toxics.
OMB received the notice on Nov. 19 and pre-publication review typically takes 90 days, though it can take more or less time depending on the policy. OMB's website projects EPA will publish the notice in the Federal Register in December.
The pending proposal will respond to the merits of a petition filed in 2010 by the Halogenated Solvents Industry Alliance, Inc. (HSIA), which represents makers and users of solvents that can be used interchangeably in some cases with nPB, and a 2011 petition from New York also seeking an air toxics listing.
Both petitions argued that nPB causes adverse health effects, including neurological harm in workers, reproductive toxicity and carcinogenicity. EPA should therefore list it as a HAP under the Clean Air Act, which would trigger obligations to regulate the substance under the air law, the petitioners argue.
In February the agency said that it deemed the HSIA and New York petitions complete, and sought public comment for 30 days. Deeming the listing petitions complete “means they provide sufficient information to assess the human health impacts on people living in the vicinity of facilities emitting nPB,” EPA said.
As a result of that determination, the agency invited the public to provide comment on its technical review of the listing request, including submitting additional data such as information on sources, emissions, exposure and health effects. Once the technical review is complete, EPA said it would decide whether to propose listing nPB as a HAP or whether to issue a notice rejecting the petitions, and will publish that decision in the Register.
In comments filed on EPA's February finding, makers and suppliers of nPB urged EPA to reject the petitions, saying they rely on outdated data that overstate the chemical's risks and the extent of its current use, and that a HAP listing is not necessary. For example, dry cleaning use of nPB is decreasing over time, they argue.
Several state environmental agencies and environmentalists in their comments to EPA disagreed, however, arguing there is ample evidence to list nPB as a HAP because of its adverse impacts on human health.
After reviewing those comments, EPA then developed its pending notice reviewing the merits of the petition. After OMB completes its review of the notice, EPA will publish it in the Register and announce whether it intends to grant or deny the petitions, and then seek comment on its decision to inform a final rule.
The fact that President-elect Donald Trump takes office Jan. 20 means, however, that issuance of a final rule on the listing issue will fall to the Trump EPA, creating uncertainty about the prospects for any regulation of nPB as an air toxic as Trump's position on the issue is unknown.
http://insideepa.com/daily-news/epa-sends-decision-regulating-solvent-air-toxic-omb-review
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Little Support From National Authorities For Potency In EDC Criteria
Nov 23, 2016 | Chemical Watch
By Philip Lightowlers
The UK Health and Safety Executive (HSE) was the only regulatory voice supporting the inclusion of potency in the European definition of endocrine disrupting compounds (EDCs), at an international conference on 15-16 November. However, its position was strongly backed by pesticide industry representatives.
The conference was organised in Bonn by the Fresenius Academy and held in the week leading up to an important EU Standing Committee on Biocidal Products meeting to discuss the recently revised EU draft criteria to identify EDCs.
The HSE’s Ian Indans outlined the UK position that regulation should be based on risk and not hazard. He said EDCs should be identified as substances which caused adversity in intact organisms, with a proven or likely endocrine disrupting mode of action that was relevant from a potency perspective.
“There is a need for good quality, well written criteria,” he acknowledged, “but the World Health Organization definition is too vague and open to interpretation. And there is too much focus on human health, while the potential problems are in the environment.”
But chairman Dr Lennart Weltje, an ecotoxicologist at BASF, said: “I don’t think there are many member states that would say they are in favour of this risk assessment approach to endocrine disruptor criteria.”
Professor Aldert Piersma, from the Netherlands National Institute for Public Health and the Environment (RIVM), agreed: “The signal should be that we comply with the proposal that the EU has come up with now. Hazard identification is a tool to flag up a compound to be able to ask for more information and that is a regulatory aspect which is perfectly sound.”
Vera Ritz, from the German Federal Institute for Risk Assessment (BfR), presented findings from its expert workshop in Berlin in April, where 23 international experts reached a consensus on the principles for identification of EDCs. These specifically excluded potency.
However, the workshop's conclusions were criticised by Dr Weltje. He said the consensus was "very limited" and "did not tackle the real issues. Without assessing real data in a robust scientific setting (for example, science must be reproducible), the discussion becomes emotional instead of fact-based and then the divide is based on beliefs instead of data."
Ninja Reineke from NGO ChemTrust said potency and risk assessment should be kept out of the criteria. She also disagreed with the European Commission’s latest proposals on the grounds that the burden of proof was set too high: endocrine disruptors should be identified where there are “presumed” as well as known adverse effects on human health or wildlife, she said.
Following the conference, ChemTrust issued a statement on the latest draft criteria from the European Commission: “Unfortunately, this new draft retains many of the problems in the previous one, and in ChemTrust’s view it will not properly protect public health.”
Industry speakers favouring risk assessment in the criteria included Jean-Pierre Busnardo from DuPont Crop Protection, speaking for the European Crop Protection Agency (ECPA). He favoured “hazard characterisation including potency” for defining EDCs, recognising that the EU plant protection products Regulation will not approve such substances, unless under a time-limited derogation.
He said: “Industry does not like the current proposed criteria as they are hazard-based. We like risk-based regulation. The element of potency is lacking and will catch a large number of products.”
https://chemicalwatch.com/51172/little-support-from-national-authorities-for-potency-in-edc-criteria
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EU Commission Notifies WTO Of Proposed RoHS2 Exemptions
Nov 23, 2016 | Chemical Watch
The European Commission has advised the WTO Committee on Technical Barriers to Trade of its proposals to amend Annex III of RoHS2 - the EU Directive on the restriction of hazardous substances - to allow exemptions from substance restrictions.
The Commission proposes exemptions in electrical and electronic equipment for:cadmium and lead in filter glasses, and glasses used for reflectance standards;lead in white glasses used in optical applications; andlead in bearing shells and bushes for certain refrigerant-containing compressors.
The three requests for extensions, or amendments of other existing exemptions, were submitted by companies to the Commission in February this year.
Comments on the Commission's proposals must be submitted within 60 days of the WTO notification date of 17 November. The proposed date of adoption is February 2017.
https://chemicalwatch.com/51178/eu-commission-notifies-wto-of-proposed-rohs2-exemptions
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Efsa Issues Opinion On FCM Use
Nov 23, 2016 | Chemical Watch
The European Food Safety Authority (Efsa) has concluded its safety assessment of (butadiene, styrene, methyl methacrylate, butyl acrylate) copolymer cross-linked with divinylbenzene or 1,3-butanediol dimethacrylate - for use at up to 40% w/w in blends of styrene acrylonitrile copolymer (SAN)/poly(methyl methacrylate) (PMMA).
The scientific opinion of its panel on food contact materials (FCMs) is that the substance is not of safety concern for the consumer if it is:used at up to 40% w/w in blends of SAN/PMMA repeat-use articles; andintended for contact at room temperature with aqueous, acidic and/or low alcoholic foodstuffs for less than 1 day, and with dry foodstuffs without a time limit.
The request for the assessment came from the Netherlands ministry of health, welfare and sport.
https://chemicalwatch.com/51176/efsa-issues-opinion-on-fcm-use
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New Fracking Studies Not Fueling Toxic Tort Cases—Yet
Nov 23, 2016 | BNA Daily Environment Report
By Steven M. Sellers
Scientists warn that chemicals used in oil and gas fracking wells may pose serious health risks.
But neither their research nor a pair of multimillion-dollar contamination verdicts has produced a surge of toxic tort cases. At least not yet, lawyers and academics tell Bloomberg BNA.
Several recent studies have variously found that fracking fluids may disrupt hormones, threaten fertility, release cancer-causing radon gas and aggravate asthma, to name a few potential health problems.
But that catalogue of possible ailments doesn't mean plaintiffs have a clear litigation path forward, the lawyers say.
The sparseness of litigation—despite the studies, a nearly $3 million contamination verdict in Texas and a similar $4.2 million award in Pennsylvania—may be the result of several factors.
They include novel and complex causation questions and corresponding high costs.
“These are extremely expensive cases to bring,” William Ruskin, a defense lawyer with Gordon Rees Scully Mansukhani in New York, recently told Bloomberg BNA.
“The upfront money needed to launch a toxic tort case involving a one-off plaintiff is prohibitive,” Ruskin, an experienced toxic tort litigator, said.
He added that some of the studies are “significant” from a public health perspective, but their utility in litigation is questionable.
That's partly because these studies rely on participants’ self-reported symptoms, and these symptoms may have other causes.
One prominent plaintiffs' lawyer who is handling other aspects of fracking-related litigation said his office hasn't yet fielded any inquiries from potential clients who allege personal injuries from fracking chemicals.
“I haven't had a client come to me with a medical exposure issue like this before,” Scott Poynter, of Poynter Law Group in Little Rock, Ark., told Bloomberg BNA.
Poynter represents plaintiffs in litigation stemming from earthquakes allegedly induced by wastewater disposal in Oklahoma.
He's unaware of other lawyers bringing toxic exposure personal injury claims tied to fracking, he added.
But he's “convinced this is a real problem and most likely something to be developed” in the future, he said.
Blake Watson, a professor at the University of Dayton Law School in Dayton, Ohio, told Bloomberg BNA he hasn't seen much of a bump in litigation either.
“Although it is difficult to track new cases, I am not seeing many new fracking tort lawsuits, especially outside of Oklahoma, where there have been some earthquake related lawsuits,” said Watson, who tracks fracking cases nationally.
Chemical Cocktails
Fracking fluids are largely comprised of water and sand, but also may include chemical additives that help release oil and gas from underground rock formations.
A staff report for the House Committee on Energy and Commerce, for example, concluded in 2011 that the oil and gas industry used more than 2,500 fracturing products with 750 chemicals and other components.
Some of the proprietary chemical cocktails used by drillers contain relatively harmless substances, such as salt, instant coffee and walnut hulls, the report found.
But the researchers also said that methanol, a hazardous air pollutant, and other risky additives enter the mix depending on the particular cocktail used.
And other toxic chemicals—hydrochloric acid, formic acid, ethanol and naphthalene—are also on the list for some drillers. That's according to FracFocus, a national hydraulic fracturing chemical registry operated by the Ground Water Protection Council and the Interstate Oil & Gas Compact Commission.
The Ground Water Protection Council is an organization of state ground water regulatory agencies.
The Interstate Oil & Gas Compact Commission in is a multi-state government agency that works to “efficiently maximize oil and natural gas resources through sound regulatory practices while protecting our nation's health, safety and the environment,” according to its website.
The council and commission are both based in Oklahoma City, Okla.
Mounting Evidence of Risk?
The studies largely strike the same chord—that fracking chemicals expose people to significant health risks.
In November, for example, Washington, D.C.-based Physicians for Social Responsibility, an association of physicians focused on nuclear energy and toxic chemical dangers, and Concerned Health Professionals of NY, an initiative of New York health professionals opposed to fracking, issued a compendium of studies they said demonstrated the “rapidly expanding body of evidence related to the harms and risks of unconventional oil and gas extraction.”
In September, researchers at Johns Hopkins School of Medicine, Baltimore, reported that fracking operations in Pennsylvania exacerbated asthma in patients.
Yet another study issued in August, this one funded by the University of Missouri and the Environmental Protection Agency, concluded that the endocrine systems of female mice exposed to fracking fluids were disrupted and that they had an increased risk of infertility, diabetes, obesity and certain cancers.
And, last year, another Johns Hopkins study found a “statistically significant association” between a number of private homes' proximity to unconventional natural gas wells drilled in Pennsylvania and indoor radon levels.
But not all of the recent studies paint a bleak portrait of toxic fracking fluids.
A University of Colorado-Boulder analysis found in 2014 that the compounds and corrosion inhibitors used in fracking are no more toxic than common household cleaners.
Problems of Proof
Oil and gas industry representatives have their own explanations for why few toxic tort suits have been filed so far.
The dearth of exposure claims reflects the care drillers use in digging fracking wells, the proper management of fluids and the low exposure risks posed by real-world fracking operations, according to Seth Whitehead, a spokesman for Energy in Depth.
EID, based in Washington, D.C., is a research and education organization launched in 2009 by the Independent Petroleum Association of America.
Whitehead also faults the studies identifying potential health concerns.
“What you find in most of these studies, the relevant thing they overlook, is dose and exposure levels,” he told Bloomberg BNA.
“Fracking fluid is 99 percent water and sand,” Whitehead said. “So, the chemical presence is highly diluted. You can find dangerous chemicals in everyday products.”
Ruskin, the defense attorney with Gordon Rees, said the studies also point to another challenge in proving a toxic tort case based on fracking fluid exposures.
“These studies are region- or site-specific,” he said. “So, a study that finds a reaction in one region may not be probative because there are so many different regions of the country using so many different types of processes,” Ruskin said.
And even if that hurdle is surmounted, plaintiffs typically must have reliable scientific proof that a given driller's activities, and not other sources of toxins, caused the specific contamination at issue, and any resulting illness.
In 2014, for example, the Western District of New York dismissed a water contamination suit against a natural gas well driller because methane in the water could have arisen from sources other than the gas well.
Jury Verdicts Rare
Yet successful tort cases based on fracking chemical exposures aren't unheard of.
In Parr v. Aruba Petroleum Inc., a nuisance suit, a Texas jury awarded $2.9 million in 2014 to a family that claimed alleged contamination from fracking operations caused them a variety of personal injuries and interfered with the use of their land.
The fracking operators' appeal of that verdict was argued in September before the Texas Court of Appeals, Fifth District.
Aruba Petroleum's brief contends that expert evidence submitted by Lisa Parr failed to prove the drilling operations were the source of any contamination or injury.
But Parr defends the verdict in her own brief, arguing that questions of dose and exposure don't factor into nuisance liability.
“Evidence as to the dose of the contaminants was not required because no disease claim was made nor did the jury award damages for a specific ailment,” Parr said.
Both sides await the court's ruling.
And, in March in Ely v. Cabot Oil & Gas Corp., a federal jury awarded $4.2 million to two Pennsylvania families who alleged fracking operations released methane and other contaminants into their drinking water.
Cabot has moved to set aside the verdict and for a new trial in that case, which was also a nuisance suit. A decision on the motions is pending in the Middle District of Pennsylvania.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=100832113&vname=dennotallissues&fn=100832113&jd=100832113
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Trump Has Options in Utility Emissions Battle
Nov 23, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
States and industry organizations engaged in a years-long legal battle over federal air pollution standards covering power plants may soon have a new ally: the incoming administration of President-elect Donald Trump, which attorneys said could take various actions to weaken or try to overturn the regulation.
While Trump's transition website promises to eliminate several Environmental Protection Agency regulations—including all actions taken under President Barack Obama's Climate Action Plan—it doesn't specifically mention the 2011 Mercury and Air Toxics Standards. That regulation, commonly known as MATS or Utility MACT, was estimated by the EPA to cost the power sector $9.6 billion per year and factored into the decision of many utilities to shutter some coal-fired power plants.
Trump repeatedly pledged on the campaign trail that he would take action to boost the coal industry and, in a video released Nov. 21, promised to “cancel job-killing restrictions” on domestic energy production as part of his economic agenda.
Several attorneys told Bloomberg BNA the Trump administration will have numerous options on how to address the standards, including the possibility of requesting a voluntary remand of ongoing litigation over a regulatory finding that underpins the rule. However, all of those options are likely to face opposition from environmental advocacy organizations and would only have a limited practical effect on industry because most power plants have already either made the required capital investments to come into compliance or opted to shut down, according to attorneys.
Regulatory Review Promised
The Trump agenda also includes a “top-down” review of all regulations on the coal industry issued under the Obama administration, according to the transition website.That review will likely include a look at how to address the MATS rule given its effect on coal-fired power plants, according to Jim Rubin, a partner at Dorsey & Whitney LLP in Washington, D.C. Rubin's practice focuses on various environmental and energy issues, including air pollution and climate change.
“I'd assume to take them at their word, that they're going to look at all the regulations,” Rubin told Bloomberg BNA. “This one [MATS] probably had a greater impact on the coal industry than anything else the Obama administration did on the clean air side.”
Environmental regulations such as the MATS rule—combined with the low price of natural gas—have driven coal's share of U.S. electricity generation down in recent years. About 30 percent of the coal-fired generating capacity that was retired in 2015 shut down in April, when power plants that didn't receive an extension were required to come into compliance with MATS, according to the U.S. Energy Information Administration.
Legal Battle Ongoing
The MATS rule remains in place even though a coalition of states led by Michigan were victorious in a 2015 decision by the U.S. Supreme Court. In a 5-4 opinion, the high court ruled that the EPA erred when it didn't consider cost in its decision that it was “appropriate and necessary” to regulate power plant emissions under Section 112 of the Clean Air Act (.A lower court decided to leave MATS in place while the EPA worked to address the Supreme Court's decision in Michigan v. EPA. The agency in April published a supplemental finding (RIN:2060-AS76) reaffirming that it's “appropriate and necessary” to regulate hazardous pollutant emissions from power plants after factoring in cost considerations.
States and industry organizations are back in court over that supplemental finding, with litigation ongoing before the U.S. Court of Appeals for the District of Columbia Circuit.
The petitioners, in a joint brief filed Nov. 18, argued that the EPA's “preferred approach” to considering cost in support of that finding is inconsistent with the Supreme Court's Michigan ruling because the agency failed to directly weigh costs against benefits. Instead, the agency “carefully walled off” the cost consideration by weighing compliance costs against the power sector's annual revenue and capital expenditures, as well as the possible effect of the regulation on retail electric prices and grid reliability, according to the petitioners (Murray Energy Corp. v. EPA, D.C. Cir., No. 16-1127, brief filed 11/18/16).
The EPA's supplemental finding included a secondary approach to cost consideration that weighed the $9.6 billion annual cost of the rule against as much as $90 billion in related benefits. The state and industry petitioners also objected to that approach, which they argued illegally relies on “co-benefits” associated with limiting emissions of pollutants like particulate matter that aren't directly regulated.
Coal Giant Looks to Trump
Murray Energy Corp., the lead petitioner in the litigation over the supplemental finding, pointed to Trump's vows to “unwind the Obama administration's disastrous regulatory rampage” against the coal industry when asked about how a Trump EPA could impact the ongoing litigation.“This litigation against the Utility MACT rule presents an opportunity for the Trump administration to ensure the best possible regulatory future for coal,” Murray Energy told Bloomberg BNA in an e-mailed statement. “We are confident in the legal positions we have raised in our brief and that the issues we raised will be resolved favorably by the courts or the Trump administration.”
Several attorneys told Bloomberg BNA that while there are live legal issues on MATS, particularly in how the EPA considers cost under the Clean Air Act, Trump administration action to pull back the standards would likely have a limited practical effect for most plants. Most utilities made irreversible decisions to comply with the standards by installing pricey pollution controls, shuttering older, smaller coal plants that were no longer economical and shifting toward natural gas and renewables.
“You wonder what could be done to actually remedy the situation at this point,” Rubin said.
Seth Jaffe, a partner at Foley Hoag LLP in Boston, agreed that “the train has left the station” with MATS from a practical perspective but noted that the case might still matter to the Trump administration in terms of the precedent it could set on how the EPA assesses the costs and benefits of regulations.
Several Options Available
The Trump administration will have several avenues it could opt to pursue on MATS beginning in January, according to Andrew Shaw, a senior managing associate at Dentons in Washington D.C. Shaw is a member of the firm's Public Policy and Regulation practice, where he focuses on energy, environment and U.S.-Canada cross-border issues.Shaw told Bloomberg BNA that each of the approaches that Trump could take carry different difficulties. For example, while the EPA under Trump could request that the D.C. Circuit remand the Murray Energy case back to the agency to allow for another look at the “appropriate and necessary finding,” that course of action would leave MATS in effect.
Another option for the Trump EPA would be to soften the MATS rule through administrative action, such as using discretion on whether to pursue enforcement actions against coal-fired power plants under the standards, Shaw said. That would shift the onus of pushing regulated power plants toward compliance from the EPA to advocacy groups and states that support the regulation, he said.
One option that the Trump administration won't have is the option of signing a resolution of disapproval under the Congressional Review Act. The mercury standards have been on the books since 2011, well outside the window of 60 legislative days the Congressional Review Act provides for Congress to pass resolutions of disapproval under expedited floor procedures.
Shaw acknowledged there is “always the possibility that Congress may do something” but noted that would be a difficult path because there is strong support for the power plant standards among Democrats. The Republican majorities in both the House and the Senate will likely be more focused on the Clean Power Plan rule to limit carbon dioxide emissions from power plants, the Clean Water Rule to clarify federal jurisdiction over wetlands and regulations that actually are subject to review under the Congressional Review Act, Shaw said.
Rescission Would Be Lengthy, Difficult
The Trump EPA could try to rescind the regulation, but that would require a full notice-and-comment rulemaking, which Shaw said would be a lengthy process. In order to undo a regulation, Trump's EPA would need to articulate an “adequate basis” for changing course, which would be subject to legal challenges by environmental advocates, he said.“So, it's not something they could rescind on Day 1,” Shaw said. “If a Trump-led EPA were to take that route… I think you're looking at a long and potentially complicated effort to undo that rule.”
Jaffe of Foley Hoag said while the Trump administration might face some skepticism from the courts if it took that course of action, it's a possible avenue to pursue. For the petitioners that are challenging the supplemental MATS finding, they'd likely be in a better position arguing in support of a revised approach issued by the Trump administration than arguing against the Obama EPA's approach, Jaffe said.
“In my view what EPA did was defensible,” he said. “I think you could also defend a different approach to looking at cost.”
Advocates Ready to Push Back
No matter what approach the Trump administration takes with respect to the MATS rule, environmental advocates are prepared to fight back, according to Sean Donahue of Donahue & Goldberg LLP in Washington, D.C. Donahue is one of the attorneys representing the Environmental Defense Fund, an advocacy organization that helped the EPA defend MATS before the Supreme Court.“We would vigorously oppose any effort to move backward,” Donahue told Bloomberg BNA.
Any attempt to pull back or soften the MATS rule would be “enormously difficult” given how far along the power sector is in complying with the rule and how strong the record is on the need to regulate hazardous pollutants like mercury, Donahue said.
Donahue acknowledged that the EPA didn't assign a monetary value to many of the known benefits of reducing exposure to mercury, which has been criticized by some of the industry groups and states that are challenging the agency's finding. While it wasn't possible to quantify those benefits, the EPA did identify legitimate harms associated with mercury exposure, including to developing nervous systems and the environment, Donahue said.
“The record contains very strong science on that,” Donahue said. “We feel very good about where we are on the merits on that fight, if we have to have it again.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=100832127&vname=dennotallissues&fn=100832127&jd=100832127
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Perry's Bid for Trump Cabinet Raises Concern Over Pipeline Role
Nov 23, 2016 | BNA Daily Environment Report
By Ari Natter
Rick Perry, the former Republican Texas governor being considered for a spot in President-elect Donald Trump's cabinet, faces questions over a potential conflict of interest because he served on the board of a company building an oil pipeline that was delayed by protests.
Environmentalists say Perry's position on the board of Energy Transfer Partners LP raises the specter of a conflict, especially if it falls to the Trump administration to make a decision on the $3.8 billion Dakota Access Pipeline. The Obama administration has put the project on hold.
“The incoming Trump administration ran on draining the swamp, however the deep financial ties they have with Big Oil and Wall Street makes all the campaign rhetoric just words,” said Jane Kleeb, president of activist group Bold Alliance. “If Trump is serious, he will require all appointments to cut all financial ties with these big corporations which are clear conflicts of interest.”
Perry, who met with Trump Nov. 21 at Trump Tower in New York, has served as a director of the Dallas-based Energy Transfer Partners since February 2015, according to the company's website. He owns 2,868 units of stock worth about $100,000, according to a Securities and Exchange Commission form filed in January.
Perry also serves on the board of Sunoco Logistics Partners LP, which announced Nov. 21 its intention to buy Energy Transfer Partners in a stock deal worth more than $21 billion. Both companies are owned by billionaire Kelcy Warren who has contributed to Trump's campaign and donated $1.5 million to conservative organizations during this election, according to the Center for Responsive Politics.
Trump Stock Ownership
Trump owns between $15,000 and $50,000 in Energy Transfer Partners stock and between $100,000 and $250,000 in stock of Phillips 66, which has a 25 percent stake in the Dakota Access project, the Associated Press reported.
Vicki Granado, an Energy Transfer spokeswoman confirmed that Perry remains on the board, but did not respond to request for comment on potential conflict of interest. Representatives of Perry, Sunoco and the Trump transition didn't immediately respond to a request for comment.
Perry's potential conflicts of interest aren't unheard of for prospective cabinet nominees and could be dealt with by either recusing himself of decisions involving those companies or putting his investments in a blind trust, said Brigham McCown, who served in the administration of President George W. Bush.
“It's not insurmountable, but something would probably have to change,” McCown said. “They have career lawyers that deal with all that stuff.”
Defense Role?
Among the positions Perry is said to be under consideration for is Secretary of Defense.
The Defense Department includes the U.S. Army Corps of Engineers, which has yet to authorize the permit needed to complete the 1,172-mile pipeline that would bring oil from North Dakota's Bakken formation to markets in Illinois. The pipeline giant can't drill the final piece of the oil line beneath Lake Oahe in North Dakota until it gets an easement from the corps.
The agency said last week it needed more time to talk with a Native American tribe opposed to the project before deciding on a permit for the project, raising the odds it may fall to the Trump administration to make the decision.
“Bringing on Rick Perry would signal that the fusion between the fossil-fuel industry and the Trump White House is nearly complete,” said Jamie Henn, a spokeswoman for the environmental group 350.org.
Other jobs that Perry was reported to be under consideration include secretaries of Interior and Energy.
With assistance from Meenal Vamburkar
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=100832139&vname=dennotallissues&fn=100832139&jd=100832139
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Tribe: Police Conducted ‘A Deliberate Act Of Terror’ At ND Pipeline Protest
Nov 22, 2016 | The Hill - E2 Wire
By Devin Henry
Police conducted a “deliberate act of terror” while confronting Dakota Access Pipeline protesters over the weekend, the chairman of the Standing Rock Sioux Tribe said Tuesday.
Police used water cannons and rubber bullets on protesters in a confrontation near the pipeline’s planned route on Sunday night.
Dave Archambault, the chairman of the Standing Rock Sioux Tribe, on Tuesday said President Obama should step in and block the pipeline and help defuse law enforcement actuates there.
He said 300 of the “water protector” protesters were treated for injuries after the event, including one women who may lose her arm after being hit by a projectile.
“The reckless escalation of violence by the Morton County Sheriff’s Department is unconscionable and preventable. It must stop now,” Archambault said.
“There was no reason to launch an attack against water protectors at the camp in the middle of the night unless you wanted to try and prevent the media from seeing what you were doing. None. Blasting these innocent people with concussion grenades, rubber bullets the size of baseballs and a water cannon in freezing weather was a deliberate act of terror sanctioned by the sheriff.”
The sheriff’s office has defended the policing activities, saying Dakota Access protesters were blocking a public road, staring fires in the region and throwing things at officers.
Morton County Sheriff Kyle Kirchmeier has blamed the protests on “violent actions” within the gathering of people opposing the Dakota Access Pipeline north of Bismarck, N.D.
The water cannon, he said Monday, “was used at a time to where they were aggressive toward the officers, and when that was no longer occurring, the water wasn't used anymore. And it was sprayed more as a mist.”
The tribe, anti-pipeline activists and even human rights organizations have criticized the tactics, especially spraying water on protesters while temperatures were below freezing.
“Any use of force — such as the water cannons, tear gas and rubber bullets — by law enforcement officers must be necessary and proportionate to the threat posed,” Amnesty International USA Executive Director Margaret Huang wrote in a letter to the sheriff on Monday.
http://thehill.com/policy/energy-environment/307261-tribe-police-conducted-a-deliberate-act-of-terror-at-nd-pipeline
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Environmental Group Sues Over Alaska's LNG by Rail Program
Nov 22, 2016 | Natural Gas Intelligence
By Joe Fisher
The Center for Biological Diversity (CBD) opposes rail shipments of liquefied natural gas (LNG) in Alaska, and now it's suing to learn more details about the practices after its requests for information were rebuffed by the Federal Railroad Administration, it said.
"The public deserves to know the risks of shipping LNG by rail through Alaska's biggest cities and majestic wilderness. The federal government has an obligation to be transparent before approving or shipping a volatile fossil fuel," said Miyoko Sakashita, a CBD senior attorney. "We know that oil trains and LNG facilities both have deadly histories of explosions, so the secrecy surrounding this project should worry everyone."
The Alaska Railroad plans began a demonstration of containerized LNG rail shipment last September. Intermodal LNG tanks were carried from Southcentral Alaska to the Interior during a month-long project, making the railroad the first in the country to carry LNG. Last year, the Federal Railroad Administration (FRA) approved the railroad's request to move LNG in an effort to eventually help meet Alaska's growing energy needs, particularly in the Interior.
CBD said it asked FRA for more information about the project before shipments began but was rebuffed. It has now filed a lawsuit under the federal Freedom of Information Act to obtain details about the approval of the shipments and their safety. An FRA spokeswoman told NGI the agency does not comment on pending litigation.
Regardless whether it receives the information it is seeking on the LNG by rail project, CBD opposes it.
"Shipping LNG by rail could expand the use of fossil fuels at a time when the United States is struggling to reduce its greenhouse gas emissions to address climate change," it said. “Alaska is the first of several states to pursue such shipping, via its LNG-by-rail pilot program, which has been subjected to minimal public scrutiny."
http://www.naturalgasintel.com/articles/108525-environmental-group-sues-over-alaskas-lng-by-rail-program
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(ACC Mentioned) Chemical Industry, EPA Settle Waste Recovery NESHAP Case
Nov 22, 2016 | Inside EPA
EPA and the chemical industry have reached a settlement agreement that will end a legal challenge of an agency rule to reduce air toxics from off-site waste and recovery operations, according to legal filings by parties in the case.
In American Chemistry Council (ACC) v. EPA, both parties filed a status report with the U.S. Court of Appeals for the District of Columbia Circuit Nov. 16, giving notice that the two are finalizing a settlement agreement that will result in dismissal of the suit. The parties in a Nov. 1 joint letter to the court announced the proposed settlement accord. Another plaintiff, Eastman Chemical Company, withdrew from the litigation in September.
In the case, the chemical industry sought judicial review of EPA's national emissions standards for hazardous air pollutants (NESHAP) for reducing air toxics from off-site waste and recovery operations. The operations are part of a range of facilities that handle used oil, used solvent or waste, including hazardous waste treatment and storage facilities, chemical plants and refineries.
The NESHAP rule removes an emissions limit exemption for periods of startup, shutdown and malfunction; requires electronic reporting of performance test results; bars emissions releases from pressure relief devices (PRDs) that are safety devices used to reduce pressure in containers when needed; and strengthens requirements for certain valves and lines, according to environmentalists who are intervenors in the litigation.
But in response to petitions also filed by the chemical industry to reconsider two aspects of the rule, EPA earlier this year gave notice it would reconsider the PRD requirements -- but not equipment leak reduction provisions.
As a result of that action, the petitioners and EPA in July asked the court to hold the suit in abeyance to allow for settlement negotiations to continue.
Finalization of the settlement agreement is ongoing, although officials for both parties have agreed to the settlement terms, according to the November legal filings. The Nov. 1 letter notes that under Clean Air Act requirements, the settlement cannot be finalized until EPA publishes a settlement notice in the Federal Register, and offers a 30-day public comment period. At press time, the notice had not yet appeared in the Register.
http://insideepa.com/news-briefs/chemical-industry-epa-settle-waste-recovery-neshap-case
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Arkansas Challenges EPA's Federal Plan to Reduce Haze
Nov 23, 2016 | BNA Daily Environment Report
By Nushin Huq
Arkansas is challenging a federal plan to improve air quality in parks and wilderness areas that the state has called unreasonable (Arkansas v. EPA, 8th Cir., No. 16-04270, 11/22/16).
The Environmental Protection Agency's federal plan, issued in September in lieu of one written by the state, established best available retrofit technologies, also known as BART, for six power plants that contribute to regional haze in federally protected areas in Arkansas and Missouri. The power plants affected are owned by Arkansas Electric Cooperative Corporation and Entergy. Arkansas is challenging the federal plan in a lawsuit filed Nov. 22 in the U.S. Court of Appeals for the Eighth Circuit.
“Imposing a federal directive that goes far beyond what is required and ignores the interest of the state has become the norm, not the exception for the EPA,” Leslie Rutledge, the state's attorney general, said in a Nov. 22 statement. “Instead of adopting the plan that Arkansas submitted to reasonably combat regional haze, the EPA chose to cater to the interest of liberal special interest groups, forcing on Arkansans a proposal that will cost millions and bring little positive impact. This plan will lead to unreasonable and unnecessary utility rate increases, something no Arkansan can afford, and I will not stand for it.”
The EPA's regional haze program requires states to clean up pollution that impairs visibility in federal protected areas, such as national parks. Arkansas has two areas that federal regulators refer to as Class I federal areas: Caney Creek Wilderness Area and the Upper Buffalo Wilderness Area.
In July, the state submitted comments to the EPA stating that the federal implementation plan as proposed had no basis in law or science and was an example of federal overreach. In August, a coalition of eight state attorneys general, including Rutledge, argued in comments to the EPA that amendments to the regional haze program would dramatically expand the authority of the federal government and improperly reduce the role of the states in accomplishing the Clean Air Act goals.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=100832133&vname=dennotallissues&fn=100832133&jd=100832133
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EPA Aims To Narrow Air Law Waiver For Internationally Transported Ozone
Nov 22, 2016 | Inside EPA
By Stuart Parker
EPA's proposed rule detailing how states should implement the agency's 2015 ozone standard aims to narrow the potential uses of a waiver that allows areas to exclude internationally transported ozone from NAAQS compliance calculation, which could complicate Western states' plans to come into attainment with the standard.
Some Western states with high levels of naturally occurring and foreign-sourced "background" ozone that cannot be regulated have warned that this background ozone will make it almost impossible to attain the ozone standard of 70 parts per billion (ppb) issued in October last year. They were weighing the possibility of citing adverse impacts from international ozone in the hopes of trying to show attainment with the NAAQS but for the existence of the foreign ozone.
However, EPA's implementation rule signed Nov. 2 and published in the Nov. 17 Federal Register indicates that the agency expects only those areas closest to the Canadian and Mexican borders to need to cite the waiver. This suggests that more inland Western areas might struggle to convince EPA to grant them the exception.
Air law section 179(B) provides areas in nonattainment an exemption from some air law control requirements that would otherwise apply, although it cannot help areas avoid be designated nonattainment in the first place.
EPA's rule says section 179B(a) "provides that the EPA shall approve an attainment plan for such an area if: (i) the attainment plan meets all other applicable requirements of the [air law], and (ii) the submitting state can satisfactorily demonstrate that "but for emissions emanating from outside the United States," the area would attain a NAAQS.
Section 179B(b) applies specifically to the ozone NAAQS and says if a state can prove it would meet the standard "but for" foreign emissions, then it can avoid extension of the ozone attainment dates pursuant to air law section 181(a)(5), section 185 fees, and the mandatory reclassification provisions under section 181(b)(2) for areas that fail to attain the ozone NAAQS by the applicable attainment date.
The international transport provisions have, however, been seldom used, and applied only to areas along the U.S. border with Canada and Mexico. Yet as a result of EPA's decision to tighten the NAAQS more attention has focused on areas in the mountain West where background ozone levels, especially in winter, can approach or even exceed 70 ppb, rendering the standard impossible to attain by air regulators limiting local emissions.
EPA has touted some tools to help areas in this position, while downplaying the likelihood that background levels would compromise NAAQS attainment. These include petitions under section 179(B), exemptions for rural areas lacking pollution sources of their own, and exemptions for "exceptional events" such as wildfires or dust storms.
International Sources
In its new proposal, EPA notes that the previous implementation rule for the 2008 NAAQS of 75 ppb allowed use of section 179(B) for emissions from anywhere in North America or beyond. "EPA notes, however, that the science review conducted as part of the 2015 ozone NAAQS suggests that the influence of international sources on U.S. ozone levels will be largest in locations that are in the immediate vicinity of Mexico or Canada. The EPA, therefore, anticipates that section 179B will most often be used by states with areas along the border with Mexico and Canada."
Historically, only areas "in the immediate vicinity of the Mexican border," including El Paso, TX, Imperial Valley, CA, and Nogales, AZ, have used the provision, EPA says. The agency says it will consider 179(B) demonstrations on a case-by-case basis.
However, "EPA asks for comment on whether the opportunity for such a demonstration should be limited to nonattainment areas adjoining international borders, and on any technical and legal basis for determining whether it is appropriate to have, or conversely whether it is appropriate not to have, such a limitation."
EPA says it further "encourages air agencies to coordinate with their EPA regional office to identify approaches to evaluate the potential impacts of international transport and to determine the most appropriate information and analytical methods for each area's unique situation."
The agency "will also work with air agencies that are developing attainment plans for which CAA section 179B is relevant, and ensure the air agencies have the benefit of the EPA's understanding of international transport of ozone and ozone precursors. Air agencies are encouraged to consult with their EPA Regional office to establish appropriate technical requirements for these analyses."
EPA invites comment "as to whether the EPA should develop technical guidance for the 'but for' analysis," and on "which methodologies and tools would be most effective to help states develop section 179B demonstrations."
The agency is taking comment on the proposed rule until Jan. 17.
Alternative Path
The implementation rule also offers an alternative path to revoke the prior 2008 ozone NAAQS that responds to litigation pressure brought against the agency in a lawsuit challenging the implementation rule for that standard.
In South Coast Air Quality Management District v. EPA, now before the U.S. Court of Appeals for the District of Columbia Circuit, environmentalists are challenging the rule because of what they say are inadequate provisions to prevent "backsliding" in air quality. They also reject EPA's revocation of the 2008 standard.
The approach taken in the 2008 NAAQS implementation rule revokes the 1997 NAAQS -- expressed as 84 ppb -- in all areas effective one year after the effective date of designations for the 2008 ozone standard.
This option, which EPA offers again for revoking the 2008 standard, would establish a set of protective anti-backsliding requirements for all nonattainment areas that have not yet attained the 2008 NAAQS at the time of its revocation.
However, environmentalists in South Coast argue that this approach results in "orphan" areas where protections against air pollution are inadequate. As a result, EPA in its new proposed implementation rule for the 2015 NAAQS offers a second possibility: revoke the 2008 ozone NAAQS in areas designated attainment for that NAAQS one year after the effective date of the designations for each area for the 2015 ozone NAAQS.
Under this second option, the 2008 ozone NAAQS would continue to apply in any area designated nonattainment for the 2008 standards until that area is redesignated to attainment. This option would follow the approach established most recently for the fine particulate matter (PM2.5) NAAQS.
One environmental lawyer familiar with the South Coast case says, "We know from the history of implementing ozone standards that revoking smog standards is bad for health because it lets polluted areas off the hook for cleaning up their air on time and keeping it clean. It seems premature to say that what EPA's proposing is a step in the right direction before we've reviewed all the details."
Senate Environment & Public Works Committee (EPW) Chairman James Inhofe (R-OK) in a Nov. 1 statement said the proposed rule "fails to accommodate the fact that the 2008 implementation guidance was issued almost seven years after the rule was finalized," which was due in part to extended litigation over the rule.
Inhofe and industry groups have criticized as unnecessary the tightening of the ozone standards and the resulting compliance costs, but also EPA's prior lateness in issuance of implementation rules to help states craft compliance plans. State organizations such as the National Association of Clean Air Agencies have previously urged EPA to issue implementation rules earlier, and not several years after the issuance of NAAQS.
Emissions Trading
EPA in the proposed implementation rule is also floating a narrowing of its policy allowing "intra-precursor trading" (IPT) to meet nonattainment new source review (NNSR) requirements that pollution sources in nonattainment areas purchase offsets of ozone precursors to compensate for their increased emissions.
EPA proposes to change its stance adopted in the previous implementation rule in response to environmentalists' criticism. In the previous rule, states could allow pollution sources to trade ozone precursors nitrogen oxides (NOx) and volatile organic compounds (VOCs) in order to satisfy the offset requirements.
Environmentalists, however, oppose this approach, and emissions trading in general, which they say allows emissions sources to escape cutting their pollution by buying credits instead. Environmental groups Sierra Club, Conservation Law Foundation, Downwinders at Risk and the Physicians for Social Responsibility-Los Angeles filed an administrative petition for reconsideration on this issue.
In response, EPA seeks input on a new approach under which "IPT cannot be used to meet the NNSR offset requirement unless the precursor substitution is technically supported. For air agencies implementing an EPA-approved NNSR program, these provisions must be approved in the air agency's plan addressing NNSR requirements for ozone."
EPA has therefore prepared a technical assistance document to help air agencies and pollution sources develop "IPT ratios tailored to particular ozone nonattainment areas." The ratios guide regulators in what proportion VOCs and NOx should be reduced relative to each other in order to achieve the greatest pollution cuts based on the unique atmospheric chemistry of each area.
http://insideepa.com/daily-news/epa-aims-narrow-air-law-waiver-internationally-transported-ozone
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Trump Open-Minded on Paris Deal
Nov 23, 2016 | BNA Daily Environment Report
By Rachel Leven, Andrew Childers, Rebecca Kern and Renee Schoof
Donald Trump Nov. 22 softened his opposition to the blockbuster international climate agreement, even as he has continued to staff his transition team with opponents of regulating greenhouse gases.
Environmentalists were modestly encouraged by Trump's Paris statement. Many remained skeptical of his broader climate change approach; however, some saw glimmers of hope.
“Is it a silver lining? Is it grasping at fleeting hopes? Yeah,” James Goodwin, a senior policy analyst with the Center for Progressive Reform, told Bloomberg BNA. “But we're looking at a Trump administration that we don't know what they'd do on climate, and anything they'd do would be backsliding and bad.”
Key transition team member and agency appointments such as those related to the Environmental Protection Agency are still up in the air. The next scheduled update by the Trump team to the press on transition activities and appointments, which have been daily, is Nov. 23.
The Heritage Foundation and the American Energy Alliance didn't respond to Bloomberg BNA's messages requesting comment for this article. The Competitive Enterprise Institute declined to comment.
Trump's Climate Stance
Trump told New York Times reporters Nov. 22 that he has an open mind toward keeping the U.S. in the Paris climate agreement.
“I'm looking at it very closely,” Trump said, according to the Times. “I have an open mind to it.”
Trump also in the interview told reporters he is considering how much climate change is impacting businesses and American competitiveness.
The statement would be a stark change in position from Trump's repeated promises on the campaign trail to withdraw the U.S. from the international agreement.
Trump had previously reversed during the general election debate his campaign rhetoric—where he called climate change a Chinese hoax intended to make the U.S. less competitive—stating that human actions contribute to climate change, but it isn't clear by how much.
Transition Appointments
As Trump seemingly shifted his policy approach from a clear exit from the Paris climate agreement to a neutral “we shall see” approach, his recent energy and environment appointments seemed to move in the other direction.
Trump's EPA team is being led by Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute.
Ebell, who has doubted the science of climate change in the past, recently told the Daily Signal that he believes in climate change but disagrees in terming it a crisis and with the action that has been taken by the Obama administration. That includes the administration's Clean Power Plan that sets carbon dioxide limits on power plants.
Meanwhile, Ronald Tenpas, part of the Trump transition team for the Department of Justice, is a former assistant attorney general in charge of the Environment and Natural Resources Division of the Justice Department. President George W. Bush appointed him in 2007, and he served until 2009.
Tenpas, a partner at Morgan Lewis, is one of the attorneys involved in the legal challenge to the Clean Power Plan. He represents Minnesota Power, which filed a legal challenge in December. Trump has pledged to pull back the rule.
And his energy picks appear to favor fossil fuels over renewable energy.
Energy Transition Picks
Thomas Pyle, president of the Institute for Energy Research, a conservative energy policy advocacy organization, will head its Energy Department transition team. Pyle has a history of lobbying for the oil industry, having worked as a lobbyist for Koch Industries Inc. He also served as a policy analyst for Rep. Tom DeLay (R-Texas), a former House majority whip.
“As president of the Institute for Energy Research (IER), he has overseen a crackerjack team of experts on energy from upstream oil and gas to coal to renewables to everything in between. He's in a good position to help guide the transition in productive ways regarding energy,” Scott Segal, a partner at Bracewell LLP, which represents energy companies, told Bloomberg BNA.
Trump's Interior Department transition team also has selected Doug Demenech, director of the Fueling Freedom Project at the Texas Public Policy Foundation, a conservative energy think tank based in Austin.
The Fueling Freedom Project that Demenech oversees works to “explain the forgotten moral case for fossil fuels” for the foundation. He previously worked as secretary of natural resources in the commonwealth of Virginia, overseeing energy development projects ranging from renewables to coal.
“Doug brings an understanding of the importance of limited government,” Robert Henneke, general counsel for Texas Public Policy Foundation, told Bloomberg BNA.
All Taken Together
Environmentalists were cautiously optimistic about Trump's change in climate rhetoric.
Goodwin and Alden Meyer, director of strategy and policy at the Union of Concerned Scientists, saw the language as a potential opening for some climate discussion—if not the precise climate action put in place by President Barack Obama such as the Clean Power Plan or the Paris Agreement.
One avenue could be to pursue climate adaptation through infrastructure improvements, Goodwin said. Trump has called infrastructure spending a priority.
“Any time you accept the science argument, then that pushes you into this realm of possibility on policy,” Goodwin said. “That's always been the big tripping point for doing anything on climate change. You couldn't even agree on the same set of facts. Now we can talk seriously on policy.”
But others remained unconvinced given his transition team's actions that these comments represented a game-changer to his climate policy. Jamie Henn, a spokesman for 350.org, put the comments into context—“the Trump rollercoaster”—adding in comments to Bloomberg BNA that actions speak louder than words.
Other Environmentalists Unconvinced
“He's saying … now that he has the weight of the presidency, he'll take a closer look,” David Goldston, director of government affairs for the Natural Resources Defense Council, told Bloomberg BNA. “I don't think he's said anything beyond that.”
Environmentalists told Bloomberg BNA they will be watching closely for additional statements by Trump and announcements about his transition team. However, they will be most concerned about who Trump picks to head the EPA.
“The transition team appointments have not sent positive signals to the climate community or the environmental community at large. There's a lot of concern about what's going to happen,” Michael Burger, executive director of the Sabin Center for Climate Change Law at the Columbia Law School, told Bloomberg BNA.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=100832130&vname=dennotallissues&fn=100832130&jd=100832130
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Trump Keeping 'Open Mind' On Paris Deal
Nov 22, 2016 | E&E News PM
By Hannah Hess
President-elect Donald Trump seemed to soften his stance on the Paris climate agreement today, saying he has "an open mind" after previously pledging to withdraw from the accord.
Trump met with New York Times reporters and editors in the newspaper's headquarters today for an on-the-record lunch. Columnist Thomas Friedman asked Trump whether he would withdraw from the accord.
"I'm looking at it very closely. I have an open mind to it," Trump answered, according to reporters present at the meeting.
Trump also seemed to acknowledge that human activity is linked to climate change. "I think there is some connectivity. Some, something. It depends on how much," Trump said today.
The president-elect's comments put him at odds with many Republicans, particularly people Trump has tapped to shepherd his transition.
Trump also said he was thinking about how much climate change could cost companies and its effect on American competitiveness. Trump said during the Times meeting that Microsoft Corp. co-founder Bill Gates had called him.
Sierra Club Executive Director Michael Brune challenged Trump to prove he means what he said during the meeting. "Talk is cheap, and no one should believe Donald Trump means this until he acts upon it," Brune said.
"We're waiting for action," he said, "and Trump is kidding nobody on climate as he simultaneously stacks his transition team and Cabinet with climate science deniers and the dirtiest hacks the fossil fuel industry can offer."
Trump appointed climate change skeptic Myron Ebell of the Competitive Enterprise Institute to lead his U.S. EPA transition team.
His latest pick for the State Department transition, Heritage Foundation scholar Steven Groves, has written about how Trump should go about withdrawing from the Paris Agreement.
350.org Executive Director May Boeve said that as long as Ebell stays in place, "this is all a bunch of empty rhetoric" and suggested Trump changed his tune on climate action only because he knows it has popular support.
"The public is clamoring for a renewable energy economy that will create millions of jobs while saving our planet," Boeve said. "Instead of delivering, Trump is going on about fantasies like 'clean coal' and flip-flopping around on whether there's 'some connectivity' between humans and climate change."
Boeve added: "The president-elect needs to get up to speed, and fast."
During the presidential campaign, Trump told the editorial boards of The Washington Post and the Miami Herald that he was "not a big believer in man-made climate change" (Greenwire, Aug. 12).
http://www.eenews.net/eenewspm/2016/11/22/stories/1060046170
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