Preview Newsletter
AM ACC 8/10/2017
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(ACC Mentioned) Ohio Nominee to Head U.S. EPA Office Draws Fire from Environmental Groups
Aug 10, 2017 | Cleveland.com
By Sabrina Eaton
A Cincinnati toxicologist nominated to head the Environmental Protection Agency's chemical safety and pollution prevention office is getting a poisonous reception from environmental groups who say he's too close to the industries he'd regulate. -
(ACC Mentioned) Dourson’s Go-To Journal for Publishing His Industry-Funded Papers Is, Well, Also Industry-Funded
Aug 9, 2017 | Environmental Defense Fund
By Richard Denison
In a recent post I noted our initial findings from a review of published papers of Michael Dourson, the Trump Administration’s nominee to head the office at the Environmental Protection Agency (EPA) charged with implementing the Toxic Substances Control Act (TSCA)... -
(ACC Mentioned) ACC: ‘Magic Glue’ Could Provide Quick, Reversible Bonding in Auto Body Shop, Factory
Aug 9, 2017 | Repairer Driven News
By John Huetter
Researchers at the American Chemistry Council and Michigan State University have developed a “magic glue” which could be cured, unbonded, and rebonded in a manner of minutes and shows promise at both the automotive factory and collision repair level. -
Trump's Deregulatory Agenda Creates Murky Landscape For 2-1 Order Suit
Aug 10, 2017 | Inside EPA
By Amanda Palleschi
As a federal court prepares to hear arguments over the legality of President Donald Trump's executive order (EO) requiring EPA and other agencies to repeal two rules for every new rule issued, sources say that the case will likely hinge in part on the extent... -
Court Ruling Leaves HFC Future in Hands of EPA, Congress
Aug 10, 2017 | PoliticoPro
By Eric Wolff
The effort to get the U.S. to comply with a treaty eliminating a heat-trappingchemical now faces a grueling path after a major courtroom setback this week — and it may depend on EPA using its power to regulate chemicals. -
(ACC Mentioned) California’s Plan to Tackle a Carcinogen Widespread in Water
Aug 10, 2017 | News Deeply
By Tara Lohan
IF YOU DRIVE Highway 99 through California’s Central Valley, you’ll pass through the heart of farm country, where the state’s bounty blooms with hundreds of crops – everything from peaches to pistachios, from tangerines to tomatoes. -
No One-Hit Wonder: Walmart Reinforces its Commitment to Safer Chemicals
Aug 10, 2017 | Environmental Defense Fund
By Boma Brown-West
Walmart made two big moves last week to reinforce its commitment to leadership on safer chemicals. -
Echa Round-Up
Aug 10, 2017 | Chemical Watch
Echa has published an updated list of substances for which a lead registrant has been declared in REACH-IT. The number of joint submissions has reached 11,581 substances. -
UN Publishes GHS revision 7
Aug 10, 2017 | Chemical Watch
The UN has published the seventh revision of its Globally Harmonized System of Classification and Labelling of Chemicals (GHS), popularly known as the purple book. -
Pipeline Company Could Resume Drilling in Pennsylvania Under Deal
Aug 9, 2017 | The Hill - E2 Wire
By Timothy Cama
The developer of the Marine East 2 pipeline in Pennsylvania has reached a settlement agreement with the state and environmentalists that could let it resume underground boring. -
As EPA Faces Doubts, API Floats Options for 2-Year Methane NSPS Delay
Aug 9, 2017 | Inside EPA
By Abby Smith
As EPA faces doubts over its authority to delay Obama-era methane limits for new oil and gas drilling operations, a major oil and gas industry group is presenting a menu of legal authorities the agency could use to justify the proposed two-year delay... -
Advocates Brief White House on Rule Replacement Option
Aug 10, 2017 | E&E News PM
By Arianna Skibell
Heavy-hitter coal supporters Scott Segal and Jeff Holmstead met with White House officials last week as the Trump administration readies its rollback of U.S. EPA's Clean Power Plan. -
Shale Drillers Spend Less, Produce More in Glut-Gorging Push
Aug 10, 2017 | BNA Daily Environment Report
By Joe Carroll, Giacomo Tognini and Alex Nussbaum
Shale drillers are greeting the fourth year of a historic oil-market slump in a curious fashion, promising to generate even more price-killing production as 2017 progresses. -
In Eclipse, Natural Gas Sees Its Future as Solar's Backstop
Aug 10, 2017 | BNA Daily Environment Report
By Christopher Martin, Mark Chediak and Naureen S. Malik
Natural gas is about to get a glimpse of its future role in the U.S. power mix as solar energy's backup. -
Louisiana Port Project Could Define Ceiling for Shale Oil Demand
Aug 9, 2017 | Fuel Fix
By Jordan Blum
A proposed Louisiana port project could define the ceiling for the future of the Texas shale oil boom, according to a new report. -
BNSF Sidetracked in Bid for Early Proof in Toxics Case
Aug 10, 2017 | BNA Daily Environment Report
By Steven M. Sellers
BNSF Railway Co. isn't entitled to an extraordinary court order requiring pre-discovery proof that a worker's toxic exposure claims are credible, the District of Colorado ruled Aug. 8 (Marquez v. BNSF Ry., 2017 BL 275828, D. Colo., No. 17-cv-01153, 8/8/17). -
Climate Reports May Slow Trump's Push to Undo Obama-Era Rules
Aug 10, 2017 | BNA Daily Environment Report
By Christopher Flavelle and Brian K. Sullivan
A pair of highly anticipated government studies, one of them due to be released this week, could complicate President Donald Trump's effort to roll back federal climate regulations, according to people on both sides of the debate over global warming. -
EPA Head Casts Doubt on ‘Supposed’ Threat from Climate Change
Aug 10, 2017 | The Hill - E2 Wire
By Timothy Cama
Environmental Protection Agency (EPA) head Scott Pruitt on Wednesday cast doubt on the idea that climate change poses a threat to the United States.
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(ACC Mentioned) Ohio Nominee to Head U.S. EPA Office Draws Fire from Environmental Groups
Aug 10, 2017 | Cleveland.com
By Sabrina Eaton
A Cincinnati toxicologist nominated to head the Environmental Protection Agency's chemical safety and pollution prevention office is getting a poisonous reception from environmental groups who say he's too close to the industries he'd regulate.
President Donald Trump's July nomination of University of Cincinnati medical school professor Michael Dourson has drawn flak from organizations including the the Environmental Defense Fund and individuals including anti-pollution activist Erin Brokovich, who said Dourson has "made a career of helping industry stave off or weaken regulations on toxic chemicals."
Industry groups including the American Chemistry Council and the pesticide trade organization CropLife America are happier with the nomination. The pesticide group's president, Jay Vroom, told Bloomberg BNA he's "delighted with the science and policy experience Dr. Dourson has under the industrial chemical and pesticide laws."
Dourson referred questions about his nomination to press spokeswomen for the EPA and his university, who did not respond to inquiries.
A White House press release says Dourson is a former EPA employee who won the Arnold J. Lehman award from the Society of Toxicology (SOT) and the International Achievement Award by the International Society of Regulatory Toxicology and Pharmacology. He's also a fellow of the Academy of Toxicological Sciences and a fellow of the Society for Risk Analysis (SRA).
After leaving EPA in the 1990s, Dourson founded a Cincinnati-based nonprofit group called Toxicology Excellence for Risk Assessment, to help "environmental, industry, and government groups find common ground through the application of good science to risk assessment."
A 2014 report by the Center for Public Integrity and InsideClimate News indicated much of the nonprofit's work was funded by industry interests, chemical manufacturers and tobacco companies. It said some of the groups paid TERA to peer-review studies of their products.
Dourson told them the funding didn't hinder TERA's objectivity. "We get criticized by everyone," he said. "But that doesn't change the fact that TERA is neutral."
Richard Denison, a senior scientist at Environmental Defense Fund, said companies including Koch Industries, DowAgroSciences, Wendy's International, and The Proctor & Gamble Manufacturing Company paid for papers he or his organization produced.
"Now, Dourson certainly has every right to make his living however he wishes," said a blog post from Denison. "And the chemical industry has every right to hire whomever it wants. But a line simply must be drawn at installing such a toxicologist-for-hire at EPA to run its toxics office and oversee implementation of the TSCA reforms adopted just last year."
The EPA released several Dourson endorsements from his academic peers. Samuel M. Cohen, an oncology professor at the University of Nebraska Medical School, applauded him as "an outstanding, hard-working scientist with a distinguished record in toxicology and risk assessment," and applauded his "long track record of bringing together individuals from academia, industry, and government regulatory agencies to work together."
The endorsements released by EPA also included testimonials from people who know him through Christian groups. In addition to his toxicology work, Dourson has written a trilogy of books that attempt to demonstrate "that nature and the Bible are in accord."
"For years, Michael's judicious integration of faith and the sciences has struck me as impressive as it is rare," said an endorsement on the EPA's website from Concordia College President John Arthur Nunes, who knows Dourson from a Christian retreat center where he lectures.
Dourson's nomination was referred to the Senate's Environment and Public Works Committee, which hasn't yet scheduled a hearing. Ohio's U.S. senators have yet to take a public position on whether he should get the job.
Democratic Sen. Sherrod Brown is still reviewing Dourson's record and awaiting his response to questions about his ties to the chemical industry and how those might affect his ability to do the EPA job. Republican Sen. Rob Portman's office didn't respond to inquiries about his stance.
http://www.cleveland.com/open/index.ssf/2017/08/ohio_nominee_to_head_us_epa_of.html
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Aug 9, 2017 | Environmental Defense Fund
By Richard Denison
In a recent post I noted our initial findings from a review of published papers of Michael Dourson, the Trump Administration’s nominee to head the office at the Environmental Protection Agency (EPA) charged with implementing the Toxic Substances Control Act (TSCA). That review has shown that Dourson has been paid by dozens of companies and trade associations for work on dozens of their chemicals – including many of the same chemicals he will be charged with reviewing and regulating should he be confirmed.
Our review is uncovering additional curious features of Dourson’s published papers.
We have looked at all papers listed on PubMed on which he was an author published since 1995 – the year Dourson left EPA and started his consulting firm, Toxicology Excellence in Risk Assessment (TERA).
There are 66 such papers. The chart here shows the number of papers he published in various journals. What is remarkable is that well over half of them – 37 – were published in a single journal: Regulatory Toxicology and Pharmacology. The journal with the next largest number ran only five of his papers.
Regulatory Toxicology and Pharmacology, it turns out, has a longstanding reputation of being the go-to journal for both tobacco and chemical industry-friendly paper publishing. The journal has been the subject of numerous exposés over the past 15 years regarding its close ties to the chemical and tobacco industries. Here are some of them:
· “Science for Sale: Brokers of junk science?” Center for Public Integrity, February 19, 2016. [This article also discusses the close ties to industry of a second journal, Critical Reviews in Toxicology. Two more of Dourson’s papers were published in this journal.]
· “Contesting the Science of Smoking,” David Heath, The Atlantic, May 4, 2016.
· David Michaels (2008) Doubt is Their Product: How the Industry’s Assault on Science Threatens Your Health, Oxford University Press, pp. 53-54.
· “Inside the Academic Journal that Corporations Love,” Paul D. Thacker, Pacific Standard Magazine, March 28, 2017.
· “Correspondence about Publication Ethics and Regulatory Toxicology and Pharmacology,” International Journal of Occupational and Environmental Health, 9:4, 386-391, 2003.
· “Scientific Journal Compromised by Industry Ties: Tobacco, Chemical, & Drug Companies’ Funding Goes Undisclosed, Say Critics,” Center for Science in the Public Interest, November 19, 2002.
o Associated letter from 45 academic scientists regarding the journal’s conflicts of interest and failure to require their disclosure. [In 2003, the journal finally instituted a disclosure policy for papers it publishes – which is part of how we were able to identify the industry funding sources for so many of Dourson’s papers.]
Regulatory Toxicology and Pharmacology is sponsored by The International Society of Regulatory Toxicology & Pharmacology (ISRTP), which sounds like a professional society. It hands out annual achievement awards (Dourson got one in 2009).
My effort to see who funds ISRTP took some interesting twists. On its website, ISRTP only has this to say about its sponsors: “Sponsors to be announced soon.” This struck me as odd for a society that dates back to at least 2003.
Luckily, however, the Internet is archived, and this same page is available for earlier points in time using the glorious Internet Archive Wayback Machine.
Here’s what that page looked like up until September 2006:
An impressive list, to say the least – so why is it now hidden from public view?
For more on ISRTP and its journal, including their role in a 2008 Congressional investigation involving bisphenol A, see this link.
To bring this back to Michael Dourson, I think my title says it all: Dourson’s go-to journal for publishing his industry-funded papers is, well, also industry-funded.
In my next post, I’ll probe a little deeper into Dourson and Regulatory Toxicology and Pharmacology.
http://blogs.edf.org/health/2017/08/09/doursons-go-to-journal-for-publishing-his-industry-funded-papers-is-well-also-industry-funded/
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(ACC Mentioned) ACC: ‘Magic Glue’ Could Provide Quick, Reversible Bonding in Auto Body Shop, Factory
Aug 9, 2017 | Repairer Driven News
By John Huetter
Researchers at the American Chemistry Council and Michigan State University have developed a “magic glue” which could be cured, unbonded, and rebonded in a manner of minutes and shows promise at both the automotive factory and collision repair level.
The cure time is less than a minute, ACC Plastics Division auto team Chairwoman Sandra McClelland said during the Center for Automotive Research’s Management Briefing Seminars last month.
The substance involves nanoparticle balls of iron dust inside of a polymer, according to a video from the ACC’s plastics arm shown at the conference. Applying electric current causes them to vibrate and reach temperatures between 320-800 “within seconds” — but “not so much the adjacent materials,” according to the film. The polymer melts and debonds the parts without harming the substrates being joined.
“Turn off the current, and it hardens within seconds,” the video states.
“We call it ‘magic glue,'” McClelland said July 31, and said it had applications in “safe and economical repairs,” recycling of aged cars, and in an OEM factory — for it cures “within the 1 minute automotive assembly time requirement.”
And here’s the real kicker — the rebonded joint can be even stronger, the research indicates, according to McClelland.
A carbon-fiber frame could be fixed to greater strength after a collision, and a frame replacement on an aged car could make a vehicle “better than new,” McClelland said.
The substance “could stand the automotive notion of joint fatigue on its head,” she said.
Asked during a panel discussion how the bond could be stronger, McClelland said that the heating of the nanoparticles gives off energy, leading to the thermoplastic adhesive melting and becoming more crystalline.
“A more crystalline polymer has better strength,” she said.
Testing has shown it to work in joining metal to metal, metal to composite, and composite to composite — but “avoiding damaging the composite fibers and increasing joint stress resistance.” (The video pointed out that fasteners like rivets can weaken carbon fiber during the bonding.)
The researchers think it’s economically viable, and “we are working to demonstrate that,” McClelland said.
Asked by a moderator if the fastener would still be necessary during the curing process to hold the part together, McClelland pointed to the sub-minute cure time. “At that point, do you really need the fastener?” she asked.
Society of Collision Repair Specialists Education Committee Co-Chair Toby Chess has observed the low shear strength of structural adhesives can demand a collision repairer use glue in combination with another form of joining.
Asked about this by Repairer Driven News, McClelland said it just required thinking of the car as a “total system.”
“We have used the same joints for many, many years,” she said. “… You change the design of that joint, and then you don’t have that issue.”
Researchers continue to test different substrates at MSU, McClelland said.
“They’ve had success with all the substrates that they’re using,” McClelland said. “So, I think they’re available for OEMs to look at.”
Oak Ridge National Laboratory Manufacturing Systems Research Group leader Lonnie Love, who spoke at the conference about 3-D printing factory tooling but had experience with nanoparticles, noted that a scientist could “dope” the nanoparticle with a different metal to control the curing temperature.
McClelland in an interview after the panel said both the particles and adhesive can be engineered to activate at a specific temperature. This would seem ideal for a collision repairer, who must avoid exposing substrates like aluminum and higher-strength steels to excessive heat.
You can “tailor these particles,” said Love, who called McClelland’s adhesive “the coolest thing” he’d seen at the conference that day.
http://www.repairerdrivennews.com/2017/08/09/acc-magic-glue-could-provide-quick-reversible-bonding-in-auto-body-shop-factory/
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Trump's Deregulatory Agenda Creates Murky Landscape For 2-1 Order Suit
Aug 10, 2017 | Inside EPA
By Amanda Palleschi
As a federal court prepares to hear arguments over the legality of President Donald Trump's executive order (EO) requiring EPA and other agencies to repeal two rules for every new rule issued, sources say that the case will likely hinge in part on the extent to which the order is already having an effect on agency regulations.
But discerning such effects may be difficult, as the administration's recently released Unified Agenda -- which details its future regulatory and deregulatory actions -- is one of the slimmest in recent memory.
As a result, it could provide evidence to bolster both sides' arguments. Arguments from both parties are likely to be “data heavy,” an industry source says. “I think you can cut [it] both ways.”
The administration can point to the Unified Agenda “and say . . . 'look, we're regulating, we're executing the law under Article 2. Here is our plan, here's the agenda, here's what we've done so far and what we plan to do',” the source says. But it can also cut the other way, the source says, with the plaintiffs arguing that the regulatory agenda has “less volume” than any previous unified agenda, so the effect of the order is to “squelch all regulatory output and suppress it . . because the order itself is so impossible for agencies to implement,” the source adds.
A person speaking on behalf of the plaintiffs' organizations agrees, saying that the plaintiffs ordinarily should not be able to pursue such a case because its “too speculative” but the Unified Agenda “shows that the effect the administration intended . . . is exactly the effect that it's having: rules are being delayed and withdrawn because of the EO.”
The source says the Unified Agenda shows that dozens of rules, including several EPA measures, are already being delayed as a result of the order. For example, the agenda shows that the Trump administration has now punted Obama administration plans to finalize an EPA rule under the Toxic Substances Control Act (TSCA) regulating methylene chloride and another paint stripping chemical, the source adds.
Judge Randolph Moss of the U.S. District Court for the District of Columbia will hear oral argument Aug. 10 in Public Citizen et al. v. Trump -- a case that hinges on whether EO 13771 and its implementation guidance is constitutional and prevents agencies from carrying out their statutory missions.
The order requires agencies to identify two rules for repeal for every new measure issued, though the implementation guidance requires the identified rules be repealed. The order also requires agencies to offset any new regulatory costs.
So far, there has been little if any public indication of how the order is being implemented. For example, administration officials have allowed at least one Obama-era EPA rule -- a measure regulating mercury discharges from dental offices -- to be implemented without being subject to the order.
And a set of three framework rules for implementing the revised TSCA were exempted from the order's requirements because officials found they do not “impose costs.”
Nevertheless, environmentalists and others have warned of the order's detrimental -- and unlawful -- effects on EPA, where many of its rules are required by statutory mandates.
Sophie's Choice
Dr. Betsy Southerland, the director of the EPA water office's Office of Science and Technology and a 30-year veteran of the EPA, cited the rule in her Aug. 1 departure memo, saying the order provides a “Sophie's choice for public health agencies like EPA.”
“Should EPA repeal two existing rules protecting infants from neurotoxins in order to promulgate a new rule protecting adults from a newly discovered liver toxin? Faced with such painful choices, the best possible outcome for the American people would be regulatory paralysis where no new rules are released so that existing protections remain in place,” Southerland wrote.
Others, like a group of dozens of academics, including several former top officials, have charged that the order fails to adequately account for regulatory benefits and should be withdrawn. Administration supporters, however, have defended the order, saying the implementation guidance requires consideration of regulatory benefits.
The plaintiffs -- Public Citizen, the Natural Resources Defense Council (NRDC) and Communications Workers of America -- have argued that the order violates constitutional mandates regarding the separation of powers, preempts statutory requirements like EPA's Clean Water Act and Clean Air Act, and is incompatible with the “will of Congress.”
They have survived a request from the Justice Department to stay the litigation while the court considers whether it has jurisdiction to hear the case, one of the issues the court is slated to consider at the Aug10 hearing.
The court is also slated to hear the plaintiffs competing summary judgment motion, which argues that the order is unlawful and unconstitutional on its face.
But the plaintiffs' constitutional challenge might face a “high bar,” the industry source says, as federal judges seek to avoid ruling in such cases. “It's not often the case that you can invoke the constitution. Conservatives have learned you can't throw around the 'unconstitutional label'. . . courts are going to do whatever they can to avoid specific arguments on constitutional challenges and we can count on one or two hands [executive orders] that are struck down just as basically unconstitutional.”
https://insideepa.com/daily-news/trumps-deregulatory-agenda-creates-murky-landscape-2-1-order-suit
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Court Ruling Leaves HFC Future in Hands of EPA, Congress
Aug 10, 2017 | PoliticoPro
By Eric Wolff
The effort to get the U.S. to comply with a treaty eliminating a heat-trappingchemical now faces a grueling path after a major courtroom setback this week — and it may depend on EPA using its power to regulate chemicals.
The D.C. Circuit Court's ruling Tuesday forced EPA to abandon its plan to use the Clean Air Act to limit use of hydrofluorocarbons, a refrigerant that would be phased down under recent changes to the Montreal Protocol. Proponents of the effort, including environmentalists and the air conditioning industry, will now need the Senate to approve the treaty and Congress to pass a new law authorizing EPA to implement it, or they will have to persuade EPA Administrator Scott Pruitt to act — no small feat considering the EPA chief's disdain for both climate change initiatives and regulations.
The changes to the Montreal Protocol agreed to in Kigali, Rwanda, last year would curtail global use of HFCs, a move that scientists say could prevent up to 0.5 degrees Celsius — 0.9 degrees Fahrenheit — of warming by the end of the century. U.S. industry groups have supported the Kigali agreement and had backed EPA's plan to implement it under the Clean Air Act's Section 612. That section, put in place nearly 30 years ago as authorizing language to implement the initial Montreal Protocol, established a market mechanism that was designed to reduce ozone-damaging chemicals.
But the court's rejection of using Section 612 may require new legal authority to empower EPA to act if the U.S. eventually ratifies the Kigali amendment.
"You’ll have a treaty and have Congress look at it and pass implementing legislation," said Stephen Yurek, CEO of the Air Conditioning, Heating, and Refrigeration Institute, whose members are the world's biggest makers of HFCs — and will produce most of the next generation chemicals.In its ruling, the D.C. court suggested a slew of laws EPA could use to regulate HFCs: The Toxic Substances Control Act, the National Ambient Air Quality Standards, regulating as a hazardous air pollutant, and regulating HFCs in cars and trucks. But several lawyers said TSCA was the only credible alternative.
"There’s a lot of authority under TSCA to regulate chemicals and chemical uses," said Jane Montgomery, a partner with Schiff Hardin who works with power companies. "It’s not as straightforward as what they intended to under 612, but there’s an environmental harm portion of TSCA. ... For managing the sale and manufacturing and use, TSCA is the most appropriate statute we have."
Yurek said AHRI was still reviewing TSCA as an option, but he feared that it would be a blunt instrument, requiring EPA to issue a rule that immediately limited or banned HFCs, in contrast to the phase-down approach created under Section 612 of the Clean Air Act.
"I’m concerned that it’s much more of a command-and-control-type regime, you have different categories, and potentially banning," he said.
Under the TSCA update Congress passed last year, EPA must assess HFCs before regulating them, and then issue a rule, a process that could take about five years, legal experts said. The agency would ultimately have the authority to limit or even prohibit them, Montgomery said. And in its ruling, the D.C. Circuit upheld several of EPA's tools used to assess the global warming impact of HFCs, bolstering the case for a potential TSCA rule.
AHRI and environmental attorneys largely dismissed the court's other suggestions for EPA to comply with the Kigali goals. The NAAQS program focuses on just six pollutants, none of which are HFCs, they said. Congress similarly created a fixed list of pollutants under the hazardous air pollutants rules, limiting that program's broader application, attorneys said. And refrigerants used in car and truck air conditioners make up only a small part of the refrigerants market.
"These authorities are even less congruent with the authority the EPA invoked in this rulemaking to regulate ozone-depleting chemicals and their substitutes down the road," said Brendan Collins, a partner with law firm Ballard Spahr who represents power companies and oil and gas companies.
EPA says it is still reviewing the court decision, but it's not clear whether Pruitt would advance another rule to govern HFCs, even though it is backed by business interests. Proponents of the Kigali treaty could draw a skeptical reception from the Trump administration, which has been dismissive of both multi-party treaties and climate science — though the administration did defend the rule in court in February. The White House would need to submit the treaty amendment to the Senate for ratification.
Kigali advocates have long aimed to keep a low profile and quietly persuade staffers to support the effort as the administration got up to speed. AHRI is now trying to determine whether the court decision will require a change in its strategy, or if it can apply the same pro-U.S. business approach to the more conservative House.
"We have to decide [if] we do a more public push or keep the schedule," Yurek said. "Right now, the plan is that we continue to wait until the end of this year, and continue to educate both House and Senate."
Green groups who back the ban on HFCs may try a more direct route by appealing to the D.C. Circuit for en banc review. There are seven D.C. Circuit judges appointed by Democrats, versus four appointed by Republicans, potentially giving the appeal an edge — though that advantage flips at the Supreme Court, should the case go that far.
"We are exploring the options," said David Doniger, director of climate programs for the Natural Resources Defense Council. "Including rehearing based on the dissent."
https://www.politicopro.com/energy/story/2017/08/court-ruling-leaves-hfc-future-in-hands-of-epa-congress-160545
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(ACC Mentioned) California’s Plan to Tackle a Carcinogen Widespread in Water
Aug 10, 2017 | News Deeply
By Tara Lohan
IF YOU DRIVE Highway 99 through California’s Central Valley, you’ll pass through the heart of farm country, where the state’s bounty blooms with hundreds of crops – everything from peaches to pistachios, from tangerines to tomatoes. You’ll also pass through dozens of communities, large and small, whose water systems are tainted by a newly regulated contaminant, 1,2,3-trichloropropane (TCP), which for decades was used in agricultural fumigants injected into farmland across the Valley.
On July 18, the State Water Resources Control Board unanimously voted to adopt a drinking water standard for regulating TCP, a manmade chemical the state designated as a carcinogen a quarter-century ago. As a result, water agencies will soon have to start testing for TCP in their water, and those that can’t take contaminated wells out of service or blend the water with cleaner sources will need to construct costly treatment systems. For smaller and low-income communities, the added expense could be more than ratepayers can bear. Water systems may need to spend anywhere from $22,668 to $473,740 per year to meet the new standard, according to State Water Board estimates.
Water agencies and environmental groups hailed the move by the State Water Board to establish a maximum contaminant level (MCL). “We applaud this important step to protect Californians impacted by 1,2,3-TCP,” said Phoebe Seaton, codirector of the Leadership Council for Justice and Accountability, which works on economic and environmental justice issues in the San Joaquin Valley. “The challenge that remains, however, is securing the funds and resources necessary to help impacted communities and residents gain access to treatment mechanisms.”
The maximum contaminant level was set at 5 parts per trillion, which is the lowest level that can be detected with current technology. Felicia Marcus, the board’s chair, called it “a very important day for public health.”
The day was a long time coming, though. TCP has been in California groundwater for decades and even though the state identified the chemical as a carcinogen back in 1992 it wasn’t until 2009 that the Office of Environmental Health Hazard Assessment set a public health goal for TCP.But that goal of 0.7 parts per trillion was just a recommendation, not a regulation, based on the office’s review of the scientific literature.
To put that number in perspective, 1 part per trillion is 1 gallon per 1 trillion gallons. So the new MCL of 5 parts per trillion is the equivalent concentration of dumping about 200 gallons, about the size of kiddie pool, into Lake Tahoe – a lake so deep you could submerge the Empire State Building in it. This threshold is to ensure a theoretical cancer risk of less than 1 in 143,000 for those who are exposed to TCP in drinking water over their lifetime.
State Water Board member Steven Moore called TCP an “insidious chemical” because it persists in the environment, sinks in water and is harmful in tiny doses. According to the State Water Board, short-term acute exposure can burn the skin and eyes. Breathing TCP can cause irritation of the throat and lungs and affect concentration, memory and muscle coordination. Long-term exposure in drinking water may damage the liver and kidney and increase the likelihood of tumors in multiple organs. TCPhas been shown to cause cancer in animals and is believed to be a cancer risk for humans.
With the new MCL of 5 parts per trillion, basically any water system in California that finds detectable levels of TCP has a problem – an expensive one. It’ll cost nearly $500 million to comply with the standard over the next 20 years, according to state estimates.
There are 103 water systems with at least one well containing TCP above 5 parts per trillion, affecting close to a million people, according to state data from 2015. The highest detections were found at 10,000 parts per trillion.
In California, TCP is thought to come from two sources – either industrial sites where it was used as a cleaning solvent and degreaser or in soil fumigants to control agriculture pests. It’s this latter source that is proving to be the biggest challenge in California and the reason why so many affected communities line the corridor of the state’s biggest agricultural valley.
The California Manufacturers and Technology Association and the American Chemistry Council submitted public comment saying the proposed standard is not economically feasible.
To meet the new MCL, many utilities will need to install costly treatment systems – and this has spurred a line of lawsuits that also stretches the valley. Many of these lawsuits, aimed at the manufacturers of the soil fumigants, Dow Chemical and Shell Oil, have dragged on for years. But the new MCL may help prompt a speedy resolution of the litigation. Without the MCL, the companies had argued it was hard to assess what level of TCPwould constitute damages.
From Superfund to Farm
TCP first became a concern in California in the late 1980s after it migrated into water supplies from a toxic Superfund site at a former Lockheed Martin facility in the San Fernando Valley outside of Los Angeles.
“It’s now Bob Hope Burbank Airport, but it was a Lockheed Martin airport,” says Tony Umphenour, water quality analyst at Burbank Water and Power. “It wasn’t just an airport, they made planes for World War II and other stuff, and back in that day, they didn’t know what to do with waste, they just thought ‘out of sight, out of mind.’ Years later we find it, and it’s a problem we have to clean up.”
With financial help from Lockheed Martin, the Burbank water agency has been running a state-of-the-art treatment facility to remove the TCP and other contaminants from its water, according to Umphenour.
Water suppliers across the state subsequently began testing for TCP and soon a problem emerged in the Central Valley.
San Francisco attorney Todd Robins represents 30 cities suing Dow and Shell over their manufacture of soil fumigants applied to farm fields in California for decades, beginning in the 1950s to kill tiny worms called nemotodes. By the end of the 1980s one of the products had been taken off the market and the other reformulated to remove TCP.
During their heyday, the Dow and Shell products were “two of the most widely used soil fumigants in California” according to a 1983 report from the State Water Board’s toxic substances control department.
Robins says the TCP cases involving Dow and Shell are unusual. “In environmental cases, typically causation is the biggest hurdle to overcome, proving where the contamination came from, who’s responsible for it,” he says. “With TCP in the Central Valley it really is about as straightforward as an environmental tort case could be. In a rural area like the Central Valley there is really only one possible source of 1,2,3-TCP – if you find it in a well it came from the use of soil fumigants.”
Dow did not respond for requests for comment. Shell said in a statement that the company would “continue to vigorously defend the claims made against it in lawsuits initiated by water purveyors” and that its fumigant “was a highly beneficial product used by farmers … although this product contained trace amounts of TCP, it was approved for use by the U.S.government and the state of California.”
These “trace amounts” have drawn ire. Internal company documents uncovered during litigation show that TCP was not an active ingredient in the fumigant; one memo from a Dow scientist referred to TCP as “garbage” ingredient. “They knew early on they had something in their product that was unnecessary and was toxic,” says Andria Ventura, toxics program manager at the environmental group Clean Water Action.
Cleaning the Water
Carlos Arias is happy about the new regulation. As the district manager who oversees the water system for the rural community of Del Rey in Fresno County, Arias has been fielding questions from concerned residents for the last few years about whether their water is safe to drink.
Del Rey, population 1,700, found TCP in its wells in 2012. And Arias has been telling residents who ask that a lifetime of drinking the water comes with a higher cancer risk. But now, with the new MCL, he hopes that the community will be able to obtain enough money to pay for the necessary treatment system. Del Rey is one of the communities suing Dow and Shell.
“Unfortunately, this community is very, very disadvantaged economically, so unless we get assistance from the state or we end up getting this case settled, we won’t have the money to fix it,” he says.
In the only TCP case to go to trial so far, a jury in December 2016 ordered Shell to pay the city of Clovis $22 million. The San Joaquin Valley city of 100,000 previously settled with Dow for $7.5 million.
Several other cities have settled out of court, but dozens more, like Del Rey, are still awaiting a resolution of the litigation.
Arias hopes the MCL will give the district more leverage in its litigation, because raising water rates high enough to cover the costs of a treatment system would be difficult, he says. In Del Rey more than 70 percent of the population lives below the poverty line. “It’s such a disadvantaged community. You see people working out in the fields – they can’t make enough money. We cannot put the burden on the utility users to come up with that money to solve this problem.”
But he notes that with a lack of funds to finance water treatment, the community will be out of compliance with the MCL soon.
Starting in January 2018, the state’s 4,000 public water systems will need to begin testing quarterly for TCP, and compliance will be based on the average of four quarters of sampling. But Mark Bartson, the head of the Water Board’s Division of Drinking Water’s technical operations unit, said that areas with extremely high levels may test out of compliance in a single quarter.
For smaller, disadvantaged communities, getting the treatment systems designed, built and funded in less than a year’s time will be all but impossible. Depending on the level of contamination, some water systems may be able to blend contaminated water with cleaner sources to meet acceptable standards. Some may be able to simply take impacted wells out of service if they have other water sources or cleaner water from different wells. If neither of those are an option, granulated activated carbon systems that function like a giant Brita filter are the recommended technology.
Raul Barraza Jr. believes his community will be quickly out of compliance with the new regulation, too. Barraza is the general manager of the Community Services District in Arvin, which sits at the southern end of the San Joaquin Valley, about 20 miles south of Bakersfield.
Arvin, a mostly Latino community of 20,000 is also economically disadvantaged. The median household income is $35,000 a year.
Barraza supports the MCL but hoped the state would allow more time for compliance. “I don’t think anyone would agree that six months is ample time to engineer a filtration system for your water system, there is just no way – unless you just had one well.” Arvin has eight wells and most are contaminated with TCP, he says.
“It’s easier for bigger cities to deal with it than for a small community,” he explains. “You are basically taking the cost and dividing it among the number of connections – we have just about 4,000 connections. Compare that to Bakersfield where they are looking at 40,000 connections.”
Initial compliance for bigger communities may be easier but costs will still be high.
In nearby Bakersfield, the municipal water system and a private company, California Water Service, supply the city’s 400,000 residents.
Art Chianello, the water resources manager of the city water service that serves 143,000 people, says it’ll cost an estimated $55 million to comply with the standard because 41 of the city’s 64 wells exceed the MCL. The city will pay part of the cost through revenue bonds and has begun the process of notifying customers of a proposed rate increase of 40 percent over the next two years.
The city is also involved in litigation against Shell and Dow to recoup costs. “Any and all proceeds would go to pay for these costs – that’s what we’re hoping for,” Chianello says. “We’re in the thick of the process with the contractor and purchasing equipment so we can continue to be in compliance with all the MCLs.”
California Water Service, which operates in six service areas impacted, will install granulated activated carbon treatment systems to clean TCP-contaminated water in three of the areas – Bakersfield, Visalia and Selma – according to Yvonne Kingman, the company’s corporate communications manager.
The company is also a plaintiff in litigation against Dow and Shell. “We’re seeking to recover the cost of treating for the TCP, and the purpose of that is to avoid impacting customer rates,” Kingman says, noting the company expects to meet the MCL when monitoring begins.
Despite the short timeline for rolling out the MCL, Arias still believes it’s in the best interest for Del Rey. “I think our community will have more confidence in the water they are drinking. It will make it easier for us to run the district,” he says. “Once we have those filters running, I know we are delivering good quality of water.”
https://www.newsdeeply.com/water/articles/2017/08/10/californias-plan-to-tackle-a-carcinogen-widespread-in-water
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No One-Hit Wonder: Walmart Reinforces its Commitment to Safer Chemicals
Aug 10, 2017 | Environmental Defense Fund
By Boma Brown-West
Walmart made two big moves last week to reinforce its commitment to leadership on safer chemicals. In 2013 Walmart sent a major demand signal for safer chemicals through the supply chain – issuing its Sustainable Chemistry Policy that covered 700 suppliers and over 90,000 cleaning, personal care, and cosmetics products on its shelves. The policy called for greater ingredient transparency and the reduction and elimination of chemicals harmful to human and environmental health, starting with eight prevalent chemicals of concern. Last week, Walmart released its latest results following up on these commitments and became the first retailer to participate in the Chemical Footprint Project annual survey (and the second major retailer to become a CFP signatory).
Walmart’s participation in the Chemical Footprint Project is a new indicator of its continued commitment to safer products
The Chemical Footprint Project is an initiative to benchmark how effectively companies are managing the chemicals in their products and supply chains. As I mentioned in a previous blog, it’s a way for investors and large purchasers to assess which firms are carrying heavy chemical risk and which ones are demonstrating competitive leadership in response to growing demand for safer products. So far, 24 companies, including Walmart, participate in this program – sending a clear signal to their suppliers, investors, and consumers that chemicals management is material to business success. Leaders identified in the CFP survey show that adopting and enforcing policies and measuring progress are key to reducing chemicals of concern.
Progress on its ground-breaking policy
Also last week, Walmart quietly released its second annual Sustainable Chemistry Policy report, showing progress on its policy to eliminate priority chemicals. The chemicals of concern were drawn from 16 reputable regulatory and other authoritative lists – starting with eight High Priority Chemicals.
A chemical inventory is the first step in meeting a commitment to reduce your chemical footprint
Before jumping into the results, let's review why this public disclosure of results is important. If you can't measure something, you can't improve it effectively. Walmart’s public reporting of quantitative data shows that it is serious about measuring its chemical footprint and being transparent about it. Walmart uses aggregate chemical inventory information across and within the departments under the policy to track progress.
Clear, meaningful metrics to track progress are the next step
Walmart tracks progress by looking at both weight volume – pounds of chemicals going out the door – and ubiquity – number of suppliers using these chemicals and the number of products in which they are using them. Both are important indicators of the prevalence of these chemicals in our world. Last year, Walmart achieved a 95% reduction in its High Priority Chemicals (HPCs) at Walmart US stores, equivalent to 23 million lbs. Since then, another 372,230 lbs have been removed – a 30% drop compared to the 2015 weight volume and a 96% drop since the policy began in 2014. Similar reductions continue to happen at Walmart's Sam's Club stores: another 75,629 lbs have been eliminated, a 53% drop compared to the 2015 weight volume and a 68% drop compared to 2014. The second year results also reaffirm that a concerted effort to reduce a select set of priority chemicals, i.e. HPCs, drives results faster. Overall usage of Walmart Priority Chemicals continues to decrease (at Walmart US stores), but not nearly at the rate of that of Walmart HPCs.
Walmart’s public disclosure also shows that the company isn’t afraid to share where performance is lagging
Though overall weight volume of the HPCs continues to drop, their ubiquity continues to be a challenge. Both the number of products (i.e. UPCs) containing the HPCs and the number of suppliers using them continues to drop, at both Walmart US and Sam’s Club stores, but at a rate slower than the weight volume reduction.
The tools for success
In the end, Walmart continues to make progress against its policy as demonstrated through real data. Beyond data, what else contributes to Walmart‘s success?
· Clear targets
· Driving action through the business (where relationships between buyers and suppliers stress the importance of the commitments)
· Public accountability
With new notable commitments popping up from other major retailers like Target and CVS, we hope to see similar tracking and reporting of meaningful results both directly and through the Chemical Footprint Project survey.
http://business.edf.org/blog/2017/08/09/no-one-hit-wonder-walmart-reinforces-its-commitment-to-safer-chemicals/
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Aug 10, 2017 | Chemical Watch
List of lead registrants updated
Echa has published an updated list of substances for which a lead registrant has been declared in REACH-IT. The number of joint submissions has reached 11,581 substances. The agency promised in July 2016 to regularly update and publish the list. The latest figures shows an increase of more than 900 on the numbers released in May.
Two substance evaluation documents published
Echa has made two new substance evaluation conclusion documents available on its website. They concern:2-ethylhexanoic acid. This was added to the community rolling action plan list in 2012 and has been evaluated by Spain; andpentan-1-ol. Added to the Corap list in 2016 and evaluated by Lithuania.
Tattoo ink survey deadline draws near
As part of its investigation into the need for a EU-wide use restriction, Echa is running a survey on chemicals in tattoo inks and permanent makeup. The agency is asking producers to give feedback on alternatives and the costs of a restriction by 20 August.
After having been asked by the European Commission to carry out the assessment, the agency had expected to submit a dossier in July. However, this has been delayed until 6 October because of the "complexity" involved.
Substitution workshop
Echa is holding a workshop on its substitution strategy this autumn.
The agency says the event, in Helsinki on 9-10 October, will allow an open exchange of views between stakeholders and itself. And, it says, it will address the "types of networks that could connect stakeholders and strengthen substitution capacity, learning, and adoption in the years to come".
The workshop follows an Echa thought starter discussed by a meeting of the Competent Authorities for REACH and CLP (Caracal) in June.
The agency says the purpose of the strategy is to promote the substitution of chemicals of concern. The aim is to boost the availability of safer alternatives and promote efficient, informed substitution.
It sees the event as a chance to work on a "focused, meaningful, and actionable substitution strategy". Participation is by invitation only.
https://chemicalwatch.com/58110/echa-round-up
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Aug 10, 2017 | Chemical Watch
The UN has published the seventh revision of its Globally Harmonized System of Classification and Labelling of Chemicals (GHS), popularly known as the purple book.
It has:
· revised the criteria for categorisation of flammable gases within Category 1;
· made a range of changes intended to clarify the definitions of some health hazard classes;
· added guidance to extend the coverage of section 14 of the safety data sheets to all bulk cargoes transported under instruments of the International Maritime Organisation (IMO), regardless of their physical state;
· revised and rationalised precautionary statements in Annex 3; and
· added to Annex 7 a further example of how fold-out labels can be used with small packagings.
The purple book is updated every two years: revision 6 was published in 2015. The changes were prepared by the sub-committee of experts on GHS, which met on 10-12 July.
https://chemicalwatch.com/58119/un-publishes-ghs-revision-7
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Pipeline Company Could Resume Drilling in Pennsylvania Under Deal
Aug 9, 2017 | The Hill - E2 Wire
By Timothy Cama
The developer of the Marine East 2 pipeline in Pennsylvania has reached a settlement agreement with the state and environmentalists that could let it resume underground boring.
Under the deal, Sunoco Pipeline would have to re-evaluate construction plans for high-risk areas in an effort to prevent the clay slurry spills that occurred dozens of times in recent months during pipeline construction, particularly in vulnerable areas like wetlands, the Pittsburgh Post-Gazette reported.
Regulators last month ordered a halt to all underground boring for the cross-state project in response to environmentalists’ challenges, which cited the spills.
Sunoco, the developer, is a unit of Energy Transfer Partners, best known recent as the operator and developer of the controversial Dakota Access oil pipeline.
The settlement was reached Tuesday night, but it still must get approval from a judge. A hearing on the matter had been scheduled for Tuesday, but it was postposed so the Judge Bernard Labuskes Jr. could review the deal, the Post-Gazette wrote.
Sunoco agreed in the settlement to review 47 sites close to drinking water supplies, important natural features and other utilities, and to submit reports to the state about each review, along with the steps crews plan to take to reduce risk.
The company also would have to notify nearby landowners before drilling and offer to test their water supplies.
Energy East 2 is planned to carry natural gas liquids from drilling areas in the western part of Pennsylvania to the Philadelphia area for refining or further transportation.
http://thehill.com/policy/energy-environment/345882-pipeline-company-could-resume-drilling-in-pennsylvania-under-deal
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As EPA Faces Doubts, API Floats Options for 2-Year Methane NSPS Delay
Aug 9, 2017 | Inside EPA
By Abby Smith
As EPA faces doubts over its authority to delay Obama-era methane limits for new oil and gas drilling operations, a major oil and gas industry group is presenting a menu of legal authorities the agency could use to justify the proposed two-year delay in a likely attempt to shore up vulnerabilities following the agency's court loss over its 90-day stay of the rule.
In July 27 comments, the American Petroleum Institute (API) says EPA possesses “multiple sources of legal authority” to extend the compliance deadlines of the methane rule -- offering three approaches, under the Clean Air Act and the Administrative Procedure Act (APA), the group argues the agency could use to authorize the agency's proposed two-year delay.
For example, in one proposed approach, the group suggests that the agency revise its past interpretation of APA provisions that have limited EPA's ability to use the authority if a rule's effective date has passed.
“Relief under APA [section] 705 is available regardless of whether the effective date for a compliance obligation has passed,” API writes, suggesting that the statute's use of “postponing” the effective date of a regulation pending judicial review does not “necessarily” have to be “forward looking” as EPA has interpreted in the past.
But several of the group's proposed approaches would likely also face stiff legal challenges from environmentalists, raising doubts about the extent to which the agency will rely on them.
API's comments come ahead of an Aug. 9 comment deadline on EPA's June 16 proposal to delay key portions of the Obama-era methane new source performance standards (NSPS) by two years. EPA also accepted comment on a separate proposal to delay the portions of the methane NSPS rule by three months.
The agency had intended the latter delay to be a gap-filler between the 90-day administrative stay imposed by EPA Administrator Scott Pruitt on June 5 and the two-year delay once finalized.
But the Trump EPA's plan suffered a major blow July 3, when the U.S. Court of Appeals for the District of Columbia Circuit in a split ruling vacated EPA's 90-day administrative stay of the regulation.
The majority of the three-judge panel sided with arguments from environmentalists and some states that EPA improperly used its authority under Clean Air Act section 307(d)(7)(B) to delay the rule.
Specifically, the court vacated EPA's 90-day stay, finding that such a stay must be linked to “mandatory” reconsideration proceedings under that section. EPA must launch reconsideration if the regulatory issues in question meet a two-pronged test: they were “impracticable” to raise during the original rulemaking's comment period and they are “central” to the outcome of the rule.
The court found that because industry raised objections to the provisions at issue during the rulemaking, the first prong of the test failed, meaning the reconsideration was not mandatory and thus EPA could not use air act section 307(d)(7)(B) to stay the rule.
Environmentalists have since charged that the pending delay proposals are of “dubious” legality, in part because they also rely on EPA's section 307 authority. They say the air act section only allows the agency to stay rulemakings linked to a mandatory reconsideration process for no longer than three months.
The court has since issued its mandate vacating the 90-day stay, putting the Obama-era rule back into effect and thrusting the oil and gas industry into regulatory limbo.
Oil and gas industry groups, including API, and a coalition of states have appealed the July 3 ruling to the full D.C. Circuit, though industry officials acknowledge they face an “uphill battle” winning review, especially given EPA's failure to join the appeal.
EPA Proposal
Even before the court ruling, EPA's June 16 proposal sought to justify the delay. It cited the original 90-day administrative stay, writing that, “[w]hen we have issued similar stays in the past, it has often been our practice to also propose a longer stay through a rulemaking process.”
For example, the agency notes that in 2009, the agency issued a proposal to extend an administrative pause of certain provisions of the Clean Air Act's new source review program -- after EPA had issued a 90-day stay of those provisions under its section 307 authority to reconsider and pause rules.
But environmentalists are already attempting to paint EPA's proposed two-year stay as suffering from the same fatal flaw as the 90-day pause vacated by the D.C. Circuit, and they are likely to expand on such an argument in comments.
To justify the two-year stay, “EPA simply claims to need more time to amend the provisions it is attempting to 'reconsider' -- despite that these provisions were fully vetted through notice and comment in the original rulemaking,” Lissa Lynch of the Natural Resources Defense Council said during a July 10 public hearing on the proposal. “There is simply no basis for staying these provisions under the Clean Air Act,” she added.
Nonetheless, API offers EPA a number of options for authorities -- both under the air act and the APA -- that it could use to justify the two-year proposed delay.
The oil and gas group suggests the agency could use APA section 705 -- which allows federal agencies to stay regulations for which the effective date has not yet passed pending judicial review if “justice requires” -- to delay the methane NSPS compliance deadlines.
EPA and other agencies have already issued APA section 705 delays of other regulations, like EPA's power plant effluent limits promulgated under the Clean Water Act. The Bureau of Land Management has also utilized APA section 705 to delay portions of the Obama-era rule regulating methane venting and flaring from oil and gas operations on federal lands.
Both of those section 705 delays, however, are being challenged by environmentalists, who charge the agencies are improperly using the APA authority to buy time to rewrite the Obama-era regulations.
In the case of EPA's power plant effluent limits, environmentalists are arguing in part that the agency cannot delay the regulation under APA section 705 because it did not meet the four-factor test needed to win a judicial stay: that opponents of the rule are likely to succeed in litigation, that a stay is needed to prevent “irreparable” harm, that the balance of equities favors a stay and that a stay is in the public interest.
The environmental groups cite a 2012 D.C. district court case Sierra Club v. Jackson that established agencies must meet such a requirement.
Some observers have said EPA cannot use APA section 705 to delay the methane NSPS, as the rule's effective date has already passed. And sources have said, even if it were possible to use the statute to justify the proposed delay, EPA may not be able to switch rationales to use APA section 705 because such a shift in the final rule would not constitute a “logical outgrowth” from the proposal.
But API writes an APA section 705 stay “is warranted” for the methane NSPS. The group rejects the idea that EPA cannot use the statute because the methane NSPS' effective date has already passed, arguing that the agency's prior interpretation of APA section 705 was “incorrect.”
“[A] past effective date can easily be 'put on hold' during the pendency of litigation. Thus, APA [section] 705 can reasonably be construed to authorize a stay even when the effective date of the given rule has passed,” API writes.
API also rejects the notion that APA section 705 requires application of the four-factor test to meet a judicial stay. The group argues that the D.C. Circuit, where litigation over the merits of the methane NSPS is pending and which would hear any litigation over the proposed two-year stay, is not bound to the precedent set by the district court in Sierra Club.
And API charges the Sierra Club case was “incorrectly decided” because such a requirement does not make “logical sense.”
“Requiring the four-factor test disadvantages the agency in litigation because it would require EPA to determine that the challenger has a likelihood of success on the merits, which typically would be a finding against its own interest,” API writes. The group additionally argues that, even given the Sierra Club requirement, the four-factor test is met in the case of the methane NSPS.
Air Act Authorities
Beyond APA section 705, API suggests two additional authorities housed under the Clean Air Act that EPA could use to justify the two-year proposed stay.
The oil and gas group says the agency has broad authority under section 111(b), under which the methane NSPS is promulgated, to extend compliance deadlines or establish future effective compliance dates. According to API, section 111(b) allows EPA to extend the relevant compliance dates, noting such an action “will not interfere in any way with the mandatory schedule for review and possible revision of this standard. Under section 111(b), NSPS rules must be reviewed on an eight-year cycle.
API also suggests EPA could extend the compliance dates under section 111 “by making future-effective [best system of emission reduction (BSER)] determinations.” The agency could do so, the group writes, if it determines the BSER it used to set the standard is “technically infeasible” to meet within the current compliance timeframe.
Additionally, API writes EPA could use Clean Air Act section 301 to issue its two-year delay of the methane NSPS. That section allows EPA authority to issue regulations as “necessary to carry out” its duties under the air act broadly.
“Here, there is no more specific statutory provision in the Clean Air Act, nor is there any other statutory bar to EPA using its authority under [air act section] 301,” API writes. “A two year stay is necessary for EPA to meet the statutory standard under [air act section] 111 and respect the process enshrined in [air act section] 307.”
API elaborates that section 301 is warranted because the two-year stay is needed for EPA to meet its section 111 requirements. “Specifically, it would undermine the statutory purpose and text of [air act section] 111 for EPA to require current compliance with regulations that are duplicative of state requirements, provide little or no extra environmental protection, impose significant compliance costs and burdens on regulated entities, and/or cannot be said to constitute BSER,” API writes.
The group adds, “There is nothing in the Act that is a 'clear impediment' to staying the relevant compliance dates here.”
https://insideepa.com/daily-news/epa-faces-doubts-api-floats-options-2-year-methane-nsps-delay
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Advocates Brief White House on Rule Replacement Option
Aug 10, 2017 | E&E News PM
By Arianna Skibell
Heavy-hitter coal supporters Scott Segal and Jeff Holmstead met with White House officials last week as the Trump administration readies its rollback of U.S. EPA's Clean Power Plan.
In a closed-door meeting with Office of Management and Budget and EPA representatives, the two Bracewell LLC partners advocated on behalf of the Electric Reliability Coordinating Council for a replacement climate rule and floated the much-discussed "inside-the-fence" approach.
"There was interest in potential for discussing a replacement rule," Segal told E&E News. "We talked about the strongest part of the existing rule being those proposals which are within the fence line."
The inside-the-fence approach would still limit power plants' emissions but is narrower than the one proposed by President Obama's team. The U.S. Chamber of Commerce and the National Association of Manufacturers have voiced support for the tactic.
While the new approach was discussed at length, Segal said he stopped short of directly advocating for the method. "I don't think we're quite there yet," he said.
Holmstead also attended the meeting on behalf of ERCC. A former head of EPA's air office under President George W. Bush, Holmstead is seen as a potential pick to join the new administration.
Holmstead was registered to lobby for ERCC and other clients last year, but he terminated those registrations soon after the president's victory.
Despite his attendance in the meeting last week, Segal said Holmstead was not required to again register to lobby for ERCC.
"He's a substantive expert," Segal said of Holmstead. "Those meetings are a part of the executive order process ... part of the rulemaking process."
Joseph Power, chief compliance officer for power company Ameren Corp., also attended on behalf of ERCC, but he could not be reached for comment by press time.
The parley marks the latest of at least 10 OMB meetings on the administration's plan to rescind the EPA regulation to curb carbon emissions from power plants.
Trump signed an executive order in March directing EPA to review the Clean Power Plan, and EPA sent OMB officials a proposed rulemaking notice in June.
Overall, the meeting was substantive, Segal said.
"From a qualitative perspective the folks at OMB were very engaged and asked a lot of very good questions," he said. "There was a lot of interest to discuss the nuances of the legal authorities on which the Clean Power Plan currently rests and on which it could be revisited."
The legal authority issue is a thorny one. EPA Administrator Scott Pruitt has previously questioned whether his agency has dominion over greenhouse gas regulation.
Those pushing for a full Clean Power Plan repeal have said a simultaneous push to scrub an endangerment finding — which underpins EPA's scrutiny of greenhouse gas emissions — may be necessary to prevent lawsuits accusing the agency of not doing enough about global warming.
Any move to implement carbon rules for power plants, however, would amount to an implicit admission that greenhouse gas emissions deserve curbing.
"If they had already decided that's what they wanted to do, then there would be no reason to develop this inside-the-fence-line approach," Holmstead said in a recent interview (Climatewire, Aug. 1).
If the Trump EPA adopts an inside-the-fence rule, it would mean those pushing to challenge the endangerment finding have lost a key battle.
Reporter Kevin Bogardus contributed.
https://www.eenews.net/eenewspm/2017/08/09/stories/1060058605
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Shale Drillers Spend Less, Produce More in Glut-Gorging Push
Aug 10, 2017 | BNA Daily Environment Report
By Joe Carroll, Giacomo Tognini and Alex Nussbaum
Shale drillers are greeting the fourth year of a historic oil-market slump in a curious fashion, promising to generate even more price-killing production as 2017 progresses.
Second-quarter reports in the last two weeks show producers led by ConocoPhillips, EOG Resources Inc. and Diamondback Energy Inc. plan to pump 50,000 barrels a day more than prior forecasts, easily offsetting modest production cuts by other peers. At the same time, full-year drilling budgets were largely curbed, some by hundreds of millions of dollars.
Investors, though, were unimpressed, erasing as much as 11 percent from an index of Permian shale explorers since the updates began on July 26. Meanwhile, crude futures, once seemingly ready to breach $50 a barrel in New York on OPEC-led cutbacks, are up just 0.8 percent.
Here are three charts on production forecasts, capital expenditures and hedging showing the status of U.S.-based drillers heading into the second half:
Apache Corp. was an outlier among shale players, cutting its production forecast for the year by 30,000 barrels a day to adjust for its exit from Canada. The producer sold its assets there earlier this year, choosing to focus on operations in the U.S., U.K., and Egypt.
Overall, the companies said they would cut about $1.25 billion from their capital expenditures for 2017. The reasons varied company-by-company, with some executives citing shortages of fracking crews in some regions that will delay some planned wells until early 2018. At least seven more companies were due to disclose quarterly earnings this week.
“This is reflective of cautious capital budgeting, continued operational efficiencies in the field, and perhaps in some cases, service costs not meeting inflation expectations built into budgets,” David Tameron, an analyst at Wells Fargo Securities LLC, said in a note to clients. “In addition, capex reductions are also a nice tag line for companies to address Street concerns about capital discipline.”
One reason drillers have been sanguine about pumping more crude even as an existing glut weighs on prices is that they've been able to lock in profits for future barrels with hedging instruments such as swaps and options.
Pioneer Natural Resources Co., Devon Energy Corp. and Antero Resources Corp.are among the shale drillers amassing hedges that protect their future proceeds as far out as 2023, according to data compiled by Bloomberg. With U.S. crude futures getting closer to a new bull market, the pace of hedging by energy producers is poised to accelerate.
One of the most-active drillers in the Permian Basin, Pioneer has been closely following Energy Information Administration tallies of crude inventories that are released every Wednesday. Recently, the data has been lifting prices, and Pioneer's risk-management team has been swooping in to lock in the upticks, said Chief Executive Officer Tim Dove. So far, about half of the oil Pioneer expects to pump next year is covered.
“I'm pleased about that, of course,” Dove said in a conference call. “We'll look to do more hedges in 2018 as we look for attractive opportunities to do so in the next few months, to actually be significantly higher than 50 percent.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118338753&vname=dennotallissues&fn=118338753&jd=118338753
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In Eclipse, Natural Gas Sees Its Future as Solar's Backstop
Aug 10, 2017 | BNA Daily Environment Report
By Christopher Martin, Mark Chediak and Naureen S. Malik
Natural gas is about to get a glimpse of its future role in the U.S. power mix as solar energy's backup.
During the upcoming Aug. 21 eclipse, operators of giant solar fields from California to the Carolinas will rely on power from fast-start natural gas generators as well as hydroelectric plants and other sources to fill the gaps as the sky darkens. The celestial event will provide owners of gas turbines a chance to shine even as the fossil fuel is expected to be displaced over time by solar and wind energy.
The eclipse comes as the U.S. power grid undergoes a transformation that will bring increasing amounts of flexible resources needed to complement growing supplies of solar and wind energy. Solar installations have grown ninefold since 2012 and renewable sources are forecast to supply just as much of America's electricity demand as gas by 2040, according to Bloomberg New Energy Finance.
The “electric grid of tomorrow” will increasingly have to deal with fluctuating power supplies from the wind and sun while incorporating quick-start gas turbines during events like the upcoming eclipse, said Stephen Berberich, president of California ISO, the state's grid operator. Operators will also use new technologies to control demand when the moon will completely block the sun along a 70-mile-wide (113-kilometer) corridor stretching from Oregon to South Carolina.
The eclipse, in which the moon will completely obscure the sun, will cast a shadow along a 70-mile-wide (113-kilometer) corridor stretching from Oregon to South Carolina. Based on a Bloomberg calculation of grid forecasts, more than 9,000 megawatts of solar power may go down. That's the equivalent of about nine nuclear reactors.
To help keep the lights on, the California Independent System Operator will tap the state's network of gas generators and hydroelectric dams to make up for the loss of about 6 gigawatts of solar output over two hours as the sun is obscured by the moon. Duke Energy Corp. said it will utilize gas generators in North Carolina, the biggest solar state after California, to make up for output that is expected to sink 92 percent to about 200 megawatts in 90 minutes.
Reliability Issues Not Foreseen
The North American Electric Reliability Corporation doesn't foresee any reliability issues as grid operators have been planning for the eclipse for months.
“Given that the timing and path of the eclipse are well understood and well reflected in solar generation forecasts by CAISO and other grid operators, generation dispatch or curtailment would be managed as a part of routine operations,” said Steve Krum, a spokesman for First Solar Inc., the largest operator of solar plants in the U.S.
AutoGrid Systems Inc. says some utilities will be using its software systems to shut off unnecessary appliances during the height of the eclipse, and bring them on slowly as solar power returns, said Adam Todorski, a director of product technology for the Palo Alto, California-based company.
Shedding Demand
“It's a lot like a planned outage; you know it's coming,” Todorski said. “You can get hundreds of megawatts by shedding things like water heaters and pool pumps, and heat pumps.”
The California Solar Energy Industries Association is asking residents to “pledge” to turn off lights, unplug microwaves and dial back air conditioners in order to reduce the need for the state to use gas plants and to limit carbon emissions.
Demand for gas is forecast to stop growing by 2040 as new technologies such as battery storage ramp up to provide backup for wind and solar, according to Bloomberg New Energy Finance.
During a March, 2015 eclipse that crossed Europe, German grid operator TenneT TSO GmbH brought on 8 gigawatts of generating capacity to compensate for the loss of solar power as the sun disappeared, double the usual amount. It also kept hydropower plants that can store energy on standby and coordinated its flows with neighboring grid operators.
Power prices in Germany's wholesale market surged then dipped for a short time as the first eclipse of the emerging solar age passed, briefly switched off thousands of panels that on the brightest days provide 40 percent of Germany's power.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118338751&vname=dennotallissues&fn=118338751&jd=118338751
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Louisiana Port Project Could Define Ceiling for Shale Oil Demand
Aug 9, 2017 | Fuel Fix
By Jordan Blum
A proposed Louisiana port project could define the ceiling for the future of the Texas shale oil boom, according to a new report.
While Houston and Corpus Christi are leading the way in the burgeoning crude oil export industry, they could be surpassed by proposed plans to turn the Louisiana Offshore Oil Port into a "two-way LOOP" that ships out crude as well as receives it.
The LOOP is currently gauging customer interest for major crude exports. If successful, LOOP could make oil exports comparable to the nation's growing liquefied natural gas export industry. If the interest isn't there, we'll know the "ceiling on international demand for shale crude," argues Sandy Fielden, Morningstar's director of oil and products research.
"That ceiling could pose a greater constraint on future production than lower (oil) prices or OPEC production cuts," Fielden concluded.
LOOP's interest in oil exports is notable in part because its the only Gulf Coast terminal capable of handling the largest oil supertankers. The 36-year-oil LOOP only imports oil for now, carrying foreign oil to pipelines that ship it to refineries.
In 2010, LOOP took in about 900,000 barrels a day, but that amount has since fallen substantially to less than 600,000 barrels daily. Because of the nation's decreasing reliance on foreign oil, a growing percentage of the oil LOOP receives now comes from Texas and the deepwater Gulf of Mexico, and not just other countries.
"At the same time as LOOP inbound tanker shipments are declining, U.S. crude production and exports are increasing," Fielden noted.
U.S. crude exports have grown from more than 500,000 barrels daily in 2016 to almost 1 million per day this year, according to the U.S. Energy Department, since Congress undid the decades-old crude export ban at the end of 2015.
Much of the exports remains in the experimentation phase with a lot of foreign companies and countries opting to "buy and try" U.S. crude oil grades thus far, rather than setting up regular shipments, Fielden argued.
While most of the country's crude exports are leaving Houston or Corpus Christi, the problem is Texas' facilities can't accommodate the biggest tankers carrying full cargo loads. They're mostly spending more time and money to use smaller vessels and then transfer those cargoes to the tanker class called very large crude carriers.
The first so-called VLCC to enter Corpus Christi did so in late May for testing purposes, but such vessels can't take even close to full cargo loads until terminal modifications are completed in a couple years or so. Houston-based Occidental Petroleum is leading the effort with the Port of Corpus Christi.
Exporting from LOOP would lower freight costs and allow for the blending of different crude grades to meet specific customer needs thanks to LOOP's crude storage hub.
Another caveat is that a LOOP expansion could connect to the in-construction Bayou Bridge pipeline from Texas through Louisiana that's being built by Phillips 66. The pipeline is set to receive oil from the controversial Dakota Access Pipeline, giving Bakken crude oil - and even some Canadian oil - the opportunity to be exported from the Gulf Coast.
Still, Houston and Corpus Christi remain well situated because they - and not LOOP - are best connected to crude pipeline from West Texas' Permian Basin, where the current oil boom is focused, Fielden noted.
The California West Coast is still best situated geographically to ship crude via supertankers, but California ports don't have the pipeline infrastructure to easily receive Texas oil.
http://www.chron.com/business/energy/article/LOOP-11745098.php
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BNSF Sidetracked in Bid for Early Proof in Toxics Case
Aug 10, 2017 | BNA Daily Environment Report
By Steven M. Sellers
BNSF Railway Co. isn't entitled to an extraordinary court order requiring pre-discovery proof that a worker's toxic exposure claims are credible, the District of Colorado ruled Aug. 8 (Marquez v. BNSF Ry., 2017 BL 275828, D. Colo., No. 17-cv-01153, 8/8/17).
The railway sought a Lone Pine order requiring Mary Marquez to produce physician affidavits about the cause of her husband's fatal cancer, but such orders are reserved for complex mass tort actions unlike this case, the court said.
Lore v. Lone Pine Corp., a New Jersey case, has been used by some federal courts to require an early showing of proof by plaintiffs in mass tort cases with particularly burdensome discovery and when a plaintiff's ability to sustain the burden of proof is in question.
Marquez claims her deceased husband's fatal esophageal cancer was caused by exposure to at least nine toxic chemicals when he worked for Colorado & Southern Railway, BNSF's corporate predecessor.
BNSF argued Marquez should give medical proof of the specific substances to which he was exposed, arguing that the case qualified as a mass tort under Lone Pine because her counsel has filed many similar cases against the railway.
“However, the fact that many other plaintiffs are suing BNSF for similar conduct does not enlarge the case management needs of this litigation,” the court said.
Further fact-finding will determine the legal adequacy of Marquez's claims, the U.S. District Court for the District of Colorado said.
U.S. Magistrate Judge Michael E. Hegarty wrote the opinion.
The law offices of Bern Cappelli represented Marquez.
Knight Nicastro represented BNSF.
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Climate Reports May Slow Trump's Push to Undo Obama-Era Rules
Aug 10, 2017 | BNA Daily Environment Report
By Christopher Flavelle and Brian K. Sullivan
A pair of highly anticipated government studies, one of them due to be released this week, could complicate President Donald Trump's effort to roll back federal climate regulations, according to people on both sides of the debate over global warming.
A National Oceanic and Atmospheric Administration-backed report summarizing the global effects of climate change in 2016 is scheduled for release Aug. 10. Its conclusion will be similar to previous years’ versions, according to people familiar with the report: Climate change is real, it's man-made and it's dangerous.
That report dovetails with a broader National Climate Assessment, which is due next year from the administration. Drafts of the study, compiled by scientists from across the federal government, show that the effects of climate change in the U.S. are severe.
Both reports are at odds with Trump's contention that climate change is a “hoax” and may hinder his moves to undo President Barack Obama's efforts to address the issue, analysts say. Revoking Obama's rules requires agencies to give a legally sound justification for the policy pivots—such as arguing they are no longer necessary.
David Schnare, who worked on Trump's transition team at the Environmental Protection Agency and then advised EPA Administrator Scott Pruitt, said that both reports will make it harder for the agency to reverse the Obama administration's limits on carbon dioxide emissions from power plants, as well as the broader policy that defines those emissions as a danger to the public, called an endangerment finding.
“If the NCA comes out with an unflattering report on carbon dioxide, the only way EPA can change its endangerment finding is to reexamine all that science, and have a reasonable basis for rejecting” it, said Schnare, who left EPA in March. Once those reports become public, “it's hard to dodge,” he said.
Opponents of Trump's climate policies agreed that the reports could slow his administration's repeal of Obama-era regulations.
“It will make it harder for them to justify,” said David Hawkins, director of climate programs for the Natural Resources Defense Council. “It's yet another document that weighs against whatever claims Trump political appointees attempt to make about the state of the science.“
The Aug. 10 report, which was written by more than 450 scientists in the U.S. and abroad, will show that ice levels in Antarctica have set a record low, according to Keith Seitter, executive director of the American Meteorological Society. Antarctic ice levels had previously been increasing, a point highlighted by those who say climate change is a hoax.
The study will be released in the group's Bulletin of the American Meteorological Society.
Otherwise, the report doesn't contain many surprises, according to Seitter—because the public has become accustomed to continually breaking temperature records. On Aug. 8, NOAA reported that 2017 is so far the second-warmest year to date.
“As a standard practice, NOAA does not discuss leaked or draft reports,” said Brady Phillips, a spokesman for the agency.
NOAA's willingness to publicize data about the threat of climate change presents a stark contrast with other agencies. The EPA has removed information about climate change from its website; Pruitt has said human activity isn't the primary contributor to global warming, as has Secretary of Energy Rick Perry. And the Interior Department reassigned dozens of employees, including one scientist who said his transfer to an office processing revenue was in retaliation “for speaking out publicly about the dangers that climate change poses to Alaska Native communities.“
An Interior spokeswoman declined to discuss specific personnel matters among the senior executive service and said the reassignments “are being conducted to better serve the taxpayer and the department's operations.” The EPA didn't respond to a request for comment.
The difference, according to Schnare, reflects the fact that the Trump administration has yet to assign political appointees to NOAA, which has left the agency—a division of the Department of Commerce—with an unusual degree of independence. Nor has the administration filled key climate positions at the White House; the Office of Science and Technology Policy still has no confirmed director, preventing it from aligning policy across federal agencies.
“This administration has simply not gotten its coordinating process together,” said Schnare. Ross Gillfillan, a spokesman for the science office, declined to comment.
National Assessment
A test of that coordinating process will be the National Climate Assessment, which the White House is required by Congress to release every four years. The last report, in 2014, concluded that average global temperatures had increased more than 1.5 degrees Fahrenheit (0.8 Celsius) since 1880, and predicted as much as four feet of sea-level rise by 2100. A draft version of the 2018 report projects temperatures in the U.S. will rise as much as 12 degrees if emissions aren't reduced. The New York Times reported Aug. 8 that scientists involved were worried the Trump administration would suppress that study.
“The White House will withhold comment on any draft report before its scheduled release date,” White House spokeswoman Sarah Sanders said in a statement referring to the New York Times story.
Hawkins, of the Natural Resources Defense Council, said the administration could in theory try to stop publication of the final report, which must be approved by 13 federal agencies; it could even go so far as to reassign or fire the scientists working on it. But, he added, those strategies are unlikely to do much good.
“Now that the current draft report is public knowledge, firing people isn't going to undermine the validity of what's written down,” Hawkins said. “They can't prevent the understanding of the science anymore than Canute could hold back the seas.“
--With assistance from Jennifer A. Dlouhy.
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EPA Head Casts Doubt on ‘Supposed’ Threat from Climate Change
Aug 10, 2017 | The Hill - E2 Wire
By Timothy Cama
Environmental Protection Agency (EPA) head Scott Pruitt on Wednesday cast doubt on the idea that climate change poses a threat to the United States.
Pruitt told conservative North Dakota talk radio host Scott Hennen on WHO-AM that that’s one of the reasons why he is organizing a “red team/blue team” exercise to try to challenge what the EPA chief called “so-called settled science” on climate change.
“We’ve talked about, Scott, having a red team/blue team exercise, where we bring red team scientists in, blue team in, ask the question: What do we know, what don’t we know about this issue,” Pruitt said on the show, where he appeared with North Dakota Gov. Doug Burgum (R).
“The American people deserve an honest, open, transparent discussion about this supposed threat to this country. And we need to advance that,” he continued. “Hopefully, sometime this fall, we’ll be able to actually get that going.”
A draft federal report publicized Monday detailed numerous effects of climate change that the United States and the world are currently experiencing, like higher temperatures and strong precipitation events.
It linked the changing climate directly to greenhouse gas emissions caused by human activity.
Pruitt, however, is skeptical of the scientific consensus that human activity is far and away the primary cause of climate change.
The EPA chief believes that the climate is changing and humans have some part in that, but maintains that scientists do not know how much that contributes to climate change.
Pruitt said Wednesday that the Clean Air Act cannot be used to regulate greenhouse gas emissions.
“The Clean Air Act was set up to address regional and local air pollutants,” he said on the radio program. “Congress has not spoken on this issue at all.”
The Supreme Court ruled in the 2007 case Massachusetts v. EPA that greenhouse gases are air pollutants under the Clean Air Act, and can be regulated if the EPA determines that the gases harm human health or the environment. The EPA made such a determination in 2009.
http://thehill.com/policy/energy-environment/345937-epa-head-casts-doubt-on-supposed-threat-from-climate-change
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