Preview Newsletter
ACC PM 4/20/2017
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(ACC Mentioned) Big Box Stores Silent on Move to Repeal Plastic Bag Ban
Apr 20, 2017 | The Outer Banks Voice
By Russ Lay
Two bills introduced into the state legislature in the 2017 session have some residents wondering who is behind a move to lift an almost eight-year-old ban on the use of plastic bag by retail stores along the Outer Banks. -
(ACC Mentioned) Senior ACC Staffer Appointed to EPA Leadership Role
Apr 20, 2017 | Chemical Watch
By Kelly Franklin
The American Chemistry Council’s Nancy Beck has been named deputy assistant administrator of the US EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP). -
(ACC Mentioned) Conflict of Interest for EPA's Toxics Office Hire?
Apr 20, 2017 | Inside EPA
Does Nancy Beck, EPA's new principal deputy assistant administrator in the Office of Chemical Safety and Pollution Prevention (OCSPP), have a conflict of interest because she recently advocated for the chemical industry? -
Teleconference to Open Gates for Feedback on Rule Cutting
Apr 20, 2017 | E&E Greenwire
By Sean Reilly
U.S. EPA's Office of Air and Radiation will collect feedback at a teleconference Monday on regulations that could be repealed, replaced or changed "to make them less burdensome," according to a "dear stakeholder" invitation this morning. -
Formulators ‘Well Positioned’ to Influence Development of Safer Chemicals
Apr 20, 2017 | Chemical Watch
By Leigh Stringer
Formulators are well positioned to encourage the development of safer substances and their use in products, say experts lined up to speak at a green chemistry meeting next week. -
US FDA Accepting Comments on Lead Acetate Petition
Apr 20, 2017 | Chemical Watch
The US Food and Drug Administration (FDA) is accepting comments until 5 June on an NGO petition to prohibit the use of lead acetate as a hair dye. -
The HONEST Act is Actually Dishonest and Will Hurt the EPA
Apr 20, 2017 | The Hill - Pundits Blog
By Dr. Bernard Goldstein
The current attack on Environmental Protection Agency’s (EPA) science is unparalleled since the Reagan Administration. Reagan first chose Anne Gorsuch as EPA Administrator to fulfill his anti-EPA campaign threats, which President Trump has echoed. -
Echa Launches Study on EU Chemicals Legislation ‘Finder’
Apr 20, 2017 | Chemical Watch
By Luke Buxton
Echa has started work on a feasibility study to decide if it should introduce an ‘EU chemicals legislation finder’ database, which will provide an overview of how a substance is regulated in the EU. -
Echa Round-Up
Apr 20, 2017 | Chemical Watch
Echa has submitted an intention to restrict octamethylcyclotetrasiloxane (D4) and decamethylcyclopentasiloxane (D5) in personal care products and other consumer/professional products (for example, dry cleaning, waxes and polishes, washing and cleaning products) in concentrations > 0.1%. -
Pruitt Pauses Rule to Plug Methane Leaks
Apr 20, 2017 | E&E Climatewire
By Niina Heikkinen
U.S. EPA doesn't have the authority to stay its regulations on methane emissions for the oil and gas industry, environmental lawyers are warning the agency. -
EPA Moves to Block Obama’s Methane Rule for Oil and Gas Wells
Apr 20, 2017 | Fuel Fix
By James Osborne
The U.S. Environmental Protection Agency is moving ahead on President Donald Trump’s pledge to do away with environmental regulations that curb domestic oil and gas production. -
Stanford Study Faults Costs, Benefits of Oil & Gas NSPS
Apr 20, 2017 | Inside EPA
A new study from researchers at Stanford University finds that the Obama EPA overestimated the compliance costs of its first-time methane limits for new oil and gas equipment but that the agency also over-projected how much methane the rule's leak detection and repair requirements would capture. -
Exxon Mobil Officially Picks South Texas Spot for Giant Petrochemical Plant
Apr 20, 2017 | Houston Chronicle
By Collin Eaton
Lured by the promise of tax breaks and cheap shale gas, Exxon Mobil has officially settled on a spot just outside two small South Texas towns to build a giant petrochemical plant. -
'Liberty Eclipse' Put Energy Officials Through Cyber Stress Test
Apr 20, 2017 | E&E Energywire
By Blake Sobczak
The fictional scenario in the "Liberty Eclipse" exercise is the stuff of energy CEO nightmares: a cyberattack that knocks out power for 37 million people, grinds fuel production to a halt and takes three weeks to quash. -
Trump EPA Plots Path to Scalia-Inspired Regulation
Apr 20, 2017 | E&E Greenwire
By Ariel Wittenberg
The Trump administration laid out its vision yesterday for lining up federal Clean Water Act oversight with the views expressed by the late Supreme Court Justice Antonin Scalia. -
EPA Floats Options For Revised CWA Rule Using Scalia's Jurisdiction Test
Apr 20, 2017 | Inside EPA
By David LaRoss
EPA water officials at an April 19 meeting with state and local officials floated options for crafting a revised Clean Water Act (CWA) jurisdiction rule using the late Justice Antonin Scalia's narrow test for jurisdiction, including whether to literally apply the test as written and the pros and cons regulators might face in using Scalia's test. -
Measure Seeks to Meld Non-Climate Pollutants with Cap and Trade
Apr 20, 2017 | E&E Climatewire
By Debra Kahn
California lawmakers yesterday fleshed out a proposal to extend California's carbon market past 2020 that includes a first-ever attempt to directly link greenhouse gas trading to local air pollution. -
Enviros Slam EPA Bid to Delay Case on Plant Startup Rule
Apr 20, 2017 | E&E Greenwire
By Sean Reilly
A federal appellate court should summarily reject U.S. EPA's bid to indefinitely delay upcoming oral arguments in litigation over tightened air pollution standards, lawyers for environmental groups argued in a filing this morning.
Industry and Association News
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(ACC Mentioned) Big Box Stores Silent on Move to Repeal Plastic Bag Ban
Apr 20, 2017 | The Outer Banks Voice
By Russ Lay
Two bills introduced into the state legislature in the 2017 session have some residents wondering who is behind a move to lift an almost eight-year-old ban on the use of plastic bag by retail stores along the Outer Banks.
Speculation at first focused on state Rep. Beverly Boswell, R-Dare, acting on her own, as those close to her said she cited the cost to local merchants, especially big box stores, as a primary reason for her opposition.
Boswell has not answered queries about why she introduced her bill, and by the time Sen. Bill Cook, R-Beaufort, joined the fray on March 30, speculation turned to one of two groups that had opposed the legislation ever since its introduction and passage in 2009 — the North Carolina Retail Merchants Association and the American Chemistry Council.
In 2009, when the General Assembly passed a ban on the use of plastic bags by retail stores, few thought the issue would ever come back, although at the time support for the legislation was far from universal among residents, visitors and business concerns.
But over time, support for banning plastic bags seems to have teken hold, and for some, the ban became a source of local pride.
A 2014 Coastal Review Online story, Five years later, ban on plastic bags has become a way of life, that was reposted on the Voice documented that business and consumers had become used to the switch to paper and reusable bags. It cited the failure of a bill to repeal the ban in the 2011 General Assembly as evidence such a repeal was unlikely.
This year, the situation is vastly different, and a repeal of the ban appears to have a better-than-even chance of being passed.
The first move took place on March 7, when Boswell, who represents two counties covered by the ban — Dare and Hyde counties filed H271, “Repeal Plastic Bag Ban” along with two other legislators as a primary sponsor.
Rep. Bob Steinberg, whose district includes, Currituck, the third county affected by the bill, has said he is opposed to the legislation and will vote against it if it makes it to the floor.
On the Senate side, Cook is one of three primary sponsors of S539, the “Environmental Regulatory Reform Act of 2017,” which includes a repeal of the ban along with several other changes to state environmental regulations.
As soon as H271 was filed, political, business and other leaders began asking why the legislation was introduced.
There had been no overt calls in the community asking for the repeal of the ban, and in fact, the lead business organization in the area, The Outer Banks Chamber of Commerce, reacted within six days, sending a letter to Boswell and 19 other representatives asking her to reconsider her sponsorship and support of the repeal.
Inquiries to Boswell’s office went unanswered, leaving the why and who behind the legislation subject to speculation.
The N.C. Retail Merchants Associatio seemed the more likely force as it had supplied Boswell a list of Outer Banks merchants the organization said were affected by the ban, including non-members, which Boswell released to the public.
On April 4, calls and e-mails were put out to the corporate offices of Food Lion, Harris-Teeter, Lowe’s and the Retail Merchants Association.
An inquiry to Cook led to a referral by his legislative aide, Jordan Hennesey, to the Retail Merchants Association.
A message with Courtney James at Food Lion’s Salisbury, N.C. office asking if Food Lion was supporting the legislation or had requested that the bill be introduced was not returned.
Danna Robinson, Harris-Teeter’s communication manager in the chain’s Mattews, N.C. home office, said the company did not respond to verbal requests and asked for questions to be sent by e-mail. Robinson acknowkedged receipt of questions sent April 4 but no reponse has followed.
Voicemail left with a Lowe’s corporate media relations person did not receive a reply. Followup calls and e-mails to the chains drew no responses.
The only repy came from Andy Ellen, president and general counsel for the Retail Merchants Association.
Ellen said the RMA had definitely contacted legislators, including Boswell and Cook, among others to as for the repeal.
Ellen said this had been a goal and a regular request since 2009, and while he would not name specific members who had asked the RMA take such action, he did say the real problem was a “litter and education problem” and that “we had a lot of large and small retailers” among the membership asking for repeal.In a video interview Boswell recently posted, she used the same language, “this is a litter problem” as the RMA in opposing the ban.
The RMA also provided an op-ed piece to the Voice stating their side of the issue, which can be found here.
https://outerbanksvoice.com/2017/04/20/big-box-stores-silent-on-move-to-repeal-plastic-bag-ban/
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(ACC Mentioned) Senior ACC Staffer Appointed to EPA Leadership Role
Apr 20, 2017 | Chemical Watch
By Kelly Franklin
The American Chemistry Council’s Nancy Beck has been named deputy assistant administrator of the US EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP).
In her role as senior director of regulatory science policy at the ACC, Dr Beck has been a vocal critic of the agency's Integrated Risk Information System (IRIS) programme.
President Trump's 'budget blueprint' has called for elimination of the IRIS programme.
In recent testimony to Congress on behalf of the ACC, she said that EPA’s proposed ‘framework rules’ under the new TSCA suggest the agency believes that relying on existing guidelines and practices are sufficient for meeting the law’s science requirements under section 26, but these must be updated to comport with the new law.
Dr Beck has been with the ACC since 2012. Prior to that, she was a toxicologist at the US Office of Management and Budget (OMB).
But despite her past role with a government agency, the Environmental Defense Fund’s lead senior scientist, Richard Denison, said that "any reasonable person would see a conflict here, one sufficient to seriously question whose interests Dr Beck will be representing in playing such a role in TSCA implementation.
"Placing a key chemical industry player in a position where she will now have direct and major influence over the direction that reform will take raises serious new doubts about the industry’s claims that it supports providing EPA with stronger, independent authority and resources to vigorously establish the safety of chemicals in and entering commerce," he added.
The ACC declined to comment on their former employee’s new position.
OCSPP oversees the protection of human health and the environment from pesticides and toxic substances. It sits above the following divisions:
Office of Pollution Prevention and Toxics (OPPT);
Office of Pesticide Programs (OPP); and the
Office of Science Coordination and Policy (OCSP).
The Trump administration has not yet publicly nominated a new assistant administrator for OCSPP. Wendy Cleland-Hamnett is serving as acting assistant administrator, after Jim Jones vacated the position earlier this year.
https://chemicalwatch.com/55338/senior-acc-staffer-appointed-to-epa-leadership-role
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(ACC Mentioned) Conflict of Interest for EPA's Toxics Office Hire?
Apr 20, 2017 | Inside EPA
Does Nancy Beck, EPA's new principal deputy assistant administrator in the Office of Chemical Safety and Pollution Prevention (OCSPP), have a conflict of interest because she recently advocated for the chemical industry?
Richard Denison, an Environmental Defense Fund (EDF) scientist, says EPA's decision to hire Beck, the American Chemistry Council's former director of regulatory affairs, raises major conflict of interest questions.
As Inside EPA first reported on April 12, Beck, who has long criticized EPA risk assessments, will now play a major role in the agency's implementation of the revised Toxic Substances Control Act (TSCA).
But Denison warns in an April 19 blog post, that her decisions “will directly affect the financial interests of the companies represented by ACC. And they will involve deciding whether or not the agency should take positions for which Dr. Beck has advocated on behalf of her former employer, as recently as last month.”
He adds, “Any reasonable person would see a conflict here, one sufficient to seriously question whose interests Dr. Beck will be representing in playing such a role in TSCA implementation.”
If Beck is found to have a conflict of interest, she may have to recuse herself from involvement on issues where she has previously advocated.
Denison's warning of a potential conflict also echoes broader efforts by Senate Democrats and California Attorney General Xavier Becerra (D) who are stepping up their inquiries into alleged conflicts of interest posed by EPA Administrator Scott Pruitt in an effort to force him to recuse himself from ongoing efforts to roll back climate and other rules.
In Pruitt's case, his critics charge he has a conflict of interest in decisions dealing with rules where he sued EPA as Oklahoma attorney general prior to becoming administrator, though so far Pruitt has answered few questions on the issue.
Beck -- a long-time critic of EPA risk assessments -- joined OCSPP earlier this week. Prior to joining ACC, she was a top White House Office of Management & Budget official.
Beck has been a vocal critic of the agency's Integrated Risk Information System (IRIS) program -- which the Trump administration is proposing to eliminate -- and would be unlikely to rely on IRIS in implementing TSCA or making other decisions that fall within OCSPP's jurisdiction, given her prior attacks on the program.
Denison warns about the conflict in naming a top ACC official to an OCSSP leadership position, and says that the move could complicate the implementation of the revised toxics law.
“Placing a key chemical industry player in a position where she will now have direct and major influence over the direction that reform will take raises serious new doubts about the industry’s claims that it supports providing EPA with stronger, independent authority and resources to vigorously establish the safety of chemicals in and entering commerce,” he writes, noting that EPA faces a slew of upcoming statutory deadlines for TSCA rulemakings.
“All this leaves us with more questions than answers in Dr. Beck’s case,” says Denison, including: “On what specific issues will she be working in her new position at EPA? What aspects of her work at EPA would constitute a conflict of interest or an appearance of a lack of impartiality? Will she recuse herself from any deliberations or decisions at EPA? If so, which ones?”
https://insideepa.com/daily-feed/conflict-interest-epas-toxics-office-hire
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Teleconference to Open Gates for Feedback on Rule Cutting
Apr 20, 2017 | E&E Greenwire
By Sean Reilly
U.S. EPA's Office of Air and Radiation will collect feedback at a teleconference Monday on regulations that could be repealed, replaced or changed "to make them less burdensome," according to a "dear stakeholder" invitation this morning.
An EPA spokeswoman couldn't immediately say this morning how the agency defines "stakeholder," but the notice, which was also posted on the agency's website, says the teleconference is being held "so that we can listen and learn from those directly impacted by our regulations."
The call, scheduled to last three hours, kicks off a flurry of events the agency has scheduled in the next few weeks in keeping with a Trump administration executive order requiring agencies to rethink regulations seen as outdated or barriers to job creation, among other criteria.
To that end, each agency is supposed to assemble a regulatory reform task force; EPA has also created a "regulatory reform" web page that lists meetings.
In addition, EPA is soliciting written comments through May 15 via an online docket on Regulations.gov that has already received more than 3,800 comments.
Among the events other EPA branches are holding along similar lines, according to the regulatory reform page:
On Tuesday, the Office of Small and Disadvantaged Business Utilization is holding a public meeting at agency headquarters in Washington "to consult with external stakeholders" on possible regulatory changes.
On Wednesday, officials at EPA's Office of Water are meeting with water associations and the Environmental Council of the States; the listing does not provide a location.
On May 1, the Office of Pollution Prevention and Toxics is holding two public meetings in Washington. The first will discuss "regulatory reform opportunities" for chemical safety rules under the Toxic Substances Control Act (TSCA) and the Toxics Release Inventory; the second will deal with TSCA regulations related to lead exposure reduction.
On May 9, the Office of Land and Emergency Management is hosting an all-day meeting in Arlington, Va., "to obtain additional stakeholder feedback" on potential regulatory changes.
https://www.eenews.net/greenwire/stories/1060053353
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Formulators ‘Well Positioned’ to Influence Development of Safer Chemicals
Apr 20, 2017 | Chemical Watch
By Leigh Stringer
Formulators are well positioned to encourage the development of safer substances and their use in products, say experts lined up to speak at a green chemistry meeting next week.
Held in Michigan, the annual Green Chemistry Council (GC3) roundtable will discuss new business strategies, emerging policy issues, and the challenges and solutions to mainstreaming green chemistry.
One of the sessions will focus on how formulators can encourage the use of safer chemicals.
Panellist Dr Robert Israel, vice president of stewardship and sustainability for paints and coatings maker Valspar Corporation, told Chemical Watch that formulators are setting the bar higher for chemical suppliers because it is "no longer about meeting regulation, it’s now about the demands of customers which often go beyond regulation.
"For example we’ve seen Target, Walmart, CVS Health and many other retailers define specifications either for transparency, the exclusion or minimisation of certain chemicals or they are asking for green certifications such as GreenScreen or the Nordic Swan. If we want to sell our products, we have to meet their demands."
Raising the bar
Roger McFadden, former senior scientist at retailer Staples and panel moderator, said formulators are responding to these demands for safer chemicals, ingredients and materials and want to learn more about "new, emerging safer chemical ingredients being offered by chemical manufacturers".
Instead of just receiving a material safety data sheet or Cas number, said Mr McFadden, who now runs his own consultancy, they are asking their suppliers for more detailed toxicological information about chemical ingredients.
"Formulators know there can be other chemicals used in chemical manufacturing processes that can make their way into the final compound. They want chemical makers to disclose these chemicals to them so they can make informed decisions about the ingredients they select for use," he said.
The increasing use by formulators of safer alternatives assessment, including hazard assessment tools such as Clean Production Action’s GreenScreen, is also, he said, driving the use of safer chemicals in products. "Formulators are often scientists or chemists, but they are not typically toxicologists. Therefore, they value credible, science and hazard-based tools to help them compare and contrast chemicals they are considering for use."
While the use of a hazard assessment tool, like GreenScreen, improves decision making, there is still a need for risk and lifecycle assessment, said Mr McFadden.
A growing number of formulators, he said, are trying to eliminate substances of very high concern.
Joel Tickner, associate professor at the University of Massachusetts and GC3 director, added that formulators have traditionally been hidden in the supply chain, "yet can be important champions for green chemistry".
In this month’s Global Business Briefing, Joel Tickner, associate professor at the University of Massachusetts and GC3 director, writes about the changing regulatory landscape in the US and what it means for green chemistry.
https://chemicalwatch.com/55340/formulators-well-positioned-to-influence-development-of-safer-chemicals
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US FDA Accepting Comments on Lead Acetate Petition
Apr 20, 2017 | Chemical Watch
The US Food and Drug Administration (FDA) is accepting comments until 5 June on an NGO petition to prohibit the use of lead acetate as a hair dye.
Filed by a dozen non-profit groups, the 24 February colour additive petition calls on the FDA to revoke its 1980 approval of the substance, contending that its use results in "dangerous lead exposure".
It cites conclusions from the National Toxicology Program (NTP), the Centers for Disease Control and Prevention (CDC) and the EPA in support of its contention that lead acetate is:
readily absorbed through skin;
transported to various organs, including the brain, once absorbed;
reasonably anticipated to be a carcinogen; and
linked to other adverse health effects, including neurotoxicity.
Petitioners say there is no safe exposure level to lead.
The FDA is soliciting comments and additional scientific information related to the petition. If it determines that data justify repealing the substance’s approval, it will publish its decision in the Federal Register.
https://chemicalwatch.com/55357/us-fda-accepting-comments-on-lead-acetate-petition
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The HONEST Act is Actually Dishonest and Will Hurt the EPA
Apr 20, 2017 | The Hill - Pundits Blog
By Dr. Bernard Goldstein
The current attack on Environmental Protection Agency’s (EPA) science is unparalleled since the Reagan Administration. Reagan first chose Anne Gorsuch as EPA Administrator to fulfill his anti-EPA campaign threats, which President Trump has echoed.
Gorsuch did much harm to EPA’s science. Responding to the breadth of opposition to his environmental policies, and facing a 1984 re-election, Reagan replaced Gorsuch with William Ruckelshaus.
After Reagan’s 1984 re-election, the Heritage Foundation updated their influential “Mandate for Leadership.” They argued that replacing Gorsuch with the more liberal Ruckelshaus had been a mistake, but they also said that Gorsuch had erred in reducing EPA’s science because research is necessary for intelligent change.
Now two Republican bills aimed at destroying the scientific basis for EPA’s decisions have passed the House and await Senate action. If passed and signed into law, their persistent destructive impact on intelligent environmental regulation would overshadow EPA’s budget cuts and the EPA Administrator’s unwillingness to accept the facts about climate change.
One bill, the misnamed The Honest and Open New EPA Science Treatment Act of 2017 (HONEST Act), would bar EPA from considering in its regulatory activities any peer-reviewed scientific work unless raw data are fully available to anyone who seeks to repeat the study.
Supporters cloak this requirement in the seemingly innocuous argument that replication of research is a central tenet of science. But scientific replication is not attained by simply repeating the exact details of an experiment — that is for a grade school science class.
Replication is best achieved when the findings of the initial study are supported by other studies approaching the same question in different ways. The poster child used by advocates of this bill is an allegedly secret peer-reviewed Harvard study which first reported that inhaling relatively low levels of airborne particulates increased risks of dying. But this finding has been replicated in many American, Canadian and European studies by different investigators using different methods.
The proper name for this bill is the (dis)HONEST Act. Supporters do not want an independent scientific study which might confirm an unwanted outcome. The true goal is to pay consultants to nitpick among study details to find meaningless blemishes which can then be exaggerated into allegedly fatal scars.
An example comes from the controversy about whether formaldehyde causes leukemia. A pivotal 2010 study supporting such a causal relation found chromosome abnormalities predictive of leukemia in heavily exposed workers. Industry may be right that formaldehyde is not a cause of leukemia, but it needs to repeat the study. Instead, the formaldehyde industry has spent far more reanalyzing the raw data obtained from a FOIA request to the National Cancer Institute. The result has been delay and obfuscation, but no real change in our understanding of the underlying issue of whether formaldehyde causes leukemia.
Another major problem with the HONEST Act is that it would forcibly discard existing peer-reviewed scientific research which has been confirmed in multiple studies by scientists who long ago threw out all of the trivial research details the HONEST Act would require for EPA’s regulatory considerations.
The Congressional Budget Office (CBO), which priced out the predecessor to this bill as $250 million per year, almost half of EPA’s total research budget, now says that the costs will be relatively minimal because current EPA leadership has assured them that it would significantly reduce the number of studies that the agency relies on when issuing or proposing covered actions.
The idea that throwing out the web of peer-reviewed science underlying regulation has no cost in dollars, or in EPA’s scientific integrity, is ludicrous. The HONEST Act also could affect EPA’s timely response to the controversial determination of the dispersant to be used for the next oil spill, or EPA’s risk determinations for difficult and costly clean up decisions after a terrorist attack that left behind an infectious agent or radiation. Similarly, much of the peer-reviewed science underlying past EPA regulations could not be used when decisions that have improved our environment were reconsidered, such as the required review of air pollution standards every five years.
The companion bill would amend the rules governing EPA’s scientific advisory processes to increase industry participation while excluding knowledgeable independent scientists, such as the academic scientist who has successfully competed in a peer process for EPA grant funding.
This exclusion would be for the duration of the grant and no new grants could be received for three years after serving in an advisory capacity, even though the scientist would now be particularly knowledgeable about research needed to narrow the crucial scientific uncertainties underlying debates about effective regulation.
Supporters of this bill argue that EPA-funded scientists are inherently biased in favor of regulation. But academics who perform bad science lose credibility and their ability to successfully compete for grants or promotion. In contrast, those in the consultant community who successfully exaggerate an inconsequential blemish in a complex study get hired again. Inevitably, being forced to spend considerable time defending against obfuscation by opponents of the eventual regulatory outcome, rather than on advancing their scientific careers, will substantially lessen the willingness of independent scientists to work on policy-relevant environmental topics.
This act also requires written EPA response to any submitted comment about the scientific review, an expensive process which would be duplicated if the science is later used as a basis for regulation.
The Heritage Foundation’s advice, along with Ruckelshaus’ leadership, was instrumental in rejuvenating EPA’s science in the Reagan administration. But if the HONEST Act and its companion become law, their crippling impact will continue long after we have an Administration that accepts the obvious about climate change - and much longer than it took for the Heritage Foundation to learn that the Reagan Administration’s anti-science policies were harmful to cost-effective environmental regulation.
Dr. Bernard Goldstein is a member of the National Academy of Medicine who was EPA assistant administrator for research and development in the Reagan Administration.
http://thehill.com/blogs/pundits-blog/energy-environment/329671-the-honest-act-is-actually-dishonest-and-will-hurt-the
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Echa Launches Study on EU Chemicals Legislation ‘Finder’
Apr 20, 2017 | Chemical Watch
By Luke Buxton
Echa has started work on a feasibility study to decide if it should introduce an ‘EU chemicals legislation finder’ database, which will provide an overview of how a substance is regulated in the EU.
The finder is part of the agency’s continued enhancements to its dissemination portal, which Echa uses to integrate information on substances from different legislation and regulatory processes.
The study will be concluded by November. If it decides to go ahead, Echa could start developing the finder next year, with implementation slated for the first quarter of 2019.
The agency first announced its intention to carry out the study in March last year, following proposals from Cefic and the German chemicals industry (VCI) to develop a central European substance regulation ‘navigator’.
In a position paper from 2014, Cefic said Echa’s current substance database is not sufficient, because it does not "cover the entire regulatory framework on chemicals in the EU/member states nor the results from European research programmes".
Transparency goals
The finder could play a part in Echa’s goals for 2017-2018 to ensure the openness and transparency of its activities. They were discussed at Echa’s management board meeting on 30-31 March and are set out below.
The agency is working on changes to the dissemination portal to make it easier to search for nanomaterials, and improvements will be made to how classification and labelling are displayed in the brief profiles.
It will also improve the collection and dissemination of information from the notifications of SVHCs in articles on the EU market. It is developing an online submissions tool through REACH-IT, which will replace the current web form and should be launched by the end of the year.
The tool will allow Echa to collect notifications "in such a way that their dissemination should be easier and more user friendly", the agency told Chemical Watch.
It recently published information on approximately 15,000 substances registered under REACH, the majority of which has been made downloadable. Echa will now carry out a data value discovery study, which aims at analysing how to extend data access and to explore use cases for exploiting the information.
The agency will explore further re-use of the data for regulatory purposes by the Commission, member states and other EU agencies. Specific data exchange frameworks with sister-agencies, such as with the European Food Safety Authority (Efsa) and the European Medicines Agency (EMA), will examine how to:
enhance further collaboration on data harmonisation;
make more scientific data publicly available; and
use the same formats and datasets for different regulatory purposes.
Echa will continue to develop the public activities coordination tool (PACT) to integrate further processes, such as the Community Rolling Action Plan (Corap). Planned inclusion of information on ongoing dossier evaluations, in the dissemination portal, will make it possible to follow the evaluation of individual substances closely.
The agency will also prioritise publication of the work of its committees, Forum and expert groups. Since the end of 2016, summary reports for persistent, bioaccumluative and toxic (PBT) and endocrine disrupting chemical (EDC) expert groups have been uploaded to its website. The same will happen for the nanomaterials expert group in a few weeks’ time, it said.
In addition, Echa is investigating what can be done to promote participation in public consultations to registrants, industry associations or companies producing alternatives.
https://chemicalwatch.com/55355/echa-launches-study-on-eu-chemicals-legislation-finder
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Apr 20, 2017 | Chemical Watch
Intention to restrict D4 and D5
Echa has submitted an intention to restrict octamethylcyclotetrasiloxane (D4) and decamethylcyclopentasiloxane (D5) in personal care products and other consumer/professional products (for example, dry cleaning, waxes and polishes, washing and cleaning products) in concentrations > 0.1%.
Updates to poison centres website
The agency has advised some changes to its poison centres website. These are:
under 'Tools', more information on the draft EU product categorisation system that will be used to assign product categories, according to intended use of the mixture;
a new page related to the establishment of a centralised submission and dispatch system, called the poison centres notification portal; and
under the 'Support' tab, new questions and answers as well as information about guidance are published.
Dancet to speak at Envi committee
Echa’s executive director Geert Dancet is to speak at a Committee on the Environment, Public Health and Food Safety (Envi) public hearing on 25 April.
The aim of the hearing is to highlight the EU's contribution to high environmental and living standards in the region. Mr Dancet will discuss how Echa's work benefits the environment and citizens' health.
The hearing will be webstreamed.
Help with downstream user content
Echa is seeking help to develop its downstream user pages, and to tailor them to specific needs of different actors in the supply chain. It is asking: what information do you need more of in your supply chain work? Feedback to be sent by email to: downstream_users@echa.europa.eu.
Thanks for feedback
The agency has thanked users for feedback received on its new products. There were almost 1,700 responses, it says.
The comments will be analysed in order to help make improvements. A summary of results will be published on the website in the near future.
https://chemicalwatch.com/55342/echa-round-up
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Pruitt Pauses Rule to Plug Methane Leaks
Apr 20, 2017 | E&E Climatewire
By Niina Heikkinen
U.S. EPA doesn't have the authority to stay its regulations on methane emissions for the oil and gas industry, environmental lawyers are warning the agency.
EPA announced yesterday a 90-day delay in the implementation of the New Source Performance Standards, a rule aimed at curtailing methane emissions from new and modified sources in the oil and gas industry. The standards require operators to find and plug methane leaks, and companies were supposed to begin doing that on June 3.
The decision is part of EPA's compliance with President Trump's March 28 "energy independence" executive order, according to Administrator Scott Pruitt. The move follows his decision earlier this year to halt an information collection request to oil and gas companies, which would have helped lay the groundwork to regulate methane emissions from existing oil and gas sources.
In a letter to the petitioners from the oil and gas industry who called for EPA to review the rule, Pruitt said his decision is based on industry objections to methane regulations on low-producing wells and concerns about the process by which operators could petition to use alternate technology to detect methane leaks.
"These provisions, or certain aspects of these provisions were not included in the proposed rule so the public could not have raised objections to these provisions during the public comment," Pruitt wrote.
Joanne Spalding, chief climate counsel at the Sierra Club, described Pruitt's rationale as "kind of ridiculous."
"This is yet another situation in which Scott Pruitt is handing industry what they want," Spalding said.
She argued that there's a standard in the courts that agency rules should be a "logical outgrowth" of the proposed rules and the comments the agency received. The courts also look at whether agencies provided enough notice to regulated entities and the public to comment.
In the case of low-producing wells, EPA explicitly sought comment on whether the wells should be included as a regulated methane source. Therefore, it was not a surprise to the industry that EPA might include it within the regulation, Spalding said.
The American Petroleum Institute, one of the petitioners, also urged EPA to clarify how operators could request an exemption to use technologies other than the leak detection and repair options outlined by the agency.
"That means reconsideration on that issue is not appropriate under the Clean Air Act, and EPA therefore has no authority to stay the rule," Spalding said.
Instead, EPA could have addressed industry concerns through routine guidance, which is what API had requested, she said.
Bill Snape, senior counsel for the Center for Biological Diversity, said EPA's decision to stay the methane rule for 90 days went against the "letter and spirit" of the Administrative Procedure Act.
"I think what the Trump administration does not understand about agency rules, once an agency goes through entire administrative process ... it has the full force of law," he said.
He noted that EPA's move mirrored the administration's efforts to overturn the Clean Power Plan and the Waters of the U.S. rule, which also require new rulemakings to undo.
"You can't just ask for a 90-day timeout. They are clearly doing it because they want to gut these laws, not because they want to follow them," Snape said.
Industry cheers
The petitioners from the oil and gas industry welcomed EPA's decision.
Mark Sutton, president of the GPA Midstream Association, said the 90-day stay would allow companies to defer the implementation of fugitive emissions monitoring programs for compressor stations affected under the regulation.
"In particular, companies now have the option to defer several thousands of dollars in expenditures for each affected station on development of monitoring plans, purchase of monitoring equipment and conducting of initial monitoring surveys," Sutton said in an emailed statement.
API's Senior Director of Regulatory and Scientific Affairs Howard Feldman called EPA's methane regulation a "solution in search of a problem."
"Methane emissions from the natural gas industry have fallen 18.6 percent even as production increased by 50 percent between 1990 and 2015. In addition, the 2012 standards developed in collaboration with industry and innovation driven by industry's incentive to capture more of what we sell, are getting the job done," he said in an emailed statement.
In its public comment to the agency on Dec. 4, 2015, API sought clarification on whether each operator had to apply for exemptions to use different technologies, or if once EPA approved the use of a specific technology, that exemption would then apply to all other operators in the state. API also wanted to know if it could be possible for trade groups to petition on behalf of its member companies to use different types of technologies to "avoid duplicative work by individual operators and burden on EPA."
Independent trade associations, including the Independent Petroleum Association of America, also petitioned EPA on Aug. 2, 2016, to exclude low-producing wells and had called for a re-evaluation of the rule based on what they said was lack of communication about how the agency calculated the wells' emissions.
"The estimation or correlation of fugitive emissions with the number or types of components at low production versus non-low production wells was not discussed during the Panel process nor was comment sought by EPA in the proposed rule," the petitioners wrote.
"If EPA proposed to correlate fugitive emissions at low production well sites with the number or types of components — in place of operating parameters such as line pressure and volume, independents would have been put on notice that additional information and comments were needed on the issue," they added.
But, the petitioners said, "no such comment was sought."
https://www.eenews.net/climatewire/2017/04/20/stories/1060053316
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EPA Moves to Block Obama’s Methane Rule for Oil and Gas Wells
Apr 20, 2017 | Fuel Fix
By James Osborne
The U.S. Environmental Protection Agency is moving ahead on President Donald Trump’s pledge to do away with environmental regulations that curb domestic oil and gas production.
The agency announced Wednesday it was reconsidering an Obama administration rule curbing methane emissions from new oil and gas wells – a measure designed to reduce the U.S. impact on climate change.
“EPA is continuing to follow through with President Trump’s Energy Independence Executive Order,” EPA Administrator Scott Pruitt said in a statement. “American businesses should have the opportunity to review new requirements, assess economic impacts and report back, before those new requirements are finalized.”
The agency said in a letter Tuesday it was staying the June 3 compliance date for the methane rule 90 days while it took public comment.
The move follows an executive order by President Donald J. Trump last month ordering federal agencies to review any and all of Obama’s regulation related to climate change – most notably the Clean Power Plan, which was expected to force the closure of vast numbers of U.S. coal plants.
http://fuelfix.com/blog/2017/04/19/epa-moves-to-block-obamas-methane-rule-for-oil-and-gas-wells/
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Stanford Study Faults Costs, Benefits of Oil & Gas NSPS
Apr 20, 2017 | Inside EPA
A new study from researchers at Stanford University finds that the Obama EPA overestimated the compliance costs of its first-time methane limits for new oil and gas equipment but that the agency also over-projected how much methane the rule's leak detection and repair requirements would capture.
Published April 18 in the journal Environmental Research Letters, the study finds that implementing the methane new source performance standards (NSPS) would cost $387 million -- 27 percent less than EPA's official estimate of $530 million in 2025.
“The difference arises because EPA has higher repair and resurvey costs compared to our model. This occurs because the EPA likely over-estimates the number of leaks found through” optical gas imaging (OGI) technology that the rule is based on, the study says.
However, the study also finds the rule will likely fall short of achieving EPA's mitigation targets by as much as 20 to 50 percent, in part because of uncertainty in the technology used to detect methane leaks.
The findings come as the Trump EPA has granted petitions from oil and gas groups to delay initial compliance dates for the NSPS and to reconsider aspects of the rule -- consistent with a request for relief industry had underscored in a recent filing backing an agency motion to pause litigation over the rule.
The agency has also launched a review of the rule, per President Donald Trump's March 28 energy executive order, which directed EPA to review and “if appropriate” rescind or revise the methane NSPS and several other Obama-era climate rules.
The Stanford study says OGI technology might not be as effective as EPA estimates because it is subject to a host of site-specific variables.
The rule requires period surveys of oil and gas equipment using OGI technology, finding that would reduce about 60 percent of emissions. However, the study found the technology would be between 15-75 percent effective in spotting leaks and cutting emissions.
The Stanford researchers offer a number of recommendations to bolster the methane NSPS, including that the agency address methane leaks “from a regional and holistic perspective, such as coordinating with other greenhouse gas mitigation policies, rather than imposing uniform standards based on national averages.”
One idea floated by the paper are “performance-based leakage targets,” which would reward firms that have low emissions, when under the rule they would still be required to conduct periodic leak surveys.
It is unlikely, however, given the Trump administration's de-regulatory agenda that EPA Administrator Scott Pruitt would be interested in strengthening the agency's approach to regulating methane. Pruitt already withdrew an information collection request on methane emissions from existing oil and gas sources that would have formed the basis for existing source standards.
Even so, the researchers say they are talking with the California Air Resources Board -- which recently adopted state methane standards -- on potential ways to improve that state's requirements.
https://insideepa.com/daily-feed/stanford-study-faults-costs-benefits-oil-gas-nsps
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Exxon Mobil Officially Picks South Texas Spot for Giant Petrochemical Plant
Apr 20, 2017 | Houston Chronicle
By Collin Eaton
Lured by the promise of tax breaks and cheap shale gas, Exxon Mobil has officially settled on a spot just outside two small South Texas towns to build a giant petrochemical plant.
The U.S. oil company and its Saudi partner announced Wednesday that the 1,400-acre plot in San Patricio County, about a mile away from local schools, will become home to the world's largest ethane cracker, a facility that converts ethane, a component of natural gas, into ethylene, the basic building block of most plastics.
For residents of Portland and Gregory, just north of Corpus Christi, steamy industrial facilities near the coastline are a familiar sight. But some never thought they'd see the oil industry expand so close to homes and schools, north of a highway that divides the region between its economic engines at the ports and everyday life.
"There are homes just across the street," said Adair Apple, who started a group called Portland Citizens United last year to oppose the development.
Exxon Mobil and its joint venture partner, SABIC, the Saudi Basic Industries Corp., examined dozens of sites across the Gulf Coast before it chose San Patricio County, where it would have easy access to port facilities, railways, housing and pipelines that carry abundant shale gas from fields in places like Karnes County about 90 miles north.
It's also a spot from which Exxon Mobil wants to ship the plastics needed for grocery store packaging to emerging markets in Asia and Latin America, where the Irving-based company expects plastics demand to grow as populations and middle-class incomes rise over the coming decade.
"People are moving to cities and buying food in grocery stores," said Rob Tully, Exxon Mobil's project executive. In China, India and Latin America, "you're going to see tremendous growth."
Another factor in Exxon Mobil's decision: The local Gregory-Portland School Board voted to approve $460 million in property tax breaks over 15 years.
It's a trade-off officials believe will bring economic growth to the region. Exxon Mobil estimates that building the facilities will require 6,000 temporary jobs for construction and create 600 permanent jobs at the plant.
"It's a huge deal, on steroids," said Foster Edwards, executive director of the San Patricio Economic Development Corp. "We've already been contacted by other companies looking at our area. The economic impact is going to be enormous."
For Exxon Mobil, the next step is applying for air and wastewater permits from the Texas Commission on Environmental Quality. Tully said Exxon Mobil planned to submit these permits on Wednesday, though he said it could take as long as two years before the permits are approved. The companies expect to make their final investment decision on the $10 billion project around this time next year, Tully added.
Once up and running, the ethane cracker would produce 1.9 million tons of ethylene. The companies believe that would make it the largest facility of its kind in the world. The plant is part of an Exxon Mobil initiative to unleash $20 billion for new projects across the Gulf Coast over the next decade.
Still, local activists plan to continue to oppose the plant's construction. Portland Citizens United expects to form coalitions with other environmental groups across the country and request a public meeting with the Texas Commission on Environmental Quality, which could lead to a more official public hearing and ultimately to a contested case hearing before the environmental commission that could delay construction up to a year.
"It's too close to the schools," Jason Mutschler, who joined the Portland group in October. "We're going to continue this fight until there's benzene coming out of the flares."
http://www.houstonchronicle.com/business/article/Exxon-officially-picks-South-Texas-spot-for-giant-11084899.php
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'Liberty Eclipse' Put Energy Officials Through Cyber Stress Test
Apr 20, 2017 | E&E Energywire
By Blake Sobczak
The fictional scenario in the "Liberty Eclipse" exercise is the stuff of energy CEO nightmares: a cyberattack that knocks out power for 37 million people, grinds fuel production to a halt and takes three weeks to quash.
At one point during the tabletop training event last December, someone asked whether any participants could explain the crisis to the press. No one raised a hand — there were no public information officers present.
"We're used to hurricanes and ice storms, and you know when they're over," said Jeffrey Pillon, director of energy assurance programs at the National Association of State Energy Officials (NASEO), who took part in the cyber stress test in Newport, R.I. "What happens when the lights go out, the utilities get them fixed, and then they go out again because there's a persistent attack? It generates more uncertainty with the public, so it becomes a greater challenge."
Communication gaps were just one of the issues identified in an after-action report released Tuesday through DOE's Office of Electricity Delivery and Energy Reliability. The report drew on experiences and recommendations from the hundred-or-so attendees, including representatives from state and local emergency management offices, power utilities, oil refiners and energy industry trade groups.
The catastrophic hacking event highlighted "cascading interdependencies" between the fuel and electric sectors, according to the summary of the exercise. The report also urged the federal government to "better define its roles and responsibilities for a significant cyber incident" and communicate those roles clearly to state, local and private-sector partners.
"We are a lot further along on cyber incident coordination than we were even five years ago," said a DOE official who requested anonymity to discuss the security-sensitive exercise, which was designed to be "very plausible," if not likely to occur in practice. "But it's been a continuous improvement process, and these exercises are essential to finding those gaps."
The Liberty Eclipse scenario spared no part of the energy supply chain, and the simulated impacts even spilled into the water and telecommunications sectors. The cyberattack pulled the plug along the major refining corridor spanning Delaware, New Jersey and eastern Pennsylvania, shutting in 975,000 barrels per day of fuel production.
Jeff Gunnulfsen, director of security and risk management at the American Fuel and Petrochemical Manufacturers, said the report left out what DOE is really going to do to "help fill the gaps" in awareness at state-level energy offices.
"There doesn't seem to be awareness at the state level of what the federal government can do to help with cyber incidents, as much as we initially thought," he said. "These [exercises] are always good because you find out what people know and don't know."
Gunnulfsen said AFPM generally supports the report's conclusions, including calls for state-level "fuel plans" that spell out how officials would handle a petroleum shortage and coordinate with federal authorities.
Pillon, who was working in Michigan's emergency operations center during the massive 2003 Northeast blackout, said one of the main goals of Liberty Eclipse was to get the right people talking ahead of an actual disaster. The event marks the first major multi-state emergency exercise focused on the Northeast since a similar exercise reviewed hurricane readiness in 2011.
"We've seen turnovers in state staff and turnovers in industry," Pillon said. "Sometimes we get new folks who are engaged in this who maybe don't have as in-depth an understanding of how the system works and how energy is supplied, and what those interdependencies are."
The cyber dimension is also new since "Amber Borealis" tested participants six years ago.
Pillon called the choice "a recognition that there's so much activity in this area right now," citing new authorities available to DOE in the event of a major grid-related cyber emergency (Energywire, Dec. 14, 2016). "It's hard to keep on top of it," he said.
https://www.eenews.net/energywire/2017/04/20/stories/1060053324
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Trump EPA Plots Path to Scalia-Inspired Regulation
Apr 20, 2017 | E&E Greenwire
By Ariel Wittenberg
The Trump administration laid out its vision yesterday for lining up federal Clean Water Act oversight with the views expressed by the late Supreme Court Justice Antonin Scalia.
Meeting with state and local officials in Washington, U.S. EPA used a slideshow to outline plans for rolling back and replacing the Obama administration's Clean Water Rule — also known as Waters of the U.S., or WOTUS — that aims to clarify what waterways and wetlands get automatic federal protection.
As amended in 1972, the Clean Water Act vaguely asserts federal jurisdiction over "traditionally navigable waters of the United States" without providing any further detail, leaving regulators struggling over decades to define the law's scope over isolated or ephemeral streams, bogs, or other seasonally flooded areas.
The Trump administration's slideshow, which was obtained by E&E News, points to how it might write a definition of protected waters that would be in line with Scalia's opinion in the 2006 Rapanos v. United States case. He wrote that federal protection only extends to "relatively permanent" waters and wetlands with a continuous surface connection to larger rivers and streams.
EPA — which partners with the Army Corps of Engineers on WOTUS oversight — is considering three "approaches" to defining "relatively permanent" waters:
The most restrictive option would include only perennial streams, which flow all year except in extreme droughts.
A second option would include perennial streams and streams with "seasonal" flow, which the slides note are waters present for at least three months a year.
The third would include perennial streams and those measured with another metric that EPA and the corps have yet to identify, but that could include the frequency of flow or whether streams intersect with the water table.
EPA also presented three possible approaches to protecting wetlands with continuous surface connections to permanent waters:
The first would only include wetlands that directly touch "jurisdictional waters."
Another would include wetlands with "some degree of connectivity" to jurisdictional waterways, but might limit how far the wetlands could be from those waters to be protected.
The most liberal option would include wetlands that have a continuous surface connection to "jurisdictional waters," even if they are separated by a "non-jurisdictional feature."
In explaining the third option, the slideshow notes, "Current practice considers directly abutting wetlands and those with a continuous surface connection, regardless of distance, to be jurisdictional."
The scope of wetlands that would get protection, the slides say, would ultimately depend on which streams and tributaries the administration opts to protect.
EPA spokeswoman Liz Bowman described the meeting as "an opportunity for EPA to hear from stakeholders early in the process."
"We are encouraged by the wide-ranging feedback we received and look forward to working with these and other partners moving forward as we seek to define 'waters of the U.S.' in a way that strikes the proper balance among local, state and federal protections for the environment and the communities that rely on these waters," she said.
The administration's move to write a new regulation comes following a February executive order from President Trump directing the agencies to consider redefining "waters of the U.S." to be "consistent with" Scalia's Rapanos opinion (Greenwire, Feb. 27).
EPA is open to alternative interpretations of Scalia's opinion. Its question for officials at the intergovernmental gathering: "How would you like to see the agencies interpret 'consistent with' Scalia?"
At issue: 'Clarity'
The Trump administration's approach is a significant departure from how both the Obama and George W. Bush administrations defined "waters of the United States."
Rapanos was a famously messy case that ended in a 4-1-4 split decision. At issue was Michigan landowner John Rapanos' bid to develop a property that was designated a wetland, with EPA seeking to bring civil and criminal enforcement actions because he didn't have a permit.
Scalia, who found in Rapanos' favor, argued for a more restrictive view of federal jurisdiction for himself and the three other conservatives, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. The four liberal justices argued for a far more expansive vision.
Justice Anthony Kennedy wrote a stand-alone opinion agreeing with the conservatives that Rapanos was in the right, but disagreeing with them about the scope of the Clean Water Act. He stated that waters must have a "significant nexus" to navigable rivers and seas, which could include not just surface connections but also biological or chemical ones.
The Obama and Bush administrations followed Kennedy's "significant nexus" test in writing guidance and rulemakings on the reach of the Clean Water Act.
A new definition of "waters of the U.S." from the Trump agencies would only come after the administration conducts a separate rulemaking process to repeal the contested Obama administration regulation.
That regulation is currently stayed by the 6th U.S. Circuit Court of Appeals while it is being litigated.
The EPA slideshow explains that the administration intends to repeal WOTUS in an earlier rulemaking in order to ensure that the regulation does not come back into effect if the Supreme Court rules that lawsuits against the rule should proceed in district court instead of circuit court (Greenwire, April 14).
"While the 6th Circuit stay may remain in effect for some time, its duration is uncertain," the slideshow says.
To that end, EPA intends to revert to a 1986 definition and would also rely on a 2008 guidance from the Bush administration about how to apply that definition while the Trump administration works on its own Scalia-based regulation.
"In the Step 1 proposed rule, the agencies will define 'waters of the United States' using the regulatory definition in place before the Clean Water Rule, which the agencies will continue to implement according to longstanding practice, just as they are today," the slideshow says.
Alexandra Dunn of the Environmental Council of the States (ECOS) said many officials at the meeting stressed the "importance of clarity" in a new regulation.
Along with ECOS, other groups invited to the meeting at EPA headquarters were the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National League of Cities, the U.S. Conference of Mayors, the National Association of Counties, the International City/County Management Association, the National Association of Towns and Townships, and County Executives of America.
The administration's two-step process for repealing and replacing the regulation was, in part, she said, an attempt by the administration to provide that certainty by reverting to the 1986 regulation between when WOTUS is replaced and a new definition is proposed.
Everyone in the room, she said, seemed comforted that the Trump administration seem to understand that the task of defining which waters are covered by the Clean Water Act "has not become any easier since the last administration."
"Figuring out where the line is drawn is going to be complicated by factors like geography, perennial and seasonal flows, and many others, just as it was for the previous administration," she said.
https://www.eenews.net/greenwire/2017/04/20/stories/1060053351
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EPA Floats Options For Revised CWA Rule Using Scalia's Jurisdiction Test
Apr 20, 2017 | Inside EPA
By David LaRoss
EPA water officials at an April 19 meeting with state and local officials floated options for crafting a revised Clean Water Act (CWA) jurisdiction rule using the late Justice Antonin Scalia's narrow test for jurisdiction, including whether to literally apply the test as written and the pros and cons regulators might face in using Scalia's test.
A PowerPoint presentation from the meeting obtained by Inside EPA lists ways regulators might define key terms from Scalia's 2006 opinion in Rapanos v. United States that set out a relatively narrow view of CWA jurisdiction, in order to implement President Donald Trump's executive order (EO) that says EPA and the Army Corps of Engineers should “consider” basing a new jurisdiction rule on Scalia's test.
“I think at this point, they are looking at some possible ways of interpreting that -- whether it's a literal reading of the Scalia opinion to something broader,” says one source who attended the meeting.
The same document says EPA is taking early comments from states and other stakeholder groups on the upcoming rule, setting a deadline of June 19 for submitting input by email, rather than through a public rulemaking docket. In addition, the Trump EPA plans to formally rescind the Obama administration's CWA jurisdiction rule, and in its place formally revive George W. Bush-era guidance on how to make jurisdictional determinations.
Along with other discussion questions, the presentation asks, “Do you have any other approaches that you would like the agencies to consider?” and “What opportunities and challenges exist for your state or locality with taking a Scalia approach?”
According to the presentation, EPA is already grappling with how to craft a rule consistent with Scalia's test that says CWA jurisdiction should be limited to "relatively permanent" waters that share a "continuous surface connection" with navigable waters. It lists three ways regulators might interpret each of the two lynchpin terms from Scalia's ruling, and seeks comment from stakeholders on other options.
On the definition of “relatively permanent,” the document says EPA might include perennial streams -- those that run year-round, except in times of “extreme drought” -- and those with “seasonal” flow; perennial streams along with “another measure of flow,” and “perennial streams only."
The same page notes that current practice considers any water that flows for “about three months” out of the year to be seasonal. It says any other flow measure should “Use appropriate, implementable metrics, e.g., frequency of flow, [or] intersecting water table.”
And addressing the question of what is a “continuous surface connection,” the presentation includes options for establishing jurisdiction through any surface connection, “even through [a] nonjurisdictional feature” such as an exempt drainage ditch; requiring “Some degree of connectivity” between the waters; or limiting jurisdiction to “Only wetlands that directly touch a jurisdictional water.”
It continues that the “some degree of connectivity” language would require “appropriate, implementable metrics, e.g., distance."
Jurisdiction Tests
Scalia crafted the test in his plurality opinion for the high court's 4-4-1 2006 ruling in Rapanos. Three other justices joined Scalia's opinion, while Justice Anthony Kennedy wrote separately to hold that any waterbodies sharing a “significant nexus” with navigable waters should be considered jurisdictional -- a much broader standard.
The court's four liberals dissented, but backed Kennedy's test over Scalia's -- contributing to significant uncertainty over which test should be treated as controlling. The George W. Bush administration in 2008 issued guidance that any waterbody satisfying either test should be considered jurisdictional, and the Obama administration's 2015 jurisdiction rule is heavily based on the Kennedy test.
But states, industry and environmental groups sued over the Obama rule, and President Donald Trump has pledged to undo it. Trump's vows led to his Feb. 28 EO directing EPA to consider withdrawing or revising the policy and weigh using Scalia's test instead of Kennedy's.
The U.S. Court of Appeals for the 6th circuit has stayed implementation of the 2015 rule nationwide until a final ruling on its merits.
However, courts are unlikely to reach a ruling on the subject, since the litigation is tied up with a Supreme Court appeal on which courts have authority to hear challenges to the rule. The high court will not reach a decision until late 2017 at the earliest, and the Trump administration could formally withdraw the 2015 rule well before then.
The presentation from the April 19 meeting confirms earlier reports that a rulemaking to repeal the existing policy and formally reinstate prior rules on CWA jurisdiction, including the 2008 guidance, is in development separate from crafting a new, Scalia-based rule.
“I don't think they're going to codify the guidance to rulemaking, but it would make clear where we stand now, and what policies are going to be in place until there's a new rule,” says a second source who was present at the meeting.
States' Input
Both sources say that during the April 19 meeting, state and local groups -- including the Environmental Council of the States, Association of Clean Water Administrators, U.S. Conference of Mayors, Council of State Governments and National Governors' Association, among others -- emphasized a need for the rule to be clear and easy to implement, echoing requests from states and industry ahead of the meeting.
The second source says the groups generally raised “preliminary” issues in discussions at the meeting, and will likely wait until submitting their June 19 comments to raise more involved and substantive topics.
“It was an opening discussion, and there were no surprises in the types of issues that the states brought up,” that source says.
However, the source continues that many groups are likely to focus on a need for greater information on how state policies affect waters not subject to the federal CWA. “The long debate around defining 'waters of the U.S.' seems to be if there's not federal protection, there's no protection, and that's just not the case. EPA can do a much better job of publicizing just what programs are in place,” the second source says.
That source also noted that EPA and Corps officials at the meeting are treating Trump's Feb. 28 EO as a decisive factor in crafting their rule, rather than a starting point -- which makes it less likely that the regulators would “consider” using the Scalia test but ultimately reject the idea.
“We think that EPA and the Corps are using the EO as their point of entry to the discussion. . . . There might be lots of people who ask 'what about guidance,' or 'what about field manuals,' or 'what about the scientific connectivity study?' or lots of other issues. I think because it could be such an unmanageable process, I think the agencies are going to keep coming back to the EO as sort of the north star in the process."
The connectivity study is the scientific report the Obama administration crafted on the relationship between upstream and downstream waters in order to justify its “significant nexus” rule as necessary to protect the downstream waterbodies physical, biological and chemical integrity as the CWA requires. The Trump administration has signaled that it will not craft a new study to justify a Scalia-based rule, but industry sources have said the Obama study could support a narrower policy.
The first source says the apparently robust nature consultation process is a good first step from states' perspective, because regulators appear to be seriously considering their views and open to basing the new CWA rule on that input.
“It's a step that state and local agencies always hope an agency will take in promulgating new rules, which is why we're very pleased it is happening,” the source says.
https://insideepa.com/daily-news/epa-floats-options-revised-cwa-rule-using-scalias-jurisdiction-test
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Measure Seeks to Meld Non-Climate Pollutants with Cap and Trade
Apr 20, 2017 | E&E Climatewire
By Debra Kahn
California lawmakers yesterday fleshed out a proposal to extend California's carbon market past 2020 that includes a first-ever attempt to directly link greenhouse gas trading to local air pollution.
A bill, A.B. 378, by Assembly Natural Resources Committee Chairwoman Cristina Garcia (D), would tie businesses' ability to receive greenhouse gas allowances to their emissions of toxic pollutants.
The legislation represents an effort by environmental justice groups to get the state's climate policies to address conventional pollutants. The groups, which represent disadvantaged communities around the state, argue that cap and trade could allow businesses to increase pollution from individual facilities.
State lawmakers are in position to adjust the cap-and-trade program this year, due to the possibility that the state may lack the authority to continue it past 2020. Gov. Jerry Brown (D) has called for the Legislature to reapprove cap and trade with a two-thirds vote to insulate it against legal challenges, which claim that it violates a state constitutional amendment requiring a supermajority approval of new taxes and fees (Climatewire, March 16).
Garcia's bill would direct the state Air Resources Board to work with local air districts to set pollution standards by 2019 that take into account each facility's emissions, history of complaints and penalties, and whether they have best-available pollution controls installed. Starting in 2021, facilities would not receive state-issued greenhouse gas allowances if they fail to meet the pollution standards.
The bill would also put greenhouse gas limits on individual facilities, rather than allowing them to purchase as many allowances as they might need to cover all of their emissions. The bill restricts facilities to emitting no more than the annual average of their emissions from 2014-16.
It also would give the state the power to institute "no-trade zones," or facility-specific greenhouse gas caps in cases where the emitters "contribute to a cumulative pollution burden that creates a significant health impact."
An environmental-justice-leaning environmentalist who has been following the bill's development said it was a good start.
"It definitely doesn't have everything we want, but it would improve the program from a local air quality perspective, so we still support," said Bill Magavern, policy director for the Coalition for Clean Air. "The no-increased-emissions piece is important, as are the air pollutant emissions standards for industrial facilities."
Calif. signs up Sweden to CO2-limiting pact
Meanwhile, Brown announced yesterday that Sweden is the latest signatory to his nonbinding treaty on greenhouse gases.
The Under2 Coalition is aimed at keeping emissions below 2 tons per capita, or 80-95 percent below 1990 levels, by 2050.
Sweden is the 168th jurisdiction to sign the agreement, bringing the total number of people covered to more than 1.1 billion. Swedish Ambassador to the United States Björn Lyrvall attended the signing ceremony yesterday in Sacramento, along with Sweden's minister for international development cooperation and climate, Isabella Lövin.
"There has never been a greater need for cooperation on climate," Lövin said. "Sweden and California will push for higher global ambition on climate change and will work individually and together to draw more international attention to the actions and ambitious reduction goals that are needed."
https://www.eenews.net/climatewire/2017/04/20/stories/1060053318
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Enviros Slam EPA Bid to Delay Case on Plant Startup Rule
Apr 20, 2017 | E&E Greenwire
By Sean Reilly
A federal appellate court should summarily reject U.S. EPA's bid to indefinitely delay upcoming oral arguments in litigation over tightened air pollution standards, lawyers for environmental groups argued in a filing this morning.
Not only would a postponement be "hugely inefficient," but EPA officials have failed to provide the needed "extraordinary cause" for postponing arguments, now scheduled for May 8. The case concerns whether the agency can require states to eliminate automatic exemptions for excess emissions that occur during plant startups and shutdowns, or result from equipment malfunctions, according to the opposition motion with the U.S. Court of Appeals for the District of Columbia Circuit.
Granting EPA's request would also delay a court decision on issues affecting health protections for communities downwind from industrial facilities "that emit huge bursts of harmful pollution" during such "SSM" — startup, shutdown and malfunction — events, the environmental groups said in the motion. Represented by Earthjustice, they include the Sierra Club, Citizens for Environmental Justice and the Natural Resources Defense Council.
EPA lawyers had sought the delay Tuesday, saying the agency, now headed by former Oklahoma Attorney General Scott Pruitt (R), wants to review its position on the litigation (Greenwire, April 19). Oklahoma is among the states challenging the SSM rule.
EPA is seeking a similar delay in oral arguments set for May 18 on lawsuits challenging the agency's "supplemental finding" to its handling of compliance cost factors in deciding to regulate power plant emissions of mercury and other hazardous pollutants. As of this morning, environmental groups had not yet responded to that motion, according to online court records.
Last week, EPA won a continuance on oral arguments that were supposed to take place yesterday on lawsuits seeking to overturn the 70-parts-per-billion ozone air quality standard set in 2015 (Greenwire, April 12).
In total, the agency has sought to delay arguments in five cases within 30 days of their scheduled dates to give the Trump administration time to review the contested regulations in question, the environmentalists' filing said.
"These requests seek to deprive litigants of their right to judicial hearing and have become the opposite of extraordinary — routine," the filing claimed.
https://www.eenews.net/greenwire/2017/04/20/stories/1060053361
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