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Retailers and Producers Tussle over Prop 65 Obligations
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Retailers and Producers Tussle over Prop 65 Obligations
Jul 3, 2017 | Chemical Watch
By Suzanne Yohannan
A full year before they go into effect, last year's amendments to Proposition 65 regulations have changed the terms of the duel between suppliers and retailers over who will provide the required consumer warnings, and spawned confusion over what chemicals to single out, according to lawyers who advise businesses on Prop 65 compliance. -
California to List Glyphosate as a Carcinogen
Jul 3, 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. -
Interior Opens Public Review of Offshore Drilling Plan
Jul 3, 2017 | The Hill - E2 Wire
By Devin Henry
The Interior Department on Monday began accepting public comments on a new five-year offshore drilling plan, an early step toward rewriting the blueprint for drilling in federal waters. -
Senate Energy Committee Releases Energy and Natural Resources Act of 2017
Jul 3, 2017 | Electric Light and Power
Sens. Lisa Murkowski (R-Alaska), chairman of the Energy and Natural Resources Committee, and Maria Cantwell (D-Wash.), the committee’s ranking member, have introduced S. 1460, the Energy and Natural Resources Act of 2017, according committee statements. -
NTSB Determines Probable Cause of 2015 BNSF Derailment
Jul 3, 2017 | Progressive Railroading
The probable cause of a BNSF Railway Co. ethanol train derailment two years ago in South Dakota was related to the railroad’s decision to defer track maintenance and continue operating high-hazard flammable unit trains on the Aberdeen subdivision, the National Transportation Safety Board (NTSB) announced last week. -
Canadian National Railway Says Oil Spills after Train Derails in U.S.
Jul 3, 2017 | Reuters (in The New York Times)
Canadian National Railway Co said about 20,000 gallons (76,000 liters) of oil was released following a freight train derailment at Plainfield, Illinois, on Friday, according to a filing with state pollution regulators. -
The Energy 202: What Would Be the Point of Pruitt's "Red Team-Blue Team" Climate Exercise?
Jul 3, 2017 | The Washingotn Post
By Dino Grandoni
Ahead of the Fourth of July weekend, we were treated to some early fireworks when it was revealed that the Trump administration was indeed taking seriously a proposal to start a formal government-wide effort to challenge of the long-standing scientific consensus on climate change. -
House, Senate GOP Lawmakers Float Bill to Bar Use of SCC Metric
Jul 3, 2017 | Inside EPA
House and Senate Republicans are re-introducing legislation that would bar EPA and several other agencies from using the social cost of carbon (SCC) and related metrics for more-potent greenhouse gases in cost-benefit reviews of regulations that curb emissions. -
DEQ to Hold 5 Pipeline Water Quality Hearings across State
Jul 3, 2017 | AP (in the Washington Post)
Virginia environmental regulators are holding five public hearings around the state in August on a permitting process designed to protect water quality along the routes of two proposed natural gas pipelines. -
DOJ Asks Court To Uphold Denial Of Citizens' Intervention In Cleanup Pact
Jul 3, 2017 | Inside EPA
The Justice Department (DOJ) is asking a federal district court to uphold a magistrate judge's order rejecting citizens' attempt to intervene in a cost recovery cleanup settlement at a high-profile Superfund site in Indiana, arguing such a reversal would allow for hundreds of different "starting times" for challenges to cleanups at residential sites.
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Retailers and Producers Tussle over Prop 65 Obligations
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Retailers and Producers Tussle over Prop 65 Obligations
Jul 3, 2017 | Chemical Watch
By Suzanne Yohannan
A full year before they go into effect, last year's amendments to Proposition 65 regulations have changed the terms of the duel between suppliers and retailers over who will provide the required consumer warnings, and spawned confusion over what chemicals to single out, according to lawyers who advise businesses on Prop 65 compliance.
California's Office of Environmental Health Hazard Assessment (Oehha) adopted amendments in September 2016 on how "clear and reasonable warning" should be provided under Proposition 65. Among the changes, this will require the warnings to contain the name of at least one substance for which notice is being provided under the law. A pictogram – an exclamation mark inside an equilateral triangle – must also be included.
The original rules said that warning materials should be provided by manufacturers, rather than retailers, "where practicable." The new regulations, which are effective from August 2018, make suppliers responsible for complying with the mandate, either by placing warning labels on products, or providing warning materials to retailers.
"Almost every single major retailer has already shifted the obligation for Prop 65 compliance onto their suppliers," said Ed Sangster, a partner at K & L Gates in San Francisco. "If somebody brings a Prop 65 claim against Target, then Target is immediately going to make an indemnification claim to their supplier.
"For smaller retailers it will be a real relief, because they didn't have the clout to do that."The lion's share
However, retailers say they will face the lion's share of the work. "Allowing manufacturers to comply with their warning obligations by simply providing warning materials to retailers, without obtaining the consent of the retailers, has the effect of shifting the burden of compliance to retailers," the California Retailers Association said in comments last year.
"Given that Proposition 65 warnings are not required anywhere except for California, we can envision numerous manufacturers moving to signage as a warning option rather than labelling their products, or simply mailing labels to retailers and direct them to sticker products in inventory.
"A business that, for example, wants to avoid enforcement litigation over phthalates in vinyl and other soft plastics, and does not want to have to pay to reformulate those products with other plasticisers or provide on-label warnings in other states, can neatly avoid those costs and disruption to its business by directing its retailers to provide warnings through signs or stickers."'Warning signs everywhere'
"If everybody who has a product on the shelf said 'We are going to give you a warning sign,' you would walk into Home Depot and there would be nothing but Prop 65 warning signs everywhere," said Malcolm Weiss, a partner at Hunton and Williams in Los Angeles. Retailers "are telling everybody upstream 'Nice try, but we aren't going to do it, you figure it out and put the warning on your product.'
"There's a lot of back and forth going on between manufacturers and retailers."
Manufacturers are still in the early stages of wrestling with changes in the required warnings. The standard Prop 65 warning now reads: "This product contains chemicals known to the state of California to cause cancer and birth defects or other reproductive harm." The new rules will require labels to name at least one listed chemical contained in a product, and to specify whether it is a carcinogen, a teratogen, or both. And it does not offer any guidance on what chemical to choose.
"Having to make the decision as to what chemical to list is treacherous and nobody knows what the right basis is as to what chemical to select," said Maureen Gorsen, a partner at Alston & Bird in Los Angeles. "It opens the door to 'Why that one? What did you know about that chemical?'"Supply chain
Manufacturers are in the process of closely examining the supply chain for each component of a product.
"It's becoming clear that people responsible for putting warnings on the product don't always know what chemicals are in their products. A manufacturer has raw material suppliers, maybe another intermediate step of assembly," said Mr Weiss. "It's difficult to know what chemicals are in the products and that can change."
"Say a company puts out a warning that this product contains chemical X which is known to cause cancer," he said. "Six months go by and what if the chemical is no longer in the product? What if a tester doesn't find that chemical, but finds another one? Is that a violation? You can't test for 900 chemicals in a product."
Ms Gorsen said this is an especially pressing issue for manufacturers that get components from China, because even though a contract specifies testing requirements, "the piece of paper they send over can be a complete lie." Some large companies, "especially those who market to children," have decided to operate their own plants in China so they can control the process, she said.
However, manufacturers do have an option to avoid naming a specific chemical if they place a "short form" warning directly on a product. Those labels simply say: "WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov".
"Seventy percent of my clients are going for the short form," said Ms Gorsen. "This surprises me because it screams CANCER! in block letters. I think the reasoning is that everybody is so used to these labels they won't be noticeable," she said.
Sam Delson, Oehha deputy director for external and legislative affairs, said the agency has no plans to issue any formal guidance but will soon post a Q&A on its website.
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California to List Glyphosate as a Carcinogen
Jul 3, 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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Interior Opens Public Review of Offshore Drilling Plan
Jul 3, 2017 | The Hill - E2 Wire
By Devin Henry
The Interior Department on Monday began accepting public comments on a new five-year offshore drilling plan, an early step toward rewriting the blueprint for drilling in federal waters.
Interior published a “request for information” in Monday’s Federal Register, seeking comment from the public and stakeholders on the potential for drilling in the 26 areas of the Outer Continental Shelf (OCS) leased for oil and natural gas production by the federal government.
The 45-day comment period is the first step in the lengthy, years-long process of rewriting the program. The procedure involves assessing the economic and environmental impact of drilling, and the effects it would have on ocean features, wildlife and local communities.
President Trump announced last Thursday that the public review process would begin this week as part of his agenda of opening up more American offshore areas for oil and gas development.
“Under the previous administration, so much of our land was closed to development. We’re opening it up. The right areas, we’re opening it up,” Trump said.
“America will be allowed to access the vast energy wealth located right off our shores.”
Trump in April ordered Interior Secretary Ryan Zinke to reconsider the five-year offshore drilling plan instituted by President Obama last year. Interior said it will implement that plan, which limits lease sales to the Gulf of Mexico and waters off of south-central Alaska, while reviewing and eventually rewriting it.
Interior has also proposed allowing seismic testing for oil and gas in the Atlantic Ocean, the first step toward potential drilling in the area.
http://thehill.com/policy/energy-environment/340505-interior-begins-public-review-of-offshore-drilling-plan
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Senate Energy Committee Releases Energy and Natural Resources Act of 2017
Jul 3, 2017 | Electric Light and Power
Sens. Lisa Murkowski (R-Alaska), chairman of the Energy and Natural Resources Committee, and Maria Cantwell (D-Wash.), the committee’s ranking member, have introduced S. 1460, the Energy and Natural Resources Act of 2017, according committee statements.
The bill, which is focused on a wide range of energy and natural resources opportunities and challenges, features 11 “titles reflecting common ground on efficiency, infrastructure, supply, accountability, conservation, federal land management, National Park System management, sportsmen’s issues, water infrastructure, natural hazards, and Indian energy,” the statement noted.
The bill builds on the Energy Policy Modernization Act of 2015, which included priorities from 80 Senators and passed the Senate with 85 votes, the statement noted. While that bill fell just short in a bicameral conference with the House of Representatives at the end of last year, it “provided an excellent starting point for Murkowski and Cantwell’s bipartisan efforts in this Congress,” according to the statement.
“Our energy infrastructure is under attack and we need the tools to fix it right now,” Cantwell said in the statement. “Our bipartisan legislation will not only help modernize our energy infrastructure, but secure it from extreme weather, climate change, and serious cyber threats. I am looking forward to continuing to refine this legislation through robust debate and then sending it to the president’s desk.”
Murkowski noted in the statement that it has now been a full decade since Congress has passed legislation to modernize and reform the country’s energy and resource policies.
“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.”
According to the statement, as introduced, the bill calls for, among other things:
· Infrastructure: The bill would help modernize the country’s electric grid, enhance cybersecurity safeguards, streamline pipeline permitting, facilitate LNG exports, and ensure a qualified and well-trained workforce
· Efficiency: The bill would include agreements on everything from energy savings performance contracts to the reauthorization of the weatherization assistance and state energy programs
· Supply: The bill would focus on the development of renewable resources, traditional energy, and non-fuel minerals alike, in order to provide for a long-term, American-made energy supply that is increasingly abundant, affordable, clean, diverse, and secure
Among other things, the bill notes that to enhance the reliability of the electric grid and reduce the threat of wildfire damage to, and wildfire caused by vegetation-related conditions within, electric transmission and distribution rights of way (ROWs) and adjacent federal land, the secretary concerned – which means the secretary, with respect to public lands, and the Secretary of Agriculture, with respect to National Forest System land – is to issue and periodically update guidance to ensure that provisions are appropriately developed and implemented for utility vegetation management, facility inspection, and operation and maintenance of ROWs, regardless of the means by which the ROWs are established.
Also, the bill notes that a transmission organization is to submit a report that, for instance, identifies distributed energy resources and interconnected microgrid systems, and evaluates, with due regard for operational and economic benefits and costs, the potential for distributed energy resources and interconnected microgrid systems to be deployed to the transmission organization over the short- and long-term periods in the planning cycle of the transmission organization.
http://www.elp.com/articles/2017/07/senate-energy-committee-releases-energy-and-natural-resources-act-of-2017.html
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NTSB Determines Probable Cause of 2015 BNSF Derailment
Jul 3, 2017 | Progressive Railroading
The probable cause of a BNSF Railway Co. ethanol train derailment two years ago in South Dakota was related to the railroad’s decision to defer track maintenance and continue operating high-hazard flammable unit trains on the Aberdeen subdivision, the National Transportation Safety Board (NTSB) announced last week.
The incident occurred Sept. 19, 2015, when the train derailed at a small bridge near Lesterville, S.D. The train was hauling three locomotives, 96 loaded tank cars and two hopper cars filled with sand, according to the NTSB report.
Seven cars from the head of the train derailed. Two of the derailed cars breached and released 49,743 gallons of denatured fuel ethanol that caught fire. A third car leaked ethanol from its bottom outlet valve.
No one was injured and the accident did not require an evacuation. The cost of damage was estimated at $1.1 million.
A forward-facing video from a BNSF train that traveled through the area the day before the incident showed misalignment of track in one area, NTSB investigators learned. Further audio captured an "obvious clunking" sound when the engine traversed the location, the report stated.
The board determined that the probable cause of the broken rail, derailment and fire was BNSF's decision to "defer track track maintenance and continue to operate high-hazard flammable unit trains" on the Aberdeen subdivision.
"Contributing to the accident was the Federal Railroad Administration's (FRA) track maintenance regulation that allowed high-hazard flammable unit trains to continue to operate after the track was reclassified to a lower standard," the report stated. "Contributing to the tank car breach and subsequent fire was the continued use of legacy U.S. Department of Transportation-111 tank cars to carry flammable products."
In its recommendations, the NTSB called for:
• the U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) to include the increased derailment risks associated with Class I track, the relationship between rail and rail-car weight, and potential failure of legacy DOT-11 tank cars in the federal regulatory list of items for railroads to consider when determining routes for high-hazard flammable unit trains.
• PHMSA and the FRA to work together to develop guidance for railroads when using the list to analyze proposed routes for those trains or unit trains.http://www.progressiverailroading.com/federal_legislation_regulation/news/NTSB-determines-probable-cause-of-2015-BNSF-derailment--52050
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Canadian National Railway Says Oil Spills after Train Derails in U.S.
Jul 3, 2017 | Reuters (in The New York Times)
n" style="transform: translate3d(0px, 0px, 0px);">Canadian National Railway Co said about 20,000 gallons (76,000 liters) of oil was released following a freight train derailment at Plainfield, Illinois, on Friday, according to a filing with state pollution regulators.
The cause of the derailment was unknown, a filing with the Illinois Emergency Management Agency said on Saturday.
Local media reports estimated the spill to be 45,000 gallons.
The incident occurred when 20 cars of a Canadian National Railway Co freight train, carrying crude for Exxon Mobil Corp to Louisiana, went off the tracks, the Chicago Tribune said in a report on Saturday, quoting officials.
"No one was injured in the derailment. Officials confirmed that oil leaked from two of the cars on the Canadian National freight train, and a possible third car was leaking oil," the report added.
Exxon said in an emailed response that CNR confirmed the train was transporting crude oil from Canada to Louisiana, but the oil major did not confirm whether it was its shipment. It, however, added that operations at its Baton Rouge refinery in Louisiana were normal.
According to a report on the news website of Northwest Herald, most of the derailed cars were cleared by Saturday and the rest were expected to be removed from the site by Sunday.
Cleanup operations of the spilled crude was expected to take a few days, the report said.
https://www.nytimes.com/reuters/2017/07/03/us/03reuters-oil-train-derailment.html
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The Energy 202: What Would Be the Point of Pruitt's "Red Team-Blue Team" Climate Exercise?
Jul 3, 2017 | The Washingotn Post
By Dino Grandoni
"Ahead of the Fourth of July weekend, we were treated to some early fireworks when it was revealed that the Trump administration was indeed taking seriously a proposal to start a formal government-wide effort to challenge of the long-standing scientific consensus on climate change.
While "there are no formal plans within the administration to do anything about it at this time," a senior administration official said according to The Post's Brady Dennis and Juliet Eilperin, Environmental Protection Administrator Scott Pruitt has expressed interest in the idea of formally challenging the scientific consensus that human activity is warming the planet. Energy Secretary Rick Perry is involved in the effort too, two officials said. E&E News first reported the news on Friday.
Such an effort, if it comes to fruition, would in effect seek to undo a scientific project between multiple agencies (EPA, NASA, National Oceanic and Atmospheric Administration...) across multiple presidencies (Barack Obama's, Bill Clinton's, even George W. Bush's...) that has established and strengthened the link between the rise in both global temperatures and the emissions of greenhouse gases from the burning of fossil fuels and other human activity.
It would also raise the question: What is the point such an exercise?
That science largely took place within the traditional peer review process, in which scientists submit their work for evaluation by other researchers in the same field. An academic journal will only publish a paper if the work is up to snuff in the eyes of those peers.
As Pruitt and Perry would have it, climate science would instead be subject to new scrutiny in what's called a “red team-blue team” exercise. Born out of military analysis and spelled out in a Wall Street Journal op-ed by Steve Koonin, a former undersecretary of energy for science in the Obama administration, such an exercise would have a "red team" write a critique of the scientific consensus with a "blue team" writing a rebuttal to that critique. That back-and-forth commentary, all taking place in public view, would then be evaluated and written up by a commission.
But it's unlikely the result of such an exercise would sway many within the scientific establishment, both here and abroad, who are accustom to seeing science done through the peer review process.
It also seems unlikely a "red team-blue team" approach would have standing in the legal system. In 2007, the Supreme Court ruled that the EPA had authority under the Clean Air Act to regulate greenhouse gases from automobiles if the agency determined such planet-warming emissions were a danger to human health. Two years later, with Obama in office, the EPA did just that by issuing a formal "endangerment finding," which created the basis for that administration's regulation of greenhouse gases.
Undoing that endangerment finding requires going through a rigorous rescission process, which would take time and be subject to legal challenges in court. At its face, the "red team-blue team" exercise would do little to contribute to any effort to the legal dismantling the endangerment finding, a Holy Grail of some GOP politicians and activists in that doing so would force future presidential administrations to start over in creating a legal basis for regulating greenhouse gases.
Sen. Ted Cruz (R-Tex.) praised the idea:
"Excellent idea: @EPAScottPruitt formal red team/blue team review to ensure climate policy is based on actual science & data, not politics. https://twitter.com/hughhewitt/status/881473114403635200 …"
Indeed, early reporting indicates that the back-and-forth critique may not take aim at the endangerment finding. Dennis and Eilperin report that two sources with knowledge of the "red team-blue team" effort "said its purpose was not explicitly to help target the agency’s 2009 finding," though "that idea is still under discussion among administration officials."
So what is the point of this potential taxpayer-funded effort, should it happen, if not to change the minds of judges or scientists?
It may be to sway the rest of us.
Polling shows that those like Pruitt, who as Oklahoma's attorney general dismissed the scientific consensus behind climate change, are currently losing the debate over the issue with the U.S. public. The portion of U.S. adults who believe global warming is cause by human activities jumped to 68 percent from 55 percent over the past two years, according to Gallup. The portion of the population who say they worry a great deal about global warming went to 45 percent in 2017 from 32 percent in 2015.
One of the virtues of the "red team-blue team" approach, according to Koonin, the former Energy Department official who wrote about it in the Wall Street Journal, is the public display it would make.
"The process would unfold in full public view," Koonin wrote. The approach would, he said, create a "traceable public record that would allow the public and decision-makers a better understanding of certainties and uncertainties."
Pruitt has proven to be one of the more media-savvy members of Trump's Cabinet. He advocated on television for the United States to withdraw from the Paris climate accord while those members of the Trump administration who privately pushed the president to stay in the agreement did not take to the airwaves to advance their position with the public. Ultimately, Pruitt won out with his TV-obsessed boss.
Pruitt seems to see the value in a publicizing the climate change debate as well.
When discussing Koonin's op-ed on a Breitbart News radio program in June, Pruitt said: "What the American people deserve is a true, legitimate, peer-reviewed, objective, transparent discussion about CO2."
https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2017/07/03/the-energy-202-what-would-be-the-point-of-pruitt-s-red-team-blue-team-climate-exercise/5959a234e9b69b7071abca32/?utm_term=.75e99663128d
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House, Senate GOP Lawmakers Float Bill to Bar Use of SCC Metric
Jul 3, 2017 | Inside EPA
House and Senate Republicans are re-introducing legislation that would bar EPA and several other agencies from using the social cost of carbon (SCC) and related metrics for more-potent greenhouse gases in cost-benefit reviews of regulations that curb emissions.
The bill, H.R. 3117, builds upon a similar prohibition in President Donald Trump's March energy executive order, which disbanded an inter-agency working group that crafted the metric and said the Obama-era tool does not reflect official government policy.
In a June 29 press release, bill sponsor Rep. Evan Jenkins (R-WV) said the bill “will ensure that no future administration can hide behind flawed metrics to justify their regulations.”
The SCC -- and related tools for the potent GHGs methane and nitrous oxide -- are intended to calculate the climate-related costs caused by an incremental ton of GHGs. Those figured can then be used as benefits in cost-benefit reviews of rules that curb emissions.
But Republicans and industry groups have criticized the metrics as speculative, adding that they are not consistent with prior White House guidance on conducting cost-benefit reviews.
The legislation would bar any use of the SCC or related metrics unless they are changed to reflect several factors that critics have raised that would have the effect of significantly lowering the estimated climate damages.
In addition to Jenkins, House co-sponsors include GOP Reps. Rob Bishop (UT), John Culberson (TX), David McKinley (WV), Markwayne Mullin (OK), Steve Womack (AR), Darin LaHood (IL), Bill Flores (TX), Morgan Griffith (VA), Paul Gosar (AZ), Tom Cole (OK), Pete Olson (TX), and Alex Mooney (WV).
Sponsors of a companion Senate bill are Republican Sens. James Lankford (OK), John Barrasso (WY), Roy Blunt (MO), John Cornyn (TX), and James Inhofe (OK).
Despite Trump's executive order, White House budget officials have been mulling a “rigorous” way to update the metric, though any changes would likely reduce the projected damage estimates.
Outside groups have also launched efforts to continue to advance the SCC by incorporating new scientific and economic research. Such efforts could be used by states and potentially by a future administration.
https://insideepa.com/daily-feed/house-senate-gop-lawmakers-float-bill-bar-use-scc-metric
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DEQ to Hold 5 Pipeline Water Quality Hearings across State
Jul 3, 2017 | AP (in the Washington Post)
Virginia environmental regulators are holding five public hearings around the state in August on a permitting process designed to protect water quality along the routes of two proposed natural gas pipelines.
The Department of Environmental Quality is issuing what are called “401 certifications” for the Mountain Valley and Atlantic Coast Pipelines. The certifications will put conditions on pipeline-related activities that may indirectly affect state water along the routes.
Atlantic Coast Pipeline hearings will take place Aug. 7 in Harrisonburg, Aug. 10 in Farmville and Aug. 14 in Dinwiddie. The Mountain Valley hearings will be Aug. 8 in Radford and Aug. 9 in Chatham.
DEQ is also accepting written comments from July 3 through Aug. 22.
The certifications are one of several approvals the projects must receive to go forward.
https://www.washingtonpost.com/local/deq-to-hold-5-pipeline-water-quality-hearings-across-state/2017/07/03/2e27faea-5fae-11e7-80a2-8c226031ac3f_story.html?utm_term=.14069656e044
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DOJ Asks Court To Uphold Denial Of Citizens' Intervention In Cleanup Pact
Jul 3, 2017 | Inside EPA
The Justice Department (DOJ) is asking a federal district court to uphold a magistrate judge's order rejecting citizens' attempt to intervene in a cost recovery cleanup settlement at a high-profile Superfund site in Indiana, arguing such a reversal would allow for hundreds of different "starting times" for challenges to cleanups at residential sites.
The U.S. government asks the U.S. District Court for the Northern District of Indiana, in its de novo review of the decision by Magistrate Judge Paul R. Cherry, to affirm Cherry's denial of citizens' motion to intervene on the basis of untimeliness alone.
"While Applicants' interest in the cleanup of their properties is undisputed, the forum for their input is not this inactive, closed case," DOJ says in a June 14 brief filed with the court. "It is with EPA directly. EPA has solicited and will continue to solicit input from residents on the ongoing cleanup in their neighborhood."
At the same time, DOJ says if the court reverses and finds the intervention motion timely, it should nonetheless reject intervention by finding that the challenge falls under the portion of section 113(h) of the Superfund law that bars judicial review of citizen challenges of Superfund cleanups prior to completion, and does not fall under an exception to that bar typically reserved for potentially responsible parties (PRPs). In what could be precedent-setting if upheld by the district court, the magistrate judge did not view section 113(h) as barring the citizens' challenge.
At issue is an attempt by citizens around the USS Lead Superfund Site in East Chicago, IN, to intervene in a consent decree between EPA and two industrial PRPs governing a cleanup remedy at the former lead smelter site.
The site gained national attention last year after East Chicago officials gave notice that they were requiring demolition of a public housing project on part of the site upon learning from EPA of high residential lead-in-soil levels. EPA informed the officials of the high lead levels several years after the site was placed on the National Priorities List in 2009 and despite multiple requests for information that local officials say were ignored.
In its June 14 brief, DOJ says Cherry properly found that the applicants "knew or should have known of their interest in this matter well before they filed their Motion." Specifically, DOJ says the citizens should have known of their interest by fall of 2014, two years before filing their intervention motion.
In the case, Cherry rejected the citizens' motion to intervene because it was untimely. "Applicants knew about their interest in this now-closed litigation for years before filing the motion, the existing parties would be prejudiced if
Applicants were able to relitigate these settled matters, Applicants have already been given the opportunity to present their objections to the Court and will suffer little prejudice if their motion is denied, and permitting intervention could endanger public health," he said.
DOJ says there is a time limit on public participation in reviewing Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) consent decrees, and in this case, consistent with that law, the proposed consent decree was published with a 30-day comment period in September 2014. EPA also notified residents within two miles of the site of the settlement and of public meetings in November of that year, the brief says. The citizens should have known of their interest in the decree by that time, it says.
The citizens in their May brief sought review by the district court, asserting that the magistrate ignored case law that points to weighing factors generally in favor of supporting intervention rights. Instead, they say, the magistrate favored "a hollow application of the timeliness factors."
'Timeliness' Test
But the federal government disputes the citizens' arguments that the clock for "timeliness" should have started when the residents learned of contamination on their individual properties -- in the fall of 2016. "The most obvious problem with this approach is that it would create hundreds and possibly thousands of different 'starting times' for remedy challenges and judicial intervention in residential cleanup sites," DOJ says in the brief. Congress did not intend such an outcome in writing CERCLA, it says.
"Moreover, such a holding would turn the Superfund site cleanup process on its head," DOJ says. It explains that EPA followed the typical Superfund process at the site, by first studying the site to broadly identify contamination and weigh remedies; then choosing a remedy and issuing the record of decision; third, negotiating the consent decree to provide funding and implement the remedy; and fourth, using the funding from the decree to initiate remedial design by collecting samples from hundreds of residential properties to determine where cleanup is needed.
But the government says, "Applicants now claim that knowledge about data generated during Remedial Design (Step Four) is the 'starting point' to secure relief both from the terms of the Consent Decree (Step Three) and ultimately the remedy selected (Step Two). But data generated during Remedial Design cannot be used to question the adequacy of the mechanism (i.e., the Consent Decree) that provided the funding for the sampling, much less the adequacy of the remedy that triggered the need for the detailed data collection in the first place," it says.
On the section 113(h) bar, Cherry rejected DOJ's argument on a matter that could set a precedent if endorsed by the district court. He rejected previous arguments by DOJ that the court lacks jurisdiction to grant plaintiffs' relief because of CERCLA's 113(h) bar. The bar does not apply under certain exceptions, one of which is if the action falls under a section 107 cost recovery action.
Cherry says that while "the challenge itself is not one of the listed exceptions, the first claim for relief in the Complaint that initiated this litigation is for cost recovery under [section 107]." Therefore, if the citizens are permitted to intervene, their challenge to the remedial action, "by virtue of the original Complaint," is "'in an action' covered by the exception found in" CERCLA section 113(h)(1).
On this, DOJ says in its June brief that the applicants cannot rely on section 113(h)(1) because they are not PRPs, pointing to legislative history that supports the exception applies only to PRPs, which are allowed to challenge a remedial action once a section 107 order is filed against them.
But, DOJ says, "[e]ven if Section 113(h)(1) could be interpreted to allow a citizen suit cloaked as an intervention motion in a Section 107 . . . enforcement action against responsible parties, it does not permit it in this case.
"There is no current 'action under section 107' as that phrase is used in Section 113(h)(1). There was an action under Section 107, but it ended and the case was closed," DOJ says.
The residents, represented by two university law clinics and a law firm conducting pro bono work, have been seeking to intervene in the 2014 consent decree in an attempt to push EPA to recognize the various sources of lead that can burden an environmental justice community. The citizens want EPA to more broadly address cumulative impacts for lead at the site.
If the litigation is successful, it could set a precedent for expanding citizens' voice in cleanups. It could effectively push EPA and PRPs at sites to give greater consideration to citizens' concerns when negotiating consent decrees, Mark Templeton, a law professor at the University of Chicago who represents the citizens in the lead cleanup, previously told Inside EPA.
https://insideepa.com/daily-news/doj-asks-court-uphold-denial-citizens-intervention-cleanup-pact
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