Preview Newsletter
ACC AM 7/27
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Trump Nominates Acting Chair Buerkle to Permanently Head CPSC
Jul 27, 2017 | Chemical Watch
The Trump administration has indicated it will nominate current acting chair of the Consumer Product Safety Commission Ann Marie Buerkle to permanently fill the role, and to serve an additional seven-year term beginning in October 2018. -
EPA Issues TSCA 'Not Likely to Present Unreasonable Risk' Findings
Jul 27, 2017 | Chemical Watch
The US EPA has published TSCA section 5(a)(3)(C) determinations for two polymers that were the subject of pre-manufacture notices (PMNs). -
US EPA Issues Three Major Rules Affecting Chemicals Industry
Jul 26, 2017 | The National Law Review
On June 22, 2017, US EPA issued three major rules required by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA), which amended the Toxic Substances Control Act (TSCA) in 2016. -
Products With Flame Retardants in Foam Face San Francisco Ban
Jul 27, 2017 | BNA Daily Environment Report
By Carolyn Whetzel
Upholstered furniture and children's products treated with chemical retardants could be gone from San Francisco stores if a new local ordinance passes. -
Competent Authorities Back Inclusion of Commission's EDC Criteria in the BPR
Jul 27, 2017 | Chemical Watch
At their 12 July meeting, the EU competent authorities (CAs) for biocides voted for the adoption of a regulation that would incorporate the European Commission's proposed scientific criteria for identifying endocrine disrupting chemicals into the biocidal products Regulation. -
What Are Phthalates … And Why Are They in Your Mac and Cheese?
Jul 26, 2017 | Healthline
By Kimberly Holland
Researchers say the 'everywhere chemical' is found in most products we buy, but phthalates in food can pose health risks. -
Your Utility May Not Tell You About All Contaminants in Your Tap Water. EWG Will.
Jul 26, 2017 | Environmental Working Group
By Robert Coleman
The Environmental Protection Agency requires every U.S. public water system to send its customers an annual report on the quality of their drinking water. -
Dems Mobilize Against Bill to Weaken Clean Air Act Mandates
Jul 27, 2017 | E&E Daily
By Sean Reilly
Key Senate Democrats are voicing reservations or outright opposition to a House-passed bill to loosen the Clean Air Act, underscoring doubts about the measure's chances of becoming law, despite President Trump's eagerness to roll back environmental regulations. -
Causes of ExxonMobil Explosion Detailed in Coming Report
Jul 27, 2017 | BNA Daily Environment Report
By Sylvia Carignan
The cause of a November 2016 explosion at an ExxonMobil refinery in Baton Rouge, La. will be revealed in a U.S. Chemical Safety Board report to be released in the next month, according to Vanessa Sutherland, the board's chair. -
What is Positive Train Control?
Jul 26, 2017 | North Jersey
By Curtis Tate
Positive Train Control is a collision-avoidance system required by Congress in the Rail Safety Improvement Act of 2008. -
EPA To Seek En Banc Review In Methane NSPS Delay Suit, Sources Expect
Jul 26, 2017 | Inside EPA
By Abby Smith
Faced with a July 27 judicial deadline to restart implementation of Obama-era methane limits for new oil and gas operations, sources expect EPA to petition the full U.S. Court of Appeals for the District of Columbia Circuit to reconsider a court panel's ruling vacating its 90-day administrative stay of key portions of the rule. -
The Energy 202: House GOP Wants to Slick the Skids for Water Rule Repeal
Jul 26, 2017 | The Washington Post
By Dino Grandoni
Repealing a major clean water rule issued under President Obama has been such a priority for the Trump administration that the White House launched a landing page in January explaining why the rule needed to go just moments after Trump took his oath of office. -
EPA to Seek Comments on Obama Water Rule Repeal
Jul 26, 2017 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is allowing the public to weigh in on its proposal to repeal the Obama administration’s controversial water pollution rule. -
Dem Senators Pitch Carbon Tax to Conservatives
Jul 27, 2017 | The Hill - E2 Wire
By Timothy Cama
Two Democratic senators spoke at a conservative think tank Wednesday to introduce legislation to establish a tax on carbon dioxide emissions.
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Trump Nominates Acting Chair Buerkle to Permanently Head CPSC
Jul 27, 2017 | Chemical Watch
The Trump administration has indicated it will nominate current acting chair of the Consumer Product Safety Commission Ann Marie Buerkle to permanently fill the role, and to serve an additional seven-year term beginning in October 2018.
Ms Buerkle has been heading the agency since former chair Elliott Kaye vacated the role following the president’s inauguration earlier this year. Her appointment requires Senate approval in order to take effect.
In response to the nomination, Ms Buerkle said she looks forward to continuing her work protecting consumers "in collaboration with my colleagues, the dedicated staff, and all stakeholders from the product safety community."
The president appoints CPSC commissioners and they are subject to Congressional approval. They are affiliated with political parties, although no more than three commissioners can belong to the same one.
Ms Buerkle and commissioner Joseph Mohorovic both represent the Republican party, with commissioners Kaye, Robert Adler and Marietta Robinson representing the Democratic majority. It is widely anticipated that a Republican appointee will replace Ms Robinson when her term expires in October.
Last year, Ms Buerkle told the Toy Industry Association that state-level regulation of chemicals in toys bring "confusion" and "chaos". She has also advocated for faster progress on providing third-party testing relief to the industry.
Prior to joining the CPSC in 2013, she served as a Republican representative to New York in Congress, and as an assistant attorney general for the state.
https://chemicalwatch.com/57917/trump-nominates-acting-chair-buerkle-to-permanently-head-cpsc
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EPA Issues TSCA 'Not Likely to Present Unreasonable Risk' Findings
Jul 27, 2017 | Chemical Watch
The US EPA has published TSCA section 5(a)(3)(C) determinations for two polymers that were the subject of pre-manufacture notices (PMNs).
In both cases, the substances were determined not likely to present an unreasonable risk based on low human health and environmental hazard. The designations carry a polymer exemption flag, which requires that the substance be manufactured such that it meets the exemption criteria.
The substances are:1,4-benzenedicarboxylic acid, polymer with hexanedioic acid and 1,6-hexanediol; andgeneric polyester of aliphatic glycols and aromatic diacids.
The agency made the determinations on 6 and 14 July for reviews that began on 11 November and 25 January, respectively.
https://chemicalwatch.com/57918/epa-issues-tsca-not-likely-to-present-unreasonable-risk-findings
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US EPA Issues Three Major Rules Affecting Chemicals Industry
Jul 26, 2017 | The National Law Review
On June 22, 2017, US EPA issued three major rules required by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA), which amended the Toxic Substances Control Act (TSCA) in 2016. The three TSCA rules addressed: (1) “resetting” the TSCA Inventory, (2) chemical substances prioritization, and (3) risk evaluations for chemical substances. The Prioritization and Risk Evaluation rules were published in the Federal Register on July 20. As of the date of this writing, the Inventory Reset rule has not yet been published in the Federal Register. Squire Patton Boggs has prepared detailed client alerts addressing each of these rules and their implementation. A summary of each rule along with the client alert link is provided below.TSCA Inventory Reset Rule
The Inventory Reset Rule requires every chemical manufacturer and importer to notify US EPA of each chemical substance it manufactured or imported for a non-exempt commercial purpose in the US during the 10-year period ending June 21, 2016 (the “lookback period”). Manufacturers and importers must provide this notification to US EPA within 180 days from the date on which the rule is formally published in the Federal Register. Each chemical substance for which US EPA receives such a notification will be designated as “active” on the TSCA Inventory.
The rule also gives chemical processors the option to report to US EPA any chemical substance they processed during the same lookback period, but they must do so within 420 days from the rule’s Federal Register publication date. Processors are given an extended submission period to allow them to review a “draft” version of the revised Inventory that US EPA will issue approximately 60 days after the close of the 180-day reporting period for manufacturers and importers. Processors thus will have roughly 180 days after US EPA issues the draft revised Inventory to identify any chemical substances that manufacturers have failed to designate as “active” and submit notices to US EPA for the substances they processed during the lookback period, in order to keep such substances from being designated as inactive.
Any chemical substance not reported to US EPA by a manufacturer, importer or processor by the applicable deadline will be designated as “inactive” on the Inventory. Once the Inventory “reset” is finalized, no one may manufacture, import or process an inactive substance without giving US EPA prior notice not more than 90 days before the anticipated date of manufacturing, importing or processing. TSCA Prioritization Rule
Under the amended TSCA, US EPA is required to prioritize chemical substances on the TSCA Inventory as “high priority” or “low priority.” US EPA then must conduct risk evaluations on the high priority substances. The Prioritization Rule sets forth a three-step process that US EPA will follow for prioritizing chemical substances on the TSCA Inventory: (1) initiation; (2) proposed designation; and (3) final designation. Once formally initiated (Step 1), the prioritization process must last at least nine months, but cannot last longer than 12 months.
The amended TSCA requires US EPA to give preference to substances listed in the agency’s 2014 TSCA Work Plan that are persistent and bioaccumulative, that are known human carcinogens and/or have high acute and chronic toxicity. Additionally, because the amended TSCA requires that 50% of all ongoing risk evaluations be conducted on substances listed on the Work Plan, the agency intends to draw at least 50% of the high-priority substances from the Work Plan. Although substances newly added to the TSCA Inventory are candidates for prioritization, the preamble to the rule states that such substances are not likely to be high-priority candidates given that they recently have undergone premanufacture notice (PMN) review.TSCA Risk Evaluation Rule
The Risk Evaluation Rule outlines the process by which it will conduct risk evaluations on chemical substances under the amended Toxic Substances Control Act (TSCA), to determine whether the substances present an unreasonable risk of injury to health or the environment under the conditions of use. The steps in US EPA’s risk evaluation process include the scope of the risk evaluation, hazard assessment, exposure assessment, risk characterization and risk determination. US EPA will use this process for (1) the first 10 chemical substances that it selected for risk evaluation from its Work Plan chemicals list last November (as required by the amended TSCA); (2) substances designated as high-priority substances during the prioritization process; and (3) substances for which US EPA initiates a risk evaluation in response to manufacturer requests.
Each risk evaluation must: (1) integrate and assess available information on hazards and exposure for the conditions of use of the chemical substance, including information on specific risks of injury to health or the environment and information on potentially exposed or susceptible subpopulations; (2) describe whether aggregate or sentinel exposures were considered and the basis for that consideration; (3) take into account, where relevant, the likely duration, intensity, frequency and number of exposures under the conditions of use; and (4) describe the weight of the scientific evidence for the identified hazards and exposure.
https://www.natlawreview.com/article/us-epa-issues-three-major-rules-affecting-chemicals-industry
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Products With Flame Retardants in Foam Face San Francisco Ban
Jul 27, 2017 | BNA Daily Environment Report
By Carolyn Whetzel
Upholstered furniture and children's products treated with chemical retardants could be gone from San Francisco stores if a new local ordinance passes.
City and County Supervisor Mark Farrell introduced a measure July 25, seeking to ban retailers, such as Target and Macy's, from selling new or reupholstered furniture, nap mats, highchairs, strollers and other products for infants and children with foam containing more than 1,000 parts per million of any flame retardant chemical. Violators could face fines and potential legal actions by the city attorney and some nonprofit groups.
If approved, the ordinance would require the city's Environment Department to develop a list of “non-harmful” flame retardants that would be exempt.
Flame retardant chemicals get on indoor dust that can be inhaled and ingested, posing health and environmental risks, the proposal said. Studies show that concentrations of flame retardants in indoor dust are 1.5 to 50 times greater than what is found outside.
“Given that humans spend 80 percent of their time indoors, human exposure to flame retardants can be significant,” the proposal said.
California has already banned the use of two brominated flame retardants, octa- and penta-brominated diphenyl ethers, in products at levels exceeding a tenth of a percent.
State toxics regulators have identified children's foam products that contain Tris (1,3-dichloro-2-propyl) phosphate (TDCPP) and Tris (2-chloroethyl) phosphate (TCEP), both linked to cancer, as priority goods for which manufacturers must find safer alternatives.
While the state bans on two chemicals have reduced the use of some harmful flame retardants, others such as those targeted by the proposed city ordinance remain in use, the proposal said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=117593111&vname=dennotallissues&fn=117593111&jd=117593111
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Competent Authorities Back Inclusion of Commission's EDC Criteria in the BPR
Jul 27, 2017 | Chemical Watch
At their 12 July meeting, the EU competent authorities (CAs) for biocides voted for the adoption of a regulation that would incorporate the European Commission's proposed scientific criteria for identifying endocrine disrupting chemicals into the biocidal products Regulation.
A week earlier a separate committee of member state officials, dealing with pesticides regulation, backed their inclusion in the Regulation on plant protection products.
The Commission also provided the biocides meeting with two documents outlining how the criteria will be implemented in the authorisation procedures for biocidal substances and biocidal products.
Echa will be tasked with identifying potential EDCs among the 150 approved active substances. The agency has already warned its management board that this will mean a resource squeeze that it might not be able to handle without significant additional fee income.
The Commission will begin a review of active substances that are suspected of being EDCs. And, together with the CAs, it will start to look at authorisations of biocidal products with potential endocrine disrupting properties to see if they should be cancelled or amended.Next steps
The European Council and Parliament have another two months to veto the implementing Regulations for biocides and plant protection products. This would require a parliamentary majority, or a qualified majority in the Council. Some NGOs, as well as Green MEPs, are trying to gather support for this.
Sweden, which opposed the proposal in the biocides CA meeting as well as in the pesticides committee, said the criteria would not provide adequate protection for health and the environment. But Kemi, the Swedish Chemicals Agency, told CW+BiocidesHub that it has no comment on whether the country will take any further action.
If the Regulations are not vetoed they will apply after a six-month transitional period. During this time Echa and the European Food Safety Authority (Efsa) will finalise joint guidance on their implementation.
https://chemicalwatch.com/57922/competent-authorities-back-inclusion-of-commissions-edc-criteria-in-the-bpr
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What Are Phthalates … And Why Are They in Your Mac and Cheese?
Jul 26, 2017 | Healthline
By Kimberly Holland
Researchers say the 'everywhere chemical' is found in most products we buy, but phthalates in food can pose health risks. Yet not everyone agrees.
Before you bite into your next mouthful of macaroni and cheese, consider a new report that warns you may be biting into a spoonful of chemicals.
Earlier this month, a group of environmental advocacy organizations released findings from a series of tests conducted on cheese and cheese products available commercially in the United States.
Foods that were tested included block and string cheeses, plastic-wrapped cheese slices, and cheese powder from boxed macaroni and cheese.
The samples were purchased from stores in the United States and shipped to a European laboratory for analysis.
Researchers said they found that 29 of the 30 cheese products they tested contained chemicals called phthalates.
The amount of these chemicals was four times higher in cheese powder and three times higher in processed cheese slices.
Phthalates are industrial chemicals used to make plastics softer and more flexible. They’re also used in rubber, adhesives, inks, sealants, and protective wrappings. And they’re found in cosmetics, fragrances, skin creams, and even fast foods.
In other words, they’re in almost everything we touch every day, which is why they’ve been given the nickname “the everywhere chemical.”Health issues raised
However, that doesn’t mean phthalates are safe.
According to the National Institutes of Health (NIH), phthalates are considered endocrine disruptors. These chemicals may interfere with your body’s natural hormones and reproductive system.
In 2006, the NIH’s National Toxicology Program released a study that concluded exposure to the phthalate DEHP could interfere with human development, especially in infant boys.
The cumulative exposure to phthalates, the study found, may have an impact on a child’s development.
Shortly after this study was released, the U.S. Food and Drug Administration (FDA), and the United States Congress, banned several phthalates from children’s teething rings, pacifiers, and rubber duck toys.
Many more of these chemicals are banned in European countries, in everything from toys to food packaging.
“They are chemicals of concern because they can either mimic or displace hormones in the body, and can be active in the body at very low doses,” Jen Coleman, health communications and outreach director for Oregon Environmental Council, told Healthline. “Because hormones are basically chemical messengers in the body, interfering with them can affect health in a wide variety of ways — everything from mood to hunger to reproduction. For this reason, phthalates can be especially harmful to infants and children, as their bodies are growing and developing.”
Today, some U.S. consumer organizations are working toward a federal ban of these plasticizers in a growing list of products.
Their goal is to eliminate the chemicals as an approved substance so that accidental exposure, for people of all ages, is reduced. Their biggest target: food packages.
The group of organizations that paid for the cheese study includes the Center for Food Safety, Ecology Center, Healthy Babies Bright Futures, and Toxic-Free Future.
Many of these organizations have been petitioning food companies and the FDA to ban all phthalates from food packaging and food handling equipment for several years.
Perhaps that’s why this study was not published in a peer-reviewed journal, but first posted on the petition site KleanUpKraft.org.Is your mac and cheese poisoning you?
Few foods are as universally loved as ooey-gooey macaroni and cheese.
But true macaroni and cheese, with its homemade béchamel sauce, is a bit tedious to make from scratch.
That’s why boxed versions of the comfort food, which can be made in a matter of minutes and use either prepared cheese sauces or powdered cheese products, are popular.
In fact, more than 2 million boxes of packaged macaroni and cheese are sold in the United States each day.
It’s no wonder then why the headline The Chemicals in Your Mac and Cheese garnered a viral buzz on social platforms after the study findings were released.
To put the lab’s findings into perspective, it’s important to understand how phthalates end up in food in the first place.
You won’t see them listed on your food’s ingredient list. They’re not additives in the way food coloring or preservatives are.
Instead, phthalates are a byproduct of manufacturing and storing foods. In other words, your food will come into contact with these chemicals during production, processing, or storage. Over time, some of the chemicals can migrate into the foods.
“We cannot take cheese and hand deliver it from a farm to your kitchen,” Josh Bloom, PhD, director of chemical and pharmaceutical sciences at the American Council on Science and Health, told Healthline. “Food needs to be put in a package. All packaging material contains chemicals, and tiny quantities will inevitably leach into the food. This has been going on ever since food has been wrapped.”
Cheese was a particularly good research vessel for the consumer group because studies have found that phthalates bind to fats in food. Higher-fat foods, like cheese and other dairy foods, may have higher levels of the chemicals for this reason.
Foods like individual cheese slices and powdered cheese also have more surface area exposed to the manufacturing equipment and packaging. The more surface area a food has, the more likely it is chemicals can migrate into it.
“The higher the fat content, the more likely a good is to pick up phthalates,” Coleman said. “But even after adjusting for fat content, powder has more phthalates than unprocessed cheese. This suggests that phthalates are introduced during processing.”
The researchers looked for 13 different types of the chemical and found 10 throughout the 30 samples. Indeed, all but one of these cheese products contained at least one phthalate.
One product had six different types. Even organic foods contained the chemicals.
“Organic food is a good idea for many reasons, and it does have standards for packaging and processing,” said Coleman. “However, phthalates may be introduced to food through tubing, hoses, conveyor belts, and gloves, or through the coating and adhesives in food packaging.”Can you avoid phthalates?
“Modern analytical techniques can detect vanishingly small quantities of almost any chemical. Since phthalates are ubiquitous in everyday life, it would be astonishing if they were not found at all,” Bloom said. “The presence of a chemical says nothing about the harm or lack thereof of the chemical, yet the fact that it can be detected is a useful scare tactic.”
However, groups like the organizations that funded the study hope to make avoiding the chemicals easier by eliminating them entirely.
“Nobody can avoid all phthalates exposure, no matter where they live or what choices they make,” said Coleman, whose group believes the chemicals should be eliminated from food packaging. “But it is a good precautionary approach to try to avoid them and reduce exposures that add up. So choosing food packaging, household materials, and beauty products that are phthalate-free is a good place to start. What’s more, choosing products without phthalates is voting with your wallet. It sends a clear message to the marketplace that people are aware of this health hazard and will value companies that are making choices to protect health.”
In a statement to Time magazine, a spokesperson for the Kraft Heinz Company, which makes the majority of prepared macaroni and cheese products on the market, said that these chemicals are not added to its products, and “the trace amounts that were reported in this study are more than 1,000 times lower than levels that scientific authorities have identified as acceptable.”
An FDA spokeswoman told The New York Times that the agency currently regulates all substances that can come into contact and possibly leach into food. These includes phthalates.
A portion of funding for the organization Bloom works for is provided by private donors and corporations. The company does not make its corporate donors list public, but they state that these contributions in no way influence their work or agenda.
“The problem with phthalates are cumulative, but for a smaller person, like a developing child, more can be problematic,” Josh Axe, DC, owner of Axe Wellness and Ancient Nutrition and a clinical nutritionist, told Healthline.
It’s unclear how many phthalates the average person encounters per day, and at what point it tips the scale to problematic.
Each phthalate is different, as is each person. Certain populations, including children and infants, may be more asking the FDA to ban phthalates — differently.
He sees it as a marketing ploy.
“Encouraging people to petition companies to remove all chemicals from boxes is manipulative nonsense with an obvious agenda,” he said. “Assuming that it was even possible to get rid of all traces of phthalates, another chemical would replace them in the blink of an eye. There is way too much money to be made by keeping people scared of chemicals.”
A portion of funding for the organization Bloom works for is provided by private donors and corporations. The company does not make its corporate donors list public, but they state that these contributions in no way influence their work or agenda.
“The problem with phthalates are cumulative, but for a smaller person, like a developing child, more can be problematic,” Josh Axe, DC, owner of Axe Wellness and Ancient Nutrition and a clinical nutritionist, told Healthline.
It’s unclear how many phthalates the average person encounters per day, and at what point it tips the scale to problematic.
Each phthalate is different, as is each person. Certain populations, including children and infants, may be more vulnerable.
Even then, knowing what’s too much is almost impossible because phthalate levels aren’t universally seen as dangerous, and they’re not monitored in foods.
The actionable advice from this study, Axe suggests, is simple.
If you want to avoid these chemicals, eat a balanced diet that incorporates whole foods, including fruits and vegetables, grains, lean proteins, and healthy fats.
Eat heavily processed foods in moderation, and store foods in glass or stainless steels, not plastic.
These steps may not eliminate the chemicals, but if you are concerned, they’ll go a long way to reducing them in your diet.
http://www.healthline.com/health-news/what-are-phthalates-and-why-are-they-in-mac-and-cheese#7
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Your Utility May Not Tell You About All Contaminants in Your Tap Water. EWG Will.
Jul 26, 2017 | Environmental Working Group
By Robert Coleman
The Environmental Protection Agency requires every U.S. public water system to send its customers an annual report on the quality of their drinking water. These Consumer Confidence Reports, or CCRs, detail the utility’s compliance with the federal Safe Drinking Water Act and disclose levels of contaminants regulated under the law that were detected through sampling and testing.
I recently received my local CCR in the mail, and was taken aback by how lacking it was in information about the contaminants my utility detected in the drinking water it provides to me and the other 681,000 residents of Washington, D.C. For me, the report raised more questions than it answered:How could these contaminants affect my health?How does my tap water compare to that in other cities across the country?What about other contaminants that aren’t regulated?
EWG’s recently released national Tap Water Database fills in the gaps. With a simple zip code search, you can learn a lot about your tap water that your CCR may leave out. Here’s how our database and the information it delivers stacks up against a typical CCR:
http://www.ewg.org/enviroblog/2017/07/your-utility-may-not-tell-you-about-all-contaminants-your-tap-water-ewg-will#.WXmp6YSGPb0
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Dems Mobilize Against Bill to Weaken Clean Air Act Mandates
Jul 27, 2017 | E&E Daily
By Sean Reilly
Key Senate Democrats are voicing reservations or outright opposition to a House-passed bill to loosen the Clean Air Act, underscoring doubts about the measure's chances of becoming law, despite President Trump's eagerness to roll back environmental regulations.
H.R. 806 would delay implementation of U.S. EPA's 2015 ozone standard by eight years and permanently stretch the act's timetable for future pollutant reviews. It won House approval last week on a mostly party-line vote.
But a Senate counterpart, S. 263, is becalmed in the Environment and Public Works Committee almost six months after its introduction.
"Oh, I oppose it," Sen. Ben Cardin of Maryland, the committee's No. 2 Democrat, said in an interview this week. As Maryland officials threaten court action to force EPA to clamp down on ozone-forming pollution allegedly blowing in from other states, "we think it [implementation] should move forward," Cardin said.
Also opposed is EPW ranking Democrat Tom Carper of Delaware, where regulators also blame out-of-state polluters for ozone compliance problems.
Before opting to tighten the standard to 70 parts per billion two years ago, EPA reviewed more than 1,000 studies, Carper said in a statement.
Undercutting "the clear science regarding harmful ozone pollution would be irresponsible and would put countless Americans at risk, including the 6.3 million children in this country who suffer from asthma," he added.
Sen. Kamala Harris (D-Calif.), a freshman EPW member, said she would need to study the bill, but added that "it sounds like something I would not support."
Under Senate rules, strong opposition of a single member is often enough to sink a piece of legislation. Asked for comment, a spokeswoman for Sen. Shelley Moore Capito (R-W.Va.), the lead sponsor of S. 263, said the senator was still working to advance the measure, dubbed the "Ozone Standards Implementation Act," "either as a stand-alone bill or as part of broader legislation."
Two months after a subcommittee hearing, no markup has been scheduled. Although congressional Republicans earlier this year made enthusiastic use of the Congressional Review Act — which allows repeal of recent regulations with only simple majorities in both the House and Senate — to undo rules from EPA and other agencies, they face a more formidable challenge in revisiting older standards that are in some form embedded in federal statutes.
That means changing the law, and in the Senate nowadays, all but routine measures need at least 60 votes to pass. Republicans control only 52.
"If you want to get something signed into law, you really have to work on both sides of the aisle," Rep. Jerry McNerney (D-Calif.) said during last week's floor debate on H.R. 806, passed with the backing of just four Democrats.
Rep. John Shimkus (R-Ill.), chairman of the House Energy and Commerce Subcommittee on Environment, tacitly conceded McNerney's point.
"It is, I think, to both of our losses," Shimkus said.'Rush into implementation'
Ozone, the main ingredient in smog, is linked to asthma attacks in children and worsened breathing problems for people with emphysema and other chronic respiratory diseases. The previous ozone standard, set in 2008, had been 75 ppb.
Then-EPA Administrator Gina McCarthy opted to lower it to 70 ppb in 2015 based on the legal requirement to protect public health in light of available scientific evidence.
But because the agency had only months earlier issued formal implementation guidance for the 2008 benchmark, Capito and other critics argue that states and industries could have to juggle compliance with two standards.
"Ground-level ozone is already declining nationwide due to emissions controls," Capito said at the subcommittee hearing on her bill (E&E Daily, May 24). "There is no need to rush into implementation of new standards when the trend lines are positive."
The legislation would roll back attainment designations for the 2015 standard, which had been scheduled for this October under the Clean Air Act's usual timetable, until 2025.
It would also lengthen the cycle for reviewing air quality limits for ozone, lead and four other key pollutants in the future from once every five years to once every decade.
Similar legislation also passed the House last year, only to die in the Senate following Democratic opposition and an Obama administration veto threat.
While President Trump would likely sign this year's version if given the opportunity, there's no sign that the bill has picked up any momentum at a result.
At the American Lung Association, a leading foe, "I think we're in a strong position" to block a stand-alone bill from moving forward, Paul Billings, the organization's senior vice president for advocacy, said in an interview.
The association is nonetheless on guard for policy riders that would wrap some of the legislation's provisions into other must-pass measures, he said.
The House Appropriations Committee, for example, last week approved a fiscal 2018 EPA spending bill that would incorporate the implementation delay (E&E Daily, July 19).
The House inserted a similar rider during last year's appropriations cycle, but the provision was dropped from the version that became law.
The Trump administration is meanwhile acting on its own. Last month, EPA Administrator Scott Pruitt delayed the ozone attainment designations until October 2018, citing a Clean Air Act waiver that allows for a year's postponement when more information is needed. Public health and environmental advocacy groups are suing to overturn that decision.
The administration's move to review its underlying position on the 2015 ozone standard has also alarmed California, Delaware and five other Democratic-led states.
They have asked the U.S. Court of Appeals for the District of Columbia Circuit for permission to intervene in lawsuits challenging the standard on the presumption that EPA may no longer be willing to defend it. The court has not yet ruled on that motion.
https://www.eenews.net/eedaily/2017/07/27/stories/1060057989
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Causes of ExxonMobil Explosion Detailed in Coming Report
Jul 27, 2017 | BNA Daily Environment Report
By Sylvia Carignan
The cause of a November 2016 explosion at an ExxonMobil refinery in Baton Rouge, La. will be revealed in a U.S. Chemical Safety Board report to be released in the next month, according to Vanessa Sutherland, the board's chair.
It will recommend that companies continue to evaluate human interactions with machine design, ensure written procedures are accurate and detailed, and provide adequate training.
A CSB animation depicting the Nov. 22, 2016, explosion shows that a vapor cloud formed during workers’ maintenance activities on an isobutane pump. The cloud ignited, resulting in an explosion that severely injured four people at the Louisiana facility.
Board member Richard Engler cautioned that the animation does not provide a complete picture of the investigation's findings.
“The description of the incident is not the cause of the incident,” he said at a board meeting July 26.
Board members are reviewing a draft of the final report.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=117593107&vname=dennotallissues&fn=117593107&jd=117593107
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What is Positive Train Control?
Jul 26, 2017 | North Jersey
By Curtis Tate
Positive Train Control is a collision-avoidance system required by Congress in the Rail Safety Improvement Act of 2008.
Lawmakers enacted the requirement after the head-on collision between a Metrolink commuter train and a Union Pacific freight train in Chatsworth, Calif.
Twenty-five people were killed, including the Metrolink engineer, whose cellphone records showed he was texting before the crash. His train had run past a stop signal into the freight train’s path, an error Positive Train Control is designed to prevent.
The 2008 law required the system’s installation on all passenger-train routes and freight lines with high volumes of hazardous materials shipments by December 2015.
Citing the system’s cost and complexity, railroad industry groups lobbied lawmakers for a three-year extension, and they got it.
However, not every commuter or freight railroad will have Positive Train Control by the new deadline, according to the Federal Railroad Administration.
Trinity Railway Express, a commuter railroad in Dallas-Fort Worth, won’t have its system ready until 2019, and three others won’t be ready until 2020, including Boston’s MBTA.
Additionally, three of North America’s largest freight carriers, CSX, Norfolk Southern and Canadian National, also won’t have Positive Train Control fully installed until 2020.
http://www.northjersey.com/story/news/transportation/2017/07/26/what-positive-train-control/512628001/
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EPA To Seek En Banc Review In Methane NSPS Delay Suit, Sources Expect
Jul 26, 2017 | Inside EPA
By Abby Smith
Faced with a July 27 judicial deadline to restart implementation of Obama-era methane limits for new oil and gas operations, sources expect EPA to petition the full U.S. Court of Appeals for the District of Columbia Circuit to reconsider a court panel's ruling vacating its 90-day administrative stay of key portions of the rule.
But it is unclear if such a petition would postpone issuance of the court's mandate that EPA implement the rule while the full D.C. Circuit considers whether to hear the appeal or whether EPA would have to separately request that the court further withhold the mandate.
The issue is complex because the majority of the three-judge panel of the D.C. Circuit that originally heard the case, Clean Air Council (CAC), et al. v. Pruitt, et al., immediately issued its mandate requiring EPA to lift its 90-day administrative stay of the methane new source performance standards (NSPS) and begin implementing the regulation. But the majority subsequently granted EPA's motion to recall the mandate, though just for a “limited period” of 14 days.
The agency faces a problem, though, given it is working on a proposed rule to further delay the methane NSPS by two years. Comments on that proposal are not due until Aug. 9 -- meaning EPA likely cannot finalize that delay until the end of August at the earliest, even on an “aggressive” timeline.
That means that oil and gas firms might be required to comply with the rule's deadlines as written -- even though some have already passed. And if they are not in a position to quickly comply, they could face the threat of citizen suits.
EPA's “goal is to get to the end of August,” when the agency could be in the position to issue its final rule further delaying the NSPS, one industry attorney says. The source suggests EPA could attempt to more quickly turn around its proposed rulemaking to delay the rule by two years -- and a separate proposal to delay it by three months -- but adds there is likely to be “a gap” during which the rule is in effect.
The D.C. Circuit panel in a split July 3 ruling vacated EPA's 90-day administrative stay of the NSPS, which set first-time limits on emissions of the potent greenhouse gas methane from the oil and gas sector.
The majority of the court -- Judges David Tatel and Robert Wilkins -- sided with environmentalists' arguments that EPA improperly used its authority under Clean Air Act section 307(d)(7)(B) to delay the rule, and immediately issued a mandate that EPA lift the stay. Judge Janice Rogers Brown dissented, arguing the court lacked authority to review the stay because it was linked with reconsideration of the rule and thus not a final action.
EPA subsequently asked the panel to recall its mandate, arguing that the agency should be afforded the standard time to evaluate options for appeal before the mandate is issued. Federal agencies are allowed 45 days to petition for panel rehearing, rehearing en banc or for writ of certiorari at the Supreme Court, and EPA argued that the court typically does not issue its mandate until one week after that deadline passes.
The agency's request also said the immediate mandate placed the oil and gas industry at risk of noncompliance.
In a brief July 13 order, the panel majority granted the motion to recall the mandate, though only for 14 days. That would “give EPA time to 'determine whether to seek panel rehearing, rehearing en banc, or pursue other relief,'” the court wrote, quoting EPA's July 7 recall motion.
But the panel majority also appeared to agree with arguments from environmentalists and allied states that given the short duration of EPA's administrative stay of the rule, giving it the full 52 days before the mandate is issued would effectively undercut the court's ruling.
“To stay issuance of the mandate for longer would hand the agency, in all practical effect, the very delay in implementation this panel determined to be 'arbitrary, capricious, [and] . . . in excess of [EPA's] statutory . . . authority,” the order read.
Brown also supported granting the motion to recall the mandate -- though she urged “normal procedure,” thus giving EPA the full 52 days “rather than a truncated time-frame which shortchanges all sides.”
Conflicting Views
Several sources say EPA's most likely option is to petition the D.C. Circuit to rehear the case en banc, but due to the atypical circumstances surrounding the mandate, there are conflicting views over whether such a petition would automatically delay the mandate -- thus buying EPA some time to craft its two-year stay rulemaking.
One attorney with an academic institution says the court “keeps the mandate while they consider” a petition for rehearing en banc. That source expects EPA to file its petition for en banc review late July 27. “They're going to use up as much time as they can.”
That source points to federal appellate court rules that delay issuance of the mandate pending consideration of en banc review. “The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise,” read the Federal Rules of Appellate Procedure.
But a second industry attorney says this rule only applies if the court has not yet issued its mandate, and that because the D.C. Circuit panel originally issued its mandate July 3 and only recalled it for a “limited” period, it would come back into effect irrespective of any EPA petition for rehearing en banc.
This attorney notes the court's rules say if it grants rehearing en banc, the mandate is “automatically recalled,” but “absent that, it would seem [EPA's] option is to petition the court to order the mandate withdrawn even before granting en banc review.”
In other words, this source says EPA would have to file separately from any en banc petition to ask the full D.C. Circuit to keep the mandate on hold until it decides whether to take the case.
The attorney also suggests EPA could file “something with the court indicating their intention to get” a rulemaking further delaying the methane NSPS “done relatively quickly” and “therefore ask the court to continue to withhold issuance of the mandate” -- though it is unclear whether the court would grant such a request.
Broadly, the second industry attorney says, “We're in a situation where there is a great deal of court discretion.”
Enforcement Discretion
Some observers have already suggested EPA could have a difficult time winning an en banc petition because the methane NSPS suit involves “fact-specific” questions and review of the rulemaking record, while the underlying case law that agencies' actions must be rooted in statutory authority is not new.
Because of this, the attorney with an academic institution expects the D.C. Circuit could decide fairly quickly on any EPA petition, and notes that the court's denial of such a petition would bring the mandate -- and the methane NSPS rule -- back into effect.
The source says that once the mandate is re-issued, “pre-existing deadlines come back into force,” meaning a June 3 deadline for companies to submit leak detection surveys -- which EPA retroactively stayed with its June 5 stay -- would “become operative.” And the source argues EPA has “no legal options left” to administratively prevent the rule from coming into effect in such a scenario.
Both industry and other sources suggest EPA could relax its enforcement of the rule. EPA “can absolutely put out guidance on implementation,” the second industry attorney says, suggesting the agency could put out an “enforcement discretion memo that could really instruct the regions to focus on administration priorities.”
But a problem with that approach, sources say, is that it puts industry at risk of citizen suits. The Clean Air Act allows any party -- including an environmental group or a state -- to bring a suit against an alleged violator of air rules, provided they give EPA 60 days' notice.
The attorney with the academic institution suggests that groups that might bring citizen suits are likely “thinking through” their options and “waiting to see what happens with the procedural [debate] in the” D.C. Circuit.
If the methane NSPS snaps back into effect and groups file notices of intent to sue companies not in compliance, it raises a whole host of other questions -- including how EPA would react and how its proposal to further stay the rule would affect any such citizen suits.
A third industry attorney questions “whether the environmental community would step up and enforce in [EPA's] stead,” adding that it might not “raise the specter of significant enforcement” and environmental groups may be “focused in other areas.”
And the first industry attorney questions how environmental groups would know “whether a company is committing a violation or not,” given that data to back up any notices of intent to sue may not be readily available.
Nonetheless, the third attorney says that industry noncompliance in the period “between stays” would “represent a violation of the [air] act, so theoretically there's penalty liability” that “isn't resolved by reinstating the stay” of the rule.
And the attorney with the academic institution says, “Companies would be well advised to comply, given the current state” of the case.
https://insideepa.com/daily-news/epa-seek-en-banc-review-methane-nsps-delay-suit-sources-expect
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The Energy 202: House GOP Wants to Slick the Skids for Water Rule Repeal
Jul 26, 2017 | The Washington Post
By Dino Grandoni
Repealing a major clean water rule issued under President Obama has been such a priority for the Trump administration that the White House launched a landing page in January explaining why the rule needed to go just moments after Trump took his oath of office. Trump vowed to rescind the regulation, called the Waters of the United States (WOTUS) rule during his first 100 days as president.
But six months later, the rule still stands — for now — as the executive order issued by Trump in February rescinding the rule is tied up in bureaucratic tape.
Now Congress wants to slick the skids for the water rule's removal.
An energy and water spending bill on the House floor this week contains a provision exempting Trump's efforts to the repeal the WOTUS rule from review by judges through challenges brought by environmental groups -- and from review by the public through a comment period required under the Administrative Procedure Act (APA).
"This is such a radical provision," of the energy and water bill, Madeleine Foote, legislative representative for the League of Conservation Voters, said.
The WOTUS rule greatly expanded the number of waterways that fell under federal protection after years of uncertainty from the court system about what rivers and streams were encompassed by the 1970s Clean Water Act, which requires the government to stop pollution in "navigable waters."
But for years, Republican officials critical of the rule — including current Environmental Protection Agency chief Scott Pruitt, whothrough a lawsuit as Oklahoma attorney general stopped the WOTUS rule from taking force — along with industry allies in farming and other sectors have argued the Obama-era regulation infringes on the rights of landowners by defining dried streambeds as navigable waters. Foes contend the rule unduly subjects land around them to federal oversight.
The House Energy and Water Development Appropriations Subcommittee, from which this bill originated, has run out of patience with the WOTUS rule.
"The committee believes this rule is an unnecessary regulatory burden that constituted one of the largest federal lands grabs in history," a GOP aide on the appropriations committee said. "The rule would have harmed the economy and stymied job creation in areas of the country that need it the most."
But Michael Gerrard, a professor of environmental law at Columbia University, argues that the APA, enacted in 1946, is one of the few avenues by which regular people have a say in Washington decision-making.
"Otherwise only the lobbyists who know how to navigate through the bureaucracies or Congress have a voice," Gerrard said. "So exempting the WOTUS rule from the Administrative Procedure Act would rob the environmental and public health communities of the formal opportunity to comment and to build a record for review by the courts. It would also establish a terrible precedent for other regulations — not only EPA's."
What happens next? The House is slated to vote on the energy and water spending bill this week. The chamber will also vote on an amendment, offered by Rep. Don Beyer (D-Va.), to remove the WOTUS rider from the legislation.
What about the Senate? Environmentalists' best chance of removing the provision might be in that chamber, where Republican hold a much narrower majority. Right now, the Senate version of the energy and water bill does not contain language fast-tracking WOTUS repeal — meaning that, should the House spending bill pass as written now, the final decision on the rider will be hammered out in conference between the House and Senate.
https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2017/07/26/the-energy-202-house-gop-wants-to-slick-the-skids-for-water-rule-repeal/5977b85b30fb043679543245/?utm_term=.0be83f0c41b4
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EPA to Seek Comments on Obama Water Rule Repeal
Jul 26, 2017 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is allowing the public to weigh in on its proposal to repeal the Obama administration’s controversial water pollution rule.
The EPA’s proposal to undo the Clean Water Rule, also known as the Waters of the United States rule, is due to be published in the Federal Register on Thursday, according to the government office that publishes it.
That makes the proposal official and opens a 30-day period for comments.
The EPA, along with the Army Corps of Engineers, unveiled the proposal last month.
It would reverse the 2015 rule, which extended federal jurisdiction under the Clean Water Act to small bodies of water like headwaters, wetlands and some ponds.
“We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses,” EPA Administrator Scott Pruitt said in a statement at the time.
The 2015 rule never took effect because it was put on hold by a federal court.
Environmentalists and Obama supporters charged that the rollback would threaten drinking water for 117 million people.
After the EPA gathers and analyzes the comments, it can make any necessary changes and then make the rollback final. States, environmentalists and others at that point could sue to stop the repeal.
Government spending bills being considered in the House would exempt the EPA and Army Corps from having to go through the usual regulatory process under the Administrative Procedure Act to repeal the water rule.
That would exempt the agencies from gathering public comments and from responding to the comments.
The EPA is separately working on a regulation to replace the water rule with an alternative definition of federal jurisdiction that is less expansive.
https://origin-nyi.thehill.com/policy/energy-environment/343898-epa-to-seek-comments-on-obama-water-rule-repeal
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Dem Senators Pitch Carbon Tax to Conservatives
Jul 27, 2017 | The Hill - E2 Wire
By Timothy Cama
Two Democratic senators spoke at a conservative think tank Wednesday to introduce legislation to establish a tax on carbon dioxide emissions.
Sens. Sheldon Whitehouse (D-R.I.) and Brian Schatz (D-Hawaii) pitched their American Opportunity Carbon Fee Act as a proposal Republicans should be able to get behind due to its simplicity and the fact that the revenues would go back to taxpayers.
It would set a $49 per ton fee, increasing annually, on carbon dioxide emissions, charged at the point of a fossil fuel’s extraction or importation.
The money raised — more than $2 trillion over 10 years — would go to a reduction in the corporate tax rate, tax credits to workers and recipients of federal assistance and state block grants.
“The market would begin to work in this space,” Whitehouse said at the American Enterprise Institute event. “This carbon fee would produce meaningful reductions in emissions.”
“The idea is quite simple: unleash markets to tackle climate change,” said Schatz. “It establishes incentives that allow capital to flow and businesses to thrive when they can use clean energy, letting the free market compete and innovate and make profits.”
Carbon taxes have the support of a wide swath of Democrats to fight climate change. Among Republicans, it has been a favored approach for years among certain economists and academics but has gotten little support among policymakers, due mainly to opposition to raising energy prices, along with skepticism of climate change science.
Last year, all House Republicans and some Democrats voted for a nonbinding resolution denouncing carbon taxes as harmful to the economy and promising not to support one.
AEI itself does not make policy endorsements, though some of its scholars favor carbon taxes.
Whitehouse and Schatz said their event is part of a mission to get at least one Republican lawmaker to support the plan.
“Sen. Schatz and I extend an open hand — an olive limb. Find Sen. Schatz and me a Republican to negotiate with. Then, let’s talk about the economics, let’s talk about the revenue,” Whitehouse said.
“Let’s restart the bipartisan conversation.”
http://thehill.com/policy/energy-environment/343997-dem-senators-pitch-carbon-tax-to-conservatives
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