Preview Newsletter
AM ACC 8/4/2017
-
(ACC Mentioned) Letter: Keep Plastic Bags Out of the Curbside Recycling Container
Aug 4, 2017 | Daily Record
By Chris Vidal
In old Western movies, when cowboys were out on the range and it got “too quiet,” they knew trouble was brewing. When it is quiet at a recycling processing facility, it suggests trouble, too. -
Senate Confirms Two Energy Commission Nominees, Restoring Quorum
Aug 3, 2017 | The Hill - E2 Wire
By Devin Henry
The Senate voted Thursday evening to confirm two of President Trump's nominees to the Federal Energy Regulatory Commission (FERC), paving the way for the commission to have its first quorum in six months. -
Justice Department Environment Pick a Step Closer to New Role
Aug 4, 2017 | BNA Daily Environment Report
By Renee Schoof
The Senate Judiciary Committee approved Jeffrey Bossert Clark to lead the Justice Department's environment division Aug. 3 over objections by Democrats that Clark doesn't accept the scientific consensus on climate change. -
(ACC Mentioned) US EPA Seeks to Expand Science Advisory Committee on Chemicals
Aug 4, 2017 | Chemical Watch
The US EPA is seeking to expand its newly formed Science Advisory Committee on Chemicals (SACC) and is accepting comments on a slate of candidates. -
EPA Seeks Comment on Nominations to “Augmented” Science Advisory Committee on Chemicals
Aug 3, 2017 | National Law Review
The U.S. Environmental Protection Agency (EPA) published a Federal Register notice on August 3, 2017, providing the names and affiliations of additional candidates currently under consideration for appointment to the Science Advisory Committee on Chemicals (SACC). -
US EPA Issues Five 'Not Likely to Present Unreasonable Risk' Findings
Aug 4, 2017 | Chemical Watch
The US EPA has published TSCA section 5(a)(3)(C) determinations for five substances that were the subject of pre-manufacture notices (PMNs). -
Chemical Makers Told to Act Now, Duck Regulatory Hassles Later
Aug 4, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Chemical manufacturers should have access to the EPA's electronic reporting system now to avoid headaches in six months as the deadline approaches to notify the agency about chemicals they have made or imported during the past 10 years. -
(ACC Mentioned) Flame Retardants Linked to Lower Child IQ - UPDATED
Aug 3, 2017 | San Francisco Chronicle
By Jill Tucker
Increased exposure among pregnant women to a class of flame-retardant chemicals found in older furniture and other everyday consumer products is linked to lower IQs in their children, UCSF researchers found in a study that is certain to further ignite the debate... -
(ACC Mentioned) Industry Sectors Split Over EPA Formaldehyde Emissions Standard Rule
Aug 3, 2017 | Inside EPA
By Maria Hegstad
Industry sectors affected by EPA regulation of formaldehyde emissions from pressed wood products are split in their reaction to the agency's latest direct final rule to alter or delay the emissions standards, with a consumer electronics association seeking another extension... -
Monsanto Employee Emails Show Efforts to Marshal Scientists
Aug 3, 2017 | Wall Street Journal
By Jacob Bunge
An escalating legal battle between Monsanto Co. and a plaintiffs’ law firm offers an unusual look inside how the world’s largest seed company defended a controversial herbicide. -
Sage Grouse, Chemicals Amendments Await NDAA Debate
Aug 4, 2017 | E&E Daily
By Nick Sobczyk
Sage grouse riders have a history of at least trying to find their way into the annual defense policy bill, and this year will be no different. -
US Prosecutors Seek Records of Unregulated Chemical in River
Aug 4, 2017 | AP (In The Washington Post)
By Emery P. Dalesio
Federal prosecutors have demanded documents, research and monitoring data from a state agency as they investigate a Fortune 500 company’s release of a little-studied chemical into a river that supplies drinking water to hundreds of thousands of people, officials said Thursday. -
Are We Experimenting on Our Children With Soy Formula?
Aug 3, 2017 | Undark Magazine (In Slate)
By Deborah Blum
I’m hesitating over this one question I want to ask the scientist on the phone, a federal researcher studying the health effects of soy formula on infants. I worry that it’s going to sound slightly Dr. Frankenstein–esque. -
U.S. Energy Agency to Take on $50 Billion Backlog as Senate Acts
Aug 4, 2017 | Bloomberg
By Catherine Traywick
The main U.S. energy regulator can get back to the business of approving multibillion-dollar natural gas pipelines after the Senate moved to fill two of four vacancies at the long-crippled agency. -
Methane Hot Spot in West Troubles Regulators and Industry
Aug 4, 2017 | BNA Daily Environment Report
By Alan Kovski
The Four Corners area of northwestern New Mexico and southwestern Colorado has been described as an especially prominent hot spot for methane leaking and venting—and illustrates why the Obama administration issued tougher federal regulations in 2016... -
Enviros Renew Push for Action on Litigation
Aug 4, 2017 | E&E News PM
By Amanda Reilly
Greens today renewed their call for a federal court to make a definitive decision on the future of the litigation over the Clean Power Plan. -
Practitioner Insights: Environmental Rights Amendment Revival
Aug 4, 2017 | BNA Daily Environment Report
By Joseph Otis Minott and Paul Cohen
The Pennsylvania Supreme Court's decision in June in Pennsylvania Environmental Defense Foundation v. Commonwealth already has proved to be a game-changer. -
Texas Approves Higher Truck Weights at Ports Ahead of Petrochemical Export Surge
Aug 4, 2017 | Platts
By Elizabeth Bassett
US petrochemical producers scored a big win from the Texas Legislature this year with a new law that allows trucks to move export-bound containers filled to the brim to Port Houston’s pair of container terminals. -
Official: Derailed Rail Car Fires Should Burn Out Overnight
Aug 4, 2017 | AP (In The New York Times)
Officials say the derailed freight train cars that have been ablaze for nearly a day and half in a small Pennsylvania town will burn themselves out overnight. -
Portland City Council Votes to Appeal Fossil Fuel Terminal Ban
Aug 4, 2017 | BNA Daily Environment Report
By Paul Shukovsky
-
(ACC Mentioned) EPA Bows to States’ Pressure on Air-Quality Standards
Aug 3, 2017 | Courthouse News
By Josh Russell
The Environmental Protection Agency said it is moving forward with Obama-era smog regulations, after 15 states petitioned to challenge the Trump administration’s delay of rules reducing emissions of air pollutants. -
Pruitt's Critics Say Ozone Reversal Shows EPA 'Chaos,' Limits On Power
Aug 3, 2017 | Inside EPA
Environmentalists and other critics of EPA Administrator Scott Pruitt say his sudden decision to scrap a one-year delay he had announced for issuing ozone air standard attainment designations suggests an agency in “chaos,” and shows that there are limits... -
Early Hurdles Slow Pruitt's Deregulation Push — But Maybe Not for Long
Aug 3, 2017 | PoliticoPro
By Alex Guillén
EPA Administrator Scott Pruitt is starting to hit roadblocks in his efforts to undo the agency's Obama-era regulations — a trend that has environmentalists crowing but may prove to be symbolic and short-lived.
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News - There are no clips to report at this time.
Transportation and Infrastructure News
Environment News
-
(ACC Mentioned) Letter: Keep Plastic Bags Out of the Curbside Recycling Container
Aug 4, 2017 | Daily Record
By Chris Vidal
In old Western movies, when cowboys were out on the range and it got “too quiet,” they knew trouble was brewing. When it is quiet at a recycling processing facility, it suggests trouble, too. If the noise stops, that means the machinery has stopped and, therefore, the recycling has stopped and, likely, there is something very wrong. The villain may be a simple, lightweight plastic bag.
Mixed recyclables go from curbsides to materials recovery facilities (MRFs) for sorting into components -- plastic bottles, glass bottles and jars, aluminum cans, aluminum pie plates, steel (tin) cans, junk mail, paper, newspapers, milk cartons and corrugated cardboard. Each component is compacted, wrapped with wire to make bales and shipped to recycling facilities.
It is important that recyclables are rinsed, empty and loose when they arrive at a MRF and start the journey towards being recycled properly. The cleaner the bales, the higher the value.
However, loose plastic bags, or recyclables in any sort of plastic bag, are major problems for recycling programs. Plastic bags are one of the worst contaminants in a recycling process, on a list of unwanted materials that also include scrap metal, wires, hazardous waste, chemicals, diapers, syringes, needles, propane tanks, and hangers.
None of these items should be included with curbside recyclables since they can hurt employees and disable machinery.
Plastic bag contamination shuts down the recycling system several times a day because plastic bags wrap around rotating axles, wheels and disks. When the machines are silent, production stops and the receiving lines back up, resulting in a reduction in processing efficiency, safety, and the value of recyclables, while labor costs go up.
At times, plastic bags slip through the sorting process and wind up in the paper bales. Since plastic, obviously, is not paper, it is a major contaminant of paper bales and can lead to the paper being unmarketable and, therefore, not recycled.
For these reasons, plastic bags (garbage bags, shopping bags, zip-lock bags, bread bags, newspaper bags, wood pellet bags, etc.) and plastic film (shrink-wrap, plastic wrap around cases of water bottles, packing pillows, bubble wrap, flexible plastic food packaging, etc.) are excluded from the Morris County MUA’s single-stream recycling program.
While plastic bags and film are not acceptable at MRFs or in curbside recycling programs, they can be recycled at select supermarkets and stores. The bags (also including bread, newspaper, dry cleaning and other plastic bags) must be empty, clean, and free of moisture or food.
Recycled products made from bags include plastic lumber, picnic tables, lawn furniture, playground equipment, and recycling bins, among other items. Additional information is available from the American Chemistry Council at https://www.plasticfilmrecycling.org/ or TREX at www.trex.com.Hello SummerSUMMER SALE IS ON NOW.99¢for the first monthSUBSCRIBE NOW
There is one exception to the “no plastic bag” rule in Morris County’s single-stream program, and that is for shredded paper. Shredded paper must be placed in clear or see-through plastic bags. Because shredded paper can be identified at MRFs in clear bags, it can manually be removed at the start of the sorting line. Loose shredded paper is too small to be captured for recycling and falls through the automated sorting system.
To keep the plastic bag villains away from MRFs and your curbside recycling bin, use cloth shopping bags, reuse plastic bags at home, recycle plastic bags at a participating supermarket, and follow your town’s recycling guidelines. For more information about single-stream recycling, visit the Morris County Municipal Utilities Authority’s website at www.MCMUA.com.
The writer is a Recycling Specialist for the Morris County Municipal Utilities Authority.
http://www.dailyrecord.com/story/news/local/2017/08/03/letter-keep-plastic-bags-curbside-recycling-container/104268708/
-
Senate Confirms Two Energy Commission Nominees, Restoring Quorum
Aug 3, 2017 | The Hill - E2 Wire
By Devin Henry
The Senate voted Thursday evening to confirm two of President Trump's nominees to the Federal Energy Regulatory Commission (FERC), paving the way for the commission to have its first quorum in six months.
Neil Chatterjee and Robert Powelson were confirmed by unanimous consent and are slated to join the five-member board, which has seen its action paused since February following a pair of retirements.
FERC is responsible for permitting decisions on energy projects like natural gas pipelines and export terminals. The lack of a quorum has left FERC unable to move such projects forward, inaction that has lead to frustration in the energy, manufacturing and business communities.
Neither Chatterjee nor Powelson were considered controversial picks. Chatterjee is an energy aide to Senate Majority Leader Mitch McConnell(R-Ky.), and Powelson is a Pennsylvania utilities regulator.
The Senate Energy and Natural Resources Committee advanced both their nominations in June on 20-3 votes. Democrats, though, have been hesitant to bring their nominations to the floor for confirmation votes until they were assured a Democratic nominee would receive a vote, as well.
The White House filed paperwork for Democrat Richard Glick’s nomination on Wednesday. Energy and Natural Resources Committee Chairwoman Lisa Murkowski (R-Alaska) announced Thursday she would hold a September hearing for Glick’s nomination and that of Kevin McIntrye, whom Trump has picked to be chair of the commission.
Democrat Cheryl LaFleur is the only current member of FERC. Former Commissioner Colette Honorable and former Chairman Norman Bay left the commission earlier this year.
http://thehill.com/policy/energy-environment/345256-senate-confirms-two-ferc-nominees-restoring-quorum
-
Justice Department Environment Pick a Step Closer to New Role
Aug 4, 2017 | BNA Daily Environment Report
By Renee Schoof
The Senate Judiciary Committee approved Jeffrey Bossert Clark to lead the Justice Department's environment division Aug. 3 over objections by Democrats that Clark doesn't accept the scientific consensus on climate change.
Clark's nomination was sent to the Senate on an 11-9 vote, with all Republicans in favor and all Democrats against. Sen. John Cornyn (R-Texas), a member of the Senate leadership, told Bloomberg BNA afterward he didn't know when the full Senate would vote on Clark's nomination.
Sen. Charles Grassley (R-Iowa), the committee chairman, said before the committee's executive meeting that he was under pressure from Attorney General Jeff Sessions to complete votes on nominees.
Clark, as a private attorney, wrote about his opposition to the Environmental Protection Agency's action on climate change. He told senators at his confirmation hearing that those views on climate change and defense of BP PLC in the 2010 oil spill case would be irrelevant to how he would lead the Environment and Natural Resources Division.
Sen. Dianne Feinstein of California, the ranking Democrat on the committee, said during the hearing that Clark's views on climate change did matter, and that they were the reason for her vote against him.
If the Senate confirms him as assistant attorney general in charge of the division, Clark will lead Justice Department attorneys who enforce environmental laws and defend the EPA and other federal clients in court. He is a trial and appellate lawyer and partner at Kirkland & Ellis LLP.
Clark served as deputy attorney general leading the appellate work in the Environment and Natural Resources Division during the George W. Bush administration.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118099519&vname=dennotallissues&fn=118099519&jd=118099519
-
(ACC Mentioned) US EPA Seeks to Expand Science Advisory Committee on Chemicals
Aug 4, 2017 | Chemical Watch
The US EPA is seeking to expand its newly formed Science Advisory Committee on Chemicals (SACC) and is accepting comments on a slate of candidates.
Formation of the committee was required by the Lautenberg Act. By statute, its purpose is to provide "independent advice and expert consultation" with respect to the scientific and technical aspects of implementing the new TSCA.
In the final days of the Obama administration, the EPA administrator appointed the members who would be serving on the 18-seat board.
The picks – of which less than a quarter represent industry – were criticised by the American Chemistry Council (ACC). It requested that the agency consider expanding the panel to include chemical industry representatives.
The EPA said in a 3 August Federal Register notice that "after further consideration of the objectives and scope of SACC activities", it will be considering additional candidates for membership. It says it anticipates selecting approximately six additional representatives, with an aim to "better address the objectives and scope of activities for the committee".
The agency will be considering the 29 candidates identified last December, as well as 64 others nominated during a consultation that ran last summer. These are:
The EPA is seeking public comment by 5 September to help in determining the additional members. Comments previously received on the December candidates will also be considered.
https://chemicalwatch.com/58044/us-epa-seeks-to-expand-science-advisory-committee-on-chemicals
-
EPA Seeks Comment on Nominations to “Augmented” Science Advisory Committee on Chemicals
Aug 3, 2017 | National Law Review
The U.S. Environmental Protection Agency (EPA) published a Federal Register notice on August 3, 2017, providing the names and affiliations of additional candidates currently under consideration for appointment to the Science Advisory Committee on Chemicals (SACC). The notice states that the purpose of the SACC is to provide independent advice and expert consultation at the request of the EPA Administrator with respect to the scientific and technical aspects of risk assessments, methodologies, and pollution prevention measures or approaches. According to the notice, after further consideration of the objectives and scope of SACC activities, EPA is considering additional candidates for SACC membership from the August 26, 2016, Federal Register notice pool of requested nominees. EPA is also considering the 29 candidates for membership previously identified in the December 9, 2016, Federal Registernotice. EPA will consider comments that it previously received on the 29 candidates. EPA states that it anticipates selecting approximately six additional SACC members “with specific expertise and perspectives representing industry, labor, animal protection, government, public health, and public interest groups.” EPA invites public comments on the candidates, and will use them in selecting the additional chartered SACC members. Comments are due September 5, 2017.Background
Under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended the Toxic Substances Control Act (TSCA), EPA must establish a committee “to provide independent advice and expert consultation, at the request of the Administrator, with respect to the scientific and technical aspects of issues relating to the implementation of this title.” As reported in our February 14, 2017, blog item, “EPA Announces the Membership of the Science Advisory Committee on Chemicals,” on January 17, 2017, EPA appointed 18 expert members from diverse backgrounds, professional experiences, and perspectives that would contribute to the breadth and balance of scientific viewpoints on the committee. EPA held the announcement, however, until posting it on February 9, 2017. We noted then that “[&zwsp;i]t thus is the case that the Obama Administration took very prompt steps to ensure that formation was completed during its period in office, perhaps in an effort to select a membership more to its liking and preferences.”Qualifications of Members
The August 3, 2017, Federal Register notice states that SACC members “are scientists who have sufficient professional qualifications, including training and experience, to provide expert comments on the scientific and technical aspects of risk assessments, methodologies, and pollution prevention measures or approaches.” The EPA Administrator appoints individuals to serve on the SACC for staggered terms of one to three years. Each nominee selected by the Administrator, before being formally appointed, is required to submit a confidential statement of employment and financial interests, fully disclosing, among other financial interests, the nominee’s sources of research support, if any.Process of Obtaining Nominees
On August 26, 2016, EPA published a Federal Register notice providing notice of intent to establish the SACC, describing its purpose, and announcing the opportunity for the public to provide nominations for EPA’s consideration. The nomination period was open for 45 days and ended on October 11, 2016. In response, EPA received approximately 100 nominees.
EPA states that it considered the following criteria to select candidates from these nominations: interest and availability to participate in SACC meetings; absence of financial conflicts of interest; absence of the appearance of a loss of impartiality; scientific expertise; and backgrounds and experiences that would contribute to the diversity of scientific viewpoints on the SACC, including professional experiences in government, labor, public health, public interest, animal protection, industry, or other groups.
Based on these criteria, EPA identified 64 additional candidates for further consideration for membership on the SACC. EPA will also further consider the 29 candidates identified in the December 9, 2016, Federal Register notice, as well as the public comments that were previously received on the 29 candidates. Although EPA states that brief biographical sketches for these candidates are posted on its website at https://www.epa.gov/tsca-peer-review, this information is not yet available.Commentary
We encourage submission of comments on the candidates by all stakeholders to help inform EPA decisions on augmenting SACC membership. We find ourselves in agreement with a view that the SACC would benefit from an expanded membership to provide needed expertise and better ensure that it is fairly balanced in the points of view represented. We were not convinced this was the case when the membership was first constituted.
https://www.natlawreview.com/article/epa-seeks-comment-nominations-to-augmented-science-advisory-committee-chemicals
-
US EPA Issues Five 'Not Likely to Present Unreasonable Risk' Findings
Aug 4, 2017 | Chemical Watch
The US EPA has published TSCA section 5(a)(3)(C) determinations for five substances that were the subject of pre-manufacture notices (PMNs).
All were determined not likely to present an unreasonable risk based on low human health and environmental hazard.
Three of the substances carry a polymer exemption flag. This requires that they be manufactured such that they meet the exemption criteria. These substances are:
· 1,6,10-dodecatriene, 7,11-dimethyl-3-methylene-, (6E)-, homopolymer, 2-hydroxypropyl-terminated (CASRN: 1898242-86-8). The review on this substance began on 17 November 2016;
· 1,6,10-dodecatriene, 7,11-dimethyl-3-methylene-, (6E)-, homopolymer, 2-hydroxyethyl-terminated (CASRN: 2007163-32-6) – review began 17 November 2016;
· generic substituted carbomonocycle, polymer with substituted carbonomoncycles, alkyl substituted- alkanediols, alkanediol, alkanedioic acid, and dialkylene glycol – review began 24 April 2017;
The other two substances are:
· generic poly aliphatic phosphate – review began 22 June 2016;
· alcohols, C12-13-branched and linear, dimerized – review began 22 March 2017.
The agency made its determinations between 21 and 31 July.
https://chemicalwatch.com/58047/us-epa-issues-five-not-likely-to-present-unreasonable-risk-findings
-
Chemical Makers Told to Act Now, Duck Regulatory Hassles Later
Aug 4, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Chemical manufacturers should have access to the EPA's electronic reporting system now to avoid headaches in six months as the deadline approaches to notify the agency about chemicals they have made or imported during the past 10 years.
The clock hasn't started yet for the 180 days that chemical manufacturers and importers have to notify the agency, said Richard Engler, a senior chemist with Bergeson & Campbell, P.C. and 17-year veteran of the Environmental Protection Agency's chemicals office, Aug. 2.
But it will as soon as the agency publishes its final chemical inventory update rule (RIN 2070-AK24) in the Federal Register.
The rule will be published soon, Jeffery Morris, director of the EPA's Office of Pollution Prevention and Toxics, said Aug. 2 during a webinar Bloomberg BNA and Bergeson & Campbell hosted. That would mean companies would have to submit their information sometime in March or April 2018.
“Don't wait until the last minute,” Engler said during the webinar. If a company has not yet signed up for the EPA's electronic reporting system, or Central Data Exchange (CDX), “do so now,” he said.
If a company has to register for the CDX with paper documents and correspondence, “it may take weeks, and you don't want your 180 days to be spent waiting for your log in access,” Engler said.
“EPA cannot extend the deadline; the deadline is set in the statute,” Engler said. The Toxic Substances Control Act Amendments of 2016 required chemical manufacturers to meet the 180-day deadline.
Companies that mix chemicals into products such as paint, wax, and kitchen cleaners, can choose to notify the agency about chemicals they use, but they aren't required to. They have up to 420 days after the rule is officially published to notify the agency if a chemical they use wasn't put on the EPA's list of chemicals in commerce.
First Goal: Stay in Commerce
The rule, which the EPA released in pre-publication form June 22, has two primary goals. First it aims to address a problem the EPA faces. The agency doesn't know exactly what chemicals are in commerce. Instead, the agency has a decades-old registry, or “inventory,” listing tens of thousands of commercial chemicals that are or have been made in, or imported into, the U.S. at some time in the past.
Companies and the EPA will work through the rule's procedures to divide that large registry into two smaller lists—a catalog of chemicals that have been active in commerce since June 21, 2006, and a catalog of chemicals that were on the U.S. market prior to that date.
It is in companies’ interest to make sure the chemicals they work with are on the active list, Engler said.
Once the agency finishes its update—likely in 2019—the only chemicals that can be made in, imported into, distributed, or processed are ones on the active list, he said. June 21, 2006, marks 10 years before the requirement to update the inventory became law.
Chemicals on the inactive list can, however, be added to the active by going through a process described in the rule, Engler said.
Knowing which chemicals are active in commerce will help the agency decide which chemicals to focus on as it reviews whether certain risks warrant some kind of regulation.
Second Goal: Justify Confidentiality
The rule's second goal is to require companies to explain or “substantiate,” any claim they make that information submitted to the EPA must be kept out of the public sphere.
There are there are two basic types of information that companies can claim confidential during the inventory update provided they substantiate that claim when they assert it, Engler said.
Companies can claim their connection to a chemical—their identity as its manufacturer, importer, or processor—is confidential, he said.
They also can claim a business need to keep the name of the specific person, or “technical contact,” whom EPA can reach for questions about a chemical, confidential, he said.
Manufacturers and importers must provide the EPA evidence to justify their claim that disclosing that information would harm their business’ competitive position, Engler said.
The EPA will verify 25 percent of these, he said.
Another type of confidentiality claim that must be made during the inventory update period—but can be substantiated later—is the specific identity of a chemical, Engler said. Claims can only be made for chemicals that already have confidential identities on the TSCA inventory, he said. The EPA knows the specific identities of the chemicals on its confidential inventory. The general public, including, potentially, companies that purchase chemicals, may know only generic names for these confidential chemicals.
Again any manufacturer, importer, or processor that says a chemical's specific identity must be kept off the public portion of the inventory will have to justify how their competitive position would be harmed if the chemical's identity was known, Engler said. The details about how companies will substantiate—and how the agency will verify—those claims will be spelled out in a future rule, he said.
Every claim that a chemical's identity must be secret must be verified by the EPA under the amended TSCA law, Engler said.
He offered tips to protect confidential business information along with general compliance strategies. Companies should be gathering all the electronic access, information and documents they'll need to comply with the rule now even before the EPA publishes it, he stressed.
Confusion Expected
As companies go through all this information, they may get confused by information they find in other documents submitted to the EPA to comply with another TSCA requirement, or it might appear that one piece of information wouldn't comply with TSCA, said Lawrence Culleen, a partner with the Washington, D.C., office of Arnold & Porter Kaye Scholer LLP.
There may be simple reasons, Culleen said during the webinar. For example, one type of mandated document might require different information than another.
Chemicals also may go through commerce with different brand names and synonyms, said Culleen, who manages the Chemical Users Coalition, a group of chemical processors such as the Procter & Gamble Co., and product manufacturers, such as Boeing and the American Honda Motor Co., Inc.
A processor could find it difficult to figure out if the chemical it buys is on the public version of the TSCA Inventory, he said. “Pick up the phone. Talk to your supplier directly,” Culleen said.
If questions remain, “the processor might want to seek the advice of counsel,” he told Bloomberg BNA after the webinar.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118099522&vname=dennotallissues&fn=118099522&jd=118099522
-
(ACC Mentioned) Flame Retardants Linked to Lower Child IQ - UPDATED
Aug 3, 2017 | San Francisco Chronicle
By Jill Tucker
Increased exposure among pregnant women to a class of flame-retardant chemicals found in older furniture and other everyday consumer products is linked to lower IQs in their children, UCSF researchers found in a study that is certain to further ignite the debate over the chemicals.
Examining data from nearly 3,000 mother-child pairs from previous studies done around the world, the authors concluded that every tenfold increase in women’s exposure during pregnancy to chemicals known as polybrominated diphenyl ethers, or PBDEs, was associated with a 3.7-point decrease in their children’s IQ.
The study was published Thursday in Environmental Health Perspectives, a journal supported by the National Institute of Environmental Health Sciences. It comes a little more than a week after a San Francisco supervisor introduced legislation that would ban all flame-retardant chemicals from furniture, baby strollers and other children’s products sold in the city.
That proposal, an effort to bring down cancer rates and lessen developmental problems in children, was criticized by the chemical industry, which said flame retardants have for decades been instrumental in protecting people and allowing manufacturers to meet tough product-safety standards.
The UCSF study only evaluated exposure to PBDEs, which were phased out from use in new manufacturing since 2004 but remain in used furniture and other products.
The university’s team acknowledged that the difference in IQ scores related to chemical exposure might seem small. But such differences can necessitate increased services and support for children and heap personal and economic burdens onto families, said lead author Juleen Lam, an associate research scientist at UCSF’s Program on Reproductive Health and the Environment.
Researchers also found a statistical link between PBDEs and attention deficit hyperactivity disorder, but cautioned that more studies are necessary to better understand the relationship.
While previous research on the chemicals has found similar health risks, the UCSF study provides the most comprehensive analysis of international data and the most definitive results, said co-author Tracey Woodruff, a professor in the Department of Obstetrics, Gynecology and Reproductive Sciences.
“There are many, many, many couches out there that still have this flame retardant in them,” Woodruff said.
A chemical industry representative, while noting that PBDEs have been banned for years, said Thursday that fire safety is important, and that consumers don’t have to choose between it and their personal health. He said flame retardants used in today’s products “are subject to review by the EPA and other regulatory agencies around the world.”
“Flame retardants provide consumers with a critical layer of fire protection, and they help save lives,” said Bryan Goodman, a spokesman for the American Chemistry Council. “The major manufacturers of flame retardants have spent millions of dollars on research both before and after their products go on the market.”
PBDEs and other flame-retardant chemicals are found in couches, computers, consumer plastics, mattresses, insulation and car parts, among other products. The chemicals can migrate into dust, endangering infants who crawl around on floors and people who eat at their computers, according to scientists.
The women in the study who had higher levels of PBDE exposure would have likely ingested the chemicals through food, dust or hand-to-mouth contact in their homes or other locations they frequented, researchers said.
The chemicals became common starting in the 1970s, after California imposed strict fire-safety regulations on manufacturers. The state acted largely in response to fires started by cigarettes, which were manufactured so they would continue to burn even if the smoker set them down — or fell asleep.
In recent years, health concerns related to the fire retardants have prompted state and international legislation to remove such chemicals from products. In California, legislators approved new fire standards in 2013 that allowed manufacturers to use nonchemical safety measures, but they stopped short of banning all flame retardants.
“Despite a series of bans and phaseouts, nearly everyone is still exposed to PBDE flame retardants, and children are at the most risk,” Woodruff said. “Our findings should be a strong wake-up call to those policymakers currently working to weaken or eliminate environmental health protections.”
Consumers, however, are already finding their own way to chemical-free home goods made in the Bay Area and beyond.
“We have people who seek us out from all over the country because very few people sell or specialize in this,” said Rowena Finegan, owner of Pine Street Interiors in Sausalito, which sells health-conscious furniture and other household items, including nontoxic glue. “We have a lot of demand.”
But it can be financially difficult for many families to buy their way out of chemical exposure, said Avery Lindeman, deputy director of the Green Science Policy Institute in Berkeley.
“The good news is that the more studies there are like this, the harder it will be for decision-makers to ignore,” she said.
In the meantime, Lindeman said, people can employ simple practices to reduce exposure even if chemicals are in their home, including washing hands frequently to reduce the transfer from hand to mouth.
The legislation introduced July 25 in San Francisco by Supervisor Mark Farrell would, if passed, make the city the first in the nation to ban all flame-retardant chemicals. Farrell said banning the chemicals would not only protect children and families, but firefighters.
Advocates for firefighters have linked flame retardants to what they call an epidemic of cancer cases in the city’s station houses. Blood tests of 12 city firefighters in 2014 showed that all had high levels of dioxins, which are released when compounds in flame retardants catch fire.
While PBDEs are no longer used, Woodruff said, the lingering health impact should inform choices by public officials.
“We should not be putting these chemicals that hang around a really long time into our products,” she said. “Maybe we should ask if they’re dangerous to our health before we put them in everything we use.”
http://www.sfgate.com/bayarea/article/Pregnant-women-s-exposure-to-flame-retardants-11731559.php
-
(ACC Mentioned) Industry Sectors Split Over EPA Formaldehyde Emissions Standard Rule
Aug 3, 2017 | Inside EPA
By Maria Hegstad
Industry sectors affected by EPA regulation of formaldehyde emissions from pressed wood products are split in their reaction to the agency's latest direct final rule to alter or delay the emissions standards, with a consumer electronics association seeking another extension of compliance deadlines while other industry groups support the rule.
The Consumer Technology Association (CTA) joins other groups in the pressed wood and furniture industries in praising EPA's July 11 direct final rule, in which the agency, in response to industry concerns, amended the rule to allow manufacturers to comply with the new emissions standard before the compliance deadline. The original rule required manufacturers to meet the standard overnight -- a demand that did not appreciate the realities of global supply chains, many manufacturers argued. The July 11 rule was intended to address that issue.
But CTA in its July 26 comments also urges EPA to extend the Dec. 12 deadline by another 120 days. "CTA's members continue to have concerns with the compliance deadlines of the Formaldehyde Standards which are not addressed in this Proposed Final Rule. CTA asks EPA to re-consider extending the deadlines for compliance via another Proposed Final Rule. CTA is specifically requesting the deadline for the emission standards, recordkeeping, and labeling provisions currently set at December 12, 2017 to be extended one hundred and twenty (120) days in order to provide relief in the supply chain, manufacturing and import processes.”
EPA published both a direct final rule and an identical proposed rule in the July 11 Federal Register, noting that if the agency received adverse comments on the direct final rule, it would withdraw that rule and go through a formal notice-and-comment rulemaking on the proposed rule.
The Trump EPA's efforts to amend the Obama-era formaldehyde emissions standards have already seen one delay, after negative comments were provided on a May 24 direct final rule that would have extended various aspects of the rule's compliance deadlines. But wood product trade groups sought additional phase-in periods and other provisions, prompting the agency to withdraw that direct final rule July 6. The agency indicated it would assess the comments and then craft a formal final rule making changes to the formaldehyde regulation that responds to the comments.
Most of the groups in their comments on the May 24 rule appeared to support EPA's effort to delay by several months the effective dates of select provisions of the final formaldehyde air rule, in order to give industry more time to comply. But they took issue with some aspects of the direct final rule announced in the May 24 Federal Register.
Groups' Comments
That direct final rule would have delayed the Dec. 12 compliance date for emissions standards, recordkeeping, and labeling provisions until March 22, 2018; extended the Dec. 12, 2018, import certification provisions deadline until March 22, 2019; and extended the Dec. 12, 2023, date for provisions applicable to producers of laminated products until March 22, 2024.
Some of the groups in their comments on the May 24 rule said that regardless of the compliance extensions, the rule's compliance time line is impossible to meet. Some of the groups also seek further changes to the substance of the rule, such as its provisions for dealing with products that do not meet the emissions standards, or the need for third-party certifying entities.
On July 11, EPA issued a direct final rule regarding the original rule's prohibition against labeling products compliant before the deadline, indicating that the rule would take effect unless negative comments were received by July 26. Other than CTA, comments were from industry associations that supported the rule, ranging from the American Chemistry Council to the American Home Furnishing Alliance to the National Retail Federation.
"Eliminating section 770.45(f) of the Formaldehyde Emission Standards for Composite Wood Products is a prudent step that will allow U.S. companies and the customers they serve to avoid costly delays as they source composite wood products that meet the requirements of this new regulation," write a coalition of seven trade associations, including the American Home Furnishings Alliance and the International Wood Products Association in joint July 26 comments.
The groups, however, note that they "are also grateful that the Direct Final Rule references EPA's continuing action to extend the regulation's compliance timeline. EPA must finalize this action at the earliest opportunity to provide regulatory certainty to affected U.S. businesses and allow them to manufacture and source compliant composite wood panels and finished goods containing composite wood panels in a manner that avoids costly supply chain disruption."
EPA acknowledges in the labeling direct final rule that "the delay of the effective date of the December 12, 2016 final rule . . . may have given rise to additional stakeholder concerns about that rule's respective implementation compliance dates. As a result, EPA has determined that those compliance dates should be extended and has initiated a separate action to extend them."
Other industry groups, however, have indicated their interest in seeing the new standards take effect as quickly as possible, in order to protect American companies from international manufacturers who do not meet the emissions standards. Jackson Morrill, president of the Composite Panel Association, told Inside EPA earlier this year that the rule is an example of a measure that could "reinvigorate" domestic manufacturing and urged the Trump administration to vigorously enforce it.
"We had to be very proactive in educating the agency in there are some regulations that are good for U.S. manufacturing. We support a level playing field for our industry," he adds.
But Morrill also said that he understands the latest delay in implementing the rule, explaining that it allows institutions that will certify composite wood products as meeting the formaldehyde emissions standards time to get certified by EPA to do so. As long as the delay is not further extended, his group is supportive, he said.
https://insideepa.com/daily-news/industry-sectors-split-over-epa-formaldehyde-emissions-standard-rule
-
Monsanto Employee Emails Show Efforts to Marshal Scientists
Aug 3, 2017 | Wall Street Journal
By Jacob Bunge
An escalating legal battle between Monsanto Co. and a plaintiffs’ law firm offers an unusual look inside how the world’s largest seed company defended a controversial herbicide.
As part of a nearly two-year court dispute, the law firm this week released hundreds of pages of Monsanto employee emails and company documents concerning glyphosate, a herbicide that has drawn new scrutiny over its alleged potential to cause cancer.
The emails show Monsanto’s efforts to marshal scientists in defense of its product and combat research at odds with its own. The U.S. Environmental Protection Agency and the European Chemicals Agency have said glyphosate isn’t likely to cause cancer.
Corporate promotion of science friendly to companies’ products and services is a decades-old practice that remains “very commonplace,” said Paul Argenti, professor of corporate communication at Dartmouth College’s Tuck School of Business, who said he hasn’t done research or consulting work for Monsanto.
Companies ranging from technology developers to Wall Street traders and industrial giants have funded research that helps cast their business in a favorable light, providing fodder for regulatory reviews and a defense against negative public scrutiny.
“A good academic wouldn’t put their name on the line unless they were absolutely sure of what they agree to,” Mr. Argenti said. ”But the unfortunate reality is that if you are sponsoring research, you are immediately creating credibility problems.”
The Monsanto documents, spanning nearly two decades, were released as part of lawsuit filed against the St. Louis agriculture company in a federal court in California over Monsanto’s trademark herbicide Roundup. The plaintiffs allege that they got cancer from exposure to Roundup—while spraying weeds on farms, orchards and lawns—and Monsanto hid the weedkiller’s potential to cause cancer by skewing research and scientific debate.
Glyphosate is the world’s most widely used herbicide, sprayed to clear weeds from lawns, parks and corn fields. Some consumer and environmental groups have long raised questions over glyphosate’s safety.
Monsanto is fighting the plaintiffs’ lawsuit and denies any cancer link. Scott Partridge, Monsanto’s vice president of strategy, said in an interview that Monsanto is obligated to challenge attacks on glyphosate’s safety that are motivated by an “agenda,” rather than based in science. “Not only do we owe that to ourselves, we get calls from our farmers, the public, and consumers,” he said.
Mr. Partridge said releasing the documents violated a standing court order of confidentiality protecting company information in the case. Late Wednesday, Monsanto filed a legal motion asking the judge to order the documents removed from the law firm’s website, prohibit future releases of other Monsanto documents, and impose a fine.
Brent Wisner, a partner with Baum, Hedlund, Aristei & Goldman PC, the plaintiffs’ law firm, said the documents “show pretty clearly that Monsanto has colluded or engaged in very close relationships with EPA officials” and “has ghostwritten material and then cited that material as though it were authoritative.” The law firm said it has supplied the documents to regulators in the U.S. and Europe to inform future decisions regarding glyphosate. The plaintiffs are seeking wrongful death and punitive damages from Monsanto.
Mr. Wisner said that his firm had earlier challenged the confidentiality of each set of Monsanto documents the firm released, and that Monsanto didn’t file legal objections.
The debate over safety escalated in 2015 after the International Agency for Research on Cancer, an agency of the World Health Organization, classified glyphosate as likely having the potential to cause cancer.
In response, Monsanto hired a consultancy to convene an expert panel to review the cancer agency’s findings. The panel later said the IARC overlooked some data and misinterpreted studies. IARC officials defended its process as rigorous and based on the best available data.
Internal emails released by the plaintiffs’ law firm show Monsanto scientist William Heydens in November 2015 suggesting edits to the panel’s manuscript, and suggesting that two panelists who had previously worked for Monsanto not be listed as authors.
John Acquavella, a professor of epidemiology at Aarhus University in Denmark, objected in an email to Mr. Heydens.
“We call that ghost writing and it is unethical,” Mr. Acquavella wrote.
Mr. Heydens in a later email apologized for “a huge misunderstanding,” and both panelists’ names appeared on the panel’s final paper, though Mr. Heydens’s name didn’t.
“The request we got by the authors was to provide information and check accuracy and provide edits where appropriate, not to opine on science or the opinions of the authors,” Mr. Partridge said. A Monsanto spokesman said that Mr. Heydens’s name wasn’t included because his comments didn’t rise to the level of authorship or attribution and Monsanto’s sponsorship of the panel was disclosed.
In an email to The Journal, Mr. Acquavella said that the matter was resolved and that Mr. Heydens only pointed out typos in the sections of the final paper that Mr. Acquavella handled.
Other documents released by the plaintiffs’ law firm include June 2015 communications between an EPA official and Monsanto about a potential review of glyphosate’s safety by a branch of the Department of Health and Human Services.
Monsanto officials in emails among themselves considered such a review problematic due to perceptions of that agency’s “conservative” approach to evaluating chemicals. Jack Housenger, then an official in EPA’s Office of Pesticide Programs, told Monsanto officials that the potential review had been put on hold and it was unlikely that HHS researchers would come to a different conclusion than the EPA, according to the emails. A spokeswoman at HHS had no immediate comment.
An EPA spokesman said that the agency’s pesticide regulation process requires frequent communication with chemical makers, particularly when specific products are under review. The EPA began a scheduled review of glyphosate in 2009.
Monsanto’s Mr. Partridge said that the company and the EPA have regular interactions related to the EPA’s regulation of Monsanto products. “The fact that the EPA is agreeing with our submissions on the safety of glyphosate doesn’t mean there is some sort of collusion,” Mr. Partridge said.
https://www.wsj.com/articles/monsanto-employee-emails-show-efforts-to-marshal-scientists-1501783310
-
Sage Grouse, Chemicals Amendments Await NDAA Debate
Aug 4, 2017 | E&E Daily
By Nick Sobczyk
Sage grouse riders have a history of at least trying to find their way into the annual defense policy bill, and this year will be no different.
A proposed amendment from Sen. Mike Lee (R-Utah) — one of hundreds submitted ahead of Senate debate on the fiscal 2018 National Defense Authorization Act this fall — would decentralize greater sage grouse conservation and implement state management plans for the rangeland birds.
The Lee proposal would also prevent the Fish and Wildlife Service from listing the species as endangered until at least 2027.
Even though sage grouse management is more the purview of natural resources panels and bills, lawmakers who worry about the bird protections affecting development on public lands say they could also affect military installations.
Though nearly identical provisions have come close to making it into the final bill in recent years, this latest sage grouse rider is unlikely to even get a vote on the Senate floor.
Senate Armed Services Chairman John McCain (R-Ariz.) has long fought against what he sees as unrelated policy riders, and leadership is hoping to move NDAA quickly to President Trump's desk after the recess.
McCain has thwarted sage grouse efforts from Lee and fellow Utah Republican Rep. Rob Bishop during conference talks in each of the last two years.
And given the massive roster of amendments submitted by Senate lawmakers this year, McCain is likely to focus attention on other issues (E&E Daily, Nov. 18, 2016).
Bishop, for his part, shied away from the sage grouse issue during the committee stage of the defense authorization bill in the House earlier this year.
The final version, passed last month, did not include any contentious environmental riders, save for one Democratic provision on climate change that eventually drew bipartisan support (E&E Daily, June 28).
The Senate's NDAA has provisions on wildfire, and the Armed Services Committee included climate language in its report on the bill. The Senate bill would also authorize the Coast Guard to acquire up to 6 new polar icebreakers, a longtime need for the agency (E&E Daily, July 12).
Senate lawmakers may also look to prevent Russia from providing energy resources to U.S. military bases in Europe with a proposed amendment from Sen. Pat Toomey (R-Pa.).
That measure would encourage the Department of Defense to reduce dependence on Russian fuel sources and report to Congress on its work to mitigate the risk that comes with buying fuels sourced in Russia.
The goal, said a Toomey spokesman, would be for DOD to work with the Senate Armed Services Committee so Congress could appropriate funds for projects aimed at moving to alternative sources of fuel.
Chemicals, Yucca Mountain
Toomey last week also proposed an amendment to NDAA that would assess exposure of residents near eight former military installations to perfluorinated chemicals (PFCs), which were used for years in Air Force firefighting foam.
The measure is one of two on PFCs proposed ahead of debate on the bill. The other, from Sen. Kirsten Gillibrand (D-N.Y.), would set maximum contaminant level goals for PFCs.
Both provisions are part of a larger push in Congress this year to get the military to double down on cleanup efforts around contaminated installations.
House lawmakers last week approved $30 million to help mitigate drinking water pollution from PFCs as part of their minibus spending package (E&E Daily, July 28).
The House-passed version of the NDAA also includes a number of amendments related to PFCs, including one that would require a health impact study (Greenwire, July 14).
And on Tuesday, 14 members of Congress penned a letter to President Trump urging him to hasten the Pentagon's ongoing investigations into PFC contamination around bases nationwide.
"It is critical that DOD take immediate action to prevent further exposure," the letter says. "Despite the dangers PFCs present, DOD has been slow to provide safe drinking water to those areas with contaminated water."
Senate lawmakers have proposed a slew of other environment and energy-related provisions ahead of debate on NDAA, including:
· A provision from Sen. Maria Cantwell (D-Wash.) to require DOD to collaborate with the Department of Energy on cybersecurity for energy delivery systems and infrastructure.
· An amendment from Sen. Rand Paul (R-Ky.) to allow DOD to produce and use natural gas located under Kentucky's Fort Knox.
· A provision from Sen. Amy Klobuchar (D-Minn.) to establish a health center for prevention and diagnosis of diseases related to military burn pits and other environmental hazards.
· A measure from Sen. Mazie Hirono (D-Hawaii) to give DOD authority to use the energy savings investment fund for energy management initiatives.
· Another provision from Hirono to require a report from DOD to Congress on projects to improve energy resilience.
· An amendment from Sen. Dean Heller (R-Nev.) to require the Air Force secretary to report on the impact of the Yucca Mountain nuclear waste repository on nearby military installations.
· A measure from Sen. Elizabeth Warren (D-Mass.) to require a report on significant vulnerabilities to the electric grid.Road ahead
The schedule for debate on the bill remains in flux, however, after Paul delayed a procedural motion last week to take up the NDAA.
Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Chuck Schumer (D-N.Y.) had both hoped to move on the measure last week after the Senate rejected the Republican health care reform effort in the early hours of Friday morning. That would have allowed McCain to preside over debate before heading home Monday to start treatment for brain cancer.
Paul objected in an effort to secure debate on his bipartisan measure to roll back authorizations for the use of military force enacted during the George W. Bush administration.
McCain in a statement last week said he planned to come back to the Senate after the August recess, and on Wednesday, he told Arizona's 550 KFYI that he would be back next month.
McCain, who had pushed to finish up work on NDAA last week, expressed frustration with Paul, though he declined to mention him by name.
"It is unfortunate that one senator chose to block consideration of a bill our nation needs right now, the National Defense Authorization Act," McCain said in a statement last week.
https://www.eenews.net/eedaily/2017/08/04/stories/1060058393
-
US Prosecutors Seek Records of Unregulated Chemical in River
Aug 4, 2017 | AP (In The Washington Post)
By Emery P. Dalesio
Federal prosecutors have demanded documents, research and monitoring data from a state agency as they investigate a Fortune 500 company’s release of a little-studied chemical into a river that supplies drinking water to hundreds of thousands of people, officials said Thursday.
The North Carolina Department of Environmental Quality received a subpoena last week from U.S. attorneys seeking records involving discharge of the unregulated chemical GenX into the Cape Fear River. The river is the main source of the water utility serving about 200,000 people in and around Wilmington, about 100 miles (160 kilometers) downstream of the Chemours plant near Fayetteville.
The state environmental agency said it would turn over documents dating back to 2011 within three weeks to a grand jury reviewing evidence in Wilmington.
Chemours employs nearly 1,000 workers at its Bladen County plant.
“We continue to work closely with local, state and federal officials to determine the appropriate next steps,” the chemical company’s spokesman Gary Cambre wrote in an email.
The subpoena demanded records including “all documents purporting to authorize Chemours to discharge GenX, GenX byproducts or other fluorinated chemicals into navigable waters of the United States.”
Fluorinated chemicals are used to add strength and durability to a variety of products from textiles to Teflon and police body armor. They include the chemical PFOA, a suspected carcinogen that GenX was developed to replace.
GenX has been used since 2009 to make Teflon and other non-stick products. There are no federal health standards and the U.S. Environmental Protection Agency classifies it as an “emerging contaminant” to be studied. Chemours has spent weeks rerouting GenX-laced wastewater from the river onto tankers which transport the water away for incineration.
North Carolina Attorney General Josh Stein has also demanded documents from Chemours related to the chemical’s safety and how it compares to PFOA. Gov. Roy Cooper last week directed state criminal investigators to see if the company’s plant violated any permits.
DuPont spun off Chemours two years ago. In February, DuPont and Chemours agreed to pay nearly $671 million to settle 3,500 lawsuits related to the release of PFOA from a Parkersburg, West Virginia, plant more than a decade ago. That was two months after a federal jury determined DuPont should pay $2 million to an Ohio man who says he got testicular cancer because of the company’s negligence over PFOA.
https://www.washingtonpost.com/national/energy-environment/us-prosecutors-seek-records-of-unregulated-chemical-in-river/2017/08/03/167b2912-7881-11e7-8c17-533c52b2f014_story.html?utm_term=.75bf27b79914
-
Are We Experimenting on Our Children With Soy Formula?
Aug 3, 2017 | Undark Magazine (In Slate)
By Deborah Blum
I’m hesitating over this one question I want to ask the scientist on the phone, a federal researcher studying the health effects of soy formula on infants. I worry that it’s going to sound slightly Dr. Frankenstein–esque. Finally, I spill it out anyway: “Are we talking about a kind of accidental experiment in altering child development?”
The line goes briefly silent. “I’m a little worried about the word experiment,” replies Jack Taylor, a senior investigator at the National Institute of Environmental Health Sciences, a division of the National Institutes of Health. Taylor and his colleagues in North Carolina have been comparing developmental changes in babies fed soy formula, cow-milk formula, and breast milk. His group’s most recent paper, “Soy Formula and Epigenetic Modifications,” reported that soy-fed infant girls show some distinct genetic changes in vaginal cells, possibly “associated with decreased expression of an estrogen-responsive gene.”
But his first reaction is that my phrasing would, incorrectly, “make it sound like we were giving children a bad drug on purpose.” The research group, he emphasizes, is merely comparing the health of infants after their parents independently choose a preferred feeding method. No one is forcing soy formula on innocent infants.
“No, no, that’s not what I meant,” I explain with some hurry. “I wasn’t suggesting that you were experimenting on children.”
Rather, I was wondering whether we as a culture, with our fondness for all things soy, have created a kind of inadvertent national study. Soy accounts for about 12 percent of the U.S. formula market, and I’ve become increasingly curious about what this means. Because the science does seem to suggest that we are rather casually testing the effect of plant hormones on human development, most effectively by feeding infants a constant diet of a food rich in such compounds.
Research shows that soy milk and soy formula contain up to 4,500 times the level of phytoestrogens found in cow’s milk or breast milk. That’s a notable number. And it’s been associated with remarkably high levels of these compounds circulating in the bloodstreams of soy-fed infants. All of this matters when you consider that phytoestrogens are potent human endocrine disruptors, binding efficiently to the estrogen receptors found in both females and males. And consider further that a baby on a soy formula diet is being repeatedly dosed every day.
It’s no wonder then that studies far beyond Taylor’s have found indicators of off-kilter developmental changes, ranging from unusually early menstruation to mammary gland effects.
In light of all this, Taylor reconsiders my point. “Well, you are absolutely correct that these babies are getting a lot higher dose of a known estrogenic compound than they’ll ever get from BPA or an endocrine disruptor like that.” And he considers a little more. “In that sense, it could be considered a kind of experiment.
Let’s drop back for a minute. The idea that plant hormones—such as genistein, the primary phytoestrogen in soy—can interfere with mammalian development is not new. Biologists have been trying to sort out such effects for more than half a century; one of the first such studies followed the rather startling discovery that sheep grazing on fields dense with a hormone-rich clover could become temporarily sterile as a result of their diet.
Heather Patisaul, a biology professor at North Carolina State University who specializes in the study of endocrine disruptors, notes that similar effects can be seen in humans: Young women who consume a diet exceptionally high in soy also occasionally “shut off their menstrual cycles” and become temporarily infertile. “When we think about endocrine disruptors, we have to remember that they aren’t all synthetic compounds,” she emphasizes. “Soy is both a natural food and a hormonally active one.”
Cultures with a longtime reliance on soy protein apparently realized this early, Patisaul adds. For instance, the compounds in soy are known to interfere with the body’s uptake of iodine, an element necessary for healthy functioning of the hormones produced by the thyroid gland. Chinese farmers first cultivated soybeans in about 1100 B.C., so it’s not surprising, she notes, that many Asian diets gradually evolved to contain foods that contain extra high levels of iodine, such as seaweeds.
Evidence of soybean cultivation in North America dates back to colonial days, but the crop was largely considered one for animal feed. It wasn’t until the late 19th century that the first recipe for dining on soy “peas” (cooked with bacon, salt, and butter) was published by an agricultural research station. And it wasn’t until the 21st century that soy foods took off as a diet staple.
The Soyfoods Association of North America estimates that product sales rose from $1 billion a year in 1996 to $4.5 billion in 2013. “More than 75 percent of consumers perceive soy products as healthy,” according to one industry survey.
The embrace of soy appears driven both by an increased shift to vegetarianism and by high-profile research showing that a diet high in soy can have a positive effect on heart disease. The main unanswered question there, Patisaul says—and one that’s been difficult to tease out—is whether reductions in heart disease are due to some aspect of soy chemistry, or due to a reduction in eating meat.
The reasons infants are fed soy formula, though, are different. Doctors may recommend it as an alternative to breast milk or cow-milk formulas if a baby appears lactose intolerant or has some other digestive upset related to feeding. Some parents choose it because they believe it is healthier and others because they themselves have rejected an animal protein diet for ethical reasons and want to raise their children in that model. It’s such decisions—and the resulting rise in numbers of soy-fed infants—that led researchers themselves to wonder whether a steady diet of a phytoestrogen-rich food would be entirely benign for children in the early stages of development.
A 2003 paper did conclude that the primary estrogenic hormone in soy was not as endocrine-disrupting as DES (diethylstilbestrol), a synthetic estrogen once used to prevent miscarriages and early pregnancy that was later found to put both mothers and children at risk of developing reproductive system cancers. But scientists still worried that they didn’t actually know how plant hormones might affect a developing human system. A review published that same year, comparing breast milk and formula fed infants, warned of possible adverse effects but concluded that “the science is insufficiently developed at this time to allow a credible assessment of health risks to infants.”
Another more comprehensive review published the following year simply concluded that more research was needed.
Eventually, the National Toxicology Program—a federal project to assess potentially toxic chemical compounds—took on a comprehensive assessment and in 2010 sought to reassure scientists and parents alike. The NTP concludedthat soy formula should be considered of “minimal concern” in terms of developmental toxicity, and while Andrew Rooney, an NIEHS researcher who worked on the evaluation, concedes that scientists of a decade ago lacked the full ability to see the kind of minute genetic shifts that are detailed in the work of Jack Taylor and other researchers, he still sees soy as a minor health concern.
At the same time, Rooney acknowledges that as the science becomes more advanced, new questions about soy—and new research into its impacts on human development—are continually arising. In 2014, researchers from the NIEHS reported that 6-month-old girls raised on soy formula showed clear signs of estrogen-driven changes in reproductive system cells. The study noted: “These vaginal cell changes suggest that an exclusive soy diet is associated with a response in young girls that is consistent with physiologically active estrogen exposure.”
Two studies published in the following years found a clear association between early soy exposure, the growth of large uterine fibroids later in life, and unusually heavy menstrual bleeding. The latter report made a point of emphasizing the vulnerable timing. “Our results support the idea that infancy is a susceptible developmental window for female reproductive function.”
Which brings me back to my original question.
I spent some time reading through a raft of these papers, including Taylor’s elegant discussion of a chemical mechanism by which phytoestrogens might tinker with human gene expression. And at some point, as one paper led to the next, their range and cumulative weight started to have the feel of a large-scale, if wholly inadvertent experiment in child development. It’s worth noting along these lines that while most studies suggest a more direct effect on girls—who, not surprisingly, possess more estrogen receptors—there are also some hints of subtle effects on boys, ones that the NIEHS scientists hope to study further.
While Taylor does not dismiss the idea that parents and their children may be participating in something of an ongoing, unsanctioned experiment on the impacts of soy, he quickly expresses caution about how strong the experimental results are at this point. “We have these hints in humans that this early exposure to estrogens may have long-term consequences,” he tells me, adding that it would be a mistake to scare parents into making some other choice, because the findings on soy are still so subtle, and so new. “We were very careful not to go to ‘don’t use’ in our paper,” he says. It’s too early to do that.
But there are indications that parents are becoming more wary. While soy accounts for 12 percent of the market now, in 1998 the American Academy of Pediatrics set that number at 25 percent. And some researchers—including Patisaul—have decided that enough is known to begin sounding additional warning notes. Most people, she says, just aren’t aware that soy is such a hormonally active food, and she’d like to raise a little awareness on that front.
“When I talk to parent groups, I know that a lot of people are choosing soy formula for vegetarian or ethical reasons,” she says. “I try to advise against that, to say that it shouldn’t be used unless it’s a medically necessary choice.”
http://www.slate.com/articles/health_and_science/medical_examiner/2017/08/soy_formula_may_be_an_inadvertent_experiment_conducted_on_infants.html
-
U.S. Energy Agency to Take on $50 Billion Backlog as Senate Acts
Aug 4, 2017 | Bloomberg
By Catherine Traywick
The main U.S. energy regulator can get back to the business of approving multibillion-dollar natural gas pipelines after the Senate moved to fill two of four vacancies at the long-crippled agency.
Senators on Thursday confirmed the nominations to the Federal Energy Regulatory Commission of Robert Powelson, former chairman of the Pennsylvania Public Utility Commission, and Neil Chatterjee, a senior aide to Senate Majority Leader Mitch McConnell.
With their appointments, the five-seat panel regains the quorum it needs to approve liquefied natural gas export terminals, clear natural gas pipelines and issue rules governing wholesale power markets. FERC was without a quorum for six months, a stalemate that potentially slowed $50 billion of energy ventures under consideration by the agency.
“We aren’t counting our chickens yet, but the approvals would certainly be a net positive for midstream industry growth, and, ultimately, for producers and consumers of natural gas,” said Ethan Bellamy, a managing director at Robert W. Baird & Co. in Denver.
The most pressing matter facing the new commissioners is the approval of the $2 billion Nexus pipeline that was expected to start moving natural gas by November from Ohio to Ontario. The slow pace of filling FERC vacancies has forced Nexus developers DTE Energy Co. and Enbridge Inc.’s Spectra Energy to push their in-service date to sometime in 2018, DTE Chief Executive Officer Gerry Anderson said on a July earnings call. The project still awaits FERC’s permission to start construction, which could take up to 10 months to complete.
Pipelines Pile Up
Projects such as Dominion Energy Inc.’s $4.5 billion Atlantic Coast pipeline and the $3.5 billion Mountain Valley pipeline to be operated by EQT Corp. are aiming to start construction this year, before environmental rules protecting bird migration and animal roosting kick in during the spring. Together, the two lines would deliver enough gas to heat 62,000 homes through the winter, according to estimates from the Energy Information Administration.
At least five other natural gas pipelines worth at least $10 billion are also awaiting FERC permits while facing increasingly narrow construction windows.
Other pressing projects in FERC’s pipeline include TransCanada Corp.’s $2 billion Mountaineer Xpress and Gulf Xpress pipelines, which received their final environmental reviews in July, and the $1 billion PennEast pipeline. PennEast Pipeline Co. developers including AGL Resources Service Co., Public Service Enterprise Groupand Spectra Energy Partners hoped to receive federal approval this year to start construction in 2018.
The appointment of new commissioners doesn’t necessarily mean those projects’ permits will move quickly, however. On average, it takes 30 days for new commissioners to issue a project permit after being confirmed, and about 12 days after taking office, according to a note by FBR Capital Markets & Co.Back to Work
Powelson and Chatterjee will join acting Chairman Cheryl LaFleur, the lone commissioner on the five-seat panel, and will begin working through a massive backlog.
For the past six months, FERC has been unable to approve new hydropower plants, rule on contested utility mergers, or finalize settlement agreements in market-manipulation cases. A proposed rule on commercial-battery storage has been on hold, as is a decision on adjusting FERC’s disputed income tax allowance policy for master limited partnership pipelines.
The commission also is waiting for the appointment of two additional members.
President Donald Trump has nominated Kevin McIntyre as the new Republican chairman, replacing Lafleur, a Democrat. Senior Senate staffer Richard Glick has been nominated to fill the last remaining Democratic seat on the panel.
Both nominees are scheduled to testify Sept. 7 before the the Senate Energy and Natural Resources Committee, which would bring them a step closer to being confirmed.
https://www.bloomberg.com/news/articles/2017-08-03/u-s-energy-agency-back-in-business-as-senate-confirms-nominees
-
Methane Hot Spot in West Troubles Regulators and Industry
Aug 4, 2017 | BNA Daily Environment Report
By Alan Kovski
The Four Corners area of northwestern New Mexico and southwestern Colorado has been described as an especially prominent hot spot for methane leaking and venting—and illustrates why the Obama administration issued tougher federal regulations in 2016 to govern oil and gas operations on federal and Indian lands.
Emissions of natural gas—mostly methane—contribute to climate change. Some of the hydrocarbon molecules in the mix of gases also add to ground-level ozone, which is linked to respiratory and cardiovascular effects at high levels of exposure. From a business perspective, the emissions are a waste of natural resources.
The Bureau of Land Management's 2016 Methane and Waste Prevention Rule, commonly called the venting and flaring rule, put oil and gas companies and some state officials on the defensive. They argued that it would add significant costs; that existing regulations were adequate; and that companies already had an economic incentive to capture the gas and sell it for a profit.
Companies in the Four Corners areas produce natural gas from layers of coal and separate gas deposits. ConocoPhillips Co. was for years the the largest operator in the region but on July 31 completed the sale of its assets there to Hilcorp Energy Co. Other notable producers in the area include BP Plc and WPX Energy Inc. Chevron Corp. sold its assets in the area in the second quarter.
It's not necessarily easy to say why the Four Corners area may be worse for methane emissions than other areas. Geology, weather, local infrastructure, state regulations, and the limitations of methane detection systems all play a role.
Charged Political Issue
Some states have taken action to varying degrees and report declining emissions. More federal action awaits Interior Department decisions on how the Trump administration will change the venting and flaring regulations.
The Bureau of Land Management, an Interior Department agency, didn't criticize any state when it issued the venting and flaring rule. But the Four Corners’ methane plume became a charged political issue, nevertheless.
Sens. Maria Cantwell (D-Wash.) and Michael Bennet (D-Colo.) singled out the New Mexico portion of the methane plume when they participated in a Washington press conference May 9. One day later, they helped defeat a congressional attempt to rescind the BLM rule.
In June, the Interior Department suspended compliance with those parts of the rule not already in effect and said it will either rescind or revise the rule. The suspension of the regulations pending judicial review was quickly challenged in court by the attorneys general of California and New Mexico.
“Believe me, this was not done without some serious discussions with the lawyers at the Department of Interior,” attorney Vincent DeVito, counselor to the Interior secretary on energy policy, said July 27 at an annual meeting of the U.S. Energy Association.
Satellite and Airborne Detection
A 2014 NASA report turned the spotlight on the Four Corners, when satellite detection of methane plumes found the largest single plume over that area.
A later study, led by a scientist at NASA's Jet Propulsion Laboratory at the California Institute of Technology, used two airborne spectrometers in April 2015 for infrared measurements that identified 250 methane point sources in the Four Corners area.
“This finding confirms earlier assumptions that most of the enhanced methane is related to natural gas extraction, as well as coal mining but also that there is not a single source explaining most enhancements,” the 2016 report said, referring to enhanced emissions. It was published in the Aug. 30, 2016, issue of the Proceedings of the National Academy of Sciences.
The most prominent identified leaks came from gas processing facilities, storage tanks, a couple of gas pipelines, and a venting coal mine. The spectrometers could detect individual plumes, but not measure volumes, which were inferred from the plume sizes.
All of which doesn't mean the states were sitting by idly while methane leaked.
Colorado Takes Action
Colorado and New Mexico have tightened their emissions regulations during the past three years, as have other states. For Colorado, 2015 was the first full year of new regulations requiring, among other things, hydrocarbon leak detection, which includes methane detection.
Although the regulations don't specify infrared cameras, in practice that has been what companies use, according to Jeremy Neustifter, a planner in the Air Pollution Control Division of the Colorado Department of Public Health and Environment.
“It's still early to tell what effects we have seen” from the relatively new regulations, especially given that 2016 results have not been fully vetted yet, Neustifter told Bloomberg BNA July 27. And the program gets good marks from an industry group.
“The leak detection and repair program has been working fairly well,” according to Scott Prestidge, spokesman for the Colorado Oil & Gas Association.
Colorado has seen declines in methane and ethane emissions and ozone concentrations, but specifying the exact reasons for the declines isn't so simple, Neustifter said.
The drop in emissions of volatile organic compounds in Colorado from 2011 to the present, not just under the latest regulations, have been significant, “and the oil and gas industry is responsible for three-quarters of that reduction,” Prestidge said.
Individual companies didn't respond to requests for information on methane control strategies.
New Mexico Acts
New Mexico has for several years required operators to obtain special permission for venting or flaring after 60 days of drilling operations. Starting May 1, 2016, the state also requires a gas capture plan for all new applications for permits to drill.
But the New Mexico gas capture plan doesn't require leak detection, according to Jon Goldstein, director of regulatory and legislative affairs for the conservation group Environmental Defense Fund. That leaves New Mexico behind both Colorado and Wyoming, Goldstein said.
Venting and flaring in the state have gone down, David Catanach, director of the Oil Conservation Division within the New Mexico Energy, Minerals and Natural Resources Department, said. The percentage of total gas production in New Mexico was almost 1.5 percent in January 2016 and down to 0.89 percent in January 2017, he said.
The 2016 BLM regulations would have gone beyond New Mexico's by requiring leak detection that would have resulted in infrared camera use, said Dave Mankiewicz, assistant field manager for minerals in the BLM Farmington, N.M., field office.
Why Worse in Four Corners?
Mankiewicz, a geologist with much industry and government experience, offered some details on why the Four Corners area—also known to geologists as the San Juan Basin—might appear to have more methane leakage than other areas.
First there are topography and meteorology. The area has a bowl shape where atmospheric inversions often occur, trapping gases longer near the surface of the Earth, where satellites can spot them. By contrast, oil and gas production areas like the oil-rich Permian Basin of western Texas and eastern New Mexico are in flatter lands, where gases quickly disperse via air currents, he said.
Goldstein agreed that topography and air inversions were a basic problem for the area.
Neustifter in Colorado said inversions also trouble Wyoming, where winter inversions trap volatile organic compounds (a broad category including natural gas) and nitrogen oxides. Wyoming requires quarterly leak inspections on new and existing wells.
Then there's the oil and gas companies’ heavy reliance in the Four Corners area on gas-driven equipment, such as pumps and compressors, rather than electrically powered equipment—meaning more opportunities for gas leaks.
The gas to drive the equipment comes from the leases in the San Juan Basin, amounting to 38 percent of all on-lease use of gas in the U.S., Mankiewicz said.
Another problem is the large number of gas seeps. The Four Corners area includes the Fruitland Formation, one of the most gas-rich coal outcrops, Mankiewicz said. And while gas operations appear to dominate the leaks, there also is coal mine venting and leaking.
‘Market Failure’
Two industry groups, the American Petroleum Institute and Western Energy Alliance, said operators faced the prospect of significant expenditures to comply with provisions of the BLM rule that were scheduled to start operating in January 2018. Those now are suspended pending review.
Western Energy Alliance specifically noted that the requirement for leak detection and repair programs, and the standards for storage tanks and pneumatic devices would require operators to begin purchasing and installing tens of thousands of replacement parts in the near future.
Companies have an economic incentive to capture gas and sell it, but the incentive is not strong enough, especially with gas prices low, Environmental Defense Fund's Goldstein told Bloomberg BNA.
“It's just not a strong enough driver,” Goldstein said. “It's a market failure.”
If the BLM chooses to revise rather than simply rescind the rule, it could retain the leak detection and repair requirements while jettisoning much else, but the agency has not revealed its plan. It's very likely that whatever the agency does will be tested in court for compliance with the National Environmental Policy Act, Administrative Procedure Act, Mineral Leasing Act, and Federal Land Policy and Management Act.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118099516&vname=dennotallissues&fn=118099516&jd=118099516
-
Enviros Renew Push for Action on Litigation
Aug 4, 2017 | E&E News PM
By Amanda Reilly
Greens today renewed their call for a federal court to make a definitive decision on the future of the litigation over the Clean Power Plan.
In a filing, a coalition of environmental groups asked the U.S. Court of Appeals for the District of Columbia Circuit to either issue a decision on the legality of the contentious Obama administration rule or send the litigation back to U.S. EPA.
The coalition argued that EPA's delay in acting on plans to repeal the Clean Power Plan showed the need for the court to step in.
While EPA says that a draft rollback is in interagency review, environmentalists pointed to the White House's recent regulatory agenda, which classified review of the Clean Power Plan as a "long term action" — a category for rules that the administration doesn't expect to propose for at least 12 months.
"Even the preliminary step of a proposed rule may be delayed for at least another year," the groups' notice to the court says. "These facts further underscore that this court should not continue to postpone a decision in this fully briefed case."
In an April win for the Trump administration, the D.C. Circuit agreed to pause the litigation for 60 days after hearing more than seven hours of oral arguments last September. The administration had sought to delay the lawsuit while it reconsidered the rule, which required states to craft plans to lower carbon dioxide emissions from existing power plants (Greenwire, April 28).
The court asked parties — there are more than 150 involved — to follow up with briefs on whether it should terminate the litigation by remanding the consolidated cases back to EPA or continue to hold it in abeyance.
The Trump administration and industry asked the court to indefinitely stay the litigation.
But environmentalists and state supporters of the rule asked for remand, arguing that placing the cases in long-term abeyance would amount to a short-circuiting of proper procedures for rescinding a regulation (E&E News PM, May 15).
The court has yet to decide on the litigation's fate. Meanwhile, the Supreme Court's February 2016 stay of the Clean Power Plan remains in effect.
https://www.eenews.net/eenewspm/2017/08/03/stories/1060058365
-
Practitioner Insights: Environmental Rights Amendment Revival
Aug 4, 2017 | BNA Daily Environment Report
By Joseph Otis Minott and Paul Cohen
The Pennsylvania Supreme Court's decision in June in Pennsylvania Environmental Defense Foundation v. Commonwealth already has proved to be a game-changer. PEDF has accelerated the revival of Pennsylvania's Environmental Rights Amendment that began in 2013, altering the course of statewide environmental litigation and reshaping policy at all levels of Pennsylvania government. Those impacts will likely deepen—and may ripple nationwide—as Pennsylvania and other states reconsider the viability of constitutional environmental protections.
In 1971, responding to growing concerns about environmental degradation, the legislature and citizens of Pennsylvania approved a constitutional amendment to protect the environment. Commonly called the Environmental Rights Amendment, or ERA, Article I, Section 27 of the Pennsylvania Constitution provides:
“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
Despite being codified in Article I (Declaration of Rights) of the state constitution—alongside other fundamental rights such as free speech, freedom of worship, and due process—the ERA had limited effect for its first 40 years. The ERA was limited primarily by the state courts establishing a balancing test that failed to give full effect to the constitutional rights established by the amendment. Payne v. Kassab, 312 A.2d 86 (Pa. Commw. Ct. 1973). In Payne, the Commonwealth Court heard an ERA challenge to plans to widen a road in Wilkes-Barre that would have resulted in the loss of trees and public common space. The court established a three-part test to address ERA claims: (i) Was there compliance with all applicable statutes and regulations relevant to the protection of the commonwealth's public natural resources; (ii) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum; and (iii) Does the environmental harm that will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?
Under the Payne test, the government could generally meet its constitutional duty by showing that its action did not violate any environmental laws and any environmental harm resulting from its action did not “clearly outweigh the benefits” of such action. This meant that the ERA granted individuals only those environmental protections that the state imposed on itself by statute and that—if the economic benefits were great enough—all manner of environmental degradation could survive judicial scrutiny. Not surprisingly, state agencies nearly always won against ERA plaintiffs under the Payne test.
Payne's evisceration of the ERA was so complete that, as recently as 2013, the government argued that “the Environmental Rights Amendment recognizes or confers no right upon citizens and no right or inherent obligation upon municipalities; rather, the constitutional provision exists only to guide the General Assembly, which alone determines what is best for public natural resources, and the environment generally, in Pennsylvania.” Robinson Twp. v. Commonwealth, 83 A.3d 901, 2013 BL 352532 (Pa. 2013) (plurality opinion). In short, because courts refused to hold that the ERA meant what it said, the government treated it more like a corporate mission statement than a declaration of fundamental individual rights that it could not transgress.
The landscape began to change in 2013 when, in the landmark Robinson Township case, the Pennsylvania Supreme Court recognized for the first time that Payne's statutorily focused balancing test had undermined the ERA's constitutional mandate. In Robinson Township, a plurality of the Supreme Court began an ERA revival by holding that certain provisions of Pennsylvania's 2012 Marcellus Shale gas legislation (Act 13) were unconstitutional under the ERA. But, because Robinson Township commanded only a plurality of the Supreme Court, the lower courts and government actors across Pennsylvania continued to apply the Payne test—that is, until last month when the Supreme Court decided PEDF. Pa. Envtl. Def. Found. v. Commonwealth, No. 10 MAP 2015, 2017 BL 209861, 84 ERC 1838 (Pa. June 20, 2017).
The ERA revival that began with Robinson was resoundingly affirmed by PEDF, a decision that Justice Max Baer described in his concurrence as a “monumental” step in the development of the ERA, a “dismantling” of the Payne test, and a “jurisprudential sea-change” that has “rejuvenated Section 27.” PEDF affirmed the plurality's analysis in Robinson and found that the Payne test “is unrelated to the text of Section 27 and … strips the constitutional provision of its meaning.” The court, in rejecting the Payne test, held that “the proper standard of judicial review lies in the text of Article I, Section 27 itself, as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.”
Individual Rights, Constitutional Trust
Following the analysis set forth in Robinson, a majority of the Supreme Court held in PEDF that the Environmental Rights Amendment grants individual constitutional rights to the citizens of Pennsylvania and establishes a constitutional trust over the state's public natural resources.
Specifically, PEDF held that the first clause of the ERA establishes an individual constitutional right for each citizen to the enumerated constitutional features: “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The ERA “places a limitation on the state's power to act contrary” to these fundamental rights, and prohibits any government actions that “unreasonably impair” those rights. Future cases will determine what constitutes “unreasonable impairment” of environmental rights under the ERA and, perhaps more important, what degree of constitutional scrutiny such ERA claims will receive. At a minimum, the Supreme Court suggested in Robinson that, to comply with the ERA, the government must “consider in advance of proceeding the environmental effect of any proposed action on the constitutionally protected features.” In other words, the government has an obligation to first develop a factual record of the environmental impact of any proposed course of action.
Where the record shows degradation is likely to occur, ERA plaintiffs will likely argue for strict scrutiny of the government's action. Indeed, environmental plaintiffs, including Pennsylvania's Clean Air Council, have recently argued before the Pennsylvania Environmental Hearing Board that strict scrutiny should apply to ERA claims: “1) is there an intrusion on fundamental rights (i.e. does the action authorize degradation that is likely to occur); 2) if so, is there a compelling government interest for that degradation (the intrusion on the protected rights); 3) has the government used the least restrictive means to achieve its purpose; and 4) is that purpose consistent with Section 27 overall?” Appellants’ Post-Hearing Br. Re: Article I, Section 27, at 1-2, Del. Riverkeeper Network v. Commonwealth, EHB No. 2014-142-B (July 21, 2017). By contrast, in another case following the PEDF ruling, the government argued for continued balancing of economic interests and less constitutional scrutiny: “Aspects of the Robinson Twp. decision, such as balancing and sustainable development, were not addressed by the PEDF Court but may be deemed relevant in future cases.” Commonwealth's Br. Re: Article I, Section 27, at 4, Ctr. for Coalfield Justice v. Commonwealth, EHB No. 2014-072-B (July 12, 2017).
PEDF Case Provides Guidance
PEDF held that the second clause of the ERA establishes a right to “the common ownership by the people, including future generations, of Pennsylvania's public natural resources.” In connection with this right, the ERA “establishes a public trust, pursuant to which the natural resources are the corpus of the trust, the Commonwealth is the trustee, and the people are the named beneficiaries.” The Supreme Court noted that the Commonwealth's trustee duties apply to all government actors, both statewide and local. Those duties include “a duty to prohibit the degradation, diminution, and depletion of our public natural resources” and to “act affirmatively via legislative enactment to protect the environment.”
On its facts, PEDF was focused on the constitutional trust provisions of the ERA because the appellant—Pennsylvania Environmental Defense Foundation, led by attorney John Childe—challenged provisions of the state fiscal code related to the lease of state lands for oil and gas drilling. PEDF argued that all proceeds from oil and gas leasing on public state lands, which generated nearly $1 billion between 2008 and 2015, are subject to the Environmental Rights Amendment's public trust requirements and must be used for trust purposes (i.e., conservation). PEDF argued that provisions of the fiscal code transferring money from oil and gas leasing into the commonwealth's general fund were unconstitutional because the funds would not be used to conserve and maintain the constitutional environmental trust. In response, the government argued that the money could be spent on any public purpose.
The Supreme Court agreed with PEDF that any proceeds from the sale of public trust assets must become part of the constitutional public trust established by the ERA and be used for conservation purposes. Because the court held that royalties based on gross production from oil and gas wells constitute a sale of public assets, the court held that those royalties must be spent on conservation and may not be transferred into the general fund. The Supreme Court remanded for further factual determination whether some $400 million of the total fees generated by the leasing, including annual rental fees, are part of the corpus of the trust under Pennsylvania trust law. On remand, the Commonwealth Court will likely consider the Supreme Court's emphasis throughout the opinion that the ERA requires the commonwealth to act as a trustee, rather than a mere proprietor, of the public natural resources.
Increased Scrutiny of ERA Claims by State Courts
PEDF has had an immediate impact on environmental litigation across Pennsylvania. Courts are now giving increased scrutiny to Environmental Rights Amendment claims and have requested supplemental briefing in several high-profile cases. While many issues remain to be decided, it appears that the government faces a much heavier burden than it did under Payne.
In the first and most obvious example of PEDF's impact on statewide litigation, the Pennsylvania Environmental Defense Foundation has argued on remand before the Commonwealth Court that part of the current state budget is unconstitutional. PEDF has sought an injunction preventing the state from appropriating $61 million in funds from oil and gas leases to fund the general operating budget of the state Department of Conservation and Natural Resources (DCNR). PEDF argued that such appropriation is unconstitutional because DCNR's general budget is not directly used for conservation purposes (i.e., it may be used for administrative expenses or maintenance of state park vehicles and facilities). Five years ago, the notion that the Environmental Rights Amendment could be used to enjoin the state budget would have been unimaginable—but now that issue is being litigated before the Commonwealth Court post-PEDF.
In several other cases, courts have asked for supplemental briefing before deciding ERA claims. As discussed above, in the Center for Coalfield Justice and Sierra Club's challenge to permits issued to Consol Energy for its longwall mining operations at the Bailey mine, the Environmental Hearing Board ordered the parties to submit supplemental briefs regarding PEDF's impact on the plaintiffs’ ERA claims. (The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, founder of Bloomberg L.P. Bloomberg BNA is an affiliate of Bloomberg L.P.) And in another case involving protesters who are blocking the construction of Sunoco's Mariner East pipeline (Clean Air Council is involved in a separate legal action against Sunoco related to the same pipeline), the Huntingdon County Court of Common Pleas delayed its decision in order to consider the impact of the rejuvenated Environmental Rights Amendment post-PEDF. Although the court ultimately issued an injunction against the protesters and did not base its decision on the Environmental Rights Amendment, the issue is likely to be raised on appeal to the Commonwealth Court.
Even industry parties may begin using the rejuvenated ERA in arguments post-PEDF. In Warren County, an oil refinery recently opposed a permit that was granted to drill an unconventional gas well below the refinery. The refinery based its opposition, in part, on the Environmental Rights Amendment and the undue risk of environmental catastrophe that the drilling permit presented. Although the Commonwealth Court rejected the challenge by the refinery because it had failed to raise its ERA claims at trial, the case may encourage similar parties to pursue ERA claims in the future.
Finally, even pre-PEDF, some courts were applying the rejuvenated ERA to strike down local decision-making that failed to respect citizens’ environmental rights—and those cases will be more likely to withstand scrutiny on appeal. For example, Concord Township's 2016 approval of a land development project was overturned because the township denied a citizens request to hold an evidentiary hearing and present environmental concerns. See In re Appeal of Mutschler, No. 2015-3480 (Pa. Ct. Com. Pl. Delaware Oct. 24, 2016). The Court of Common Pleas ordered Concord's Board of Supervisors to conduct an evidentiary hearing and consider the impact of the decision on individual environmental rights and the constitutional public trust. Post-PEDF, Courts of Common Pleas across Pennsylvania should be more likely to give such increased scrutiny to local government decision-making that fails to comply with the ERA.
Increased Attention to Environment
Post-PEDF, lawmakers and policymakers are increasingly considering the environmental impact of their decisions—and the risk of litigation for failure to adequately consider citizens’ rights under the ERA.
For example, in his June 30 decision to veto the Plastic Bag Bill (H.B. 1071), Pennsylvania Gov. Tom Wolf cited the ERA and the PEDF decision. The bill would have prevented any local government across the commonwealth from approving a ban, fee, surcharge, or tax on plastic bags. In vetoing the bill, the governor may have been looking at the Robinson Township precedent, which held that preventing local governments from making decisions to protect the environment (in Robinson, local zoning decisions) violates the ERA.
The governor recently also decided to sign a longwall coal mining bill, however, which shows that PEDF has not been a complete panacea for environmentalists. Wolf's signing of S.B. 624 will make it easier for Consol Energy to develop a longwall coal mine beneath Ryerson Station State Park in Greene County. Nonetheless, his delay in signing the bill indicated that he was likely considering the environmental impact of his decision and the threat of additional litigation (as noted previously, environmental organizations are currently challenging DEP permits for the Consol energy operation).
Policies and politics also have been shaped in less formal ways by PEDF. Pennsylvania's auditor general cited the ERA as a basis for signing a petition in support of the Paris Agreement on climate change in late June. And local politicians and environmental advocates across the commonwealth also have increasingly pointed to the ERA and the PEDF decision while protesting pipelines, cuts to the Department of Environmental Protection's budget, and other threats to environmental protection.
Looking Ahead in Pennsylvania and Beyond
As environmental rights litigation and policy continues to play out in Pennsylvania post-PEDF, Pennsylvanians may not be the only ones watching. More than one-third of the states have some form of constitutional protection for the environment. And still other states—including most notably New York—have ongoing legislative efforts to pass environmental rights amendments to their respective constitutions.
As in Pennsylvania, those states with constitutional protections have had varied experiences and measures of mixed success protecting their environment. Most have severely limited the significance of these constitutional provisions—as Payne had in Pennsylvania—by holding that they do not establish an independent source of rights apart from statutorily enacted environmental laws and by establishing relatively lax standards for meeting any constitutional requirements.
Although a complete analysis of those provisions is beyond the scope of this article, Montana stands out among those states with constitutional environmental protections. In 1999, the Montana Supreme Court held that the right to a “clean and healthful environment” in the state's constitution is a fundamental right that entails a strict scrutiny analysis. Mont. Envtl. Info. Ctr. v. Dep't of Envtl. Quality, 988 P.2d 1236, 49 ERC 1402 (Mont. 1999).
Post-PEDF, it appears Pennsylvania is at the vanguard of constitutional environmental protections in the U.S. In the near future, state courts will see new cases that develop the contours of the ERA as the legal community, and the wider public, reconsiders the meaning of individual environmental rights and constitutional public trusts.
Joseph Otis Minott is executive director and chief counsel of the Clean Air Council, a nonprofit environmental group supported by approximately 8,000 contributing members. The council's sustainability and public health initiatives include public education, community action, government oversight, and enforcement of environmental laws.
Paul Cohen is a legal fellow at the Clean Air Council.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118099540&vname=dennotallissues&fn=118099540&jd=118099540
-
Texas Approves Higher Truck Weights at Ports Ahead of Petrochemical Export Surge
Aug 4, 2017 | Platts
By Elizabeth Bassett
US petrochemical producers scored a big win from the Texas Legislature this year with a new law that allows trucks to move export-bound containers filled to the brim to Port Houston’s pair of container terminals.
The law signed by Governor Greg Abbott in late May establishes a $6,000 annual permit for so-called “heavy haul” on designated routes within 30 miles of international ports and bridges. It means trucks carrying plastic pellets to Port Houston for export can reach a gross weight of up to 100,000 lb, up 19% from the port’s current limit of 84,000 lb — the first increase since the 1970s.
The change, effective in January, puts Port Houston on par with all other major US ports that already allowed heavy haul, including Los Angeles and Long Beach, California; New Orleans; New York/New Jersey; and Savannah, Georgia. Some other Texas ports already allow heavy haul, such as the Port of Brownville for steel movements, but the new law spreads it to the rest.
The increase also addresses a concern from polyethylene producers who expect to export hundreds of thousands of metric tons of new output through Port Houston per year once new plants begin ramping up. ExxonMobil Chemical President Neil Chapman said earlier this year, before the legislation was signed, that ports with heavy haul could handle full polyethylene containers while those in Houston hold 10% to 15% less — a difference of up to more than 9,000 lb.
A full PE container typically holds 26 mt to 27 mt, or nearly 60,000 lb.
ExxonMobil is among a slew of producers that will start up eight new steam crackers and 14 new polyethylene plants along the US Gulf Coast this year through 2019 in the first wave of new petrochemical infrastructure stemming from the cheap US natural gas boom. Nearly 6.7 million mt of new polyethylene capacity is slated to start up in that span — 57% of that this year. Most if not all the new output is expected to ship out to international markets — largely Asia — because North America is already oversupplied, according to Platts Analytics.
A key link in that export chain is movement of polyethylene-filled containers to a port. Producers make the pellets and move them via truck or rail to packaging warehouses where they are typically packed in 55-lb (25-kg) bags. Packagers stack the bags on pallets and load them into containers that move via truck or rail to ports. Massive cranes then put loaded containers on ships bound for international markets.
Last year the Houston district as defined by the US International Trade Commission, which includes Port Houston and the Port of Freeport, handled 84% of all US waterborne polyethylene exports. That dominance is expected to continue as new capacity ramps up. However, other ports are marketing themselves as alternative outlets for excess polyethylene, often touting their heavy haul corridors as an advantage over Houston.
“Now there’s a compelling reason, a competitive factor for us to hang on to that business,” said John Moseley, senior director of trade development at Port Houston, in a recent interview. “It’s ticking boxes off a list of things to make us a more competitive gateway port.”
Most of each $6,000 permit fee will go to the Texas highway fund and affected counties, but 16% will be equally divided among cities and towns along the port that will see heavier traffic. Trucks that weigh 100,000 lb must have seven axles to safely distribute the weight as well as roll stability and truck blind spot systems.
Opponents included several affected towns, some labor groups and railroads facing more cargo-hauling competition from trucks. La Porte sits between Port Houston’s container terminals and is home to new polyethylene plants starting up this year and in 2019. Its city council in February unanimously voiced opposition to the higher limit, as it had during previous legislative sessions when heavy haul initiatives went nowhere.
La Porte Mayor Louis Rigby said a study commissioned by the city several years ago showed 59,000 trucks moved through town in a 24-hour period. He expects more with the upcoming surge in polyethylene production, and said the $960 per permit that will be spread among towns like his will not be enough to enforce the new limits.
“We won’t even be able to put one new officer on the street,” Rigby said. “But we’re working on some things. We won’t challenge it — just enforce it.”
http://blogs.platts.com/2017/08/04/texas-truck-weights-ports-petrochemical-export/
-
Official: Derailed Rail Car Fires Should Burn Out Overnight
Aug 4, 2017 | AP (In The New York Times)
Officials say the derailed freight train cars that have been ablaze for nearly a day and half in a small Pennsylvania town will burn themselves out overnight.
About 1,000 residents of Hyndman spent the night in hotels following Wednesday's derailment that forced their evacuation.
County safety crews and workers from CSX, the train's owner, helped residents retrieve pets and prescription medicines after they were ordered out of their homes Wednesday. Hyndman is about 100 miles (161 kilometers) southeast of Pittsburgh.
At least 32 rail cars derailed, some containing hazardous materials.
At least one house was practically sheared in half and one garage caught fire.
A CSX spokesman says they're letting the propane burn itself out, which is safer than trying to extinguish it.
Some of the train cars that didn't derail are being removed from the tracks.
https://www.nytimes.com/aponline/2017/08/03/us/ap-us-train-derailment-fire.html
-
Portland City Council Votes to Appeal Fossil Fuel Terminal Ban
Aug 4, 2017 | BNA Daily Environment Report
By Paul Shukovsky
Portland, Ore., wants to see its ban on new fossil fuel terminals reinstated. The city council voted unanimously to appeal a decision striking the ordinance as unconstitutional.
The Aug. 3 resolution to appeal follows a July ruling by the state Land Use Board of Appeals that the ordinance violates the dormant Commerce Clause of the U.S. Constitution by discriminating against interstate trade in fossil fuel.
The ordinance passed in December 2016 was aimed at stopping the development of natural gas and Bakken crude oil export terminals at the the Port of Portland. Existing terminals such as BP West Coast, Chevron, Equilon/Shell, and Kinder Morgan would also have been prohibited from expanding capacity beyond 2 million gallons under the ordinance.
Kinder Morgan's Portland terminal operations declined to comment to Bloomberg BNA, and BP could not be reached for comment. The Western States Petroleum Association, which supports the terminal, did not immediately respond to a request for comment.
“We expected the fossil-fuel industry to attack this landmark policy,” Columbia Riverkeeper Conservation Director Dan Serres told Bloomberg BNA Aug. 3. “This precedent-setting policy is worth fighting for.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118099528&vname=dennotallissues&fn=118099528&jd=118099528
-
(ACC Mentioned) EPA Bows to States’ Pressure on Air-Quality Standards
Aug 3, 2017 | Courthouse News
By Josh Russell
The Environmental Protection Agency said it is moving forward with Obama-era smog regulations, after 15 states petitioned to challenge the Trump administration’s delay of rules reducing emissions of air pollutants.
In statement released late Wednesday, EPA Administrator Scott Pruitt said, “We believe in dialogue with, and being responsive to, our state partners. Today’s action reinforces our commitment to working with the states through the complex designation process.”
The agency said that compliance with 2015 air-quality standards “will help ensure that more Americans are living and working in areas that meet” National Ambient Air Quality Standards, or NAAQS.
Ground-level ozone, or smog, is created when pollutants emitted by cars, power plants, oil refineries, chemical plants and other sources react in the atmosphere to sunlight. The NAAQS adopted by the EPA in 2015 reduced the allowed amount of ground-level ozone from 75 parts per billion to 70 parts per billion.
Pruitt had said in June that he was extending the deadlines to comply with the 2015 standards by at least one year while his agency studied and reconsidered the requirements.
Several pro-business groups are opposed to the stricter rules, including the American Petroleum Institute, the American Chemistry Council and the U.S. Chamber of Commerce.
On Tuesday, 15 states – California, Connecticut, Delaware, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington, as well as the District of Columbia – filed a legal challenge over the delay of the stricter air-quality standards.
New York Attorney General Eric Schneiderman, who was among the state officials behind the lawsuit, argued the EPA’s delay violated the Clean Air Act.
“Yet again the Trump EPA has chosen to put polluters before the health of the American people,” Schneiderman said on Tuesday. “By illegally blocking these vital clean air protections, Administrator Pruitt is endangering the health and safety of millions.”
Wednesday’s statement from the EPA noted that the Clean Air Act gives the agency the flexibility to allow one additional year for sufficient information to support ozone designations, and it may choose use its delay powers in the future “ to ensure that its designations are founded on sound policy and the best available information.”
Schneiderman celebrated the EPA’s position reversal in a statement Thursday.
“One in three New Yorkers breathe dangerous smog levels. The EPA’s reversal – following our lawsuits – is an important win for the health and safety of the 6.7 million New Yorkers, and the over 115 million Americans, directly impacted by smog pouring into their communities,” he said.
Schneiderman said the coalition of attorneys general will push to make sure the EPA finalizes the smog designations by Oct. 1.
U.S. Rep. Paul Tonko, D-N.Y., echoed Schneiderman’s sentiment.
“Failing to implement these protections would pose a very real threat to our public health and our economic productivity, keeping more of our workers and students home sick and exposing all of us to higher risks of heart disease, cancer, asthma and numerous other heart and lung conditions,” Tonko said in a statement.
According to the American Lung Association, over 115 million Americans breathe harmful levels of smog, which often travels far distances from other states with less stringent clean-air regulations.
https://www.courthousenews.com/epa-bows-states-pressure-air-quality-standards/
-
Pruitt's Critics Say Ozone Reversal Shows EPA 'Chaos,' Limits On Power
Aug 3, 2017 | Inside EPA
Environmentalists and other critics of EPA Administrator Scott Pruitt say his sudden decision to scrap a one-year delay he had announced for issuing ozone air standard attainment designations suggests an agency in “chaos,” and shows that there are limits to his discretionary authority for postponing Obama-era rulemakings.
Several sources drew a connection between Pruitt's sudden Aug. 2 reversal of the designations delay and the recent federal appeals court ruling scrapping its attempt to delay implementation of the previous administration's rule setting methane emissions limits on new sources of oil and gas drilling.
EPA “faced a lot of legal jeopardy” on ozone given doubts over its Clean Air Act authority for the designations delay, says one environmental lawyer, and the methane ruling “must have affected their thinking.”
Similarly, a former government official says, “EPA's justification for the ozone decision was extraordinarily weak. The record was paper thin,” and the methane ruling suggested a likely loss in pending suits over the ozone delay. “Pruitt styles himself as a man of action. Which is all well and good until you get your teeth knocked in.”
Asked about whether EPA would typically have consulted with the Office of General Counsel or others on the delay, the source says “There is one word to describe what is going on over there. Complete chaos.”
And a former EPA employee says staff told Pruitt he was too aggressive in trying to delay the ozone designations but he "knew better." This source says Pruitt gave no credit to the fact that implementation was on a long time line, that no states were yet in trouble and that a reanalyses of the benefits and cost would cure most of the problem.
But some state officials and other sources caution against drawing such conclusions from Pruitt's decision, which puts the agency back on track to issue designations by Oct. 1 on which areas are either attaining or in nonattainment with the 2015 ozone national ambient air quality standard (NAAQS) of 70 parts per billion (ppb).
Whit Swift, an attorney with the Bracewell, LLP., law firm, told Inside EPA on the sidelines of the Aug. 3 Texas Environmental Superconference in Austin, TX, that “I think it's just a sign of the agency picking its battles.”
The initial decision would have postponed designations for the entire United States until Oct. 1, 2018, and the designations are key because their issuance triggers an air law clock for states to craft plans for how they will reduce ozone emissions in order to meet the limit. EPA initially said it needed the extra time to assess information gaps such as missing data on the role of naturally occurring “background” ozone, but now says those gaps are not as severe as previously believed.
“I assume it was more of a decision that an across-the-board delay wasn't justified but that the Clean Air Act will give them authority to postpone those designations where they really need it,” Swift said.
A source with the Association of Air Pollution Control Agencies -- which represents several state and local air divisions -- says it is “entirely possible” that EPA could pursue a more “surgical approach.”
The agency cautions in the notice that it could still at a later date attempt to delay designations even though “the administrator is not making such a determination at this time.”
If the agency pursues a delay in the future, EPA says that air law section 107(d)(1)(b)(i) gives the administrator authority to seek more time for designations -- but that Pruitt is not currently taking that step.
Local Delays
A delay in designation of areas as attainment or nonattainment might work on a regional or individual state basis, instead of the blanket basis originally announced, the source says. Under that approach, EPA could still issue designations for large parts of the country but postpone area-specific findings on a case-by-case basis. Those delays could still be challenged in court, but would likely be more localized legal fights.
One state air regulator who opposed the delay says EPA could “designate the areas that want to be designated” as in attainment and not others, but “that would be an interesting approach” and “would cause inequity issues.”
Another state air regulator says that withdrawal of the delay could either be beneficial by signaling EPA is open to more engagement with states on ozone data, or negative if Pruitt uses the delay authority to postpone area-specific designations in states with poor monitoring data while meeting the Oct. 1 target for other areas.
“The cynical part of me thinks this allows case-by-case delays to reward upwind states and then claim no delays for downwind states with good monitoring data. The optimistic side thinks this does present an opportunity for innovative processes if states are really being listened to,” the source says.
Environmentalists say they are prepared to file lawsuits over any attempt to delay the designations, after filing a legal challenge to the initial delay that Pruitt announced in June.
EPA says it has authority in the air law should it decide to issue delays in the future, but environmentalists say they are likely to contest efforts to delay implementation of the 2015 ozone standard. And even for a designation delay for one specific area, EPA still has to provide adequate justification and can only delay by one year, says a second environmentalist. “I would anticipate there would be more litigation,” the source says.
EPA realized “they had a loser” in the lawsuit against the one year delay, in the wake of the U.S. Court of Appeals for the District of Columbia Circuit ruling vacating the methane rule stay, the source adds.
Adrian Shelley, director of the environmental group Public Citizen's Texas office, told Inside EPA at the Texas Environmental Superconference, “[I]t's telling that this rollback on the ozone decision came just a little bit after the D.C. Circuit ruling on the methane rule,” and may help set limits on Pruitt's agenda.
“I think that the courts are going to have to help EPA to understand the limits of its authority to roll back” regulations,” Shelley said. “Pruitt has been quicker and more aggressive than pretty much any of the other agency heads in rolling back rules, so for him to already have had an adverse decision in the D.C. Circuit and to already be doing a walk-back on ozone, hopefully it's not just signaling something to the EPA but to the other agencies as well.”
The signal to the agencies should be “that they're not going to be able to forgo the public process and undo rulemakings that were promulgated with public input and via usual process,” Shelley said.
https://insideepa.com/daily-news/pruitts-critics-say-ozone-reversal-shows-epa-chaos-limits-power
-
Early Hurdles Slow Pruitt's Deregulation Push — But Maybe Not for Long
Aug 3, 2017 | PoliticoPro
By Alex Guillén
EPA Administrator Scott Pruitt is starting to hit roadblocks in his efforts to undo the agency's Obama-era regulations — a trend that has environmentalists crowing but may prove to be symbolic and short-lived.
Green groups were happy to take the wins this week after a federal court reinstatedan Obama-era methane regulation and Pruitt backed off on his attempts to delay implementation of a sweeping ozone rule. Both rules are among dozens targeted by President Donald Trump's push to relieve regulatory burdens on businesses.
“This week’s been a reality check for Pruitt and Trump that when they ignore the law, they’re going to lose, and I think that may be starting to sink in,” said Mary Anne Hitt, director of the Sierra Club’s Beyond Coal campaign.
“I think these cases show the plain language of federal statutes will not be Administrator Pruitt’s Achilles’ heel, they’ll be his Achilles’ torso,” said John Walke, the NRDC’s clean air director.
Not everyone believes Pruitt’s and Trump’s deregulatory agenda is in danger, however.
Christi Tezak, managing director at ClearView Energy Partners, said these early snags represent “more of an evolution versus a faltering” for Pruitt’s attempt to revoke, rewrite and delay as many Obama administration regulations as possible.
“They’re pushing the envelope, just as the administration before them did, just 180 degrees in the other direction,” Tezak said. “Winning in this administration is a broad term that can change. You can certainly win by vaporizing a rule, no doubt. You can win by putting in place a different rule that makes it harder to do a stricter rule later. You can win through delays, even if courts reverse you later.”
Indeed, Trump’s agencies have already scored a lot of early success in undermining Obama administration regulations, including the major water and climate rules that Pruitt has put on the chopping block.
EPA downplayed its setbacks on the methane regulation, which Pruitt had halted early this year following requests from the oil and gas industry to reconsider the rule.
“EPA is moving full speed ahead to enact common sense regulations, as evidence by the number of significant regulatory actions taken to implement President Trump’s executive orders to protect the environment, save manufacturing jobs and reduce America’s dependency on foreign energy sources,” agency spokeswoman Liz Bowman said in an email.
A federal court said in July that Pruitt had unlawfully halted the methane rule. On Monday the court reinstated the rule, saying it was unreasonable to let an unlawful stay remain in place any longer.
Then on Wednesday, Pruitt made a hard U-turn on a one-year delay in implementing an Obama ozone standard — a postponement that had drawn lawsuits from environmentalists and Democratic attorneys general. EPA said in a notice that, on second thought, the national delay was not supported by the data it had.
Pruitt’s ozone retreat came a day before EPA was going to have to defend itself in court.
These are “initial victories,” Hitt acknowledged, but she hopes they prove an omen.
Pruitt “may be very creative in how he tries to unravel [regulations], but at the end of the day he has an obligation to protect public health, and if he unravels the standards that protect public health, he is going to be breaking the law,” she said.
Walke rejected the idea that even temporary delays that are later overturned could count as victories for Pruitt.
“A cynical agency head willing to break the law can get away with a lot, that is sure. But that’s not winning. That’s recklessness,” Walke said. “They pay a price in adverse court rulings, public scorn and negative publicity.”
Still, these are relatively minor losses for Pruitt in the grand scheme of the Trump agenda.
EPA will have a new freeze placed on the methane rule within weeks, and this one may be less vulnerable to court challenge because Pruitt took public comment first.
The agency also hinted that Pruitt could still delay ozone implementation decisions on a case-by-case basis. That could mean issuing decisions for regions that are indisputably above or below the limit while giving more time for others, particularly in the intermountain West, where background ozone levels have emerged as a difficult issue.
“There’s probably plenty of stuff you can put out the door, and then you fight over what really matters,” Tezak said.
Meanwhile, the underlying ozone standard remains under review by Pruitt’s team. That prompted Democratic states to step up in court this week to defend the 2015 rule, since EPA no longer will.
For now, environmental groups are pressing forward in the handful of cases where they can.
Green groups teamed up with a union last month trying to reverse Pruitt’s two-year stay of a rule meant to prevent explosions at chemical plants. Environmentalists are also trying to reinstate the compliance deadlines for a rule on toxic discharges from power plants, which Pruitt stayed until litigation over the rule concludes.
Still to come are many of the biggest battles, as Pruitt eventually moves to revise or rescind major Obama-era rules that were tied up in court when Trump took power. Cases frozen while Pruitt works to undo the underlying rules include the Clean Power Plan, the carbon rule for future power plants, the ozone standard itself and the Waters of the U.S. rule.
Pruitt’s work to rewrite or revoke those regulations could take a year or more, with intense litigation sure to follow.
https://www.politicopro.com/energy/story/2017/08/pruitts-deregulatory-agenda-hits-early-hurdles-160445
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News - There are no clips to report at this time.
Transportation and Infrastructure News
Environment News
Add recipients
Suggested