Preview Newsletter
ACC PM 1/18/2017
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How Scott Pruitt Rode a Wave of Federalism to Power
| E&E Climatewire
By Emily Holden
Scott Pruitt was in the right place at the right time in 2011, just as the Obama administration was preparing to unleash a torrent of new environmental regulations. -
5 Things to Watch for at Pruitt's Confirmation Hearing
Jan 18, 2017 | E&E Climatewire
By Niina Heikkinen
Today, Oklahoma Attorney General Scott Pruitt (R), President-elect Donald Trump's controversial pick to lead U.S. EPA, will face sharp questioning from the Senate Environment and Public Works Committee. -
Congress: Democrats Cite Need for Further Pruitt Ethics Disclosures
Jan 18, 2017 | Inside EPA
Senate Democrats are touting letters from EPA and the U.S. Office of Government Ethics (OGE) detailing the requirements for Scott Pruitt -- President-elect Donald Trump's pick to head EPA -- to provide a host of ethics-related information, claiming that the candidate's disclosures to date fail to satisfy the agencies' requirements. -
(ACC Mentioned) Regulatory Reforms Could Pose ‘Very Real Threat’ to TSCA Implementation
Jan 18, 2017 | Chemical Watch
By Kelly Franklin
Regulatory reform measures, passed by the US House of Representatives, could have a significant impact on the successful implementation of the new TSCA law, says an NGO which played a key role in developing the legislation. -
EPA Releases Proposed Chemical Risk Evaluation Process Under New TSCA
Jan 18, 2017 | National Law Review
By Lynn L. Bergeson and Carla N. Hutton
On January 13, 2017, the U.S. Environmental Protection Agency (EPA) released a proposed rule that would establish a process for conducting risk evaluations to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, including an unreasonable risk to a potentially exposed or susceptible subpopulation, under the conditions of use. -
Environmental Protection Agency Proposes Requirements for TSCA Inventory Notification (Active-Inactive)
Jan 18, 2017 | National Law Review
By Government Regulation
On January 13, 2017, the U.S. Environmental Protection Agency (EPA) published a proposed rule that would require an electronic notification for chemical substances listed on the Toxic Substances Control Act (TSCA) Inventory that were manufactured (including imported) for non-exempt commercial purposes during the ten-year time period ending on June 21, 2016. -
EPA Proposes Regulation of TCE Use in Vapor Degreasing Under TSCA Section 6(a)
Jan 18, 2017 | National Law Review
By Government Regulation
In an expected action, on January 11, 2017, the Administrator of the U.S. Environmental Protection Agency (EPA) signed a proposed rule under Section 6(a) of the Toxic Substances Control Act (TSCA) to regulate the use of trichloroethylene (TCE) in vapor degreasing. -
EPA's First Regulation of Nanomaterials May Impact Supply Chains
Jan 18, 2017 | Lexology
By Manatt Phelps & Phillips LLP
On January 12, 2017, the U.S. Environmental Protection Agency (EPA) issued a controversial rule requiring all persons who propose to commence manufacturing or processing certain nanoscale materials, or who have done so in the past three years, to prepare and submit a comprehensive report for each material, detailing its identity, properties, uses, production volumes, workplace and environmental exposures and human health and environmental hazards, to the extent known or reasonably ascertainable. -
Science Committee Greenlights CMR for Use in Cosmetics
Jan 18, 2017 | Chemical Watch
By Vanessa Zainzinger
The Scientific Committee on Consumer Safety (SCCS) has said the preservative polyaminopropyl biguanide (PHMB) is safe for use – but at lower concentration than currently permitted, in its first opinion on the use of a carcinogenic, mutagenic and reprotoxic (CMR) substance in cosmetics, since the European Commission confirmed they are not automatically banned under the cosmetics Regulation. -
EPA Withdraws Two Snurs
Jan 18, 2017 | Chemical Watch
The US EPA has withdrawn significant new use rules (Snurs) for two carbon nanotubes substances subject to pre-manufacture notices (PMNs). -
EWG Investigates: Polluters Who Backed Pruitt's Anti-EPA Lawsuits Also Bankrolled His Campaigns
Jan 18, 2017 | Environmental Working Group
By Colin O’Neil
Interests tied to the big polluters who joined Oklahoma Attorney General Scott Pruitt's 14 lawsuits against the Environmental Protection Agency – companies such as ExxonMobil, Chevron and Peabody Coal –also gave almost $240,000 to his political campaigns and political action committees supporting him. -
Old Systems Under Great Lakes Worry States
Jan 18, 2017 | E&E Greenwire
The Great Lakes are home to the Straits of Mackinac, which have dangerous currents unlike any other spot in the lakes and are home to an underwater pipe pumping 540,000 barrels of oil per day. -
Calif. Regulators OK Reopening of Aliso Canyon
Jan 18, 2017 | E&E Greenwire
Regulators determined that the Aliso Canyon storage facility, source of the largest methane gas leak in U.S. history, can reopen, even though the cause of the leak remains unknown. -
Ariz. Utility Blends Fact and Fiction to Fight Grid Hackers
Jan 18, 2017 | E&E Energywire
By Blake Sobczak
Hackers and vandals may pose a threat to the North American bulk power system, but they can't hold a candle to a robot army commanded by an evil, extraterrestrial overlord. -
Stopping the Surface Transportation Board from Running Off the Rails
Jan 18, 2017 | The Hill
By George S. Ford
Regulators like to regulate. It could be argued that regulation is, in fact, the regulator's job. In truth, the how, the when and the where of regulation is established by legislative bodies in the form of governing statutes. -
Human Impact on Climate Change Up for Debate — Pruitt
Jan 18, 2017 | E&E Greenwire
By Kevin Bogardus
Scott Pruitt, President-elect Donald Trump's choice to lead U.S. EPA, faced a barrage of questions from Democrats at his confirmation hearing today before the Senate Environment and Public Works Committee. -
Pruitt Says His EPA Will Work with the States
Jan 18, 2017 | The Hill - E2 Wire
By Devin Henry
President-elect Donald Trump’s pick to lead the Environmental Protection Agency (EPA) told a Senate committee on Wednesday that states should play a bigger role in environmental regulation. -
Zinke Says Climate Change is 'Indisputable'
Jan 18, 2017 | E&E Climatewire
By Brittany Patterson
Rep. Ryan Zinke broke with President-elect Donald Trump yesterday by telling the Senate Energy and Natural Resources Committee that he does not think climate change is a hoax. -
Zinke Touts Balanced Approach on Resources, Development
Jan 18, 2017 | E&E Energywire
By Ellen M. Gilmer
Interior's secretary nominee, Ryan Zinke, was light on oil and gas details during his confirmation hearing yesterday but steadfast in his position that large swaths of public lands should remain open to development.
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How Scott Pruitt Rode a Wave of Federalism to Power
| E&E Climatewire
By Emily Holden
Scott Pruitt was in the right place at the right time in 2011, just as the Obama administration was preparing to unleash a torrent of new environmental regulations.
As a state senator in oil-and-gas-rich Oklahoma, Pruitt unsuccessfully ran for higher office twice before launching a bid for attorney general. Then, in 2010, he latched onto a winning conservative campaign issue: massive government overreach. Voters liked what they heard.
Soon after entering office, he established a federalism unit to push states' rights and closed a section of the office that focused on environmental cases. Over the next six years, that unit helped launch Pruitt as a leader among Republican attorneys general as he battled alongside big businesses against Obama's use of executive power.
"He cares passionately about the rule of law," said West Virginia Attorney General Patrick Morrisey (R), who has worked with Pruitt on multiple cases, including against U.S. EPA's Clean Power Plan. "All the actions he's been involved in are rooted in the firm belief that what the administration was doing was unlawful."
Now Pruitt is poised to become the next administrator of EPA, the same agency he spent years trying to hamstring. Colleagues say it was his time fighting federal regulations in particular that helped position Pruitt to be selected for the job.
Democrats have slammed him as a pay-to-play politician who puts industry interests ahead of people and the environment. But interviews with conservatives who have worked alongside Pruitt paint a picture of a legal scholar obsessed with adhering to the strictest interpretations of federal law and leaving the rest up to states.
A federalism pioneer
As attorney general, Pruitt sued against federal laws on health care and financial reform and executive action on immigration. But his specialty has been in challenges to energy and environment regulations. In all, Pruitt has sued EPA 14 times to block environmental standards, according to EDF Action, the advocacy partner of the Environmental Defense Fund.
Andy Miller, the former Democratic attorney general of Virginia who later represented energy companies like coal-heavy utility Southern Co., recalled a meeting in 2013 among attorneys general and industry interests in Oklahoma, which The New York Times has chronicled.
"The issue of the day was discussed in a way that allowed Attorney General Pruitt, to his credit, to emerge as one of the leaders, if not the leader with respect to energy issues among the attorneys general," Miller said.
Drew Edmondson, a Democrat who served as attorney general before Pruitt, called Pruitt's focus on federalism and industry-friendly cases "a total switch from how the office had operated before."
"I had concentrated in my 16 years as attorney general on things that directly benefited the state of Oklahoma, which included consumer protection, violence against women, protection of the environment, things of that nature," Edmondson said.
Edmondson said he doesn't recall ever suing the federal government, even when Republicans controlled the White House.
Pruitt has focused much of his work on fighting federal policies that he said would harm Oklahomans. Critics note that those same policies happened to also enrage energy companies, which joined his lawsuits and in some instances assisted for free while also contributing heavily to his campaign funds.
Other Republican attorneys general took a similar approach, capitalizing on voter discontent with the Obama administration's executive actions at the same time as the conservative tea party movement grew to prominence. At least a handful of states instituted federalism units, although Oklahoma's was one of the earliest.
But Paul Nolette, a political science professor at Marquette University and expert on federalism, said Pruitt was more aggressive and signed onto riskier arguments that others wouldn't try out.
"I would definitely consider him at the forefront of conservative activist attorneys general," said Nolette, calling him a "policy entrepreneur."
Democratic senators and hearing confirmation testimony from Pruitt today, however, will tell a starkly different story. Environmental advocates charge that Pruitt worked hand in hand with corporations in lawsuits against environmental protections in order to benefit the oil and gas industry in Oklahoma.
"Federalism or conservatism has really become a code for what's good for the oil and gas industry," said Ben Schreiber, a senior political strategist for Friends of the Earth, one of 170 green groups calling on the Senate to vote down Pruitt's nomination.
Fighting 'one size fits none' regs
Democrats today are likely to demand that Pruitt answer for his view that climate science isn't settled and his connections with the fossil fuel industry, both of which environmentalists say should disqualify him (Climatewire, Dec. 8, 2016).
The New York Times in 2014 found that energy firms were in a "secretive alliance" with Republican attorneys general. The report found that Pruitt lobbied federal agencies to ease estimates of air pollution, passing on letters written by Oklahoma oil and gas company Devon Energy Corp. as his own.
Some of Pruitt's supporters have acknowledged to E&E News on the condition of anonymity that the incident with the letter didn't look good, but they maintain that he was still pursuing what he thought was best for Oklahomans. They also note that environmental groups contribute to Democratic attorneys general.
Pruitt also previously chaired the Republican Attorneys General Association (RAGA), a group that formed in the 1990s to focus on federalism issues and help get other conservatives elected. He is now a director for the organization. RAGA's nonprofit fundraising arm, which doesn't have to disclose donors, helped raise the number of Republican attorneys general to 29. Although disclosures aren't available, Freedom Partners, a group tied to the Koch brothers, listed a $175,000 grant to the fund on its 2014 tax form (E&E Daily, Jan. 9).
Many of Pruitt's fellow Republican attorneys general ran on similar federalism platforms that were popular both with voters and industry.
Chrissy Harbin, director of federal affairs for the conservative group Americans for Prosperity, said the movement was a backlash against Obama administration "one size fits none" executive action, including mercury rules for coal plants, which the Supreme Court found flawed after most of the industry had complied.
"Given that kind of landscape, I think it's really no surprise that there was unrest among attorneys general," Harbin said.
She said any accusation that Pruitt and other attorneys general only pursued cases because of industry influence "really distracts from the fact that regular folks have been hurting from the burdens and rules." Harbin's group maintains that most of the Obama administration's major regulations hurt the economy more than they help the environment.
Former Virginia Attorney General Ken Cuccinelli (R) described Pruitt as businesslike, methodical and a leader "even among AGs, which is why you've seen him lead on so many lawsuits."
Cuccinelli also noted that he helped initiate an effort to coordinate among attorneys general and called Pruitt "a great leader in that effort, without the need to take the lead on his own."
Will Pruitt cripple or uphold EPA's mission?
Christine Todd Whitman, a Republican EPA chief under President George W. Bush, said she isn't convinced Pruitt is the right person for the job.
"It might be healthy to have a skeptic of an agency running it. Government does tend to grow, and regulations just keep going. I get all that," Whitman said. "What troubles me is that I see a denigration of the mission. The idea that the agency can do no good. That's just wrong."
In addition to Pruitt's attacks on federal regulations that he views as illegal, his work within the state suggests he may not pursue basic environmental protections, advocates say.
Pruitt left unresolved a lawsuit against poultry producers that claimed the companies were dumping "hundreds of thousands of tons" of chicken waste into the Illinois River watershed (Climatewire, Jan. 3; Energywire, Jan. 18). Pruitt also opposed the plans of an Oklahoma utility to work with EPA on a transition away from coal (Climatewire, Jan. 17).
Morrisey insists, though, that Pruitt wants to "reinforce the core mission of EPA."
"He is not going to make decisions on the basis of his past relationships or his past perspectives with respect to policy issues," Morrisey said. "He wants to enforce the law the way it's written."
http://www.eenews.net/climatewire/2017/01/18/stories/1060048547
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5 Things to Watch for at Pruitt's Confirmation Hearing
Jan 18, 2017 | E&E Climatewire
By Niina Heikkinen
Today, Oklahoma Attorney General Scott Pruitt (R), President-elect Donald Trump's controversial pick to lead U.S. EPA, will face sharp questioning from the Senate Environment and Public Works Committee.
Here are some of the big issues he is likely to be asked about during his confirmation hearing.
Climate change
The possible future leader of the main federal agency tackling climate change has expressed skepticism about its origins and actively fought against federal efforts to limit its impact.
In a National Review op-ed written with Alabama Attorney General Luther Strange (R) in May 2016, Pruitt called climate science "far from settled."
"Scientists continue to disagree about the degree and extent of global warming and its connection to the actions of mankind. That debate should be encouraged — in classrooms, public forums, and the halls of Congress. It should not be silenced with threats of prosecution. Dissent is not a crime," the attorneys general wrote.
Pruitt has gone beyond critiquing scientific consensus on climate change to actively opposing federal regulations by EPA designed to curtail greenhouse gas emissions.
In 2010, Pruitt challenged EPA's "endangerment finding," which determined that carbon dioxide is harmful to human health and welfare. This finding meant the agency was required under the Clean Air Act to pursue regulations of CO2 emissions.
The Oklahoma attorney general was among 29 state attorneys general to challenge the Clean Power Plan, the Obama administration's signature effort to limit carbon dioxide emissions in the United States. He has also opposed EPA regulations on methane emissions from the oil and gas industry.
Democrats have vowed to make Pruitt's antagonism to climate change the centerpiece of their opposition today.
Ken Kimmell, president of the Union of Concerned Scientists, said Pruitt's opposition to EPA's endangerment was "troubling" because Pruitt's argument questioned the climate research of leading research entities such as the Intergovernmental Panel on Climate Change (IPCC), the U.S. Climate Change Science Program and the National Research Council, part of the National Academies of Sciences, Engineering and Medicine.
"Science has to come first at the EPA; political consideration, way down the list. That lawsuit to me was someone saying, 'Disregard the science because it doesn't advance the predetermined political ends,'" Kimmell said.
Pruitt has also argued to limit EPA's authority in his legal arguments against the Clean Power Plan.
As EPA's head, Pruitt will have to transition from an advocacy role to fulfilling his legal obligation to address climate change, said Kimmell.
Corporate conflicts of interest
Democrats and environmental groups have called out Pruitt for his connections to the fossil fuel industry, frequently citing a New York Timesinvestigation that revealed he had used an industry-written letter almost verbatim to challenge EPA on its methane regulations.
Sen. Bernie Sanders (I-Vt.) and Democrats have sought additional information from Pruitt about his connections with the Rule of Law Defense Fund, a public policy organization for Republican attorneys general that has been linked to funding from the Koch brothers. Pruitt's ethics filing revealed he was chairman of the organization for a year and a member of its board of directors.
Pruitt could also face questions about his campaign funding sources. E&E News first reported that the nominee could still receive funding from the industry he would be charged with regulating as EPA administrator (Climatewire, Jan. 6).
An attorney for Pruitt's super political action committee, Liberty 2.0, and leadership PAC, Oklahoma Strong Leadership, said both would shut down ahead of the attorney general's confirmation hearing. As of yesterday, neither had filed termination papers with the Federal Election Commission.
Former Virginia Attorney General Ken Cuccinelli (R) has defended Pruitt's independence, describing him as a steady and methodical leader who is open to outside input but not too easily swayed by it. Both Cuccinelli and Pruitt have joined lawsuits together against EPA.
"No one outside of Scott's office controls Scott; the fact that he is willing to work with one third party or another means nothing [but] that they have enough agreement to work together," said Cuccinelli in an interview last month.
Rule of law and states' rights
Pruitt supporters see the attorney general's leadership as a chance to roll back what they say are overreaching federal government regulations and to defend the "rule of law" under the Constitution.
In an opening address before the Federalist Society's Annual Western Chapters Conference early last year, Pruitt pushed back hard against accusations from the left that Republicans oppose federal regulations for mainly political reasons.
"These things are much more transcendent, in my view, than whether we agree or disagree with the policy aspirations of the Affordable Care Act or if we agree or disagree with the policy aspirations of the Clean Air Act or the Clean Water Act," Pruitt said. "It's much more fundamental than that; it's about how we do business as a country. It's about whether we will respect rule of law; it's about whether we are going to respect horizontal checks and balances."
EPW Chairman John Barrasso (R-Wyo.) lauded Pruitt's record as attorney general in an op-ed on Fox News' website yesterday, citing his commitment to a limited federal government.
"[Pruitt's] work in Oklahoma protected the environment and strengthened the economy by standing up for states' rights. Attorneys general from 24 states authored a letter in support of his nomination. They know he can and will rein in Washington," Barrasso wrote.
Pruitt's challenges to the federal government fall in line with the president-elect's vow that his administration will "overturn two federal regulations for every new one it proposes."
"The administrator of EPA will play a vital role in keeping that promise. He must make sure that the agency meets its mission of protecting our environment — ensuring clean water, air, and land — while allowing our economy to grow," Barrasso wrote.
Coal
While Pruitt comes from an oil-and-gas-rich state, he has also supported the coal industry in his fight against Clean Power Plan implementation.
Pruitt's nomination has support from West Virginia Sens. Shelley Moore Capito (R) and Joe Manchin (D) as well as Murray Energy Corp. CEO Bob Murray.
Capito, who is a member of the EPW Committee, said she would be "working hard" to make sure Pruitt is confirmed as EPA administrator.
Following a meeting with Pruitt on Jan. 4, the senator said Pruitt would introduce "common sense" regulations that would lead to more jobs in West Virginia and get "coal back under a reasonable regulatory regime."
Murray also praised Trump's selection of Pruitt for EPA administrator.
"I think Scott Pruitt is a very sensible, moderate man that cares deeply about America. I'm sure he cares about the environment, but he also is a lawyer, and he recognized the criminal activities — and I have to describe them as criminal — of Obama and the Democrats," said Murray.
He described Pruitt as a man who supports reliable, low-cost electricity in America.
"That means coal," he said.
Murray noted that Pruitt's top two goals as EPA administrator should be to cut the staff of EPA in half and roll back the Clean Power Plan quickly.
The renewable fuel standard
In Iowa, Pruitt's reputation of opposing the renewable fuel standard and Clean Power Plan is causing alarm among the rural farming community — especially since Trump had committed to continuing with the RFS while on the campaign trail.
Members of Iowa Citizens for Community Improvement and the Iowa Farmers Union, who fear that gutting both of these programs could slash 40,000 jobs in the state, are putting pressure on Iowa Republican Sens. Chuck Grassley and Joni Ernst, a newly appointed EPW Committee member, to oppose Pruitt's nomination.
"Pruitt has been one of the EPA's loudest opponents, suing to overturn clean air and water rules throughout his tenure. In his anti-climate pursuit, he's put the growth of renewable industries like wind and solar at risk," said Adam Mason, state policy director with Iowa Citizens for Community Improvement.
Ernst met with Pruitt earlier this month and said she would press the nominee on his stance during today's hearing. She said she had received assurances from Pruitt that the renewable fuel standard would be upheld.
"I was pleased to hear that President-elect Trump made it clear to Mr. Pruitt that he cares about the RFS. Mr. Pruitt told me in our meeting that the role of the EPA is to enforce the law as written by Congress, and not undermine the RFS," she said.
While Pruitt has recently stated that he wouldn't undermine the RFS, Iowa corn and soybean farmer Alice Hodde said she has found little consolation in this reassurance.
"Look at his record, his biography — since the get-go, he's been siding with the big oil companies. I think he will gut the EPA," she said.
http://www.eenews.net/climatewire/2017/01/18/stories/1060048546
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Congress: Democrats Cite Need for Further Pruitt Ethics Disclosures
Jan 18, 2017 | Inside EPA
Senate Democrats are touting letters from EPA and the U.S. Office of Government Ethics (OGE) detailing the requirements for Scott Pruitt -- President-elect Donald Trump's pick to head EPA -- to provide a host of ethics-related information, claiming that the candidate's disclosures to date fail to satisfy the agencies' requirements.
“From what we can see, [Pruitt has] persistently sided with fossil fuel corporations and other polluting industries over the people he was elected to serve. We have to know exactly who he’s working for if he’s going to assume a seat in the President-elect’s cabinet and lead an agency charged with protecting the health and wellbeing of millions of Americans,” said Senate environment panel member Sheldon Whitehouse (D-RI) in a Jan. 17 statement.
Whitehouse and several other top Senate Environment & Public Works Committee (EPW) Democrats wrote to EPA and OGE ahead of Pruitt's Jan. 18 EPW confirmation hearing to ask about the ethics disclosure process.
In response letters, both agencies largely avoid making any direct conclusions about the adequacy of Pruitt's ethics information submitted to date and instead focus on the process with which all nominees must comply.
EPA in its Jan. 16 response says that it has worked with Pruitt to certify some information, including his financial disclosure report. The agency notes that Pruitt will be required to comply with his ethics agreement within 90 days from the date of his Senate confirmation, and be subject to federal standards on ethical conduct.
If Pruitt fails to comply with federal ethics mandates then EPA can notify its Office of Inspector General and/or the OGE, which can take undisclosed “action with respect to deficiencies in an agency's ethics program.”
Meanwhile, OGE Director Walter Shaub sent a Jan. 17 letter to the Senate EPW Democrats saying his office “generally avoids providing information about individual nominees,” including Pruitt. Instead, Shaub outlines the various procedural requirements that all presidential nominees must meet.
In addition to Whitehouse, the letters were sent to EPW ranking member Sen. Tom Carper (D-DE) and committee Democratic Sens. Ben Cardin (MD), Jeff Merkley (OR), Kirsten Gillibrand (NY), Cory Booker (NJ), Edward Markey (MA), and Tammy Duckworth (D-IL), and independent Sen. Bernie Sanders (VT).
Although neither letter faults major gaps in Pruitt's submissions to date, Whitehouse in his statement said Pruitt still needs to “come clean” about the “dark money influence” that the senator says has influenced Pruitt's tenure as Oklahoma attorney general (AG), a role he has used to sue EPA over several major rules.
Several Democrats have criticized Pruitt's involvement with the Rule of Law Defense Fund -- a group affiliated with GOP AGs leading the charge against Obama climate rules, and which Pruitt says he has quit. But Whitehouse's office says in the statement that the nominee has failed to answer questions about the fund.
https://insideepa.com/the-daily-feed
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(ACC Mentioned) Regulatory Reforms Could Pose ‘Very Real Threat’ to TSCA Implementation
Jan 18, 2017 | Chemical Watch
By Kelly Franklin
Regulatory reform measures, passed by the US House of Representatives, could have a significant impact on the successful implementation of the new TSCA law, says an NGO which played a key role in developing the legislation.
Given its broad bipartisan support, there has been some confidence that the law would not be a likely target of such bills as the Regulations from the Executive in Need of Scrutiny (REINS) Act (HR 26) or the Midnight Rules Relief Act (HR 21).
But speaking to Chemical Watch, Richard Denison, lead senior scientist at the Environmental Defense Fund, said passage of the Republican reforms would represent a “very real threat to the very careful work that so many of us did, including people in industry, to try to put things on a different path" in reforming TSCA.
One reform measure, the Regulatory Accountability Act (RAA), passed the House on 11 January. It is supported by a broad coalition of industry groups, including the American Chemistry Council, for its potential to “make the regulatory process more transparent, agencies more accountable for their decisions and regulations better-tailored to achieve their purpose, without unnecessary burdens on stakeholders.”
But Dr Denison said the measure contains a “sprawling set of provisions” that could impose as many as 80 new requirements into the regulatory development process.
Important for TSCA, said Dr Denison, is the RAA’s requirement that an agency adopt the least costly rule considered during the rulemaking. Although the wording is slightly different, he said this would effectively reimpose the “least burdensome” requirement that hampered TSCA’s effectiveness prior to reform.
Amendment to exclude TSCA
Representative Paul Tonko (D–New York), ranking member of the House Environment and the Economy Subcommittee, introduced an amendment to the RAA to exclude rules made pursuant to the Lautenberg Chemical Safety Act.
Reminding members that it had only been seven months since members of the House voted 403-12 in favour of the new law, Mr Tonko said in floor debates the bill would “undermine” EPA’s implementation process.
“A primary motivation to reform TSCA was to remove procedural hurdles that were preventing the EPA from regulating dangerous chemicals. But the bill before us today would impose new, unnecessary obstacles in the rulemaking process, which will impede agencies,” he said.
And he expressed caution on imposing the least costly requirement, in view of past difficulties with the "least burdensome" terminology. “Let's not reinstate this problem for our agencies,” he said.
The amendment, however, failed in a 188-235 vote.
Industry view
Dan Newton, senior manager of government relations at the Society of Chemical Manufacturers and Affiliates (Socma), told Chemical Watch the failure to pass the amendment leaves open “the potential for a rule being rejected”.
But, overall, he said the trade group does not “envision any of these efforts impacting the ongoing implementation process”.
“All stakeholders want to see the Lautenberg Act implemented successfully,” said Mr Newton.
Dr Denison countered, however: “There's been no nuance to [industry’s] position that would suggest they understand the deadly implications of this for TSCA implementation.”
“A huge regulatory rollback is not going to do the industry much good in restoring confidence in its operations,” he added.
https://chemicalwatch.com/52217/regulatory-reforms-could-pose-very-real-threat-to-tsca-implementation
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EPA Releases Proposed Chemical Risk Evaluation Process Under New TSCA
Jan 18, 2017 | National Law Review
By Lynn L. Bergeson and Carla N. Hutton
On January 13, 2017, the U.S. Environmental Protection Agency (EPA) released a proposed rule that would establish a process for conducting risk evaluations to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, including an unreasonable risk to a potentially exposed or susceptible subpopulation, under the conditions of use. The process would not consider costs or other nonrisk factors. Risk evaluation is the second step, after prioritization, in a new process of existing chemical substance review and management established under recent amendments to the Toxic Substances Control Act (TSCA). The proposed rule identifies the steps of a risk evaluation process, including scope, hazard assessment, exposure assessment, risk characterization, and finally a risk determination. EPA proposes that this process be used for the first ten chemical substances to be evaluated from the 2014 update of the TSCA Work Plan for Chemical Assessments, chemical substances designated as High-Priority Substances during the prioritization process, and those chemical substances for which EPA has initiated a risk evaluation in response to manufacturer requests. The proposed rule also includes the required “form and criteria” applicable to such manufacturer requests. EPA posted a pre-publication version of the proposed rule on its website. When the proposed rule is published in the Federal Register, it will begin a 60-day comment period. This is the third foundational rule released during the week of January 9, 2017.
http://www.natlawreview.com/article/epa-releases-proposed-chemical-risk-evaluation-process-under-new-tsca
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Jan 18, 2017 | National Law Review
By Government Regulation
On January 13, 2017, the U.S. Environmental Protection Agency (EPA) published a proposed rule that would require an electronic notification for chemical substances listed on the Toxic Substances Control Act (TSCA) Inventory that were manufactured (including imported) for non-exempt commercial purposes during the ten-year time period ending on June 21, 2016. 82 Fed. Reg. 4255. EPA would also accept such notices for chemical substances that were processed. The recent TSCA amendments require EPA to designate TSCA Inventory substances as active or inactive in U.S. commerce. EPA would then use these notifications to distinguish active substances from inactive substances for prioritization reviews and include the active and inactive designations on the TSCA Inventory. EPA also proposes to establish procedures for forward-looking electronic notification of chemical substances on the TSCA Inventory that are designated as inactive, if and when the manufacturing or processing of such chemical substances for non-exempt commercial purposes is expected to resume. According to the proposed rule, upon receipt of a valid notice, EPA would change the designation of the pertinent chemical substance on the TSCA Inventory from inactive to active. The proposed rule includes the procedures to submit Notices of Activity (NOA) both for the retrospective (Inventory “reset”) and forward-looking (“activation”) activity notifications, the details of the notification requirements, exemptions from such requirements, and procedures for handling claims of confidentiality. Comments are due March 14, 2017.
What Chemical Substances Would be Reportable?
Reportable Chemical Substances
According to the proposed rule, as a general matter, the retrospective reporting requirement would apply to chemical substances listed on the TSCA Inventory that were manufactured for nonexempt commercial purposes during the ten-year period ending on June 21, 2016. EPA notes that this lookback period is set by new TSCA, which also establishes forward-looking reporting requirements with respect to chemical substances listed on the TSCA Inventory that EPA designates as inactive.
Exemptions from Reporting
Statutory Background
EPA states that the proposed rule provides exemptions from reporting based on new TSCA Sections 8(b)(4) and (5) and “the general objectives that EPA can infer from that text.” New TSCA requires EPA to issue final retrospective reporting requirements by June 22, 2017, and all mandatory reporting under TSCA Section 8(b)(4) must be completed by no later than 180 days thereafter. The reporting requirements apply to “each chemical substance” on the TSCA Inventory, subject to the provision that reporting obligations shall only be triggered by manufacturing or processing for a “nonexempt commercial purpose.” The retrospective reporting requirements under Section 8(b)(4) are expressed as being “subject to the limitations” of TSCA Section 8(a)(5)(A). TSCA Section 8(a)(5)(A), in turn, specifies that “to the extent feasible,” EPA shall: (1) avoid requiring reporting that is “unnecessary or duplicative”; (2) “minimize the cost of compliance” to small manufacturers and processors; and (3) apply reporting obligations to the persons likely to have information relevant for effective implementation.
EPA states that, as it interprets its statutory authority, the reporting is intended to support two key objectives:
To enable EPA to determine which reportable chemical substances are active in U.S. commerce. EPA will accomplish this based on notices received. Reportable chemical substances for which no notices are received would be considered inactive in U.S. commerce; and
With respect to chemical substances identified as being active in commerce that are listed on the confidential portion of the TSCA Inventory, require that persons manufacturing or processing such chemical substances request that existing claims for protection against disclosure of the specific chemical identity be maintained.
Excluded Chemical Substances
If a chemical substance is not listed on the TSCA Inventory, then by the terms of new TSCA Sections 8(b)(4) and (5), it is not subject to reporting under the proposed rule. For example, according to EPA, chemical substances that are manufactured under a TSCA Section 5(h) exemption are not added to the TSCA Inventory. Accordingly, the proposed rule would not require that reporting occur with respect to such substances. This is reflected in the proposed definitions at 40 C.F.R. Section 710.23, which EPA drafted in such a manner that if a chemical substance was not on the TSCA Inventory as of June 22, 2016, it would not be subject to reporting.
EPA proposes to exclude naturally occurring chemical substances from reporting, “so long as the manufacturing and processing of such substances meets the criteria set forth” in 40 C.F.R. Section 710.27(b). EPA notes that when it required notices in support of the original compilation of the TSCA Inventory in 1977, EPA made clear that reporting on naturally occurring chemical substances would not be necessary, as these substances would automatically be included in the Inventory as a category: “Naturally Occurring Chemical Substances.” EPA proposes to designate the entire category of Naturally Occurring Chemical Substances as active substances, by rule, without reporting to differentiate among such substances.
TSCA Section 8(b)(6) requires EPA to compile an interim list of active substances reported under 40 C.F.R. Part 711 for the purposes of TSCA Section 6(b) (prioritization), before promulgation of the (inventory reset) rule. EPA states that the definition of the interim list “is somewhat ambiguous, since it refers to the ‘reporting period that most closely preceded June 22, 2016,’” and the term “reporting period” is not defined under 40 C.F.R. Part 711. According to the proposed rule, in light of the definitional ambiguity of TSCA Section 8(b)(6) and EPA’s weighing of the statutory objectives noted previously, EPA construed the “interim list of active substances” to include 2012 Chemical Data Reporting (CDR) data, “which avoids delay of this proposed rule, but would allow for the 2016 CDR data to give rise to a reporting exemption as soon as they are publicly released in final form.” Under the proposal, manufacturers and processors of chemical substances on the non-confidential portion of the Inventory would be exempt from reporting if the manufacture of that chemical substance was already reported (by any party) in response to the 2012 or the 2016 CDR.
With respect to chemical substances listed on the confidential portion of the TSCA Inventory, EPA states that such reporting still serves a statutory function under TSCA Sections 8(b)(4)(B)(ii) and 8(b)(4)(C) (regarding manufacturer assertion of and EPA review of confidentiality claims), even where there is already adequate evidence, prior to reporting, that the substance was in active commerce during the lookback period.
Manufacturing or Processing for an Exempt Commercial Purpose
TSCA Section 8(b) directs EPA to limit reporting obligations to manufacturing and processing for “nonexempt commercial purpose.” According to EPA, this phrase had a commonly-accepted usage when TSCA was amended in 2016. Since reporting under TSCA Section 8(b) is a form of existing chemical reporting, EPA states that it construes the phrase “nonexempt commercial purpose” consistent with the manner in which the 40 C.F.R. Section 720.30 exemptions from pre-manufacture reporting requirements were adapted for use in the CDR at 40 C.F.R. Section 711.10. Thus, for example, the manufacturing or processing of chemical substances solely in small quantities for research and development would not trigger reporting obligations under the proposed rule. Similarly, according to EPA, the manufacturing or processing of impurities, or byproducts that have no subsequent commercial purpose, would not trigger reporting obligations under the proposed rule. Finally, since the CDR integrates reporting exemptions for persons who import chemical substances solely as part of articles with reporting exemptions for nonexempt commercial purposes, EPA construes the TSCA Section 8(b) reference to “nonexempt commercial purpose” as also encompassing this article exemption. EPA states: “[f]urther supporting this interpretation, EPA believes it would be incongruous to establish a more comprehensive reporting obligation for the import of inactive existing chemical substances under TSCA section 8(b)(5) (i.e., including import as part of an article), than would be applicable to the import of new chemical substances under TSCA section 5 (i.e., excluding import as part of an article).”
Chemical Substances Added to the Inventory on or after June 22, 2016
Under the proposed rule, chemical substances added to the Inventory on or after June 22, 2016, would be designated as active, without the need for any reporting to establish that the chemical substance is active and without the need for any statement by manufacturers or processors indicating whether such persons wish to maintain an existing claim for protection against disclosure of the specific chemical identity of the chemical substance. Reporting under TSCA Section 8(b)(4) is based on manufacturing or processing, for nonexempt commercial purposes, that occurred between June 21, 2006, and June 21, 2016. EPA states that a substance added to the Inventory on or after June 22, 2016, would be added so recently that it has no manufacturing or processing overlapping with the lookback period, and “[i]t would be illogical to designate a very recent addition to the Inventory as inactive, on the grounds that the chemical substance was too recently added to the Inventory to be captured in the retrospective reporting of current manufacturing and processing.” EPA notes that if a chemical substance was added to the Inventory on or after June 22, 2016, then any claim for the protection against disclosure of the specific chemical identity of such a substance would be a new claim rather than the maintenance of an existing claim for protection of the information.
When Would Reporting Be Required?
Retrospective Reporting Period for Manufacturers
The proposed rule would require manufacturers to report no later than 180 days after EPA publishes the final rule in the Federal Register. The 180-day time period for retrospective reporting for manufacturers is the maximum time allowed under TSCA Section 8(b)(4)(A). Following the retrospective reporting for manufacturers, EPA would include the active and inactive designations, determined by the notices received, on the TSCA Inventory.
Retrospective Reporting Period for Processors
The proposed rule would allow processors to report no later than 360 days after EPA publishes the final rule in the Federal Register. According to EPA, the 360-day time period for the retrospective reporting for processors would allow processors to search EPA’s publication of a first draft of the TSCA Inventory with active designations and draft inactive designations, based on retrospective reporting by manufacturers, and to report only those chemical substances not already reported. EPA notes that the first draft with active designations and draft inactive designations would not have the legal effect of designating any chemical substance as inactive. Under the proposed rule, processors would have the option not to report under TSCA Section 8(b)(4) and to continue processing until such time when EPA actually designates a chemical substance as inactive. At that time, any further processing of the chemical substance, without prior notification to EPA, would be prohibited by TSCA Section 8(b)(5). Prior notification would allow EPA to add the chemical substance to the TSCA Inventory as an active substance. We also note that such notice would also avoid possible future commercial disruption.
Forward-Looking Reporting
After EPA completes its review of submitted notices, it must designate as inactive any chemical substance (subject to designation) for which no notice was received. TSCA Section 8(b)(5)(B) provides that, once a chemical substance has been designated as inactive, any person who intends to manufacture or process that inactive substance for a nonexempt commercial purpose must first notify EPA before the date on which the inactive substance is manufactured or processed. EPA proposes to limit the submission period for such notices, so that they may not be submitted more than 30 days before the actual date of manufacturing or processing. According to the proposed rule, EPA based the 30-day time period for forward-looking reporting on its experience with Premanufacture Notices (PMN). EPA states: “[a]lthough persons often form the intent to commercially manufacture or process chemical substances several months ahead of time, EPA’s experience with processing PMNs is that business decisions, technical difficulties, and other unforeseen circumstances may delay a company’s plans to commercialize.” EPA believes that a commercial activity notice “reflects a more tentative or provisional intent to manufacture or process if it is submitted more than 30 days prior to the actual date of manufacturing or processing of the chemical substance.” As such, according to EPA, it is less reliable as evidence that an active designation is warranted. EPA states that reassigning chemical substances from inactive to active status, based on relatively unreliable indicia of intent to manufacture, could affect the reliability of the Inventory designations. The proposed rule would thus require that forward-looking reporting of chemical substances designated as inactive on the TSCA Inventory occur not earlier than 30 days before companies intend to manufacture or process for nonexempt commercial purposes.
Information that Would be Reported
Retrospective Reporting Period for Manufacturers
The proposed rule would require that manufacturers reporting for the retrospective reporting period provide certain information including chemical identity, type of commercial activity (i.e., whether it is domestic manufacture and/or import), date range of manufacture for nonexempt commercial purpose during the ten-year reporting period ending on June 21, 2016, and whether they seek to maintain an existing claim for protection against disclosure of a confidential chemical identity, if applicable.
Retrospective Reporting Period for Processors
The proposed rule would allow processors to report for the retrospective reporting period, provided that the processor “reports timely and consistent with the pertinent reporting requirements,” including providing certain information such as chemical identity, date range of processing for nonexempt commercial purpose during the ten-year reporting period ending on June 21, 2016, and whether they seek to maintain an existing claim for protection against disclosure of a confidential chemical identity, if applicable.
Forward-Looking Reporting
TSCA Section 8(b)(5) requires that manufacturers and processors of inactive substances notify EPA before the date on which they manufacture or process an inactive substance for nonexempt commercial purposes. The proposed rule stipulates that they would do so in the following manner: by reporting certain information, including chemical identity, type of commercial activity (i.e., whether it is domestic manufacture, import, and/or processing), actual date of manufacturing or processing for nonexempt commercial purpose, and whether they seek to maintain an existing claim for protection against disclosure of a confidential chemical identity, if applicable.
Reporting Forms
EPA developed two versions of a NOA reporting form. NOA Form A (EPA Form No. TBD-1) would be used by manufacturers for the retrospective reporting period. It would also be used by processors who report for the retrospective reporting period. NOA Form B (EPA Form No. TBD-2) would be used by manufacturers and processors for forward-looking reporting. EPA based the NOA forms on its Notice of Commencement (NOC) form, “since much of the information submitted in an NOC form is the same or similar to the information proposed in the NOA.”
The forms require “very basic” explanatory information about the type of commercial activity at issue (domestic manufacture, import, or processing), as well as the date range over which the activity occurred, or the date when the activity is intended to resume. EPA states that the collection of explanatory information “is intended to reduce the likelihood of receiving erroneous notices (e.g., notices regarding commercial activity outside the lookback period), to support EPA’s capacity to inquire into the accuracy of activity notices, and thus to increase the reliability of commercial activity designations on the TSCA Inventory.”
Requirement to Report Electronically
The proposed rule would require electronic reporting similar to the requirements established in 2013 for submitting certain other information under TSCA. The proposed rule would require submitters to use CDX, EPA’s electronic reporting portal, and EPA’s Chemical Information Submission System (CISS), a web-based reporting tool, for all reporting under the proposed rule. The proposed rule would require persons submitting NOAs to follow the same electronic reporting procedures used for other TSCA submissions, i.e., to register with CDX and use CISS to prepare a data file for submission.
CBI Claims and Requests
EPA notes that notices pursuant to this rulemaking may contain two different types of confidential business information (CBI) assertions: claims for protection of information other than specific chemical identity, and requests to maintain existing claims for protection of specific chemical identify.
Information Other than Specific Chemical Identity
For all new claims for protection (i.e., for all CBI assertions under this rule other than requests to maintain existing claims for protection of specific chemical identity), TSCA Sections 14(c)(1)(B) and 14(c)(5) require that persons claiming CBI must provide a specific certification statement regarding the basis for the CBI claims. The proposed rule would require that all such claims be substantiated at the time of submission, except for claims for information exempted from substantiation under Section 14(c)(2). In view of the “rapid EPA review of claims” required by TSCA Section 14(g)(1), and to reduce the likelihood of unwarranted claims, EPA states that it believes that a concurrent substantiation is required. EPA will review a representative subset of these claims as specified by TSCA Section 14(g)(1).
Requests to Maintain Existing CBI Claims for Chemical Identity
Requests to maintain existing CBI claims for specific chemical identity on Form A are governed in part by TSCA Sections 8(b)(4)(C-E). EPA notes that TSCA Section 8(b)(4)(C), in particular, requires EPA to issue a rule to establish a review plan for these requests. The review plan must specify a time when the Form A CBI requests for specific chemical identity are to be substantiated. According to the proposed rule, EPA will conduct a separate rulemaking to establish this review plan, and did not include mandatory substantiation requirements in the proposed rule for Form A CBI requests for chemical identity. Mandatory substantiation requirements will be part of the review plan promulgated under TSCA Section 8(b)(4)(C). EPA proposes to allow companies to submit early substantiation at the same time that their Form A is filed, however, if they so choose. According to EPA, as long as the period between the date EPA receives these earlier substantiations and the due date to be established in the review plan (yet to be proposed) is not more than five years, the early substantiations would exempt the company from the requirement to submit additional substantiation for their Form A under the terms of the review plan. EPA states that it will review requests to maintain CBI claims for specific chemical identity in accordance with the TSCA Section 8(b)(4)(D) review plan in the timeframe mandated by TSCA Section 8(b)(4)(E).
Under the proposed rule, any manufacturer or processor submitting an active chemical notification under TSCA Section 8(b)(4)(A) may seek to maintain an existing CBI claim for specific chemical identity, regardless of whether that person asserted the original claim that caused the specific chemical identity to be treated as confidential. According to the proposed rule, EPA “believes this is the correct interpretation of ‘a manufacturer or processor . . . that seeks to maintain an existing claim for protection of against disclosure’ of specific chemical identity.” EPA states that a number of manufacturers and processors may “legitimately benefit” from the confidential status of a specific chemical identity, and the initial claimant may no longer exist. EPA does not believe that Congress intended for specific confidential chemical identities to be disclosed without providing the opportunity for manufacturers and processors to make a request that the identities should remain confidential simply because the original claimants no longer manufacture the chemical substances.
Pursuant to TSCA Section 8(b)(4)(B)(iv), EPA would move an active chemical substance from the confidential portion of the Inventory to the non-confidential portion if no manufacturer or processor submitting an active chemical notification under TSCA Section 8(b)(4)(A) requests to maintain the existing CBI claim for the specific identity of that chemical substance. Requests to maintain existing CBI claims for specific chemical identity on Form B are governed by TSCA Section 8(b)(5)(B), which provides that the request to maintain the claim must be substantiated no later than 30 days after submitting Form B.
Although TSCA Section 8(b)(5) provides that substantiation for requests to maintain existing CBI claims for specific chemical identity must be provided no later than 30 days after submitting a Form B, persons submitting a Form B may find it more efficient to provide the substantiation for a CBI claim for specific chemical identity at the time of filing. TSCA Section 8(b)(5)(iii)(II) provides that EPA shall “promptly” review CBI claims for specific chemical identity in Form B. EPA states that it intends to review these claims within 90 days of receipt of the substantiation.
Request for Comments
EPA states that it seeks comment on all aspects of the proposed rule, including the following:
Considerations for EPA’s Economic Impact Analysis: EPA evaluated the potential costs for manufacturers and processors of chemical substances reportable under the proposed rule. As an example, EPA estimated the “typical costs per firm” at $1346 with an estimated seven chemicals per submission. This cost estimate strikes us as low, particularly in light of the extra-statutory requirement to provide and certify date ranges for manufacture, import, or processing. EPA states that it specifically seeks additional information and data that it could consider in developing the final economic analysis. In particular, EPA seeks data that could facilitate its further evaluation of the potentially affected industry and firms, including data related to potential impacts for those small businesses that would be subject to reporting.
Electronic Reporting: By requiring electronic reporting under the proposed rule, EPA expects to save time, improve data quality, and provide efficiencies for both submitters and EPA. EPA states that it is interested in comments related to the adoption of the existing mechanisms and procedures for use in transmitting the notices proposed in this rule, including comments related to the extent to which potential reporting entities are already familiar with these mechanisms and procedures because of their existing use for other TSCA reporting. EPA is also interested in feedback on how electronic reporting affects potential reporting entities in terms of reporting time, reporting efficiency, and potential burden associated with training to use the electronic systems (i.e., CDX and CISS).
Commentary
Manufacturers and importers should note that there are some key differences between retrospective reporting of active substances and reporting under CDR:
Polymers that are listed on the Inventory and that do not appear on the interim list of active substances will be subject to retrospective reporting.
There is no exemption for substances that are listed on the Inventory that are produced at low volumes (this is in contrast to substances manufactured or imported under a Low Volume Exemption that are not listed on the Inventory).
EPA does not explicitly address whether small businesses are required to submit NOAs. A small business that is the exclusive manufacturer (or importer) of a substance would be well advised to submit a NOA to ensure that the substance is identified as active.
Once EPA has published the interim list of active substances, it should add to the list on a rolling basis as Form As are processed. Having a rolling interim list would help reduce the number of duplicate Form As that must be submitted and processed, and help satisfy EPA’s obligation under Section 8(a)(5)(A) not to require unnecessary or duplicative reporting.
Presumably, substances that have been commenced through a NOC, but are not yet listed on the TSCA Inventory because the systematic nomenclature to identify them has not yet been established (e.g., carbon nanotubes), are not subject to retrospective reporting.
The proposed extra-statutory requirement that, for those substances that are not part of the interim active list, submitters provide a date range for the manufacture or processing of the notified chemical substance, suggests that it is EPA’s belief that the submitters’ certification is insufficient. According to the proposed rule, EPA states that its intent is to reduce the likelihood of receiving erroneous notices and support its capacity “to inquire into the accuracy of activity notices.” Without further explanation, this statement is troubling. Is EPA’s concern whether the chemical was actually manufactured, imported or processed during the ten-year period, or whether the dates are correct? The statute does not require such specificity and it is not clear that the benefit of the inclusion of a date range (to ensure the activity occurred within the ten-year lookback period) justifies the additional effort required to gather, submit, review, and certify the accuracy of those dates. It also remains to be seen how EPA will reconcile the requirement to document activity during a time period for which entities may not be required to keep records (i.e., more than five years, the required period for most recordkeeping). If EPA maintains the requirement to report a date of activity, EPA should consider carefully what it can legally require in this regard given recordkeeping requirements. When EPA developed the initial TSCA Inventory, there was not a similar requirement to document the date of commercial activity that made a chemical eligible for inclusion in the Inventory. If such information was not necessary when EPA undertook to develop the initial Inventory, it is hard to see why it is necessary now.
The rule requires Form A notification for any substance that was manufactured during the lookback period, without regard to the submitter’s intent to continue the activity on or after June 22, 2016. This likely reflects EPA’s interpretation of Section 8(b)(4)(A)(i), which obligates notification regardless of the submitters’ intent to continue the activity. On the other hand, one could argue that the “unnecessary or duplicative” limitation stipulated in Section 8(a)(5)(A) allows EPA not to require reporting of substances for which manufacture, import, and processing was discontinued; if such substances were not being manufactured on or after June 22, 2016, they are, arguably, not active, and a Form A would be “unnecessary.”
In cases of periodic “batch” manufacture, when manufacture or processing occurred several times for several periods over the course of several years, EPA should revise the proposed rule to clarify that only one instance of activity is required for an NOA Form A, and using the most recent instance satisfies the intent of the TSCA Inventory reset. If EPA retains the requirement for the date of activity, requiring only the most recent date of activity would suffice to demonstrate that a substance is active.
The proposed language for 40 C.F.R. Section 710.29(b)(2) only allows for initial reporting of manufacturing, importing, or both. As EPA proposes to allow processors to report activity notices for the lookback period, EPA should add processing to the list of commercial activities specified in Section 710.29(b)(2).
The proposed rule also has a clear tension between the intended date of manufacture for inactive chemicals and the actual date of manufacture. While it may be clear that a company knows in advance when it intends to manufacture, import, or process an inactive chemical, when it actually does so remains to be established. We also note our discomfort with EPA’s firm requirement that the notice occur no sooner than 30 days in advance. It is unclear why such precision in the reporting date is necessary given that the statute merely says that it must be “before the date” the activity occurs. Presumably the certification requirement will ensure that the information is as accurate as needed. To address EPA’s concern, rather than take the approach proposed, EPA could simply indicate the expected date of activity.
A final comment concerns the concept of “valid notice,” which appears in the Summary concerning the forward-looking reporting to move a chemical to the active list. A bit more discussion of the concept in the notice and how EPA planned to determine validity would have been useful. On the whole, EPA’s proposal reflects a thoughtful step in the right direction.
http://www.natlawreview.com/article/environmental-protection-agency-proposes-requirements-tsca-inventory-notification
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EPA Proposes Regulation of TCE Use in Vapor Degreasing Under TSCA Section 6(a)
Jan 18, 2017 | National Law Review
By Government Regulation
In an expected action, on January 11, 2017, the Administrator of the U.S. Environmental Protection Agency (EPA) signed a proposed rule under Section 6(a) of the Toxic Substances Control Act (TSCA) to regulate the use of trichloroethylene (TCE) in vapor degreasing. The proposed rule has not yet been published in the Federal Register, but a pre-publication version of the proposed rule is available on EPA’s website, along with a fact sheet and other information. The proposed rule would prohibit the manufacture (including import), processing, and distribution in commerce of TCE, prohibit commercial use of TCE in vapor degreasing, require manufacturers, processors, and distributors, except for retailers of TCE for any use, to provide downstream notification of these prohibitions throughout the supply chain, and require limited recordkeeping. Comments will be due 60 days after publication in the Federal Register.
Overview of Proposed Rule
The proposed rule is related to the proposed TSCA Section 6(a) rule on TCE aerosol degreasing and spot cleaning in dry cleaning facilities that was published in the Federal Register on December 16, 2016. 81 Fed. Reg. 91592. The two proposals together address risks for workers and consumers associated with exposure to TCE through inhalation that were identified in EPA’s 2014 TCE risk assessment. EPA has stated that it intends to finalize both actions together.
Based on EPA’s analysis of worker exposures to TCE in its completed risk assessment (published before the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act), EPA believes that the use of TCE in vapor degreasing presents an unreasonable risk to human health. More specifically, EPA believes that this use results in significant non-cancer risks under both acute and chronic exposures and significant cancer risks from chronic exposures. EPA is not proposing to regulate other ongoing uses of TCE. EPA states, however, that it has not concluded that other uses not included in the TCE risk assessment present low risks.
Under new TSCA Section 6(a), if EPA determines that a chemical presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the Agency’s risk evaluation, under the conditions of use, EPA must by rule apply one or more requirements to the extent necessary so that the chemical substance no longer presents such risk.
EPA states that it analyzed a wide range of options under TSCA section 6(a) in selecting the regulatory approach proposed in the rule. EPA considered whether any one or a combination of options would address the identified unreasonable risks. In so doing, EPA initially analyzed whether the regulatory options could reduce risks (non-cancer and cancer) to levels below those of concern based on EPA’s technical analysis of exposure scenarios. For the non-cancer risks, EPA stated it would find an option to be potentially protective against the risk if it could achieve the benchmark margin of exposure (MOE) in its risk assessment for the most sensitive non-cancer endpoint. EPA’s assessments also indicated that when such exposures meet the benchmark MOE for the most sensitive non-cancer endpoint, they also result in low risk for cancer. After this technical analysis, EPA goes on to state that it considered how reliably a series of regulatory options would actually reach these most sensitive benchmarks and whether the option could be realistically implemented, or whether there were practical limitations concerning how well the option would mitigate the risks.
The proposed rule also considered the TSCA Section 6(c)(2) cost/benefit elements including the adverse effects and magnitude of exposure to TCE, its benefits for various uses, and the reasonably ascertainable economic consequences of the rule. The proposed rule is identified as economically significant. Further, because the proposed action would substantially prevent a specific condition of use, EPA was also required to consider, to the extent practicable, whether technically and economically feasible alternatives that benefit health or the environment will be reasonably available as a substitute when the proposed prohibition or other restriction takes effect. EPA states that it identified a wide variety of technically and economically feasible alternatives for vapor degreasing with TCE, that it considered the potential risks associated with such alternatives, and that it found several to present relatively lower risks than those for TCE. EPA is specifically requesting comments on TCE alternatives to help inform its further consideration.
The proposed rule also discusses implications under TSCA Section 9 concerning actions that could be taken under other federal laws as well as what will be required of EPA regarding scientific standards and the use of scientific information and methods in a manner consistent with the best available science that appear in Section 26(h) of new TSCA.
Commentary
The two proposed Section 6(a) rules on TCE are important as the first examples of EPA’s attempt to use its new TSCA Section 6(a) authority to regulate existing chemicals. The proposed rules should be read carefully by interested stakeholders to gain an understanding of EPA’s thinking and approach to using its new, strengthened regulatory authority.
Our 2017 Predictions memo stated that the prospects were more positive for proceeding with the first TCE rule proposed in December, while there was significant potential for this second TCE rule (vapor degreasing use) to be withdrawn or re-proposed. While we appreciate EPA’s care in drafting the current proposed rule, the rule is lengthy and complex with many important supporting documents in the docket that need careful review, and we do not see a clear basis for changing our forecast for this rule. Part of the reason for this view is a point that we also made in our 2017 Predictions memo concerning EPA’s decision to conduct a risk evaluation focused on the other uses of TCE. We continue to believe that this decision could have ripple effects in that any reopening of such a controversial risk assessment is likely to lead to issues concerning risks from TCE that will bleed through and affect at least the vapor degreasing proposed rule.
These points concerning the complexity of the rule, its record, and the implications of reopening the previously completed risk assessments also hold true for the recently proposed Section 6(a) rule on the use of methylene chloride and N-methyl pyrollidone (NMP) in paint strippers. The methylene chloride/NMP proposed rule has not been published in the Federal Register as yet, but the pre-publication version is available on EPA’s website.
http://www.natlawreview.com/article/epa-proposes-regulation-tce-use-vapor-degreasing-under-tsca-section-6a
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EPA's First Regulation of Nanomaterials May Impact Supply Chains
Jan 18, 2017 | Lexology
By Manatt Phelps & Phillips LLP
On January 12, 2017, the U.S. Environmental Protection Agency (EPA) issued a controversial rule requiring all persons who propose to commence manufacturing or processing certain nanoscale materials, or who have done so in the past three years, to prepare and submit a comprehensive report for each material, detailing its identity, properties, uses, production volumes, workplace and environmental exposures and human health and environmental hazards, to the extent known or reasonably ascertainable. EPA estimates an average of 164 hours per report. Additional reports must be submitted for the same material if production changes are made that intentionally change the shape, size or certain physicochemical properties of the material (referred to as a "discrete form"). EPA has not concluded that all nanoscale materials present special risks. There is no particular risk associated with nanoscale particle size alone. Rather, the collected information will be used by EPA to assess, on a case-by-case basis, whether individual nanoscale materials may present risks warranting further investigation or, ultimately, individual regulation of safe use and handling under the Toxic Substances Control Act (TSCA). The rule becomes effective on May 12, 2017.
For proposed new nanoscale material manufacturing, importing or processing activity (or producing a discrete form of a previously reported material), a report is due either 135 days before commencement of the new activity, or, where a shorter start-up period is planned, 30 days after forming the intent to commence the activity. The 135/30-day reporting obligation for new activities becomes effective on May 12, 2017. Reports for nanomaterial activities that commenced prior to that date are not due until May 2018. Reporting must be done electronically through EPA's secure data collection system.
Controversial Rule
The reporting rule has been in development for more than six years, including four years on hold at the Office of Management and Budget. There, an initial draft was scaled back significantly during interagency review to remove terms that would have required all companies in the future to notify EPA and wait 90 or more days before they could start manufacturing or processing particular nanomaterials, which EPA then could authorize on a case-by-case basis (a "significant new use rule" or SNUR). The final rule maintains vestiges of that approach reflected in the permanent 135/30-day reporting obligation for new manufacturers and processors. The 30-day reporting option was added to the final rule, without prior proposal or public comment, in response to vigorous industry objections that the 135-day reporting arrangement was an unwarranted and illegal prior restraint on manufacturing not authorized by TSCA. Although EPA correctly states in the preamble to the final rule that the 135-day reporting obligation does not expressly prohibit the start of manufacture or processing until the end of that period, the inhibitory effect is the same if a company can be penalized for "late" reports submitted less than 135 days before commencement. The newly added 30-day reporting option provides additional flexibility, but may be impractical given uncertainty about exactly when a company forms a specific manufacturing intent, and because the period is much too short. Based on EPA's estimate of the average time needed to complete a submission, it would require an individual to work on the report nearly six hours/day every day in the 30-day reporting period to meet the regulatory deadline.
Covered Materials
Reports are required only for nanoscale materials that are solids at ambient temperatures and have a particle size less than or equal to 100 nm. In addition, to be reportable, the material must be made or processed in the nanoscale form with the specific intent to produce "unique and novel," size-dependent properties in the material.
In response to criticism of the highly subjective and undefined "unique and novel" applicability criterion in the proposed rule, EPA adopted a definition in the final rule. Without prior proposal or public comment, EPA has defined "unique and novel" properties as "those that vary from [properties] associated with other forms or sizes of the same substance." This definition would have benefited from public comment, as it appears to have the unintended effect of triggering reporting for a wide range of common materials for very ordinary and predictable properties associated with smaller-sized particles, such as increased surface area. And it also arguably may have the unintended effect of exempting from reporting relatively exotic nanoscale materials, such as carbon nanotubes and buckyballs, that exist only in the nanoscale size range and therefore do not have properties that vary from those of a larger form of the same substance (because there is no larger form). In addition, like the many exempt nanoscale biological materials, the special properties of these materials often are not a function of their particle size per se but of their chemical structure and shape.
Excluded Materials
In the final rule, EPA has narrowed some exclusions and broadened others. Reporting is not required for those handling aggregates and agglomerates that are greater than 100 nm, even if they are made up of primary particles less than 100 nm. Reporting generally is not required for unintentionally present nanoscale fractions of larger-sized materials, or where the nanoscale fraction is 1% or less by weight. Nor is reporting required for a wide range of biological materials (e.g., DNA, proteins, enzymes), substances that form in films to be less than 100 nm, and substances that dissociate completely in water to form ions less than 100 nm. Substances that release ions but do not completely dissociate are not exempt. Many nanoscale substances are incorporated into formulated products or matrices. The preamble to the rule clarifies that otherwise covered nanomaterials are not reportable by processors after they have been incorporated into a formulated product, a polymer matrix or an article, but processors that prepare these mixtures are not exempt. In a significant break from the proposal, the final rule omits an express exemption for nanoclays and nanoscale zinc oxide materials. EPA had proposed to exempt them because it already had sufficient information. These materials are reportable in particular cases if they otherwise meet the size and "unique and novel" applicability criteria. The rule does not apply to "new chemicals" that are not yet on the TSCA inventory. Nor does it apply to materials subject to the TSCA R&D exemption, and materials not subject to TSCA, such as pesticides, foods, drugs, and cosmetics.
Exempt Persons
Small business entities with total sales (together with those of their parent companies) of less than $11 million are exempt. Also exempt are companies that submitted a pre-manufacture notice or other TSCA Section 5 notice for the particular nanoscale substance after 2004. This exemption applies only to the Section 5 notice submitter and not to others making or processing the same substance. On the other hand, a person potentially subject to 135/30-day reporting for a new nanomaterial activity or discrete form may be exempt from reporting in some circumstances if another person has already reported the substance to EPA. The rule provides that new manufacturers and processors have to report only for materials that were not reported during the initial reporting period for nanomaterial activities commenced prior to the effective date. While uncertainty remains, this construction may make it possible for current reportable material manufacturers and importers to shield their new downstream customers from reporting obligations by submitting their own reports as early as possible.
Extent of Respondents' Duty to Investigate Facts
Respondents need only supply information that is "known or reasonably ascertainable." This standard requires reporting companies to conduct careful investigation and review of available facts, including, according to EPA, asking material suppliers and customers for information to fill gaps in knowledge. But it does not include the obligation to conduct any testing on a material to determine whether it triggers any of the applicability criteria. This may be particularly significant in respect of determining whether a process change has produced a reportable "discrete form," which may turn on whether there is an intentional change in size, zeta potential, surface area, dispersion stability or surface reactivity that is greater than seven times the standard deviation of the measured value. New testing is not required to make these judgments and, in the absence of data, new reporting may not be required unless the person reasonably knows that the criteria have been met even without specific test data. EPA has committed to provide further guidance concerning which information it believes is "reasonably ascertainable."
Minimizing Impact on Product Supply and Distribution Chains
Companies potentially subject to reporting should start now to assess how reporting may affect their product development process and supply and product distribution chains. Reporting for static products may represent only a one-time inconvenience for nanomaterial manufacturers and importers. But as a commercial matter, manufacturers should start to plan now for means to limit the potential burden on their current and future direct and indirect customers, who may have their own reporting obligations. This might include providing clear guidance on the extent of the customer's reporting obligations with, for example, prepackaged product information, product stewardship guidance to ensure safer handling, and potentially regulatory form assembly and submission services. Manufacturers that continually modify or improve their nanoscale material products will need to build checks into their own systems to know when they've made a new "discrete material" triggering new reporting obligations.
Special Compliance Risks
Companies also need to prepare for two other possible contingencies. First, as part of inventorying a company's nanomaterial handling activities that must be reported, it may discover potential violations of TSCA, such as past failure to recognize and provide EPA with pre-manufacture notification of new chemicals being made or imported, failure to provide required TSCA import certifications, noncompliance with applicable significant use rules for certain nanoscale materials, or previously undisclosed studies subject to disclosure under TSCA § 8(e). To prepare for these risks, companies may decide to couple the nanomaterial product inquiry with a TSCA compliance audit. This would give the company the opportunity to promptly disclose and correct any violations discovered without incurring gravity-based penalties using EPA's audit policy. The second concern is the potential discovery of previously unknown hazard information and/or inadequate material handling practices that may result in, for example, unnecessary chemical exposures to workers, or adverse environmental impacts. The long lead time allowed for current manufacturers and processors to assemble and submit their initial reports provides an ideal opportunity for companies to audit and improve these systems before reporting, where warranted, so that the final report submitted to EPA effectively demonstrates that no further regulation or testing is warranted for the particular nanomaterial under the circumstances of use.
http://www.lexology.com/library/detail.aspx?g=608ae6bd-1edf-4537-9c51-8ab8bed19fff
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Science Committee Greenlights CMR for Use in Cosmetics
Jan 18, 2017 | Chemical Watch
By Vanessa Zainzinger
The Scientific Committee on Consumer Safety (SCCS) has said the preservative polyaminopropyl biguanide (PHMB) is safe for use – but at lower concentration than currently permitted, in its first opinion on the use of a carcinogenic, mutagenic and reprotoxic (CMR) substance in cosmetics, since the European Commission confirmed they are not automatically banned under the cosmetics Regulation.
The Commission confirmed its policy last September, saying a ban on a CMR in cosmetics must be implemented by a specific act amending the Regulation's relevant annexes. Its decision was criticised by Denmark, which says this should be automatic.
Currently, the substance's use as a preservative is permitted at levels up to 0.3%. It is used as such in cosmetics, personal care products, fabric softeners, contact lens solutions and hand washes.
Two years ago, the Commission asked the committee if PHMB – a category 2 CMR – was safe at levels up to 0.3%. It ruled that this was not the case but that safe use could be based on a lower use concentration or restrictions.
The committee's latest opinion – out for consultation until 10 March – says that based on new dermal absorption studies on additional cosmetic formulations, its use is safe at levels up to 0.1%.
Cosmetics Europe said it was pleased with the conclusion, but director general John Chave said the "shrinking pallette" of cosmetics preservatives remains an “ongoing concern”.
The committee's opinion indicates that an assessment approach based on substance risk – rather than hazard – is taking precedence under the cosmetics Regulation, said Mr Chave. “This points to the fact that an automatic ban under the old [Commission] interpretation would have been disproportionate.”
But the Danish Environmental Protection Agency (EPA) says that although it supports the opinions drafted by the SCCS, it still disagrees with the Commission’s new interpretation on CMR substances in cosmetics.
Denmark wants the cosmetics Regulation interpreted as saying that substances with mandatory CMR classifications under the CLP Regulation should be automatically banned. In a letter sent to the Commission in November, the country’s food and environment minister said the its new policy reduces consumer safety.
"If the conclusion in the latest opinion on PHMB from the SCCS is maintained after the commenting period, we expect the Commission to draft a new proposal on the regulation on PHMB," an EPA spokesperson said.
HEPB opinion
The committee also issued an opinion on the cosmetic preservative hydroxyethoxyphenyl butanone (HEPB) – again out for consultation until 10 March. It says its use in rinse-off, oral care and leave-on products is not safe at levels above 2.0%. But it said the preservative could be considered safe if “more reliable and supporting data” on its in vitro dermal penetration was provided.
https://chemicalwatch.com/52162/science-committee-greenlights-cmr-for-use-in-cosmetics
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Jan 18, 2017 | Chemical Watch
The US EPA has withdrawn significant new use rules (Snurs) for two carbon nanotubes substances subject to pre-manufacture notices (PMNs).
The EPA had published the Snurs under direct final rules, but received adverse comments on the substances. Therefore the agency is withdrawing the direct final rules for:
bimodal mixture consisting of multi-walled carbon nanotubes and other classes of carbon nanotubes (generic), (PMN No P-11-482); and
carbon nanotubes (generic), (PMN No P-15-54).
The agency intends to publish proposed Snurs for each.
https://chemicalwatch.com/52264/epa-withdraws-two-snurs
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EWG Investigates: Polluters Who Backed Pruitt's Anti-EPA Lawsuits Also Bankrolled His Campaigns
Jan 18, 2017 | Environmental Working Group
By Colin O’Neil
Interests tied to the big polluters who joined Oklahoma Attorney General Scott Pruitt's 14 lawsuits against the Environmental Protection Agency – companies such as ExxonMobil, Chevron and Peabody Coal –also gave almost $240,000 to his political campaigns and political action committees supporting him.
Campaign contribution records show that Pruitt – President-elect Donald Trump's nominee to head the same agency he repeatedly sued – from 2010 to 2016 received $239,176 from employees and PACs for fossil fuel companies that signed on to Pruitt's lawsuits – directly or through professional associations – which sought to block federal clean air and water standards.
A recent EWG investigation revealed that executives and lawyers for Tyson Foods and other poultry companies, who were being sued by the State of Oklahoma over poultry pollution in the Illinois River, gave more than $40,000 to Pruitt’s 2010 campaign.
The Senate Environment and Public Works Committee will consider Pruitt's confirmation in a hearing tomorrow. If he becomes EPA administrator, he will take office under a cloud of concerns about his financial ties to the fossil fuel companies and agribusinesses.
http://www.ewg.org/planet-trump/2017/01/polluters-who-backed-pruitts-anti-epa-lawsuits-also-bankrolled-his-campaigns
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Old Systems Under Great Lakes Worry States
Jan 18, 2017 | E&E Greenwire
The Great Lakes are home to the Straits of Mackinac, which have dangerous currents unlike any other spot in the lakes and are home to an underwater pipe pumping 540,000 barrels of oil per day.
In 1953, a Canadian pipeline company decided that spot would be better than a longer route down the length of Wisconsin.
The pipeline was supposed to move about 300,000 barrels each day. But in 2013, the capacity was increased to 540,000 barrels after the pipeline owner increased pressure on the steel tubes.
"Certainly, the Straits pipelines would not be built today," Michigan Attorney General Bill Schuette (R) has said. "So how many more tomorrows [they] should operate is limited in duration."
The Great Lakes are home to 20 percent of the world's fresh surface water. The state of Michigan has ordered an environmental and economic risk study, which is funded by the oil pipeline giant Enbridge Energy Co. Inc. but not overseen by it.
While the study is ongoing and is expected to be completed later this year, Enbridge says it is a victim of fearmongering. It says the pipelines undergo regular inspections and that they are as good as new.
"We know from the many levels of inspections and diagnostics that the line is in very good condition and can continue to safely operate indefinitely so obsolescence is not a factor," company officials wrote in 2015.
http://www.eenews.net/greenwire/2017/01/18/stories/1060048565
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Calif. Regulators OK Reopening of Aliso Canyon
Jan 18, 2017 | E&E Greenwire
Regulators determined that the Aliso Canyon storage facility, source of the largest methane gas leak in U.S. history, can reopen, even though the cause of the leak remains unknown.
For more than four months in 2015, gas surged from a broken well, causing many Los Angeles-area residents to fall ill, forcing thousands from their homes and doubling the methane emissions rate of the entire Los Angeles basin.
Porter Ranch, Calif., residents, activists and elected officials promised to fight efforts to reopen the facility.
State Sen. Henry Stern (D) filed legislation yesterday to keep the facility closed until the investigation concludes.
"If we don't know what went wrong, how can we prevent it from happening again?" he said.
Next up: two public hearing scheduled for Feb. 1 and 2 on whether Southern California Gas Co. can reopen the facility.
The sandstone and shale cavities beneath Aliso Canyon had been used to store pressurized natural gas until an underground leak blew out a well.
Regulators have yet to physically examine the well tube and casing but say 34 of the remaining 114 wells have passed inspection tests.
http://www.eenews.net/greenwire/2017/01/18/stories/1060048561
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Ariz. Utility Blends Fact and Fiction to Fight Grid Hackers
Jan 18, 2017 | E&E Energywire
By Blake Sobczak
Hackers and vandals may pose a threat to the North American bulk power system, but they can't hold a candle to a robot army commanded by an evil, extraterrestrial overlord.
Or so begins a bit of fiction spun by the designers of "CIP Defender," an online learning simulation aimed at preparing utility workers for 21st-century risks and regulations.
The training program offers a "bridge between boring PowerPoint and full-on gaming," according to Lisa Carrington, who manages Critical Infrastructure Protection (CIP) implementation at Arizona Public Service, the largest electric utility in Arizona.
She said about 1,800 APS employees have completed the CIP Defender simulation to date. The program, designed by the training firm MetaMythic LLC, guides users through the voluminous CIP physical and cybersecurity standards that are set through the North American Electric Reliability Corp.
"We needed these people to be really well-trained, not just from a regulatory compliance standpoint, but from a security of the grid standpoint," Carrington said last week on the sidelines of the S4 industrial cybersecurity conference in Miami Beach, where she shared the results from her company's training program.
CIP Defender is built like a computer game, relying on humor and "applied fiction" to keep employees' eyes from glazing over. The imagined world of the "MondoPower" utility includes marauding robots, critical electric control rooms, and ample references to classics like "2001" and "The Lord of the Rings."
Users choose their own nickname and play through a series of levels as the grid's best hope for defeating the evil "overmind" Sektimus.
Carrington said that she was initially skeptical of training employees electronically, which she described as a "generally terrible" format.
"It's not engaging — people can click through it; they don't learn anything."
But the CIP Defender simulation resulted in an 83 percent engagement rate, as measured using the Kirkpatrick model, according to Carrington — dramatically higher than any of APS's prior CIP training efforts.
Christopher Lazzaro, experience architect at MetaMythic and a 12-year veteran of the utility industry, officially launched his company's e-learning product at last October's GridSecCon, an annual security conference hosted by NERC.
Lazzaro recounted how he had to design the training program to be 100 percent beatable. Most video games, he noted, get progressively tougher, with many players never actually winning. But quitting early can't be an option for an official training program like CIP Defender.
"That's the challenge: How do you make a game that's fun, but that everybody can get through, whether you're 20 years old and a new employee out of college, or you're 67?"
The game periodically quizzes users about proper CIP protocols and cyber defenses. But even if employees answer incorrectly, they never flunk out of the fight against Sektimus.
"We've taken a fear factor away from people — they're no longer afraid of this training; they can simply engage in it," said Carrington.
She said APS is continuing to work with MetaMythic to improve the program and make it accessible to other electricity companies with bulk power assets that fall under NERC oversight.
"We think there is huge potential," she said. "We believe that whatever makes us better as a company makes other companies better — and protecting the grid is something where we're interconnected, that we all do together."
http://www.eenews.net/energywire/2017/01/18/stories/1060048515
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Stopping the Surface Transportation Board from Running Off the Rails
Jan 18, 2017 | The Hill
By George S. Ford
Regulators like to regulate. It could be argued that regulation is, in fact, the regulator's job. In truth, the how, the when and the where of regulation is established by legislative bodies in the form of governing statutes. In many cases, legislatures direct regulators not to regulate, or even to deregulate, neither of which suit the activist's tendencies.
For the Obama administration, however, limiting statutes and legal and regulatory precedent were things to be ignored and not followed when expedient. Such abuse was routine at the Federal Communications Commission, the Environmental Protection Agency and now, it appears, at the Surface Transportation Board (STB).
Take, for example, the desire of the STB to regulate the prices of freight rail service. Under its statutory mandate, the STB faces significant hurdles in regulating prices of rail service, and for good reason. It is widely acknowledged that the regulatory powers held, and actions taken, by the now-defunct Interstate Commerce Commission (ICC) — the predecessor to the STB — nearly destroyed the rail industry in this country.
In response, Congress passed the Staggers Rail Act of 1980, a legislative action aimed at revitalizing the rail industry by substantially curtailing regulatory influence. In fact, the law charged the agency with assisting railroads achieve revenue adequacy, essentially requiring the regulatory agency to monitor carefully the financial implications of its actions for the railroads.
The STB has over the years established stringent cost- and competition-based requirements for rate regulation and, consequently, rate remedies have been few and far between. As the heavy regulation of the rail industry subsided following the Staggers Act, the financial condition of the industry improved.
Still, with vigorous competition from alternative transportation modalities, it's hard to make money in the rail business.
Nevertheless, as the rail industry recovered and began to show signs of health, Obama's STB proved unable to resist the siren call to sabotage the industry once again with price regulation. But regulating prices directly is very difficult.
Thus, like many pro-regulatory efforts, the STB looked for a way around the statute and its own procedures, wrapping up what could be unlawful and inconsistent with its own policies in the delightful package of promoting "competition." Specifically, the STB has proposed to expand its use of a policy known as "reciprocal switching" to regulate prices.
The agency's authority to order reciprocal switching first came into play with the largely deregulatory Staggers Act. Railroads already switch traffic by agreement where it makes operational and business sense. Voluntary reciprocal switching allows a competing carrier to create the illusion that it can offer can offer its own single-line rate across an entire route using another operator's facilities, even if this competitor does not physically reach a customer.
But when ordered by the government, reciprocal switching is, in effect, forced access to private property. While the railroads involved in such arrangements have an opportunity to arrive at a negotiated rate for such reciprocal access, the failure to come to terms brings in the STB to regulate prices.
For over 30 years, the federal government — first, the ICC, and then at its relevant successor, the STB — imposed reciprocal switching only if it determined that it was "necessary to remedy or prevent an act that is contrary to the competition policies of [the Staggers Act] or is otherwise anticompetitive." That is, reciprocal switching was not intended to function as price regulation, but rather as an attempt to remedy blatantly anticompetitive actions by rail companies.
Consistent with the deregulatory intentions of the Staggers Act, the bar for regulatory intervention was set high. Since the federal government first promulgated this standard in 1985, only a few requests for reciprocal switching were even filed, and none were granted.
With six months left in office, however, the Obama administration felt that it was time for a change. Although conceding that the Staggers Act routing provisions were "not designed to provide shippers with full, open access routing," last summer the STB nonetheless opened a Notice of Proposed Rulemaking (NPRM) to abandon its 30-year old standard in favor of a more permissive standard which, in the STB's view, would "encourage the availability of reciprocal switching where appropriate."
While it is well-established that an administrative agency can change its policy so long as it provides a reasoned explanation for doing so, the STB's justifications for abandoning its long-standing anticompetitive harm test are hardly compelling.
For example, the STB asserts that given the "dearth" of reciprocal switching cases brought over the past 30 years, it automatically follows that requiring a finding of anti-competitive harm has "effectively operated as a bar to relief rather than a standard under which relief could be granted."
So, if we are to understand the STB's logic correctly, the STB asserts that it does not have to demonstrate a market failure before it can intervene into the market; instead, it can impose regulation to benefit one set of political constituents as it pleases to achieve a predetermined outcome.
Similarly, the STB argues that it is important to weaken the anticompetitive standard due to the increased concentration of the industry. The STB's argument is puzzling. Indeed, it is a bit disingenuous for the STB to complain about industry concentration when no rail merger can go through unless they approve it first. More importantly, as the STB admits in its notice, it approved such consolidation in order to remedy "decades of inefficiency and serial bankruptcies."
Which brings us to the STB's third argument: Now that the industry has returned to some modicum of financial health (made possible by reduced regulation and the government-approved consolidation mentioned a moment ago), lowering the reciprocal switching standard will allow the STB to "avoid obsolescence of the Board's regulatory policies."
Like I said, regulators like to regulate and thus hate feeling unnecessary for the healthy functioning of an industry. Moreover, simply because an industry is no longer on the brink of financial ruin does not imply that there are excess profits for the STB, at its discretion, to redistribute to select political constituencies through rate regulation.
At bottom, while some advocates of reciprocal compensation frame it as a "pro-competition policy," in fact it is not. In fact, reciprocal switching is little more than a scheme to reduce prices for shippers, disguised as competition policy.
Which, of course, begs some interesting policy questions: Why bother use such a complex scheme? Why not just regulate prices directly?
The answer is straightforward: Because the STB's own rate regulation standards, rooted in valid economic and financial concepts, represent a hurdle — and a legitimate one — to direct price regulation. Using reciprocal switching, alternatively, grants the flexibility for the STB to craft a new, less rigorous and a less economically justified approach to price regulation.
In effect, the STB is running around its own regulatory precedent, spinning its maneuvers as "competition" policy when all it really wants to do is regulate prices, irrespective of the inefficiencies imposed on rail transport. Reciprocal switching is regulatory activism, not competition policy.
Unfortunately, much of the pleading cycle in this notice will be complete by the time the Trump administration comes into office. Hopefully, the incoming administration will throw the switch before allowing this docket to run off the proverbial rails.
George S. Ford is the chief economist of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, a nonprofit 501(c)(3) research organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of the digital age.
http://thehill.com/blogs/pundits-blog/transportation/314677-stopping-the-surface-transportation-board-from-running-off
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Human Impact on Climate Change Up for Debate — Pruitt
Jan 18, 2017 | E&E Greenwire
By Kevin Bogardus
Scott Pruitt, President-elect Donald Trump's choice to lead U.S. EPA, faced a barrage of questions from Democrats at his confirmation hearing today before the Senate Environment and Public Works Committee.
The Oklahoma Republican attorney general is an aggressive critic of EPA, often leading litigation against the agency over its regulations, notably the Clean Power Plan and the Waters of the U.S. rule. As his state's top lawyer, he has been considered close to Oklahoma's oil and gas industry, from which he has received contributions for campaigns and political committees tied to him.
Democrats sought to exploit Pruitt's ties to fossil fuel interests, hammering him for what they say will be conflicts of interest if he becomes EPA administrator.
Sen. Sheldon Whitehouse (D-R.I.) noted that Pruitt served as an officer for the Rule of Law Defense Fund, a nonprofit group that has challenged EPA and doesn't have to disclose its donors.
"It is a complete black hole that at least a million dollars goes," Whitehouse said.
Whitehouse's staff held up a chart showing a nexus between Pruitt and the energy industry, showing lines representing political contributions going to his campaigns, super PACs and other outside groups, such as the Republican Attorneys General Association (RAGA).
Pressed by Whitehouse, Pruitt said, "I have not asked them [energy companies] for money on behalf of RAGA."
The hearing is being held in a packed room with a line for spectators snaking outside down the hall and around the corner.
Early into the hearing, there were cries of protesters in the hall. Each time the door opened, the noise would creep in, with one protester yelling, "Pruitt takes money from oil companies!"
Several protesters did make it into the hearing room. Police removed a few who disrupted the proceedings.
Committee Democrats were often angry or dismissive of Pruitt in their rapid-fire questioning. In turn, Republicans often gave up some speaking time to Pruitt so he could clarify his answers to prior queries from Democrats.
Several Democrats focused their attention on Pruitt's office sending a letter to EPA critical of its methane rule in 2011. That letter was copied almost word for word from text sent by lawyers for Devon Energy Corp.
"You sent it without questions," Sen. Jeff Merkley (D-Ore.) told Pruitt.
Pruitt sought to defend the letter, arguing he was representing his state's interests before a federal agency.
"It was sent not on behalf of one company," Pruitt said. "It was sent on behalf of industry."
Sen. Ed Markey (D-Mass.) also repeatedly asked Pruitt whether he would recuse himself from his state's still-pending lawsuits against EPA. The Oklahoma attorney general dodged that question, much to Markey's frustration.
"EPA is for all the people of the United States, not just the fossil fuel industry of Oklahoma," Markey said.
Committee Chairman John Barrasso (R-Wyo.) jumped in and asked Pruitt, "Would you fully follow the advice of the EPA ethics counsel?"
"Yes, I will, chairman," Pruitt said.
Views on climate change
Pruitt also addressed the issue of climate change at the hearing, telling Markey in response to one of his questions, "I do not believe climate change is a hoax."
That runs counter to a well-known 2012 tweet from Trump where he said climate change was created by the Chinese to hurt U.S. manufacturing.
Pruitt's position on climate change was more nuanced earlier in the hearing. In his opening statement, the Oklahoma attorney general said the degree in which human activity is causing climate change is "subject to continuing debate and dialogue, as well as it should be."
Pruitt also said in his opening statement that he thought he could balance the needs of the environment and the economy. He described a "false paradigm" that one cannot be pro-energy and pro-environment.
"I thoroughly reject that narrative," Pruitt said.
He also sought to emphasize he would follow the law at EPA. "The law is static, not transient," he said.
Pruitt also touted his belief in states' rights, saying EPA would need them as partners to protect the environment.
Also in response to Democrats' concerns that Trump would attempt to do away with EPA, Pruitt said the agency has a "very important role" and a "very valuable role."
Republicans praised Pruitt often. In particular, Barrasso said he would submit several of letters of support for Pruitt into the record between senators' questions.
Introducing him to the committee, Sen. James Lankford (R-Okla.) said Pruitt was his friend, "a statesman" and "a dedicated public servant."
"He has proven himself to be an expert in balancing economic growth and environmental stewardship," said Sen. Jim Inhofe (R-Okla.), a former EPW chairman, who also helped introduce Pruitt to the panel. Inhofe said Pruitt is considered a hero of "scenic river" supporters for reaching an agreement to clean up pollution from poultry operations along the Illinois River.
http://www.eenews.net/greenwire/2017/01/18/stories/1060048581
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Pruitt Says His EPA Will Work with the States
Jan 18, 2017 | The Hill - E2 Wire
By Devin Henry
President-elect Donald Trump’s pick to lead the Environmental Protection Agency (EPA) told a Senate committee on Wednesday that states should play a bigger role in environmental regulation.
“I believe the role of the regulator is to make things regular,” Scott Pruitt said early in his confirmation hearing.
“This public participation, cooperative federalism, the rule of law being the focus of how we do things at the EPA is center to restoring confidence in the EPA.”
The main theme of Pruitt’s opening statement — that the EPA should work with states to protect clean air and water — was expected from Trump’s pick to be the nation’s top environmental regulator.
Pruitt, Oklahoma's attorney general, is a frequent foe of President Obama's EPA. He has argued in legal filings that it overused its power as Obama increasingly focused on climate change regulations. Like most Republicans, he argued Wednesday that EPA rules have hurt jobs around the country.
“Environmental regulations should not occur in an economic vacuum. We can simultaneously pursue the mutual goals of environmental protection and economic growth,” he wrote in the opening statement he filed with the committee.
“But that can only happen if the EPA listens — listens to the views of all interested stakeholders, including the states, so that it can determine how to realize its missions while considering true pragmatic impacts of its decisions on jobs, communities and most importantly families.”
Republicans support Pruitt’s approach, with Senate Environment and Public Works Committee Chairman John Barrasso (R-Wyo.) saying recent EPA work has “created broad and legally questionable new regulations which have undermined the American people’s faith in the agency.”
“Far from being an enemy of the environment, Scott Pruitt has proven to be an expert at balancing economic growth with environment stewardship,” Sen. Jim Inhofe (R-Okla.), the former chairman of the committee, said, previewing Democratic arguments against Pruitt.
Democrats and environmentalists have questioned Pruitt’s approach, worrying that a frequent foe of the EPA will, instead, gut the agency in the name of turning power over to the states.
They are likely to hammer Pruitt on the proper role of the EPA during Wednesday’s hearing.
“Too much of what I’ve seen of record on the environment, his views about the role of EPA, are troubling and, in some cases, deeply troubling,” Sen. Tom Carper (D-Del.), the committee’s ranking member, said, quoting a former Republican EPA administrator who called Pruitt “disdainful of the agency and the science behind what the agency does.”
“Today is your opportunity to show that she’s gotten it wrong,” Carper said. “To be honest with you, coming to this hearing today, I fear that she’s gotten it right.”
http://www.thehill.com/policy/energy-environment/314786-pruitt-says-his-epa-will-work-with-the-states
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Zinke Says Climate Change is 'Indisputable'
Jan 18, 2017 | E&E Climatewire
By Brittany Patterson
Rep. Ryan Zinke broke with President-elect Donald Trump yesterday by telling the Senate Energy and Natural Resources Committee that he does not think climate change is a hoax.
When pressed repeatedly by Sen. Bernie Sanders (I-Vt.), the 55-year-old Montana Republican, picked by Trump to lead the Interior Department, said it is "indisputable" that the climate is changing and humans are having an influence.
"As a matter of fact ... my family and I have eaten lunch on Grinnell Glacier, and the glacier has receded during lunch," he said.
Later, Sen. Angus King (I-Maine) said he was going to use that story in his "arsenal" to explain the impacts of increased greenhouse gas emissions on the planet's atmosphere.
Zinke would not go so far as to say the issue of climate change is settled.
"I think where there's debate on it is what that influence is and what we can do about it," Zinke said of human activities.
In a positive sign for government scientists who have faced uncertainty about what the next administration will mean for their jobs, Zinke praised Interior Department scientists and the U.S. Geological Survey, the branch of the agency that does research. He said repeatedly he would use objective science as part of the policymaking process.
Despite acknowledging that climate change is real, Zinke testified that he is a proponent of an "all of the above" energy policy, which includes continuing to allow fossil fuels to be extracted from public lands.
Sen. Al Franken (D-Minn.) pressed the former Navy SEAL on whether he believes climate change is a threat to national security, something the Department of Defense has baked into its planning. As a Montana state senator in 2010, Zinke was one of hundreds of state legislators who signed onto a letter asking Congress and President Obama to take action against climate change.
Confronted with the question, Zinke acknowledged his belief in global warming, but added, "I'm no expert."
Franken called Zinke out, saying his answer was a "cop-out" and adding, "I'm not a doctor, but I, too, have to make health care decisions."
Zinke appeared well-prepared and even-keeled during the four-hour hearing, which ran uninterrupted. A Theodore Roosevelt impersonator, hired by the left-leaning group Public Citizen, joined the hearing about halfway through and respectfully removed his hat when asked to by Capitol police.
The second-term congressman, dressed in a navy-blue suit, was accompanied by his wife, Lolita; their daughter, Jennifer, and her husband, Jack; and two granddaughters.
In his opening statement, Zinke reiterated a popular narrative that he is a strong supporter of conservation and public lands. "I am an unapologetic admirer of Teddy Roosevelt and believe he had it right when he placed under federal protection million of acres of federal lands and set aside much of it as national forests," he said.
He went on to outline three goals for the sprawling Interior Department, which manages more than 500 million acres of land in the United States. They include restoring trust in the agency by working more closely with local communities, reducing the $12.5 billion National Park Service maintenance backlog, and giving park rangers and managers in the field increased flexibility.
The congressman gamely agreed to visit virtually every senator's home state.
Democrats on the committee signaled that they are unlikely to put up a major fight against Zinke (E&E Daily, Jan. 18).
Concerns over alleged travel fraud when he was a Navy SEAL did not come up in the hearing. Neither did his acceptance of campaign donations from the fossil fuel industry.
For those hoping to see fewer regulations and more fossil fuel development, Zinke signaled both, but in a restrained way. One theme of Zinke's testimony was that one-size-fits-all policies don't work and that he would prioritize more flexible ones.
In a declaration likely to please both Democrats and environmentalists, Zinke said multiple times that he values the environmental review process, or the National Environmental Policy Act, known as NEPA.
Zinke told Sen. Lisa Murkowski (R-Alaska), chairwoman of the committee, that he would review a recent decision by the Obama administration to permanently protect a large chunk of the Alaskan Arctic from offshore drilling.
The congressman agreed with Sen. John Barrasso (R-Wyo.), who said there is a "war on coal," but demurred when asked if he would end the current three-year coal moratorium while Interior conducts a review of the federal coal-leasing program.
He noted that Trump said ending the moratorium was a priority on the campaign trail. But Zinke did not come out and say the current review of the federal coal program is doomed under Trump.
He told Sen. Maria Cantwell (D-Wash.) that he thinks taxpayers should get a fair return for their resources. "I think a review is good," he said.
http://www.eenews.net/climatewire/2017/01/18/stories/1060048542
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Zinke Touts Balanced Approach on Resources, Development
Jan 18, 2017 | E&E Energywire
By Ellen M. Gilmer
Interior's secretary nominee, Ryan Zinke, was light on oil and gas details during his confirmation hearing yesterday but steadfast in his position that large swaths of public lands should remain open to development.
Throughout the nearly four-hour hearing before the Senate Energy and Natural Resources Committee, the Republican congressman from Montana repeatedly stressed a desire to act as both an environmental steward and a careful manager of resources.
He referenced public lands icons John Muir and Gifford Pinchot, noting that he would follow Muir's hands-off approach for "lands that deserve special recognition," while the "preponderance" of other public lands would be better-served by Pinchot's sustainable-use model.
He said he strongly supports the National Environmental Policy Act as the "backbone of environmental policies" but noted that he will prioritize energy independence to support economic growth.
"If we don't have a strong economy, then the rest of it doesn't matter," he said.
Responding to questions from Sen. Bernie Sanders (I-Vt.), he noted that he would encourage fossil fuel development on public lands, along with wind, solar and "all of the above."
Zinke briefly touched on the Bureau of Land Management's rule to cut methane flaring and venting on public lands, which took effect today but is still facing legal challenges from states and industry (Energywire, Jan. 17).
Sen. John Barrasso (R-Wyo.) pressed Zinke to commit to backing an effort to roll back the rule under the Congressional Review Act.
Zinke answered yes but proceeded to lament the waste of resource that occurs from oil and gas sites on public lands.
"We're wasting energy, and that is troubling to me," he said. "The amount of venting in North Dakota alone almost exceeds what we can get out of the fields."
He noted that much of the waste could be avoided with better infrastructure, including pipelines to transport excess gas.
The rule requires oil and gas operators to use existing technologies to reduce venting and flaring of methane, the primary component of natural gas. Gathering lines are among the options for capturing gas.
Tribes and trust
Zinke and committee members also frequently turned to American Indian issues, discussing Interior's role in working with tribes. Interior houses the Bureau of Indian Affairs, which has wide-ranging jurisdiction over Indian health, education and some energy issues.
The nominee argued that the federal government should not take a paternalistic approach to tribal issues but should prioritize tribal sovereignty, respect and self-determination.
Those qualities play a leading role in the ongoing conflict over the Dakota Access oil pipeline, which crosses just a half-mile north of the Standing Rock Indian Reservation, where tribal leaders say they weren't given enough of a say in the planning process.
"There is a feeling like we haven't been a fair consultant or a good partner, so I think we need to listen to that voice," he said, pledging to visit the tribe if confirmed.
He noted that mistrust from tribes mirrors the general public's perception of federal land management agencies — joking that even Smokey Bear is viewed with fear.
"We have to make sure that the management, our team out there, is viewed as helpful, as land managers, and not to be feared," he said.
For their part, environmental advocates do not appear ready to trust Zinke, arguing that he has not done enough to protect public lands from the effects of mining, hydraulic fracturing and other energy development. Natural Resources Defense Council President Rhea Suh yesterday argued that he "is the wrong person" for the job.
"Given what is at best a mixed record, it's clear that Rep. Zinke lacks an abiding commitment to the Interior Department's full mission," Suh said in a statement. "That is to protect our public lands and waters for the benefit of all Americans, to safeguard our cultural heritage and wildlife, and to honor the special relationship with indigenous people in America."
http://www.eenews.net/energywire/2017/01/18/stories/1060048543
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