Preview Newsletter
AM ACC 6/30/2017
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(ACC Blog) Summer Heat Coming! Learn How to Maximize Energy Efficiency on Newly Redesigned WhySprayFoam.Org
Jun 30, 2017 | American Chemistry Matters
By Lee Krinzman
With the summer months bearing down on us, temperatures rising, and air conditioners working overtime to keep us all cool, it’s a great time to think about the energy efficiency of your home. -
(ACC Mentioned) EU Textiles Trade Association Backs 'Soft' Brexit
Jun 30, 2017 | Chemical Watch
By Leigh Stringer
A European textiles industry association has warned that a 'hard' Brexit – where the UK leaves the EU and the single market entirely – risks regulatory divergence and therefore an increase in costs to companies. -
The Emerging Debate Over New TSCA Rules: 'Achievable' v. 'Lawful'
Jun 30, 2017 | Inside EPA
By Maria Hegstad
The Trump administration's recently unveiled framework rules for implementing key provisions of the new Toxic Substances Control Act (TSCA) are sparking a debate that suggests different visions for how the law should be implemented... -
Final TSCA Framework Rules Retreat from Best Available Science
Jun 29, 2017 | Environmental Defense Fund
By Richard Denison
I don’t know anyone who opposes EPA using the best science it can and considering all the evidence in making decisions. -
EPA Backs Off Planned Mandates in Chemical Inventory Rule
Jun 30, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Chemical makers, importers and processors will find it easier to submit lists of chemicals in commerce to EPA due to more flexibility the agency built into a recent regulation, industry officials said. -
Whistle-blowing Kasowitz Firm Seeks Billions From Chemical Giants (Corrected)
Jun 30, 2017 | BNA Daily Environment Report
By Peter Hayes
A hard-charging New York law firm was conducting discovery in personal injury litigation against a number of chemical and other companies in Alabama several years ago when it came across some interesting data. -
(ACC Mentioned) Operation: Intoxication
Jun 30, 2017 | Environmental Health News
By Stéphane Foucart and Stéphane Horel
"We have been attacked in the past, we have faced smear campaigns, but this time we are the target of an orchestrated campaign of an unseen scale and duration." Christopher Wild’s smile quickly faded. -
(ACC Mentioned) Talking Seriously About Marine Debris, And the Importance of Immediate Action
Jun 30, 2017 | Plastics News
By Doen Loeb
Marine debris is a big problem for the plastics industry. According to the most frequently cited research, between 4.8 million and 12.7 million metric tons of plastic waste entered the ocean in 2010. -
(ACC Mentioned) ICYMI: Watch The Entire GenX Forum Hosted by WWAY, Starnews and WHQR
Jun 30, 2017 | WWAY NewsChannel 3
There are still plenty of questions about GenX in the area’s drinking water, but there are far more answers after WWAY, the StarNews and WHQR hosted a GenX Forum Wednesday night. -
California to List Glyphosate as a Carcinogen
Jun 30, 2017 | Chemical & Engineering News
By Cheryl Hogue
Glyphosate, the active ingredient in Monsanto’s Roundup weed killer, will be listed as a carcinogen in California as of July 7, the state announced on June 26. -
Chemical Companies’ ‘Voluntary’ Clean Ups Are Little More Than Corporate Spin
Jun 29, 2017 | Environmental Working Group
By Bill Walker
Last week Chemours – a DuPont spinoff company that inherited liability for some of its parent's nastiest toxic messes – announced "voluntary actions" to clean up and eliminate pollution from a highly fluorinated chemical, which is a potential human carcinogen. -
Dow Courts White House With Donations and Secret Meetings, Brain-Damaging Pesticide Stays on Shelves
Jun 29, 2017 | Environmental Working Group
By Robert Coleman
The cozy relationship between the Trump administration and the chemical industry is easy to see. But now we’re getting details of how Dow courted the president and his top environmental official to keep a dangerous pesticide on the market. -
Solvent's Ozone Effects Raised as EPA Starts Analysis
Jun 30, 2017 | BNA Daily Environment
By Pat Rizzuto
The EPA could face more pressure to regulate a common solvent's uses if environmental advocates convince the agency to evaluate its effect on the ozone layer. -
'We Will Be Dominant,' Trump Tells DOE Gathering
Jun 30, 2017 | E&E News PM
By Hannah Northey
President Trump outlined a multipronged effort today to boost nuclear power, export more gas and coal, and expand oil and gas drilling offshore and on public lands. -
Interior to Step Up Pace of Oil, Gas Leasing on Federal Land
Jun 30, 2017 | BNA Daily Environment Report
By Alan Kovski
The Trump administration will hold oil and gas lease sales more often on federal lands and prioritize promising areas for leasing, a high-level Interior Department official told House lawmakers June 29. -
Trump Moves to Dump Obama Offshore Drilling Plan to Open Up Arctic, Atlantic
Jun 30, 2017 | Fuel Fix
By James Osborne
President Donald Trump has ordered his Cabinet to move ahead on replacing the Obama administration's offshore drilling program, with an eye to opening up the Atlantic and Arctic coastlines to oil and gas development. -
Lawmakers Revive Social Cost of Carbon Bill
Jun 30, 2017 | E&E Daily
By Nick Sobczyk
Republican lawmakers yesterday revived a bill aimed at curbing the use of social cost of carbon metrics in the federal rulemaking process. -
Senators Introduce New Bipartisan Energy Bill
Jun 30, 2017 | The Hill - E2 Wire
By Timothy Cama
The leading senators overseeing energy policy introduced a new version of their broad energy reform bill Thursday. -
States Prepare to Sue EPA for Delaying Oil & Gas Methane NSPS Controls
Jun 29, 2017 | Inside EPA
By Doug Obey
A coalition of 15 attorneys general (AGs) lead by New York AG Eric Schneiderman (D) is threatening to sue EPA for unreasonable delay in issuing methane emissions limits for existing oil and gas operations, ratcheting up a confrontation with the Trump EPA... -
EPA Seeks Continued Abeyance of CPP Suits
Jun 30, 2017 | Inside EPA
EPA has submitted its second round of status reports in litigation challenging the Obama-era greenhouse gas standards for new and modified and existing power plants, reiterating that it has initiated White House review of a proposal expected to repeal... -
State Department Issues Permits for U.S.-Mexico Pipelines
Jun 30, 2017 | PoliticoPro - Whiteboard
By Nick Juliano
The State Department today released details on presidential permits it has approved for pipelines to deliver petroleum to Mexico. -
(ACC Mentioned) D.C. Circuit Grants Unions Role in RMP Delay Suit
Jun 30, 2017 | Inside EPA
A federal appeals court has granted labor unions' request to intervene in environmental and public interest groups' lawsuit challenging the Trump administration's nearly two-year delay of an Obama EPA final rule updating the agency's facility accident prevention program... -
$10M Honeywell Toxic Dust Settlement Survives Challenge
Jun 30, 2017 | BNA Daily Environment Report
By Peter Hayes
Honeywell's $10 million settlement with New Jersey home owners who allege their property values were diminished by toxic dust from a pair of Jersey City chemical plants survived a challenge in the Third Circuit (Halley v. Honeywell Intl. Inc., 3d Cir., No. 16-2712, 6/29/17). -
Oregon Lawmakers Hide Oil Train Safety Plans from Public
Jun 30, 2017 | Oregon Live
By Rob Davis
More than a year after a train derailed, caught fire and spilled oil into the Columbia River in Mosier, state lawmakers are on the verge of forcing railroads to develop plans for making Oregonians safer the next time. -
Cities and States are Declaring Climate Independence from Trump
Jun 29, 2017 | Environmental Defense Fund
By Eric Pooley
Just as the federal government was truly accelerating on national climate action, Donald Trump took the wheel and tried to slam the car into reverse. -
Lawmakers Demand Lengthy Comment Period
Jun 30, 2017 | E&E Daily
By Manuel Quinones
More than 70 lawmakers, led by Rep. Don Beyer (D-Va.), are demanding that U.S. EPA allow people at least 120 days to comment on a proposal to rescind the Obama administration's Clean Water Rule.
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News
Transportation News
Environment News
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Jun 30, 2017 | American Chemistry Matters
By Lee Krinzman
With the summer months bearing down on us, temperatures rising, and air conditioners working overtime to keep us all cool, it’s a great time to think about the energy efficiency of your home.
Did you know as much as 40% of a home’s energy is lost due to air infiltration? Gaps, holes and air leaks – which can be prevented – can make energy bills unnecessarily high and let valuable resources go to waste. You can find information and resources to help you plug those holes and air leaks on our newly redesigned and user-friendly website, whysprayfoam.org.
For this update, we wanted to:
· Make the site more engaging
· Enhance usability, especially for mobile users
· Continue to emphasize the importance of video content
· Educate readers about the benefits of spray polyurethane foam
Take a look around. We’re confident that you’ll find the same great resources as before — and now, they’ll be easier to access. Plus, the changes we’ve made will improve the experience of exploring the site. We hope you will agree!
The Spray Foam Coalition (SFC) was formed in December 2010 under the American Chemistry Council’s Center for Polyurethanes Industry (CPI). The SFC is a dynamic organization of companies that produce and sell polyurethane spray foam insulation systems and the chemicals and equipment necessary for their use. SFC’s mission is to champion the use of spray polyurethane foam in North America by promoting its energy, performance, and economic benefits as well as its other sustainable attributes. The SFC provides a forum to conduct research, to advocate for science-based public policy, excellence in safety, stewardship, training, and to advance technical knowledge.
https://blog.americanchemistry.com/2017/06/summer-heat-coming-learn-how-to-maximize-energy-efficiency-on-newly-redesigned-whysprayfoam-org/
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(ACC Mentioned) EU Textiles Trade Association Backs 'Soft' Brexit
Jun 30, 2017 | Chemical Watch
By Leigh Stringer
A European textiles industry association has warned that a 'hard' Brexit – where the UK leaves the EU and the single market entirely – risks regulatory divergence and therefore an increase in costs to companies.
In a position paper released last week, Euratex says diverging from EU regulatory programmes, such as REACH, presents a particular concern for the textiles industry, as companies will be required to set aside more time and resources to comply with the different regulatory systems.
Euratex director general Francesco Marchi told Chemical Watch: "If in 2019 the EU and UK divorce without a proper transitional arrangement, this will create uncertainties for companies. This situation could create an additional imbalance in textile and apparel companies in the UK and EU as they would have to comply with a UK legislation that might diverge from, for instance, REACH, for which they have already invested heavily to respect and comply with."
In its paper, the association calls for "ongoing harmonisation of legislation" by setting clear arrangements. Once the UK officially leaves the EU and negotiates its position these arrangements must maintain a mutual recognition of regulatory standards, it says.
"In the long run, Brexit will inevitably create a divergence of regulatory approaches, but if the provisional agreement, covering the transitional period before the enforcement of the new EU-UK agreement, says that there will be a full coordination between a newly developed UK chemicals agency and Echa, this divergence could be reduced," Mr Marchi said.
The paper goes on to say that these divergences in regulatory legislation would create non-tariff barriers (NTBs) and result in high additional costs for consumers.
Between 2014 and 2016 the UK imported almost €10bn worth of products from the 27 member states. And at the same time its exports amounted to €6.2bn.
Last week, the UK's chemical industry called for broad agreement on Brexit priorities as formal talks between EU and UK negotiators got underway in Brussels.
https://chemicalwatch.com/57278/eu-textiles-trade-association-backs-soft-brexit
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The Emerging Debate Over New TSCA Rules: 'Achievable' v. 'Lawful'
Jun 30, 2017 | Inside EPA
By Maria Hegstad
The Trump administration's recently unveiled framework rules for implementing key provisions of the new Toxic Substances Control Act (TSCA) are sparking a debate that suggests different visions for how the law should be implemented in the future with EPA officials saying the rules were crafted to be “achievable,” while agency critics charge they still need to be lawful.
The debate emerged June 27 during an Environmental Law Institute (ELI) conference celebrating the reform law's first anniversary at George Washington University, where top EPA officials sought to defend the recently issued framework rules.
“It's really nice to have pie-in-the-sky ideals, but if you can't figure out a way to implement them, that's not prioritizing health,” Nancy Beck, the top political appointee in EPA's toxic office, told the conference.
“If you want to look at a ginormous universe of things such that you can't complete anything in a timely manner, that is not prioritizing health. So I think you'll see in the three rules that we have prioritized health by making these rules workable, practical, achievable and implementable,” she added.
By contrast, Democrats and environmentalists charged that the framework rules -- especially a measure detailing how the agency planned to conduct risk evaluations -- may not be lawful as EPA narrowed the range of uses that must be considered in any assessment.
“Contrary to the clear intent of the law, these final rules allow EPA to focus only on a subset of uses rather than conducting comprehensive reviews. Broad use exclusions can be set up front and the EPA is given authority to exclude yet more uses of a chemical on a case by case basis,” Sen. Tom Udall (D-NM), one of the law's lead sponsors, told the conference.
He said that while the approach may ease EPA oversight of industry, he warned that a narrow focus on chemical uses could undermine efforts to ensure adequate federal protections, and revive state efforts to regulate chemicals -- an action that industry sought to avoid.
But Beck argued that the law provides the agency with “appropriate discretion” to appropriately narrow the rule's focus. “We don't take this discretion lightly, but we will use this discretion to make sure that we appropriately prioritize. There are many opportunities for the public to engage with us to tell us when they think our priorities are off and to help get us back on track so we think this is workable,” she said.
Wendy Cleland-Hamnett, the acting EPA toxics chief and a top career official, said the framework rules and EPA's implementation will determine how well the law woks. “In the end, implementation is going to tell us how the law works. At EPA we feel as if it's a great opportunity and a great responsibility,” she said.
Different Visions
Such different visions suggest the debate over the law is likely to continue as EPA works to implement the new law -- and defends the rules against any lawsuits, with courts left to decide how much discretion EPA may have to depart from congressional intent.
EPA issued the three framework rules June 22, complying with deadlines in the law to issue the rules within one year of enactment.
In addition to the risk evaluation rule, the framework rules include the TSCA inventory reset to determine the universe of existing chemicals that will be subject to the new law's requirements and a prioritization rule describing how EPA will determine which of the thousands of existing chemicals will undergo risk evaluations and when.
The three framework rules were all required by the TSCA reform law, which directed EPA to finalize them to establish a process for prioritizing and assessing “existing” chemicals.
Those are chemicals that had been on the market when the original TSCA was enacted in 1976 and which were largely grandfathered from review by the original law, which was widely criticized for failing to allow EPA to regulate them.
But Udall and others charged that the rules could undermine his efforts to ensure the new law does not result in the same deficiencies as the old law.
“I will fight tooth and nail to protect the [TSCA reform act] from going the way of the original TSCA,” Udall said.
“We do not want to go back to a lack of confidence in our federal program with the burden falling on states to regulate chemicals of concern and with consumers unsure whether the products they purchase are safe. But that is a real risk. Industry in particular must avoid the temptation to overstep just because of a new favorable political climate.” Udall added that he has concerns about the final rules creating the new program for reviewing existing chemicals, and pointed in particular to the final risk evaluation rule's allowance for dropping some chemical uses from EPA's reviews.
“My initial review of the final rules makes me concerned that this EPA will try to use the program to prioritize safeguarding industry, rather than the public. For example, EPA should not open the door to conducting very narrow assessments of chemicals, some at industry's behest, when Congress intended that EPA do broad assessments.”
Udall argued that in the original TSCA, “Congress envisioned that TSCA would take into account and control chemical exposures across the full cycle of chemicals and across different spaces and different uses. That promise was never realized and one of the reasons I worked so hard to reform the law.”
He said he had “high hopes” the new law would result in such oversight, especially given the Obama administration's proposals. But he said he is “disappointed to see the final rules not only significantly weaken those proposals, but seek to return us to the old days and old ways of piecemeal chemical evaluation that don't reflect anything we know about the real world.”
But Cleland-Hamnett sought to downplay concerns over the scope of use evaluations, saying EPA is trying to balance concerns that it will evaluate every use scenario, no matter how unlikely, with concerns that it will ignore widespread, important uses.
“The reality is to meet the deadlines the way the law anticipates, we need to be pragmatic about how we define uses,” she said. One way to do that will be to group together similar uses for risk evaluation, and she indicated that these could be completed at different time points within the statutory window.
“We do know, however, that we +have to follow the requirement [to evaluate risk] for every use,” she said. “This is an area where it's most important to understand that we're going to figure out how to do this as we actually start evaluating chemicals on the ground."
Next Deadlines
Others voiced similar concerns. “I think in fact the jury is out on whether we are heading for success under this program or whether this program will disappoint the expectations of Congress and the public,” said Bob Sussman, a former EPA deputy administrator in the Clinton administration who is now advising environmentalists.
He questioned whether EPA will be able to meet the next set of deadlines in the new law, which requires EPA to complete the first 10 risk evaluations to existing chemicals within three years; select the first set of high priority chemicals for review and identify 20 low priority chemicals which will not undergo review.
“I am concerned that the risk evaluations will not be completed on time. EPA is now working on a problem formulation process which will extend for at least the next six months. This is a process that is not well-defined and will necessarily delay work on the risk evaluations themselves. I'm also concerned we don't have confidence that those initial risk evaluations will address the full suite of uses on the first 10 chemicals identified in the scoping documents.”
Sussman also flagged other issues of concern. He pointed to one of the major changes between the draft and final versions of the chemical prioritization rule: EPA's decision to drop a pre-prioritization step to gather more stakeholder input in meetings this fall. The step was proposed to allow EPA to gather and if necessary, order new testing on chemicals before entering the official prioritization process, which has tight statutory deadlines.
“We also have 20 chemicals that have to be designated high priority within two-and-a-half years. That means that the agency needs to begin the prioritization process and review on candidates for those listings,” Sussman said. “The big question that I have and a lot of others in the NGO community have is whether we'll have a robust information base on those prioritization candidates? In other words, whether the agency will move ahead to require testing to fill data gaps, to develop exposure information and put in place the foundation that it will need for good risk evaluations on these next 20 chemicals.”
Related to those concerns, Sussman questioned EPA's “decision to kick the can down the road on the pre-prioritization process. Because I think what that comes close to saying is there won't really be use of EPA's new information collection authority to fill data gaps and develop the robust information base we'll need for those next 20 evaluations.”
But Cleland-Hamnett said that after much discussion, she and colleagues decided not to move forward with the pre-prioritization step proposed in the draft rule because of the multitude of questions about it. “We are planning major efforts this fall to have those discussions,” she promised, adding that there is time to do so because the first 10 existing chemical evaluations are underway “and we have some time before we finish and have to start on the next.”
Former career EPA toxics chief Charles Auer, now with the law firm Bergeson & Campbell, echoed Sussman's concern when he noted his own disappointment that EPA has yet to exercise its new TSCA authorities in section 4 to order toxicity tests of existing chemicals.
“To me, the central failing of the [original] law was in section 4,” which didn't give EPA the authority to generate the information needed to conduct risk assessments, Auer said. “I'm very pleased that new TSCA made important changes to section 4 to issue orders. I think is remarkable.”
But he described his regret that in the year since the TSCA reform law's passage EPA has not issued any section 4 testing orders, because “like it or not, testing takes time. In EPA's defense, they were busy with a few other things. I am hopeful that in the not too distant future, well see that first action under section 4 and with increasing regulatory [action] thereafter.”
https://insideepa.com/daily-news/emerging-debate-over-new-tsca-rules-achievable-v-lawful
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Final TSCA Framework Rules Retreat from Best Available Science
Jun 29, 2017 | Environmental Defense Fund
By Richard Denison
[This post is adapted from comments I provided for the science policy panel at the June 27, 2017, forum TSCA Reform: One Year Later, co-sponsored by Environmental Law Institute, Bergeson & Campbell, P.C., Environmental Defense Fund, and George Washington University Milken Institute School of Public Health.]
I don’t know anyone who opposes EPA using the best science it can and considering all the evidence in making decisions.
So why is it that this science stuff is so controversial? It’s long been a battleground across all of what EPA does, and the debate over reform of the Toxic Substances Control Act (TSCA) was no exception. I have no doubt this will continue unabated into implementation of the amendments to TSCA made by last year’s Lautenberg Act.
Science policy issues are among the most “cultish” of any policy issues I have ever dealt with. Different camps have formed, each with its own belief system, each seeing a right way and a wrong way of doing science. Each is highly suspicious of the others, including what they mean by each word.
At the risk of appearing cultish myself, I want to briefly discuss my concerns about the final prioritization and risk evaluation rules in relation to the term “best available science.”
Let me first say that section 26(h) of the Lautenberg Act [15 U.S.C. 2625(h)] itself already requires this term to be applied to science decisions EPA makes under the law. Its codification in rules is not needed for it to have effect. Yet this term is clearly important to some who were involved in writing these final rules.
Care to guess how many times this term appear in the final risk evaluation rule? A dozen? Two dozen? Three dozen? Would you believe there are 37 references to “best available science”? That compares to just four references in the proposed rule issued in January.
Somebody really likes this term, and got it into the rules along with a definition. Hmmm.
Whatever the motivation, the irony here is that core features of the final rules – each the result of changes since their proposal made in response to chemical industry comments – actually move us away from any meaningful realization of what this term intends.
First, a major criticism of traditional risk assessment for decades has been its failure to adequately account for the real world: the fact that there are typically multiple uses and sources of exposure to a given chemical, with the potential to affect multiple subpopulations.
I thought we finally had made progress toward addressing this flaw through last year’s TSCA reform: The law requires, and the proposed rules sought to codify the requirement, that EPA must conduct broad reviews of chemicals across their full lifecycles and accounting for their known, intended and reasonably foreseen uses.
Yet the changes made to the final rules represent a renewed effort to move us squarely away from that, by allowing and facilitating EPA to examine only certain use of and exposures to a chemical; little explanation, let alone specific criteria, are provided as to how these use exclusions will be determined.
In reforming TSCA, Congress explicitly required that EPA determine whether or not a chemical substance, not individual uses, presents unreasonable risk, and to do so by conducting comprehensive risk evaluations. This is because, while exposures resulting from certain uses of a chemical viewed in isolation may present low risk to some groups of people, when multiple exposures are combined and when all potentially susceptible subpopulations are considered, such a chemical may well present unreasonable risk and warrant restrictions.
Yet the final risk evaluation rule would not only allow EPA to exclude some uses altogether, but it could make individual risk determinations about specific uses it does examine and set them aside, with no requirement ever to consider them collectively.
How is that best available science?
Second, perhaps my longest-running battle in the chemicals arena has been trying to ensure there is adequate information on chemicals in order to determine their safety. TSCA’s own preamble set that as national policy in 1976, calling for the development of such information and placing the onus of doing so squarely on the companies that make and use chemicals.
Starting with EDF’s 1997 report called Toxic Ignorance, we have drawn attention to how little information is available even on the most widely used chemicals. Some limited progress has been made since then, but the fundamental problem remains. Why?
The chemical industry has always wanted it both ways on this one: It seeks to set an ever-higher bar EPA must meet to take action on a chemical, routinely challenging the science and information used. But it also fights any efforts to require companies to provide the information the agency needs to meet that bar.
Again, I thought we were finally making progress with TSCA reform. Core aspects of that reform addressed the widespread recognition that EPA lacked adequate authority to require testing of chemicals, and the proposed rules sought to ensure that EPA could use its enhanced authority to develop that information where needed far enough ahead of having to make prioritization decisions and risk determinations that it could still meet the law’s aggressive deadlines.
Yet the final rules seem intent on undermining all this: They seek to cut off early information development – and then argue that, given the deadlines, there isn’t time for anything other than very short-term testing. They would require EPA always first to request voluntary submissions, eating up precious time, despite multiple past failures of such voluntary approaches. All of this before EPA could ever invoke the new testing authorities Congress just gave it. Among other problems, this would introduce a strong bias for EPA only to select relatively data-rich chemicals in order to meet its deadlines, rather than dedicating its resources initially to chemicals that present the greatest potential concerns.
How is this best available science?
http://blogs.edf.org/health/2017/06/29/final-tsca-framework-rules-retreat-from-best-available-science/#more-6633
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EPA Backs Off Planned Mandates in Chemical Inventory Rule
Jun 30, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Chemical makers, importers and processors will find it easier to submit lists of chemicals in commerce to EPA due to more flexibility the agency built into a recent regulation, industry officials said.
The final chemical inventory rule is clearer than the proposed one was about what companies must do and by when, Kathleen Stanton, senior director of technical and regulatory affairs at the American Cleaning Institute, told Bloomberg BNA. “That clarity makes it more helpful to companies,” said Stanton, whose trade association represents firms that process chemicals into consumer products, such as Cargill Inc. and the Clorox Co.
Representatives from other segments of the chemical industry echo that view.
“We're pleased with the final rule,” Dan Newton, senior government relations manager for the Society of Chemical Manufacturers and Affiliates, told Bloomberg BNA. Its members, which include BASF Corp. and Optima Chemical Group LLC, make customized chemicals on demand.
Changes the Environmental Protection Agency made to its final chemical inventory update rule make it easier for importers to work with supply chain partners, Martha Marrapese, an attorney in the Washington office of Wiley Rein LLP, told Bloomberg BNA.
Yet, companies throughout the chemical supply chain should not underestimate the amount of work ahead of them, Marrapese added.
180-Day Deadline
Stanton, Newton and Marrapese responded to a final rule (RIN:2070-AK24) the EPA issued June 22. The regulation, required by the Toxic Substances Control Act amendments of 2016, describes what chemical manufacturers, and importers must—and chemical processors may—do to notify the agency about chemicals they've made, imported or mixed from June 21, 2006, through June 21, 2016.
The EPA will combine the information manufacturers, importers and processors provide to create a first-time list of chemicals active in commerce, distinguishing them from dormant compounds.
Manufacturers and importers have 180 days after early July publication in the Federal Register to notify the EPA about chemicals they've made or imported.
By previously complying with another agency regulation—the Chemical Data Reporting, or CDR, rule in 2012 and 2016—thousands of companies will have gone some distance to meeting the new mandates. The EPA will recognize CDR information it received in both years as demonstrating that the chemical was in commerce.
Companies that made or imported small volumes of chemicals—which aren't reported under the CDR rule—will have to notify the agency. That means—with some exceptions described in the inventory and CDR rules—that companies which have made or imported less than 25,000 pounds of a chemical since June 21, 2006, will need to notify the EPA.
Newton said the EPA's inventory rule made the notification easier by reducing the amount of information makers must provide the agency and allowing “one and done” notifications: notification by one company is sufficient to put a chemical on a list of active chemicals in commerce even if multiple manufacturers produce it.
Processors Get More Time
The EPA will combine the new information manufacturers and importers provide under the inventory with the CDR data it already has to create a draft list of chemicals active in commerce, which processors can review.
Chemical producers—companies that mix chemicals into cleaning, automotive, paint and other products—may notify the EPA about chemicals they've used, but they are not required to. The final rule gives them up to 420 days after the final rule is published in the Federal Register to notify the EPA. That means processors have 60 more days than the EPA proposed in January to notify the agency.
“That extra 60 days is really going to be helpful,” Stanton said. Chemical manufacturers, importers and processors need time to talk with each other and determine what chemicals should be on the active inventory and who will notify the EPA, she said.
The EPA's final rule made it easier to provide that notification, because it eliminated the need to report date ranges in which compounds were produced, imported or processed, Stanton and Newton said.
Importers will benefit from the final rule's notification process. That allows companies to file joint submissions and eases notifications on compounds with confidential identities, Marrapese said.
Protecting Trade Secrets
Companies that made trade secret claims for information, including chemical identity, must take certain actions to protect those confidentiality claims, she said.
Even if a manufacturer filed a CDR report in 2016 for a chemical with a confidential identity, the company will need to file what the EPA calls a “Form A” to preserve its confidentiality, Marrapese said.
“Certifying the accuracy of the information that is reported is a serious obligation for the people preparing these reports and the company officials that sign them,” she said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=115243616&vname=dennotallissues&fn=115243616&jd=115243616
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Whistle-blowing Kasowitz Firm Seeks Billions From Chemical Giants (Corrected)
Jun 30, 2017 | BNA Daily Environment Report
By Peter Hayes
A hard-charging New York law firm was conducting discovery in personal injury litigation against a number of chemical and other companies in Alabama several years ago when it came across some interesting data.
As it turns out, attorneys for Kasowitz Benson Torres LLP say, several of the companies they were suing for product liability, fraud and conspiracy failed to report chemical dangers to the Environmental Protection Agency under the federal Toxics Substances Control Act.
Fast forward to today. The firm's founder, Marc Kasowitz, continues to grab the national and international spotlight for his vigorous defense of President Donald Trump against claims related to Russia's alleged hacking of the 2016 election.
Meanwhile, other attorneys at Kasowitz's firm are attracting significant attention of their own albeit in the much smaller, but nonetheless big-ticket, world of U.S. toxics litigation.
The firm has donned the cap of whistle-blower and has grabbed onto, and run with, a law that dates to the Civil War to aggressively pursue novel, potentially multi-billion-dollar claims against four of the companies it was looking into in the Alabama case—BASF Corp., Covestro LLC (formerly Bayer Material Science LLC), The Dow Chemical Co., and Huntsman Intl. LLC.
The case, if successful, could open the door to a new frontier of big money suits against major corporations for the non-reporting of chemical dangers.
Kasowitz's firm alleges in its False Claims Act suit that, for nearly a decade, the four companies opened themselves up to high reporting penalties by concealing from federal regulators the dangers of isocyanates chemicals (Kasowitz v. BASF, D.D.C., No. 16-cv-2269).
The chemicals, which can pose respiratory injuries at low levels, are used in the production of polyurethane products, including foam, paint and spandex clothing, the firm says, and their risks should have been reported under TSCA's Compliance Audit Program.
If it wins its case, Kasowitz's firm could reap a big chunk of the billions of dollars it alleges are owed under the federal False Claims Act, also known as the Lincoln Law, that dates to the 1800s and was designed to allow whistle-blowers to report private contractors who defraud the federal government.
For their part, BASF, Covestro, Dow and Huntsman say in a court filing that they have no liability under the FCA because the federal government has never actually imposed any penalties against them.
“The problem for the Kasowitz firm is that, as the FCA's text and history and settled case law make clear, defendants have no duty to pay penalties—and so there is no FCA liability—unless and until the federal government, subject to administrative and judicial review, says so,” the companies say.
They also say that, “to read the FCA as the Kasowitz firm does would strip the federal government of enforcement discretion, and let bounty-hunter relators decide when a statutory violation warrants a penalty.”
A “relator” is what a whistle-blower is called under the federal law.
Presiding Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia is currently weighing whether the case should proceed to trial.
If Successful, More Will Come
No matter which side of the argument proves persuasive, no one disputes the novelty of the law firm's litigation.
“It's creative, nuanced litigating,” defense attorney Irene Hantman with Verdant Law PLLC in Washington said.
“Will more be filed? It depends,” she said. “As far as I'm aware, it is a novel claim they're bringing. If successful, we'll see more like it.”
Hantman's practice focuses on the domestic regulation of chemicals. She has written extensively on TSCA issues and previously worked in the EPA's Waste and Chemical Enforcement Division which handles TSCA and other environmental enforcement matters.
Given that hundreds of companies have participated in TSCA's CAP program, Hantman said, there are lots of potential defendants out there.
“The companies that participated in the CAP program are big chemical manufacturers that have been sued many times in personal injury actions, so arguably someone could wander through personal injury litigation to find [more of] these cases,” she said.
If the Kasowitz firm wins, it could start calling around to other law firms involved in toxics law litigation and say, “Have you done any litigation that might run into this and want to go in on a FCA case?” Hantman said.
But the suit also faces long odds as a dismissal of the only other suit of its kind was recently upheld by a federal appeals court in New Orleans.
‘Reverse’ FCA Claims Alleged
At issue in the Kasowitz case is whether a whistle-blower, known as a “relator” under the False Claims Act, may pursue a “reverse” FCA claim against a company for violating its environmental reporting obligations under TSCA when the government hasn't actually imposed a penalty.
A reverse FCA claim is an assertion that a person or company had an obligation to pay the government, but failed to do so. And whistleblowers may receive up to 30 percent of the recovery.
In the Kasowitz case, the law firm argues that, even though the EPA never actually imposed any failure-to-report fines against BASF, Bayer, or Huntsman's, each of the four companies is still “separately liable to the United States government for billions of dollars in civil reporting penalties, which continue to accumulate by tens of thousands of dollars daily.”
Under TSCA, the EPA may assess a civil penalty up to $37,500 for each violation, and each day the failure continues.
The Kasowitz relators argue that BASF, Bayer and Dow violated their CAP agreements under TSCA, and Huntsman's knew “that the EPA needed Huntsman's previously-unreported substantial risk information.”
It is not the first time the argument has been made that the FCA can be used to recover penalties never actually levied under TSCA.
In Simoneaux v. DuPont, 5th Cir., No. 16-30141, a former employee alleged DuPont violated the reverse provision of the FCA by concealing or avoiding an obligation to report a gas leak as required under the federal toxics reporting law.
The U.S. Court of Appeals for the Fifth Circuit dismissed that case in December 2016, finding a penalty that hasn't been assessed by the EPA can't form the basis for a reverse FCA violation.
In both Simoneaux and the Kasowitz case, the federal government opposed the claims, arguing that unassessed statutory penalties are not a basis for reverse FCA Liability.
Duty to Pay Something
Attorneys interviewed by Bloomberg BNA say the claims turn on a 2009 amendment to the FCA, which redefined an “obligation” to pay as “an established duty, whether or not fixed.”
The Kasowitz firm's complaint alleges that the companies had an obligation to report that began on the date of the 2009 amendment and that “each day since...these companies have continued actively and knowingly to conceal and avoid their individual obligations, which have continued to increase.”
But defense and plaintiffs’ counsel disagree on the reading of the 2009 amendment language, attorney Kirsten Mayer, partner with Ropes & Gray in Boston told Bloomberg BNA.
“Does that mean there is an ‘obligation’ to pay under the statute, even if the pertinent government agency has not imposed a discretionary fine? Defendants say no—’whether or not fixed’ goes to the amount; the duty to pay something must be established,” Mayer said.
Mayer represents major pharmaceutical and medical device companies on matters including FCA litigation. In Mayer's opinion, “It's not that close a call.”
“To say that EPA's ability to impose civil penalties amounts to an obligation to pay when EPA has not actually imposed penalties seems crazy,” she said.
“If you look at the legislative history, some legislators proposed defining ‘obligation’ to include ‘contingent duties,’ but that was removed,” Mayer said.
“As these cases are litigated, I don't believe the relators will get much traction for this theory. But I expect they will keep trying to make it work until the courts shut it down,” Mayer said.
Too Early To Call
But other attorneys say that, given the novelty of the claims in the Kasowitz case, the jury is still out on how the courts will view them.
“The overwhelming majority of False Claims Act cases are traditional misrepresentation cases meaning there is little case law on reverse claims,” Brian Mahany, an attorney who represents whistle-blowers in FCA cases, told Bloomberg BNA.
“Until 2009, most courts would simply not entertain a reverse false claim if a fine had not already been imposed. That is because most fines are not set but represent a range of penalties dependent on the number of days a company is in violation and the seriousness of the violation,” he said.
“That all changed in 2009 when Congress amended the False Claims Act,” said Mahany with MahanyLaw in Wisconsin.
While both the Fifth Circuit in Simoneaux, and a federal court in the Virgin Islands in a video gaming case, found that fines not yet imposed don't give rise to a reverse false claim, Mahany said, “many other courts have not yet weighed in.”
“Bottom line? Big business won the first couple rounds but the fight is far from over,” he said.
Another prominent whistle-blower attorney, Reuben Guttman, said Kasowitz's firm has an uphill battle.
Guttman is a founding member of Guttman, Buschner & Brooks PLLC.
“In Kasowitz, the question is whether there is an obligation. There is a potential to impose penalties. But no obligation until there is a judgment against you,” Guttman said.
“I just don't see boot strapping the FCA into this regulatory scheme,” he said.
But what's really at the heart of these suits, Guttman said, is an effort to enforce laws that aren't being enforced.
“It's symptomatic of the concern that regulators aren't doing their job,” he said.
DOJ Opposition
As for the government itself, no one seems particularly surprised at its opposition to the Kasowitz firm's claims in the case.
Plaintiffs’ attorney Frederick M. Morgan, Jr. with Morgan Verkamp LLC in Cincinnati said the Justice Department's position opposing reverse claims makes sense.
The United States’ position is “that enforcement of laws which incorporate discretionary penalty imposition as part of its enforcement regime should be left to the government's enforcement apparatus,” said plaintiffs’ attorney Frederick M. Morgan, Jr.
“I think the government has a point,” said Morgan with Morgan Verkamp LLC in Cincinnati. “And DOJ certainly views part of its role as protecting the prerogatives of federal agencies,” Verkamp told Bloomberg BNA.
Morgan's practice focuses on FCA whistle-blower cases. He has served as counsel in cases against Boeing, HCA, General Electric, General Dynamics, Lockheed, Dyncorp, and Solvay, among others.
“While I haven't dug deep, I don't think there's anything in this brief which varies materially from what they've said for years,” he said.
David Engstrom, a professor at Stanford Law School in California, agreed.
“I think it's become a little too fashionable to assume that government officials are empire-builders who always seek to expand the size and reach of government–and, by extension, to maximize fines collected or the amount of funds that flow into federal coffers,” Engstrom told Bloomberg BNA.
He also said that, “Conservative critics of the statute have long said that the law is not meant to be an all-purpose regulatory statute and have complained in particular about efforts by the relator's bar to turn even relatively small and technical regulatory violations into sources of FCA liability, with its treble-damages provision.”
“So it's possible that DOJ is taking the position it is taking because it wants to police the bounds of the FCA and sees these cases as an unnecessary incursion into a regulatory regime that can stand on its own,” Engstrom said.
The Justice Department didn't respond to requests for comment.
And as far as the propriety of Kasowitz's firm itself bringing these FCA claims, as opposed to representing a whistle-blowing client, Engstrom said it's unusual, but not unheard of, for law firms to serve as whistle-blowers in FCA suits.
“The FCA is silent on the question of whether lawyers can serve as relators,” or whistle-blowers, he said.
“Some courts have barred lawyers from serving as relators, drawing inferences from the purposes of the statute or its legislative history. But most courts allow it,” Engstrom said.
“Of course, where lawyers learn of potentially actionable fraud in the course of a representation, they have to be careful to maintain duties of confidentiality to their clients,” Engstrom said.
“But this isn't implicated in what I understand to be the typical case, in which lawyers learn of potential fraud being committed by an opposing party. In such a case, there are unlikely to be confidentiality or privilege concerns,” he said.
Flood Gates
For now, litigators on both sides of the aisle, and beyond, are waiting and watching to see how Judge Collyer in the District of Columbia rules on dueling motions for summary judgment filed in the case.
Defense attorney Lee Ann Schell with Adams & Reese, L.L.P. in New Orleans, who served as co-counsel for DuPont in Simoneaux, is one of those attorneys tracking the Kasowitz case with interest.
“The Simoneaux ruling, being the first from a United States Court of Appeals, will likely weigh heavily in the District of Columbia's analysis,” she said.
“Should that court and the D.C. Circuit fall in line with Simoneaux, it will go a long way to discourage cases like these,” said Schell.
Judges are being cautious about allowing reverse FCA suits for unassessed penalties, whistle-blower attorney Joel Androphy with Berg & Androphy in Houston said.
“I think they should allow them. But courts don't want to open the flood gates,” he said.“Still, some circuits are more liberal than others,” Androphy said. “And nobody knows whether it will work unless you try.”
Attorneys representing BASF, Covestro, Dow Chemical and Hunstman Intl. either didn't respond, or declined to respond, to requests for comment.
Plaintiffs’ counsel in Simoneaux and Kasowitz also didn't respond to requests for comment.
(An earlier online version of this story incorrectly identified Covestro LLC as Covestro AG in the fifth paragraph.)
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=115243632&vname=dennotallissues&fn=115243632&jd=115243632
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(ACC Mentioned) Operation: Intoxication
Jun 30, 2017 | Environmental Health News
By Stéphane Foucart and Stéphane Horel
In order to save glyphosate, the Monsanto corporation has undertaken to destroy the United Nations’ cancer agency by any means possible. This is the first of a two part investigation that originally ran in Le Monde earlier this month.
Editors Note: This article was originally published by Le Monde on June 1, 2017. This version is translated by GM Watch and the Health and Environment Alliance and is republished with permission. We are also republishing the other part of the investigation: ‘Reaping a bitter harvest’ (Part 2)
"We have been attacked in the past, we have faced smear campaigns, but this time we are the target of an orchestrated campaign of an unseen scale and duration." Christopher Wild’s smile quickly faded. Through the window of the high rise where the International Agency for Research on Cancer (IARC) is headquartered, the rooftops of Lyon, France, spread out behind his tall figure.
Christopher Wild is the director of the Agency, so he weighed every word—speaking with a seriousness appropriate to the situation. For the past two years, a blazing onslaught has targeted the institution he is running: the credibility and integrity of IARC’s work are being challenged, its experts are being denigrated and harassed by lawyers and its finances weakened. For nearly half a century IARC has been charged, under the auspices of the World Health Organization (WHO), to draw up an inventory of carcinogens. But now the venerable agency is beginning to waver under the assault.
The hostilities were launched on a specific date: March 20, 2015. On that day, IARC announced the conclusions of its "Monograph 112". The findings left the whole world stunned. Unlike the majority of regulatory agencies, IARC declared the most widely used pesticide on the planet to be genotoxic (it causes DNA damage), carcinogenic to animals, and a "probable carcinogen" for humans. The pesticide is glyphosate, the main component of Roundup, the flagship product of one of the world's most well-known companies: Monsanto.
Glyphosate is also the Leviathan of the agrochemical industry. Used for over forty years, it is present in no less than 750 products marketed by about 100 companies in more than 130 countries.
Glyphosate, the bedrock of Monsanto
Between 1974, when it was placed on the market, and 2014, the use of glyphosate increased from 3,200 tons to 825,000 tons per year. A dramatic increase that is due to the massive adoption of seeds that are genetically modified to tolerate it – "Roundup Ready" seeds.
Of all the agrochemical companies that could be affected by measures to restrict or ban the product, there is one whose very survival is at stake. Monsanto, which developed glyphosate, has made the chemical the bedrock of its economic model. The company has built its fortune selling Roundup and the seeds that go with it.
So when IARC announced that glyphosate was "probably carcinogenic," the U.S. firm reacted with unprecedented brutality. In a company statement, it vilified IARC’s work as "junk science": a selective “cherry-picking” of data, based on an "agenda-driven bias," all leading to a decision made after only "hours of discussion at a one-week meeting."
Never before had a corporation so crudely challenged the integrity of an agency under the aegis of the United Nations. The battle was launched—the one taking place in the open at least.
A year’s work to evaluate the pesticide
Because in its own offices Monsanto was dancing to a completely different tune. The company knew full well that IARC’s evaluation of glyphosate was carried out after a year of work by a group of experts, who then met for several days in Lyon to deliberate. IARC procedures require that the industries affected by the product under review have the right to attend this final meeting.
For the evaluation of glyphosate, Monsanto had sent an "observer", the epidemiologist Tom Sorahan, a professor at the University of Birmingham (UK), whom the company sometimes employs as a consultant. The report he sent to his bosses on March 14, 2015 assured them that everything was done according to the rules.
"I found the Chair, sub-chairs and invited experts to be very friendly and prepared to respond to all comments I made," wrote Mr Sorahan in an email sent to a Monsanto executive. The email appears in the "Monsanto papers" - a collection of the company’s internal documents that an American court started to make public in early 2017 as part of ongoing lawsuits.
"The meeting followed the IARC guidelines," the American company’s observer added. “Dr Kurt Straif, Head of the IARC Monographs Programme, has an intimate knowledge of the IARC rules and insists these are followed.”
Counter-attack
The academic scientist, who has not responded to requests from Le Monde, seemed to be very embarrassed by the idea that his name might be associated with Monsanto's response to the IARC decision: "I do not wish to be referenced in any document from your PA/PR people," he wrote—though at the same time proposing that he would be "happy to assist in formulating statements that you may wish to make" in the inevitable counter-attack that the company was putting in place.
A few months later, the non-American scientists who had been members of the IARC panel on glyphosate all received the same letter. Sent by Monsanto’s law firm, Hollingsworth, the letter told them to hand over all the files related to their work on "Monograph 112". Drafts, comments, data tables ... everything that had gone through the IARC computer system. "If you decline to provide the files,” the lawyers warned, “we request and instruct you to immediately take all reasonable steps in your power to preserve all such files intact pending formal discovery requests issued via a US Court."
"I found your letter intimidating and noxious," said one of the scientists in his reply dated November 4, 2016. “I find your approach reprehensive and lacking in common courtesy even by today's standards.” Pathologist Consolato Maria Sergi, a professor at the University of Alberta in Canada continued: "I consider your letter pernicious because it maliciously seeks to instill some anxiety and apprehension in an independent group of experts."
Intimidating maneuvers
American members of the IARC working group are being subjected to even more "intimidating" measures. In the U.S., the Freedom of Information Act, or FOIA, allows every citizen—under certain conditions—to request access to documents produced by public bodies and their officials: memos, emails, internal reports, etc.
According to our information, since November 2015 the law firms Hollingsworth and Sidley Austin have filed five applications to the National Institutes of Health (NIH) alone where two of the group experts are employed. Applications on other scientists have also been made to the California Environmental Protection Agency (CalEPA), Texas A&M University and the Mississippi State University.
Some of these institutions have even been subpoenaed by Monsanto lawyers as part of ongoing glyphosate litigations—and therefore obliged to hand over some of their internal documents.
Is the aim of these intimidating maneuvers to silence criticism? World-renowned scientists who are usually open to media requests did not respond to Le Monde’s requests—even for interviews off the record. Some did agree to speak but only from a private line outside office hours.
Members of U.S. Congress do not need to use FOIA to be able to hold federal scientific institutions accountable. Republican Jason Chaffetz, a member of the House of Representatives who chairs the House Oversight & Government Reform Committee, wrote to Francis Collins, the director of NIH on September 26, 2016.
IARC's decisions have "generated much controversy and alarm," he wrote. And despite its "record of controversy, retractions, and inconsistencies," IARC receives "substantial taxpayer funding" from the NIH. In fact, 1.2 million euros out of IARC’s 40 million euros annual budget comes from a NIH grant. For this reason Jason Chaffetz asked the NIH director for details and justifications of all NIH expenditure related to IARC.
Characters that are almost out of a John Le Carré novel
The same day, the Chaffetz letter was applauded by the American Chemistry Council (ACC). As the U.S. chemical industry’s powerful lobbying organization, of which Monsanto is a member, they "hope that it will shed light on the close and somewhat opaque relationship" between the IARC and American scientific institutions.
The chemical lobby has found a valuable ally in Mr. Chaffetz. In March, this Republican congressman wrote to the head of another federal research organization—the National Institute of Environmental Health Sciences (NIEHS)—to ask her to account for the research that the institution has funded on the harmful effects of bisphenol A, a compound widely used in some plastics.
What better way to neutralize an institution than to cut off its funding? In the months following the publication of "Monograph 112", CropLife International, the organization that defends the interests of pesticide and seed companies around the world, approached some representatives of the 25 member states of IARC’s governing council to complain about the quality of the agency's work. Known as "Participating States," they contribute about 70 percent of IARC’s total budget. According to IARC, at least three of them—Canada, the Netherlands and Australia—were approached. None of them replied to Le Monde’s requests.
Throughout 2016, characters who seemed to be almost out of a John Le Carré novel made their appearances in the glyphosate saga. In June, someone who presented himself as a journalist but did not announce or register himself as such attended the conference organized by IARC in Lyon for its 50th anniversary.
The strange Mr. Watts
Prowling among scientists and international civil servants, the man was seeking details about the functioning of IARC, its funding, its monograph programme, and so on.
"He made me think of those shady individuals you meet in the humanitarian community—you never know who they are but you just guess they are in intelligence gathering," said one conference participant who wanted to remain anonymous.
A few months later, at the end of October 2016, the man reappeared—his time at the annual conference of the Ramazzini Institute, a renowned and respected cancer research organization based near Bologna, Italy. Why on Earth the Ramazzini? Perhaps because the Italian institute had announced a few months earlier that it was going to conduct its own carcinogenicity study on glyphosate?
Christopher Watts—that's the man’s name—asked questions about the independence of the institute and its funding sources. Because he used an e-mail address that ended "@economist.com," those he approached did not question his affiliation to the prestigious British weekly, The Economist. To the scientists who did ask for details, he said he worked for the Economist Intelligence Unit (EIU), a consultancy which is a subsidiary of the British press group.
The EIU confirmed that Mr. Watts had indeed produced several reports for them but was "unable to confirm in what capacity he attended" the two conferences. "During that time, he was working on a story for The Economist which ultimately was not published." Oddly enough, the weekly’s newsroom replied "there's no one of that name on our staff".
The only thing that seems clear is the name of a company that Mr. Watts created at the end of 2014: Corporate Intelligence Advisory Company. According to the administrative documents, the personal address of Mr. Watts is located in Albania. He did not wish to answer questions from Le Monde.
Intrusive and bureaucratic guerrilla warfare
Within the space of a few months, at least five individuals presented themselves as a journalist, independent researcher or assistant in law firms to approach IARC scientists and researchers involved in IARC’s work. All were seeking very specific information about the agency’s procedures and funding.
One of them, Miguel Santos-Neves, works for a New York-based economic intelligence company called Ergo. According to a report in the New York Times in July 2016, he was collared during a U.S. judicial investigation for misrepresenting his identity. On behalf of Uber, Mr. Santos-Neves had investigated a plaintiff who had filed a class-action suit against the company and questioned his professional entourage under false pretenses. Ergo did not respond to Le Monde’s enquiries.
Just like Christopher Watts, two sister organizations with nefarious reputations are interested not only in IARC but also in the Ramazzini Institute. The Energy and Environmental Legal Institute (E&E Legal) introduces itself as a non-profit organization, the missions of which include to "hold accountable those who seek excessive and destructive government regulation that’s based on agenda-driven policy making, junk science, and hysteria". The Free Market Environmental Law Clinic, for its part, says “it seeks to provide a counter-weight to the litigious environmental movement that fosters an economically destructive regulatory regime in the United States”.
According to Le Monde, they have initiated no fewer than 17 FOIA requests to the NIH and the U.S. Environmental Protection Agency (EPA). Engaged in legal, bureaucratic and intrusive guerrilla warfare, they have demanded the correspondence of several American officials "containing the terms ‘IARC’, ‘glyphosate’, ‘Guyton’” (Kathryn Guyton is the IARC scientist responsible for the “Monograph 112”). They seek the smallest of details on scholarships, grants and other financial and non-financial relationships between these American agencies, IARC, some scientists, and the Ramazzini Institute.
"Let Nothing Go"
The two organizations are headed by David Schnare, a confirmed climate sceptic who is known for harassing climate scientists. In November 2016, Mr. Schnare temporarily left E&E Legal to join Donald Trump's transition team.
As for Steve Milloy, who is also among the leaders of the organization, he is a well-known figure in the small world of tobacco industry-funded propaganda. When asked about their motivations and sources of funding, the president of E&E Legal replied by email: "Hi, we're not interested in participating."
The attention on these FOIA requests is amplified by op-eds published in some media outlets. One of them, The Hill, is mandatory reading for every political player in Washington DC. Their authors are a squadron of propagandists that the association U.S. Right to Know (USRTK) has documented as having longstanding ties to agrochemical companies and conservative think tanks, such as the Heartland Institute or the George C. Marshall Institute, both known for their major role in the manufacture of climate skepticism. Their writings expose exactly the same arguments. And sometimes even the same phrases: the "shoddy science" of an IARC ravaged by conflicts of interest and "widely criticized" – yet without ever saying by whom.
The lawyers involved in US lawsuits revealed that Monsanto also used more discreet means. Responding under oath to questions from lawyers representing people who attribute their cancer to Roundup, the firm’s executives revealed a confidential programme aimed at countering all criticisms and called "Let Nothing Go".
The transcripts of these hearings remain confidential. But memos from the law firms involved allow a little more to be known. They show that Monsanto uses third-party companies that "employ individuals who appear to have no connection to the industry but who in turn post positive comments on news articles and Facebook posts, defending Monsanto, its chemicals, and GMOs".
The machine seems to be racing ahead with the advent of Mr. Trump
In recent months, the coalition against IARC has grown. At the end of January 2017, a few days after the inauguration of Donald Trump at the White House, the American Chemistry Council joined its ranks.
The US chemical lobby has opened a new front on social networks in the form of a "Campaign for Accuracy in Public Health Research” with a dedicated website and a Twitter account. Its stated purpose is to obtain a "reform" of the IARC monograph programme. The powerful lobbying organization has put aside the kid gloves: "A side of bacon or a side of plutonium? It’s all the same according to IARC.” The tweet goes with a photomontage showing two fluorescent green bars dipping into bacon and eggs on a plate. In October 2015, IARC indeed classified processed meats as "carcinogenic" and red meat as a "probable carcinogen" like glyphosate.
Perhaps having privileged access to President Trump’s closest circle provides a feeling of omnipotence to these chemical and agrochemical industries? Hasn’t the chief American lobbyist of the American Chemistry Council, Nancy Beck, taken over as Deputy Assistant Administrator at the Office of Chemical Safety and Pollution Prevention of the US EPA, the very agency that oversees the re-examination of the glyphosate file? And was not Andrew Liveris, the boss of Dow Chemical, a member of the American Chemistry Council, entrusted by Donald Trump in person to lead the president’s “Manufacturing Jobs Initiative”?
The machine seems to be racing ahead with the advent of the Trump era. At the end of March, the Republican Texan Lamar Smith, chair of the House Committee on Science, Space and Technology, addressed the new Secretary of Health and Human Services, Tom Price. Smith focused his demands on the financial links between the National Institute of Environmental Health Sciences (NIEHS) and the Ramazzini Institute in order, he wrote, to "ensure that grant recipients adhere to the highest standards of scientific integrity”.
Ignorance and lies
That is all it took for this Congressman’s request to become, in the writings of two propagandists called Julie Kelly and Jeff Stier, a “Congress’s investigation” into the “obscure organisation” that is the Ramazzini Institute. Published shortly afterwards in the National Review, their article attacked personally both the director of NIEHS Linda Birnbaum, accused of promoting a "chemophobic agenda", and her former Associate Director, Christopher Portier, who accompanied IARC's work as an "invited specialist", described as a "well-known anti-glyphosate activist". Both were described as “Ramazzini fellows”.
According to Kelly and Stier, this is another example of “how science has been politicized”. The story was also taken up by others, including Breitbart News, the far-right website co-founded by Steve Bannon, the White House Chief Strategist.
To describe the Institute or Collegium Ramazzini (the two are confused in the articles) as an "obscure organization" here, or as a "kind of Rotary Club for activist scientists" elsewhere, is at best ignorance and at worst a lie. Founded in 1982 by Irving Selikoff and Cesare Maltoni, two leading figures in public health, the Collegium Ramazzini is an academy of 180 scientists specializing in environmental and occupational health.
Linda Birnbaum and Christopher Portier are “Fellows” of the Collegium. And so are the Head of the IARC Monographs Programme Kurt Straif, and four other experts from the Monograph 112 working group, all top-flight scientists in their respective fields.
"We are not afraid"
The launch of a long-term toxicology study on glyphosate by the Ramazzini Institute in May 2016 has made a target of an organisation renowned for its expertise in cancer. The Head of the Research Department of the institute, Fiorella Belpoggi, is one of the few scientists who agreed to speak to Le Monde: "We are few, we have no money, we are just good scientists and we are not afraid."
The attacks on the Ramazzini and the IARC are very unlikely to stop. After glyphosate, other strategic chemicals are on IARC’s list of "priorities" for the period 2014–2019. These include more pesticides and also bisphenol A (BPA) and aspartame. The NIEHS happens to be one of the world's leading funders of research on the toxicity of BPA. As for aspartame, the study that alerted the world to the carcinogenic properties of this sweetener was carried out several years ago... by the Ramazzini Institute.
"I hadn’t realized we were so important before this," whispered Fiorella Belpoggi, "but if you get rid of IARC, NIEHS and the Ramazzini Institute, you get rid of three symbols of independence in science." A type of science that has become a threat to economic interests worth hundreds of billions of euros.
http://www.environmentalhealthnews.org/ehs/news/2017/june/operation-intoxication
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(ACC Mentioned) Talking Seriously About Marine Debris, And the Importance of Immediate Action
Jun 30, 2017 | Plastics News
By Doen Loeb
Marine debris is a big problem for the plastics industry. According to the most frequently cited research, between 4.8 million and 12.7 million metric tons of plastic waste entered the ocean in 2010.
The future looks a lot worse. Population growth and improved standards of living around the world will mean millions more tons of plastic marine debris.
Plastics processors and suppliers need to help solve the problem. In fact, some major companies already are involved. Amcor Ltd. and Berry Global Inc. were among the presenters at the American Chemistry Council's Marine Debris Dialogue, held June 19-20 in Newport, R.I.
Other plastics industry presenters included Dow Chemical Co., recyclers Envision Plastics LLC, W2Worth Innovations LLC, Agilyx Corp. and Continuous Energy LLC.
Even better, they weren't talking to themselves. NGOs, academics and government experts were also in attendance and presenting. Big names included the 5 Gyres Institute, Algalita Marine Research and Education, Ocean Conservancy, World Wildlife Fund … the list goes on and on. It was an impressive lineup of people who care very much about the health of the ocean and who know more about plastics than PN readers may realize.
The experts don't talk about islands of plastic anymore. In fact, one presenter asked the crowd how many believed that garbage islands exist in the ocean gyres, and I didn't see any hands go up. That's good. That description helped mobilize public opinion in favor of plastic bans and taxes, but it was not accurate.
But the reality is just as serious.
Sen. Sheldon Whitehouse (D-R.I.) kicked off the event with a call for action: "I don't think we want to leave for future generations … oceans where there is more trash than fish. We have to do something about it."
Congress already is funding programs to research and deal with marine debris. It may not be enough, but in this political climate, the fact that it's getting bipartisan support is significant.
And he called for more. For example, Whitehouse said marine debris should be a priority issue in trade talks with Asian countries, which researchers say are the leading source of marine debris.
The fact that ACC called this meeting is a good sign. I remember 13 years ago when the plastics industry publicly clashed with environmental groups on marine debris outreach. That attitude is gone. Steve Russell, ACC's vice president for plastics, said there's now an awareness and a growing sense of obligation to do something and to do a better job of communicating.
"Our view is plastic litter in the environment is unacceptable," Russell said. Plastics have a lot of benefits to society, but those benefits won't matter if plastics hurt the environment, he said.
The NGOs, academics and government people spoke fairly candidly with the plastics executives at the meeting. They gave the latest statistics on the problem and explained the most difficult issues.
Take microplastics, as an example. That's a problem caused both from deteriorating plastics products and from fibers — basically, every time anyone does laundry. Chelsea Rochman from the University of Toronto pointed out that anyone who eats seafood is ingesting microplastics. That's a potential impact on our food security.
"It's cause for concern. It is not yet cause for alarm. We need a lot more research," Rochman said.
Looking at the big picture, it's clear that a key to dealing with marine debris will be improving the waste management infrastructure in places like China, Indonesia and the Philippines. That takes money and requires big changes in behavior, but efforts are already underway.
But that alone won't solve the problem.
What role does the plastics industry play in fixing this? Many NGOs think certain plastic products should be banned, including plastic bags and polystyrene foam food-service products. But the conference didn't focus on that.
Instead, I heard suggestions like putting chemical markers in plastic fishing gear so researchers can track the source of abandoned equipment. That suggestion came from Elizabeth Hogan of World Animal Protection, who also mentioned an effort to improve the design of plastic strapping so it does not entangle marine life.
Bob Benson, national program lead for the Trash-Free Waters program at the U.S. Environmental Protection Agency, had a long list of suggestions for plastics companies.
The first is a no-brainer: The plastics industry needs 100 percent participation in Operation Clean Sweep. Benson called for a full-court press to get that done.
Another idea: Plastics companies need to get involved in community cleanup efforts in every location where they have a plant. Keep America Beautiful has programs everywhere. And if companies want to do more, they can sponsor equipment that automatically removes plastics from rivers and streams.
"The [plastics] industry needs to lead the way to trash-free waters," Benson said. "I think the issue is going to get hotter and hotter for the business community and for all of us. The moment of opportunity to [voluntarily] do something about it is getting shorter."
Benson, and others, called for the plastics industry to make products easier to recycle. There was some disagreement on that, since it involves buy-in from brand owners and consumers. But when someone from industry pointed out that consumers like the convenience of plastic packaging, the NGOs pushed back. There's a distinction between packaging and product, they said. Consumers at a coffee shop aren't buying the disposable cup; they're buying a cup of coffee.
Stiv Wilson, campaigns director for the Story of Stuff Project, pointed out that while the plastics industry attendees heard from many NGOs at the meeting, there are many more who weren't in the room who may not have been as polite in their criticism of plastics. But industry shouldn't be afraid to engage with them — or with him.
"This problem is growing exponentially. I would take this very seriously," Wilson said.
After moderating most of the two-day program, I have a better perspective on the issue and on what's been proposed to deal with it. There are some problems that are going to be very difficult to solve.
From the podium, I was careful to avoid characterizing the dialogue as a meeting between industry representatives and environmentalists. People in the plastics industry consider themselves environmentalists, too. I saw evidence of that at the conference in presentations from companies like Amcor, Berry, Envision and Dow. They may approach issues differently from NGOs, but they feel like they are having a positive impact, and they want to help.
In the same way, I feel like many researchers and NGOs are becoming a part of the plastics industry. Maybe a noisy, not always welcome part. But they have a critically important role in pushing industry to make changes that will minimize, and eventually reduce, marine debris. And, maybe most importantly, in helping to push consumers, brand owners and government officials to help solve the problem.
Industry people may sometimes disagree with how the critics talk about plastics, but without dialogue there's no opportunity to influence the debate.
"We would see this as a failure if it was the end of the discussion," Russell said. So here's hoping that the dialogue continues and that there's progress to report at the next meeting.
http://www.plasticsnews.com/article/20170629/BLOG01/170629881/talking-seriously-about-marine-debris-and-the-importance-of
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(ACC Mentioned) ICYMI: Watch The Entire GenX Forum Hosted by WWAY, Starnews and WHQR
Jun 30, 2017 | WWAY NewsChannel 3
There are still plenty of questions about GenX in the area’s drinking water, but there are far more answers after WWAY, the StarNews and WHQR hosted a GenX Forum Wednesday night.
More than 400 people turned out for the two-hour event at UNCW’s Kenan Auditorium. They heard dozens of questions from a panel of 16 experts in various fields. And there were dozens more questions we didn’t have time to ask but will continue to work to get answers on.
The panel included:
Mike Brown: CFPUA Board Chair
Dr. Philip Brown: NHRMC Chief Physician Executive
Kemp Burdette: Cape Fear Riverkeeper
Larry Cahoon: UNCW professor
Natalie English: Wilmington Chamber of Commerce President and CEO
Jim Flechtner: CFPUA Executive Director
Mike Giles: NC Coastal Federation
Stan Harts: UNCW Environmental Health & Safety Director
Sheila Holman: NC Assistant Secretary of the Environment
Dr. Detlef Knappe: NC State University professor, part of team that detected GenX in the Cape Fear River
Bill Saffo: Wilmington Mayor
Phillip Tarte: New Hanover County Health Director
Woody White: New Hanover County Commission Chair
Dr. Joseph Wilde-Ramsing: Centre for Research on Multinational Corporations
Representatives from Chemours, the company that makes GenX, were invited to attend the forum, but they chose not to. We also invited the American Chemistry Council, which is a trade association that Chemours is part of. The ACC never responded to our invitation.
You can watch the entire forum via the video player above.
https://www.wwaytv3.com/2017/06/29/genx-forum/
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California to List Glyphosate as a Carcinogen
Jun 30, 2017 | Chemical & Engineering News
By Cheryl Hogue
Glyphosate, the active ingredient in Monsanto’s Roundup weed killer, will be listed as a carcinogen in California as of July 7, the state announced on June 26.
The move will trigger a requirement that glyphosate products sold in California carry a cancer warning under a state law called Proposition 65.
Monsanto is fighting the state’s action in court. But a state appeals court and the California Supreme Court on June 22 denied the company’s request to stop the listing from taking effect while the case plays out.
“We will continue to aggressively challenge this improper decision,” says Scott Partridge, Monsanto’s vice president of global strategy. “Glyphosate is not carcinogenic, and the listing of glyphosate under Prop 65 is unwarranted.”
California announced in 2015 that it would list glyphosate as a carcinogen. This followed a controversial move by the World Health Organization’s International Agency for Research on Cancer (IARC) classifying glyphosate as a “probable carcinogen.” California law requires the state’s Office of Environmental Health Hazard Assessment to list substances identified by IARC as known to cause cancer under the state’s Proposition 65.
Monsanto’s Partridge says IARC “ignored crucial scientific data that undermines its conclusion.” The California office, the U.S. Environmental Protection Agency, the European Chemicals Agency, “and every regulatory body in the world that has studied glyphosate” has concluded that the herbicide isn’t carcinogenic, he adds.
While the company pursues its case against California, Monsanto is defending itself in a lawsuit filed in federal court in Wisconsin on June 20 by residents of Wisconsin, Illinois, California, New York, New Jersey, and Florida.
That suit alleges that Monsanto and Roundup distributor Scotts Miracle-Gro falsely claim that glyphosate “targets an enzyme that is not found in people or pets.” The plaintiffs argue that glyphosate affects an enzyme found in “beneficial gut bacteria” critical to health.
Glyphosate targets the enzyme 5-enolpyruvylshikimate 3-phosphate synthase, found in plants and many bacteria (Proc. Natl. Acad. Sci. USA 2001, DOI: 10.1073/pnas.98.4.1376).
http://cen.acs.org/articles/95/i27/California-list-glyphosate-carcinogen.html
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Chemical Companies’ ‘Voluntary’ Clean Ups Are Little More Than Corporate Spin
Jun 29, 2017 | Environmental Working Group
By Bill Walker
Last week Chemours – a DuPont spinoff company that inherited liability for some of its parent's nastiest toxic messes – announced "voluntary actions" to clean up and eliminate pollution from a highly fluorinated chemical, which is a potential human carcinogen. The company’s Fayetteville, N.C., plant has been discharging the chemical, GenX, into the Cape Fear River since 1980.
Voluntary: like paying your back taxes when you get the audit letter from the IRS. Like slowing down when the highway patrol officer points his radar gun at your car. Like your 5-year-old putting the cookie back in the jar when you walk in the kitchen.
Promising to do the right thing when you're caught doing the wrong thing, or in hopes of dodging punishment for your misdeeds, is not what most people would call voluntary. But in the shameful saga of fluorinated chemicals polluting the planet and contaminating almost every American’s blood, Chemours, DuPont and other companies have repeatedly characterized their too-little-too-late cleanup or phaseout efforts as voluntary.
Here’s what Chemours’ announcement didn’t say:
GenX is a successor to PFOA, formerly used by DuPont to make Teflon. PFOA has been linked to cancer in people, reduced effectiveness of childhood vaccines and other serious health problems at even the smallest doses. GenX's chemical structure is very similar to PFOA's, it was not adequately tested for safety before being put on the market and in 2009 DuPont acknowledged to the Environmental Protection Agency it caused cancer in lab animals.
GenX is just one of the dozens of known or suspected hazardous contaminants for which there are no enforceable state or federal regulations. Water utilities don’t have to test for it, but last fall a study from North Carolina University researchers found GenX in the Cape Fear watershed at levels 10 times higher than the EPA's non-enforceable health advisory for PFOA in drinking water. Other fluorinated chemicals were also found in the water at even higher concentrations. At the time, Chemours took no public action.
This year, an ongoing investigation by StarNews in Wilmington, N.C., reported GenX contamination in Cape Fear-area drinking water systems. Citizens and local officials erupted in outrage. State regulators initiated water sampling to determine the extent of the contamination. And the EPA launched an investigation into whether Chemours is in compliance with the 2009 rule under the Toxic Substances Control Act that permitted production of GenX.
That finally prompted a response from the company. In a press release touting “Voluntary Actions to Respond to North Carolina Community,” Chemours said “it will capture, remove and safely dispose of wastewater that contains GenX.”
The GenX story is far from over. But already it is sickeningly reminiscent of what happened with PFOA, the DuPont Teflon chemical that it replaced, and PFOS, a fluorinated compound formerly used in 3M’s Scotchgard.
Starting in 1999, a lawyer investigating mysterious cattle deaths near DuPont’s Parkersburg, W.Va., plant unearthed documents showing that DuPont knew for decades PFOA was hazardous and polluting drinking water in the mid-Ohio River Valley. The company never told local officials, state regulators or the EPA.
The revelations led to a class-action lawsuit that DuPont settled in 2005 for more than $300 million and 3,500 personal injury lawsuits the company settled last year for more than $650 million. The Justice Department opened a criminal investigation, but DuPont got off relatively easy: a $16.5 million fine from the EPA for withholding internal studies of PFOA’s hazards. The company also agreed to phase out PFOA over the next 10 years – a deal that to this day, DuPont, the EPA and most journalists describe as voluntary.
In 2000, just months after the PFOA scandal began to unravel, 3M announced it would stop making PFOS and other fluorinated chemicals, “based on our principles of responsible environmental management.” A 3M spokesman told The New York Times the chemicals “pose no health risk to humans” but because they build up in the environment, ending production was “a corporate responsibility issue.”
Two days later the Times reported that the EPA had pressured 3M to act after it reviewed the company’s own tests showing that fluorinated chemicals built up in people’s bodies and that high doses killed lab animals. The Times reported that if 3M had not acted, the EPA would have taken steps to remove the product from the market.
Only a chemical industry public relations flack would not admit the plain truth: Chemours’ GenX cleanup, DuPont’s PFOA phaseout and 3M’s halting of PFOS production came only after the companies’ toxic secrets were uncovered and they faced public outrage, regulatory action, enforcement fines or legal liability. The real reason chemicals are so often taken off the market by “voluntary” corporate actions is that federal law makes it almost impossible for the EPA to ban a chemical outright.
So spare us the spin about voluntary actions in the name of corporate responsibility. If chemical companies want credit for doing the right thing, here’s an idea: Adopt a policy of not putting products on the market unless you can prove they are safe.
http://www.ewg.org/enviroblog/2017/06/chemical-companies-voluntary-clean-ups-are-little-more-corporate-spin
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Dow Courts White House With Donations and Secret Meetings, Brain-Damaging Pesticide Stays on Shelves
Jun 29, 2017 | Environmental Working Group
By Robert Coleman
The cozy relationship between the Trump administration and the chemical industry is easy to see. But now we’re getting details of how Dow courted the president and his top environmental official to keep a dangerous pesticide on the market.
In March, Environmental Protection Agency Administrator Scott Pruitt announced that his agency would hold up a scheduled ban on chlorpyrifos, an insecticide that at small doses can harm children's brains and nervous systems. This decision was contrary to his own agency’s assessment on the chemical a year prior.
As the maker of chlorpyrifos, Dow Chemical was quick to celebrate. It’s been fighting to keep chlorpyrifos legal, with efforts including a ridiculous website touting the chemical that numerous studies have concluded is unsafe. This week, an investigation by The Associated Press revealed that Pruitt met with Dow’s CEO less than three weeks before his decision.
On March 9, Pruitt and the Dow CEO, Andrew Liveris, were featured speakers at an energy industry conference in Houston. The pair met for half an hour in a Houston hotel – a tete-a-tete the AP found out about only after several Freedom of Information Act requests for Pruitt’s meeting schedule.
An EPA spokeswoman denied that Pruitt and Liveris discussed chlorpyrifos. But the meeting was just one marker of the cozy relationship between Dow and the administration.
Soon after November’s election, Dow gave $1 million to President-elect Trump’s Inauguration Committee. Liveris was named the head of the President’s American manufacturing council and has met with the president a number of times. The AP reported that in February, when Trump signed an executive order to establish task forces in government agencies to roll back regulations, “he handed the pen to Dow’s chief executive, who was standing at his side.”
The EPA has been cryptic on information pertaining to its chlorpyrifos decision – just last week, EWG partnered with political watchdog group American Oversight to file suitregarding the agency’s failure to release pesticide records. Also last week, the American Academy of Pediatrics and EWG penned a letter to Pruitt in staunch opposition to the decision, laying out the health implications it will have on developing children.
Secret meetings and big donations are just some of the ways the executives of Dow and other corporate polluters are currying favor with Trump and his team. In return, they get political appointments, an open door policy with regulators, and freedom to continue endangering public health and the environment.
http://www.ewg.org/planet-trump/2017/06/dow-courts-white-house-donations-and-secret-meetings-brain-damaging-pesticide
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Solvent's Ozone Effects Raised as EPA Starts Analysis
Jun 30, 2017 | BNA Daily Environment
By Pat Rizzuto
The EPA could face more pressure to regulate a common solvent's uses if environmental advocates convince the agency to evaluate its effect on the ozone layer.
Methylene chloride, which is used to strip paint, degrease metal, produce pharmaceuticals, and make polyurethane foam more flexible and soft is contributing to ozone depletion, according to a newly published study. However, the solvent's effect on the stratospheric ozone layer was not among the potential harms the Environmental Protection Agency plans to evaluate, according to an initial plan the agency released June 22. The agency has invited information through Sept. 19 that could affect the uses, exposures, and risks from the solvent that it will examine.
The EPA's planned risk evaluation must consider methylene chloride's ozone depletion potential, Kassie Siegel, director of the Center for Biological Diversity's Climate Law Institute, told Bloomberg BNA. The extent of the chemical's contribution to ozone depletion has been debated, but the most recent study only provides further evidence of its harms, she said.
Companies that make or use the solvent could eventually be affected by the EPA's risk evaluation, particularly if the agency concludes some or all uses of the solvent pose an unreasonable health or environmental risk. The 2016 amendments to the Toxic Substances Control Act, which spurred the methylene chloride evaluation, require the agency to reduce the risks of any chemical it concludes poses an unreasonable risk.
The Dow Chemical Co., Occidental Chemical Holding Corp., and Solvay USA, Inc. were among the companies that made or imported 264 million pounds of methylene chloride, also called dichloromethane (CAS No. 75-09-2) in 2015, according to production data they provided the EPA. The national production volumes in previous years were 248 million pounds in 2014, 230 million pounds in 2013, 231 million pounds in 2012, and 261 million pounds in 2011. Dow, Solvay, INEOS Group AG, Olin Corp., and Tedia Co., all of which manufacture methylene chloride, did not respond to interview requests from Bloomberg BNA.
The EPA did not reply to Bloomberg BNA's query regarding whether the agency would consider ozone depletion as it proceeds with its methylene chloride evaluation.
The EPA should consider potential ozone depleting effects of methylene chloride only “to the extent that the parties to the Montreal Protocol have decided that methylene chloride has more than a negligible ozone depletion potential,” Caffey Norman, a partner with the Washington office of Squire Patton Boggs LLP, told Bloomberg BNA.
The Montreal Protocol is an international agreement to phase out substances that deplete the ozone layer. Methylene chloride is not regulated under the protocol and, in fact, was touted as an alternative to other substances that have greater effects on the ozone layer. The EPA in 1995 guidance on the Montreal Protocol, said that methylene chloride has a very short atmospheric life and breaks down before it can damage the ozone layer.
‘Modest,’ But Growing Effect
However, a team of mostly U.K. scientists and one U.S. scientist published a study in Nature Communications June 27 that said methylene chloride's contribution to ozone depletion is “modest,” but has been growing. “If these increases continue into the future, the return of Antarctic ozone to pre-1980 levels could be substantially delayed,” according to the team, lead by principal investigator Ryan Hossaini from Lancaster University in Lancashire, England.
The research adds to at least one previous study Hossaini published raising ozone-depletion concerns about chemicals not controlled by the Montreal Protocol.
Methylene chloride is among 10 chemicals the EPA is evaluating under a requirement in the 2016 Toxic Substances Control Act's amendments.
The EPA's initial review plan said the agency's Significant New Alternatives Policy program, which reviews substitutes for ozone-depleting substances, allows companies to use methylene chloride as a substitute for certain applications.
Decisions Should Follow Treaty's Review
Norman, whose law firm lobbies on behalf of the Halogenated Solvents Industry Alliance, told Bloomberg BNA the EPA has said for years that the three most commonly used chlorinated solvents—methylene chloride, trichloroethylene, and perchloroethylene—don't contribute to ozone depletion.
Hossaini's paper appears to incorrectly assume that the use of methylene chloride to make other chemicals would result in its release to the environment, Norman said. Chemicals used as feedstocks, such as methylene chloride, are typically consumed when producing other materials, he said. Any EPA decisions on the solvent should be based on its review under the Montreal Protocol, Norman said.
—With assistance from Stephen Lee in Washington.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=115243617&vname=dennotallissues&fn=115243617&jd=115243617
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'We Will Be Dominant,' Trump Tells DOE Gathering
Jun 30, 2017 | E&E News PM
By Hannah Northey
This article was updated at 6:15 p.m. EDT.
President Trump outlined a multipronged effort today to boost nuclear power, export more gas and coal, and expand oil and gas drilling offshore and on public lands.
Speaking to a packed room in the Department of Energy's Washington headquarters, Trump blasted notions of the need for regulations as "a myth" and said his new policies would usher in "millions and millions of jobs and trillions of dollars in wealth" that had been hamstrung by "massive" regulatory overreach during the Obama administration.
In addition to conducting a "complete review" of domestic policies to revitalize nuclear power, Trump said the United States would move on coal exports.
"Ukraine already tells us they need millions and millions of metric tons right now," he said. "We want to sell it to them and everyone else all over the globe."
He also revealed a deal struck by Sempra Energy to export liquefied natural gas to South Korea, DOE's approval of two long-term applications to export additional LNG from Energy Transfer Partners' Lake Charles project in Louisiana, and what Trump said was federal approval of a petroleum pipeline to Mexico.
"That'll go right under the wall, right?" Trump joked. "Have it go down a little deeper in that one section."
Lastly, Trump announced the creation of a new offshore oil and gas leasing program, saying, "America will be able to access the vast energy wealth right off our shores."
"The golden era of American energy is now underway," Trump said. "The golden era of America is now underway."
While Trump directed a few jabs at a CNN cameraman and mentioned immigration, his speech did not touch on renewable energy, climate change or reducing emissions. He did tout his decision to pull the U.S. out of the Paris climate agreement and approve the Dakota Access and Keystone XL oil pipelines.
"I didn't take any heat. I approved them, and that was it," Trump said. "Protesting or not, I have to do what's right. People celebrate those two actions."
In the room were some high-profile congressional Republicans; Abigail Ross Hopper, head of the Solar Energy Industries Association; the head of the Nuclear Energy Institute, Maria Korsnick; coal mogul Bob Murray; oil executive Harold Hamm; and former transition official and nuclear adviser Donald Hoffman.
Trump, who was introduced by Vice President Mike Pence, touched on what he said were "limitless supplies of energy" in the United States, now on the cusp of an "energy revolution." He pointed to 100 years' worth of natural gas and 250 years' worth of "clean, beautiful coal." The U.S., he said, is the world's top producer of natural gas and poised to be an exporter.
"We will be dominant," Trump said.
House Energy and Commerce Chairman Greg Walden (R-Ore.) and Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) were on hand for the speech, as well. It came as Murkowski was releasing her reworked energy reform bill, which addresses some of the president's priorities (see related story).
Before Trump spoke, Cabinet secretaries and industry chiefs praised the administration's focus on scrapping regulations, touted the oft-repeated call for "energy dominance" and voiced eagerness to leverage domestic gas as an international bargaining chip.
Over jokes about who had the best office, Energy Secretary Rick Perry, EPA Administrator Scott Pruitt and Interior Secretary Ryan Zinke agreed the federal government should bolster economic growth through energy exports, repeatedly pointing to liquefied natural gas.
National Economic Council Director Gary Cohn said American LNG has been the talk of the town during Trump's meeting with leaders from India and could again feature tonight during his meeting with South Korean President Moon Jae-in and as the president travels to Europe in coming days.
"It's not because our LNG is cheaper than Russian gas" but because it is a dependable resource in long-term contracts, Cohn said.
Noting that oil production is increasing at a fast clip, Cohn said the U.S. now has international leverage.
"We aren't a victim of what other countries are ready, willing and able to do," he said.
Reporter Emily Holden contributed.
https://www.eenews.net/eenewspm/2017/06/29/stories/1060056837
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Interior to Step Up Pace of Oil, Gas Leasing on Federal Land
Jun 30, 2017 | BNA Daily Environment Report
By Alan Kovski
The Trump administration will hold oil and gas lease sales more often on federal lands and prioritize promising areas for leasing, a high-level Interior Department official told House lawmakers June 29.
The Interior Department also will find ways to reduce the time it takes to process permits to drill, said Katharine MacGregor, Interior's acting assistant secretary for land and minerals management, as she testified to the House Natural Resources Subcommittee on Energy and Mineral Resources.
The lease acreage will be selected if appropriate for such industrial activity, MacGregor said in recognition of the concern expressed by Rep. Alan Lowenthal (D-Calif.) about catering too much to the oil and gas industry.
Lease sales will occur quarterly in appropriate states, MacGregor said. Those sales have not occurred that frequently in recent years despite a requirement for such quarterly sales under the Mineral Leasing Act of 1920. Federal land and energy potential overlap especially in New Mexico, Colorado, Wyoming, North Dakota, Utah, and Alaska.
A Bureau of Land Management spokesman said the busiest BLM field offices for oil and gas permitting include Carlsbad, N.M., Casper, Wyo., Pinedale, Wyo., Dickinson, N.D., and Vernal, Utah. An oil industry representative said Carlsbad, in the oil-rich Permian Basin, and Casper, in the region of the Niobrara Shale production area, probably are the most active.
Companies like Anadarko Petroleum Corp. and Noble Energy Inc. have been trying to develop many parts of the Niobrara region in eastern Wyoming, northeastern Colorado, and western Nebraska.
Staff Being Hired, Moved
Oil and gas companies especially complain about the slowness of federal permitting. MacGregor said the Bureau of Land Management is increasing staff in its busiest field office to handle the permitting faster.
“We're recruiting right now to fill vacancies,” she said, noting the BLM has 325 people working on permitting nationwide and 90 vacancies.
The BLM has been moving some staff to offices with higher workloads, such as a shift of some personnel from the agency's office in Buffalo, Wyo., to its office in Casper, MacGregor said. The BLM also is looking to make better use of online connections to allow more remote staff help.
Asked what procedural changes might be in the works to speed permitting, MacGregor said she has been talking to field offices to determine what changes are needed.
Rep. Darren Soto (D-Fla.), summarized, “So just to be clear, there are efficiencies that will be forthcoming to us, but there are none today.”
Federal vs. State Speeds
Republicans and Democrats have routinely used volleys of statistics on drilling and production to argue over how well the Obama administration managed the work, for both onshore and offshore operations. One witness at the June 29 hearing offered some of the starkest statistical contrasts.
The BLM office in Carlsbad, in the oil-rich Permian Basin, takes about 250 days to process an application for a permit to drill, and the BLM office in Farmington, N.M., in the gas-rich San Juan Basin, takes about a year, said Ryan Flynn, executive director of the New Mexico Oil and Gas Association.
By contrast, New Mexico state regulators process drilling permit applications in 10 days or less, he said.
The Farmington BLM office also takes about a year to process a right-of-way request, while the state takes about 45 days, Flynn testified.
Flynn blamed inadequate staffing, mediocre automation and procedural irregularities for problems in the BLM's permitting work.
The Trump administration has requested BLM spending of $75.9 million, a $16 million increase, in fiscal year 2018 for its onshore oil and gas program.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=115243612&vname=dennotallissues&fn=115243612&jd=115243612
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Trump Moves to Dump Obama Offshore Drilling Plan to Open Up Arctic, Atlantic
Jun 30, 2017 | Fuel Fix
By James Osborne
President Donald Trump has ordered his Cabinet to move ahead on replacing the Obama administration's offshore drilling program, with an eye to opening up the Atlantic and Arctic coastlines to oil and gas development.
In doing so Trump hopes to expand offshore drilling into coastal areas that have long been off-limits to the industry, while undoing a decision by former president Obama that the environmental risks in drilling in the Arctic and Atlantic were too great.
The announcement came during a speech at the Department of Energy in Washington Thursday, as Trump announced a series of energy developments including the approval of a new pipeline to Mexico for petroleum products and a new LNG export terminal in Lake Charles, Louis.
"The truth is we have near limitless supplies of energy in our country," Trump said. "This administration is looking not just American energy independence but American energy dominance. We will export american energy all over the world."
The Interior Department will study the entire U.S. coastline for offshore drilling opportunities in developing a new five year drilling plan, Interior officials said Thursday, adding that Trump had singled out the Beaufort and Chukchi Seas in the Arctic and the southern Atlantic Ocean as opportunities for federal leasing.
RELATED STORY: At offshore drilling regulator, focus on "economic development"
So begins what typically is a years long process, in which the administration will have to conduct substantial environmental reviews and open up their plans up to extended periods of public comment.
At the same time, the administration is facing litigation from environmental groups challenging its plan to undo a ban on Arctic oil and gas development ordered by Obama on his way out of office.
"We're going to let the court make their determination, but were going to move forward," Deputy Assistant Secretary for Land and Minerals Management Kate McGregor said in a briefing with reporters Thursday. "We'll be sticking to every rule on the books. We will find areas for efficiencies where we can, but we will not be cutting any corners."
In the meantime, the Obama administration's existing five year offshore drilling program will remain in effect.
The announcement comes as offshore drilling in the Gulf of Mexico and other regions continues to lag, with oil companies putting projects on hold while crude prices hover around $50 a barrel.
But for an industry that perceived itself to be at odds with the Obama administration, Thursday's news offered some optimism.
"Today's announcement gives confidence for the future that this administration recognizes the benefits to be gained from safe, responsible development of America's abundant natural resources," said Dan Naatz, a senior vice president at the Independent Petroleum Association of America.
http://www.chron.com/business/energy/article/Trump-moves-to-dump-Obama-offshore-drilling-plan-11256701.php
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Lawmakers Revive Social Cost of Carbon Bill
Jun 30, 2017 | E&E Daily
By Nick Sobczyk
Republican lawmakers yesterday revived a bill aimed at curbing the use of social cost of carbon metrics in the federal rulemaking process.
The "Transparency and Honesty in Energy Regulations Act," introduced in the House by Rep. Evan Jenkins (R-W.Va.) and in the Senate by Sen. James Lankford (R-Okla.), would bar the Department of Energy and U.S. EPA from using the social cost of carbon, methane, nitrous oxide or any other greenhouse gas in any action.
Jenkins and Lankford introduced similar legislation in both chambers last year, but neither bill made it out of committee (E&E News PM, Dec. 7, 2016).
DOE and EPA used the social cost of carbon during the Obama administration to determine the long-term economic cost, in U.S. dollars, of greenhouse gas emissions.
But Republicans have long been critical of the metric and what they said were closed-door processes to determine carbon cost estimates in the Obama-era Office of Information and Regulatory Affairs.
President Trump earlier this year instructed agencies to stop considering the social cost of carbon as part of his larger effort to roll back the Clean Power Plan (Climatewire, March 29).
Jenkins said the bill, which already has more than 10 Republican co-sponsors in the House, would solidify the directive from the White House and prevent future administrations from using the social cost of carbon in the rulemaking process.
"The Obama administration used biased estimates like the social cost of carbon to push through its anti-coal regulations," Jenkins said in a statement.
"I appreciate that President Trump has put an immediate stop to these damaging regulations, and this legislation will ensure that no future administration can hide behind flawed metrics to justify their regulations," he added.
Other bills
Separately, Rep. Morgan Griffith (R-Va.) introduced legislation to make it easier for utilities and companies to modify power plants and industrial facilities.
One bill would allow plants to add efficiency or pollution controls without falling into increased scrutiny. The other would change the trigger for an "emissions increase test" from annual emissions to an hourly rate.
National Mining Association Senior Vice President Bruce Watzman said, "NMA welcomes this effort to correct structural deficiencies in the law that slow and possibly block projects that are designed to improve efficiency and productivity of industrial sources, including power plants."
https://www.eenews.net/eedaily/2017/06/30/stories/1060056845
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Senators Introduce New Bipartisan Energy Bill
Jun 30, 2017 | The Hill - E2 Wire
By Timothy Cama
The leading senators overseeing energy policy introduced a new version of their broad energy reform bill Thursday.
The legislation from Senate Energy and Natural Resources Committee Chairwoman Lisa Murkowski (R-Alaska) and ranking member Maria Cantwell (D-Wash.) has few changes from a bill the upper chamber passed last year.
The bill, dubbed the Energy and Natural Resources Act of 2017, has a wide variety of provisions, centered on energy efficiency, infrastructure and cybersecurity, as well as federal land management and sportsmen’s access.
Senate Majority Leader Mitch McConnell (R-Ky.) fast-tracked the bill late Wednesday by putting it on the floor calendar.
McConnell would still need to formally bring up the bill with a separate action in order for the Senate to vote on it, an action he has not announced yet. But putting it on the calendar allows it to skip through committee consideration.
“It has now been a full decade since Congress has passed legislation to modernize and reform our nation’s energy and resource policies,” Murkowski said in a statement. “We came very close to achieving that goal last year, and have continued to work with our congressional colleagues and a wide range of stakeholders to write another strong bill,” she said.
“This stands not only as an opening for bipartisan accomplishment, but more importantly, as a significant opportunity to boost our economic growth, improve our infrastructure, enhance our security, and bolster our global competitiveness — results that we all support and should be working toward.”
Cantwell said the legislation “will not only help modernize our energy infrastructure, but secure it from extreme weather, climate change, and serious cyber threats.”
The previous version of the legislation passed the Senate with 85 votes last year.
Senators then established a formal conference committee with the House to come to a final agreement on the legislation. But the negotiations got bogged down, mostly on issues regarding natural resources policies, and did not come to an agreement before the session of Congress ended at the close of the year.
http://thehill.com/policy/energy-environment/340097-senators-introduce-new-bipartisan-energy-bill
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States Prepare to Sue EPA for Delaying Oil & Gas Methane NSPS Controls
Jun 29, 2017 | Inside EPA
By Doug Obey
A coalition of 15 attorneys general (AGs) lead by New York AG Eric Schneiderman (D) is threatening to sue EPA for unreasonable delay in issuing methane emissions limits for existing oil and gas operations, ratcheting up a confrontation with the Trump EPA as it retreats from Obama-era climate strategies.
The 15 state AGs in a June 29 letter to EPA Administrator Scott Pruitt formally trigger a 180-day clock for filing litigation over the methane controls, arguing that the agency has failed to perform its “nondiscretionary duty” to issue the emissions limits for the existing oil and gas sector.
“EPA’s ongoing failure to address existing source methane emissions from the oil and gas sector, which accounts for the lion’s share of methane emissions from oil and gas operations (an estimated 90 percent by 2018), violates the Clean Air Act and harms the health and welfare of our residents,” the letter states.
“[U]nless EPA promptly remedies this failure, the undersigned states intend to file suit at the expiration of the required notice period,” the AGs write.
AGs signing the letter represent New York, California, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Washington state, the District of Columbia, as well as the City of Chicago.
The AGs' notice of intent is the latest development in a long-running dispute between EPA and states over emissions of the potent greenhouse gas methane, after EPA omitted direct methane controls from a 2012 update to new source performance standards (NSPS) for the oil and gas sector.
That omission triggered prior litigation threats from a group of seven states including New York, which contended that EPA had unreasonably delayed in both considering the need for and issuing methane curbs on new and existing oil and gas facilities.
Since that time, the Obama EPA in June 2016 issued final NSPS regulations setting first-time limits on methane from new oil and gas sources, and it took other steps to curb methane as part of a Climate Action Plan.
Finalizing the NSPS triggered a Clean Air Act obligation for EPA to eventually develop methane limits for existing sources in the oil and gas sector.
But the Trump EPA has taken several steps to back away from Obama-era GHG programs, including Pruitt's March 2 withdrawal of an information collection request (ICR) to the oil and gas industry that had been widely seen as a prelude to methane controls on existing sources.
In the wake of Pruitt's move, EPA's Science Advisory Board (SAB) is now underscoring the scientific importance of the emissions data that would have been collected under the ICR process. The advisers say such data would be critical to crafting any methane standards for existing drilling facilities.
SAB's call -- combined with the states' legal pressure -- could ultimately spur EPA to restart its oil and gas methane efforts, despite Pruitt's reluctance on the issue.
An ongoing Pruitt EPA review of the final methane NSPS, however, could result in the agency scrapping the rule. If that effort is survives almost certain court review, it would undercut part of the AGs' argument that the agency must write existing source controls.
'No Intention'
Contrary to the science advisers' assessment, the AGs' letter argues that the ICR is not necessary to impose methane curbs on existing sources. However, Schneiderman in a June 29 press release also cites Pruitt's revocation of the ICR as a “clear signal that the Trump EPA has no intention of meeting its statutory obligation” to issue stationary source methane limits.
Further, the states in their letter argue that the June 2016 issuance of the methane NSPS under section 111(b) of the Clean Air Act -- triggering a mandate for existing source controls under section 111(d) -- is the latest, clear evidence EPA has unreasonably delayed existing oil and gas methane limits.
“It has now been over one year since EPA promulgated the New Source Rule and four-and-a half years since New York and other states formally notified EPA that it was in violation of the Clean Air Act -- and yet EPA has failed to establish existing source guidelines,” the letter says.
“We are willing to explore any effective means of resolving this matter without the need for litigation,” the AGs continue. “However, if we do not hear from you within the applicable time periods provided in section 304 of the Act, we intend to file suit in United States District Court,” the letter states, referring to the air act's citizen suit provision giving federal district court jurisdiction over such litigation.
The new litigation threat is only one of several actions that states have taken to push back against Pruitt EPA rollbacks of methane limits. A similar coalition of 14 states recently moved to intervene in a lawsuit challenging EPA's stay of portions of the methane NSPS.
In the recent letter, the AGs lay out arguments for why EPA should be able to proceed with existing source methane limits even without the ICR, citing “substantial and sufficient information” regarding emissions sources, pollution control technologies, and practices for limiting methane from existing oil and gas operations.
“For instance, through the voluntary Natural Gas Star Program, EPA has worked with oil and natural gas companies for decades to develop expertise in more than 100 cost-effective technologies and practices to reduce methane emissions,” the letter notes.
It also cites “a vast amount of scientific and technical data on emissions and control strategies developed over the last several years, including from [EPA's] white papers, the Greenhouse Gas Reporting Program, and its 2016 Control Techniques Guidelines for the Oil and Natural Gas Industry.”
ICR's 'Value'
The SAB's recommendation on the methane ICR appears to contradict the state AGs on this point -- though it could have a similar ultimate effect of prodding EPA to restart its efforts to limit oil and gas methane.
During a June 29 teleconference to determine whether SAB should provide advice on planned EPA rules, SAB member Denise Mauzerall of Princeton University said it is “clear the SAB would want to review this if there was information collected on existing operations. But without information on what those existing operations are emitting, we really don't have something to review.”
A memo from the board notes that “there are unique science questions” associated with quantifying methane emissions from existing sources, compared with new sources. That includes the type of data that would best characterize emissions, and how techniques would vary between on- and off-shore facilities.
It adds that scientific questions also exist on how to determine leakage rates, and it is also unclear if abandoned wells would be included in any rule, given that some have been shown “to emit substantial quantities of methane and other gases over multiple decades, while others emit none.”
During the conference, one SAB member asked if the board should recommend to EPA that the ICR process should go forward, but another board member warned that is “a very political decision.”
Instead, SAB Chairman Peter Thorne of the University of Iowa said, “we can speak to the value of having such data available, because then that's a science question.”
Ultimately, SAB member Charles Werth of the University of Texas worded the recommendation as: “If the setting of emission guidelines for existing sources is going forward, then there is a need for collection of this data to inform the process.”
He added that SAB is “not advocating any sort of policy. We are saying there is a need for data to inform a process so the best information and the best science is used.”
https://insideepa.com/daily-news/states-prepare-sue-epa-delaying-oil-gas-methane-nsps-controls
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EPA Seeks Continued Abeyance of CPP Suits
Jun 30, 2017 | Inside EPA
EPA has submitted its second round of status reports in litigation challenging the Obama-era greenhouse gas standards for new and modified and existing power plants, reiterating that it has initiated White House review of a proposal expected to repeal the Clean Power Plan (CPP) and urging the court to continue holding the cases in abeyance.
The status reports, the second of the court-ordered 30-day updates EPA has been required to provide, comes as the initial 60-day abeyance period imposed April 28 by the U.S. Court of Appeals for the District of Columbia Circuit has expired.
It is unclear how the court will proceed with the lawsuits, though EPA is arguing the D.C. Circuit should continue holding the cases in abeyance. But the rule's supporters are urging the court to either rule in the case or remand it to the agency, a step that all sides agree could lift the Supreme Court's stay of the rule.
EPA, in its June 29 update on the CPP, reiterates a June 12 supplemental status report, noting it “has begun the interagency review process of a proposed regulatory action resulting from its review of the Rule.” The agency sent June 8 the draft CPP repeal plan to the White House budget office for interagency review.
The proposal is expected to use a key legal critique of the CPP to scrap the rule -- hinging the repeal on the claim that the rule unlawfully regulates “beyond the fenceline” of individual power plants in setting the GHG emissions targets.
In its status report, EPA does not specify when it might release the CPP proposal, though it pledges to “update the Court as EPA takes further steps.” And it urges the court that “these cases should remain in abeyance pending the conclusion of the expected forthcoming rulemaking.”
The D.C. Circuit, in issuing its April 28 order, took briefing on whether it should remand the CPP to the agency. EPA and CPP opponents prefer an indefinite abeyance of the case. Environmentalists, however, are urging the court to rule in the CPP litigation, West Virginia, et al. v. EPA et al., which heard oral arguments last September. In the alternative, they are urging the court to remand the rule to the agency, a step they believe could have the effect of lifting the Supreme Court's stay on the rule.
In a June 16 filing responding to EPA, environmentalists argued the agency's submission of a draft proposed rule to repeal the CPP does not justify “indefinite abeyance,” in part because a rulemaking process to undo the CPP could take years.
“[A]nd because the rule now before the Court will remain in place if a repeal rule is found unlawful, a decision by this Court not to decide the fully aired issues presented could further delay, by years more, critical and already long-delayed protections for public health and welfare,” environmentalists wrote.
EPA also submitted a June 29 status report in litigation challenging the Obama-era GHG standards for new and modified power plants, North Dakota, et al. v. EPA, et al., though that report simply notes EPA “continues to review” that regulation and will “update the Court as it takes further steps.” The agency argues that suit, too, should remain in abeyance “pending the conclusion of EPA's review of the Rule and any resulting forthcoming rulemaking.”
https://insideepa.com/daily-feed/epa-seeks-continued-abeyance-cpp-suits
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State Department Issues Permits for U.S.-Mexico Pipelines
Jun 30, 2017 | PoliticoPro - Whiteboard
By Nick Juliano
The State Department today released details on presidential permits it has approved for pipelines to deliver petroleum to Mexico.
President Donald Trump announced in his speech at DOE this afternoon that his administration has approved a new pipeline across the southern U.S. border.
NuStar Logistics L.P. is building the New Burgos Pipeline, which will cross the border near Peñitas, Texas, and has the capacity to deliver up to 108,000 barrels per day of refined petroleum products.
The State Department announced that it has approved a permit authorizing the construction and operation of that conduit. It also issued new permits for two other NuStar pipelines, the existing Dos Laredos and existing Burgos pipelines, to change the name of the permit holder and authorize the transport of a broader range of products. Those lines cross the border near Laredo and Peñitas.
WHAT'S NEXT: The permit authorizes NuStar to begin building its new pipeline.
https://www.politicopro.com/energy/whiteboard
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(ACC Mentioned) D.C. Circuit Grants Unions Role in RMP Delay Suit
Jun 30, 2017 | Inside EPA
A federal appeals court has granted labor unions' request to intervene in environmental and public interest groups' lawsuit challenging the Trump administration's nearly two-year delay of an Obama EPA final rule updating the agency's facility accident prevention program, after the unions argued postponing the rule harms workers.
In a June 27 order in the case, Air Alliance Houston, et al., v. EPA and E. Scott Pruitt, the U.S. Court of Appeals for the District of Columbia Circuit grants a request from United Steelworkers and AFL-CIO to intervene in the lawsuit seeking to vacate Pruitt's rule delaying revisions to the agency's Risk Management Plan (RMP) program.
Roughly a dozen environmental and public interest groups, including Sierra Club, Texas Environmental Justice Advocacy Services, and the Union of Concerned Scientists June 15 petitioned the D.C. Circuit to reverse Pruitt's June 14 rule delaying the RMP update 20 months -- from June 19 to Feb. 19, 2019 -- to allow for a process to review and potentially revise the Obama EPA RMP update.
In a June 20 motion, the labor unions sought to intervene in the case in support of the underlying RMP update, arguing that the delay irreparably harms workers and that environmentalists may not fully represent workers, who have a “distinct perspective” on the facilities where they work.
EPA did not oppose the request to intervene.
The unions also signed on to plaintiffs' June 22 motion asking the court to stay, or alternatively grant summary judgment and vacate, the delay rule, arguing that such a lengthy delay is “plainly illegal” under the Clean Air Act and would irreparably harm advocates' interests given past agency findings that chemical accidents continue to occur.
The court has yet to rule on plaintiffs and intervenors' request for stay, and EPA in a June 28 motion asks the court to delay by one week, from July 3 to July 10, a deadline for responding to the advocates' stay request. EPA says additional time is needed to respond to the lengthy motion, and notes the July 4 holiday and a need for agency and Justice Department review.
Pruitt's delay responds to criticism from chemical manufacturers and other industry sectors, and some Republican lawmakers, that the Obama administration's rule is unnecessary, brings significant new costs without improving safety and that provisions for disclosing facility data will worsen terror risks.
The litigation is one of several lawsuits stemming from the Obama EPA's Jan. 13 final rule overhauling RMP with new auditing and hazard analysis requirements, as well as provisions bolstering release of facility data to emergency planners and the public, which have drawn strong opposition from industry groups as well as GOP state attorneys general, including Pruitt prior to his selection to lead EPA.
Industry groups including the American Chemistry Council, American Petroleum Institute, and the U.S. Chamber of Commerce have challenged the Obama RMP rule in the D.C. Circuit but the consolidated cases are on hold pending the Trump EPA's process for revising the rule, which could make the litigation unnecessary.
https://insideepa.com/daily-feed/dc-circuit-grants-unions-role-rmp-delay-suit
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$10M Honeywell Toxic Dust Settlement Survives Challenge
Jun 30, 2017 | BNA Daily Environment Report
By Peter Hayes
Honeywell's $10 million settlement with New Jersey home owners who allege their property values were diminished by toxic dust from a pair of Jersey City chemical plants survived a challenge in the Third Circuit (Halley v. Honeywell Intl. Inc., 3d Cir., No. 16-2712, 6/29/17).
The settlement was reasonable given the difficulty the plaintiffs would have proving injury and causation, the appeals court said.
While the amount of the recovery for each class member “appears troubling” if the home owners could establish liability, the court said, “five years of extensive fact discovery produced little evidence suggesting that liability could be established.”
The settlement does not release personal injury or medical monitoring claims.
The home owners alleged that Honeywell and PPG Industries, Inc., are successors of the manufacturing plant owners and operators who negligently disposed of hexavalent chromium dust, contaminating the surrounding properties.
The court affirmed the trial court's approval of the settlement as “reasonable in light of the best possible recovery and the attendant risks of litigation—little or no recovery at all.”
Maureen Chandra, a member of the settlement class, filed the appeal.
Judge Anthony J. Scirica wrote the opinion joined by Judges Thomas L. Ambro, Thomas I. Vanaskie.
Kanner & Whiteley represents the settling home owners.
Arnold & Porter Kaye Scholer represents Honeywell.
Shebell & Shebell represents appellant Maureen Chandra.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=115243633&vname=dennotallissues&fn=115243633&jd=115243633
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Oregon Lawmakers Hide Oil Train Safety Plans from Public
Jun 30, 2017 | Oregon Live
By Rob Davis
More than a year after a train derailed, caught fire and spilled oil into the Columbia River in Mosier, state lawmakers are on the verge of forcing railroads to develop plans for making Oregonians safer the next time.
With a big catch: Those plans will be secret.
Unlike in California and Washington, any railroad response plan for oil spills in Oregon would be exempt from disclosure under the state's open records law.
The bill by Rep. Barbara Smith Warner, a Portland Democrat, also would not allow lawyers to subpoena the plans after an accident to see if the railroad acted negligently.
The secrecy provisions are yet another concession to industry during a legislative session in which state lawmakers have made the environment a low priority. Policymakers refused to fund Gov. Kate Brown's toxic air cleanup initiative, gutted a bill to crack down on cancer-causing diesel soot and didn't advance legislation to address the overpumping of Oregon's aquifers.
The bill, which passed out of the Legislature's Ways and Means committee Wednesday by a 22-1 vote, cannot be amended before votes in the full House and Senate.
A spokesman for Gov. Kate Brown said the governor's attorney needs to review the bill before Brown decides whether or not she will sign it.
Railroads have consistently tried to keep information about oil train routes and readiness secret, arguing that it would endanger national security to tell the public where the easily identifiable, mile-long trains move. The federal government and Oregon officials have repeatedly rejected that argument.
Kristen South, a Union Pacific spokeswoman, didn't address a question about the secrecy provisions in Smith Warner's bill. South said her company worked closely with Oregon leaders to draft the bill.
Union Pacific, which hauled the oil tankers that derailed last June in Mosier, is "committed to enhancing the safe rail movement of products railroads are required to move for customers," South said.
It's the second time that Smith Warner, a Portland Democrat who's raised $2,500 from railroads since 2014, tried to improve oil train safety before making major concessions that other West Coast leaders did not. She continued to support her 2015 bill that would've increased fees on railroads to fund readiness, even though the finished product was stripped of the fees and other main provisions.
She did not respond to a call.
In 2015, Washington adopted a law that is far more transparent. It was championed by Republican Sen. Doug Ericksen, a Trump political appointee backed by the oil and railroad industries. The only details kept secret in Washington's spill plans are personal cell phone numbers, said Linda Pilkey-Jarvis, oil spill preparedness manager for the Washington Department of Ecology.
"The rest of it is an open book," she said.
n Washington, railroads must provide extensive details on how they will respond to spills large and small: who will be involved; how first responders will be notified; where containment equipment is stored; how the public will be protected; how air pollution from the vapors or burning oil will be monitored.
And the public can read and comment on the plans. Pilkey-Jarvis said the public's involvement makes the spill plans more effective.
"Community input definitely can make a difference in a plan and the level of preparedness," she said.
In Oregon, the public would be left in the dark.
Environmental groups and trial lawyers say that approach is a bad idea.
"What the Legislature and the leadership and Barbara Smith Warner are doing is passing a bill that protects the railroads from being responsible for the accidents, damage and personal injury they cause," said Michael Lang, conservation director for Friends of the Columbia Gorge. "We put our trust in the bill's sponsors, and instead they turned their backs on the public and gave the railroads what they wanted."
The Oregon Trial Lawyers Association said the exemptions would leave the public without any way of comparing the actions a railroad undertakes during a disaster with the steps it pledged to follow.
"In the next catastrophe, if people are seriously injured or die because of the negligence of the railroad, they should have access to information they need to prove the wrongdoing," association representatives Arthur Towers and Paul Bovarnick said in testimony submitted to lawmakers.
Oregon has huge gaps in readiness for an oil train disaster. The state already has response plans for the Columbia River and the lower Deschutes, but not for hundreds of miles of inland railways, including on the Willamette and upper Deschutes rivers. The bill would give the Department of Environmental Quality $600,000 to expand those plans, which aim to keep oil away from sensitive habitat and other important environmental resources.
The plans required of railroads would go farther and be more detailed.
http://www.oregonlive.com/environment/index.ssf/2017/06/oregon_lawmakers_hide_oil_trai.html
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Cities and States are Declaring Climate Independence from Trump
Jun 29, 2017 | Environmental Defense Fund
By Eric Pooley
Just as the federal government was truly accelerating on national climate action, Donald Trump took the wheel and tried to slam the car into reverse. But despite his best efforts to kill United States climate policies, there’s still enormous momentum propelling us forward.
What’s going on? Call it Climate Independence Day.
First, we can thank our Founding Fathers for a system of governance that gives fierce independence and real power and to our 50 states. Second, we can thank visionary leaders – from both parties – at the state and local level, who are using that power to chart their own course.
That‘s why, even though the federal government has begun pulling out of the Paris climate agreement, a vast majority of Americans, 70 percent, live in places that have proclaimed, “We Are Still In.”
It‘s why more than 550 legislators pledged meaningful climate action in 45 states last month, more than 300 mayorspromised to make their cities run 100 percent on renewables by 2035, and one state after another is now setting clean energy goals that far exceed anything we’ve seen before.
Will this groundswell of state and local action help the U.S meet its Paris targets? Perhaps not.
But it will keep us moving until climate realism returns to Washington – and it shows that far from throwing in the towel, America is stepping up and fighting back to protect policies that safeguard public health, our climate and our planet.
Why city and state actions actually matter
Let’s be clear: There’s no substitute for federal action on climate. We need to set national goals and to work with other countries to bring down emissions. It may not happen under Trump, but Trump is not forever.
In the meantime, city and state initiatives – along with measures some of our largest corporations are taking to cut carbon pollution – are especially crucial given federal inaction. Such actions:
· put in place policy solutions such as carbon markets that will secure necessary reduction now and offer a roadmap for ambitious federal action when the political winds change.
· help us reduce emissions now, rather than later, which has an important effect on warming in the long-run. Every pound of carbon we prevent today matters.
· help optimize decisions that are already being made today in the power sector and beyond, such as investments in smart grid technology and demand response solutions that save energy and reduce emissions going forward.
Americans are charting their own course
This momentum helps explain why, by the end of 2016, carbon pollution from U.S. power plants had already declined 25 percent below 2005 levels. It means the sector is already well on its way to meet targets spelled out under the Obama administration’s Clean Power Plan.
It helps explain why a state such as North Carolina withdrewits legal challenge of the Clean Power Plan in March 2017 after it had previously been a party to a 27-state lawsuit seeking to stop the federal rule. And why the Republican governor of Illinois recently signed legislation that will ramp up renewables and cut state power sector carbon pollution by 56 percent by 2030.
So far, 12 states accounting for 10 percent of emissions from our power sector have already pledged to uphold the goals set for the U.S. under Paris, openly bucking Trump’s policy. Several of those states were carried by Trump during the 2016 election.
The truth is, this presidency has – like never before – energized Americans and helped them understand that by protecting our climate, we’re also protecting public health, innovation and economic growth.
Governors, state legislators, mayors, city council members, business leaders and voters from across the political spectrum understand that by investing in clean energy and infrastructure upgrades that help cut emissions, we’re also betting on industries of the future and staying competitive. It means we’re trying out new ideas and staying optimistic.
What could possibly be more American?
https://www.edf.org/blog/2017/06/29/cities-and-states-are-declaring-climate-independence-trump
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Lawmakers Demand Lengthy Comment Period
Jun 30, 2017 | E&E Daily
By Manuel Quinones
More than 70 lawmakers, led by Rep. Don Beyer (D-Va.), are demanding that U.S. EPA allow people at least 120 days to comment on a proposal to rescind the Obama administration's Clean Water Rule.
Earlier this week EPA Administrator Scott Pruitt signed a proposed rule to scrap the Obama team's definition of the Clean Water Act's reach. It includes a 30-day comment period following publication in the Federal Register (E&E News PM, June 27).
But in a letter, Beyer and his colleagues told Pruitt: "We are concerned that the EPA has provided limited time and opportunity for stakeholder involvement and official public comment. Any proposed rulemaking must include sufficient time and participation to gather input from concerned and affected parties, including those whose legal rights and responsibilities will be affected by this effort."
Comment periods may not be as important if House Republican appropriators have their way. They proposed a rider to their energy and water development bill this week to allow EPA and the Army Corps of Engineers to repeal the Clean Water Rule without need to comply with the Administrative Procedure Act (E&E Daily, June 29).
The Trump administration has moved to redefine the Clean Water Act's reach based on a different interpretation of a landmark Supreme Court ruling on the issue.
https://www.eenews.net/eedaily/2017/06/30/stories/1060056846
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