Preview Newsletter
ACC PM 12/9/17
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5 Facts About Michael Dourson, Trump’s Chemical Safety Nominee
Sep 12, 2017 | Environmental Working Group
By Maura E. Walsh
Michael Dourson, President Trump’s nominee to oversee chemical safety at the Environmental Protection Agency, has made his career being paid by polluters – like Monsanto, Dow, DuPont and the Koch brothers – to weaken chemical safety standards. -
From the Tobacco Industry to the EPA, Latest Trump Nominee Bad News for Vulnerable Chemical Safety Law
Sep 12, 2017 | Environmental Defense Fund
By Jack Pratt
The push to return America to its toxic past may now accelerate with Trump’s subsequent nomination of Michael Dourson to run the EPA’s entire chemical safety program. -
DowDuPont Revises Breakup Plan Opposed by Activist Investors
Sep 12, 2017 | The New York Times
By Prashant S. Rao and Chad Bray
DowDuPont, the chemicals giant, said on Tuesday that it would shift the focus of its reorganization plan after shareholders opposed a proposal to break up the company. -
(ACC Mentioned) This Speaks Volumes: Industry Rushes in to Defend EPA's New TSCA Regulations
Sep 12, 2017 | Environmental Defense Fund
By Richard Denison
Environmental Defense Fund has made no secret of our view that many elements of the final framework rules issued by the Trump EPA in July to implement recent reforms to the Toxic Substances Control Act (TSCA) are contrary to law and fail to reflect the best available science. -
(ACC Mentioned) US EPA Pilots New PMN Guidelines
Sep 12, 2017 | Chemical Watch
The US EPA is conducting a small pilot study, aimed at developing guidance to support the pre-manufacture notice (PMN) process. This has been dogged by problems since its revamp under new TSCA – also known as the Frank R Lautenberg Chemical Safety for the 21st Century Act (LCSA). -
New York's Stand Against NatGas Throws Fate of Opposed Pipelines Into Doubt
Sep 12, 2017 | Natural Gas Intelligence
By Jamison Cocklin
New York’s natural gas industry is still reeling from the punch of a high-volume hydraulic fracturing (fracking) ban more than two years after it went into effect. -
Samson Resources Stepping Up Wyoming Drilling Projects
Sep 12, 2017 | Natural Gas Intelligence
By Carolyn Davis
Tulsa-based Samson Resources II LLC is accelerating its drilling plans in Wyoming, with five wells underway in Sweetwater County and a ramp-up planned next year in the Powder River Basin. -
EPA Starts Probe of Post-Harvey Plant Disaster
Sep 12, 2017 | E&E Greenwire
By Corbin Hiar
U.S. EPA has begun investigating a chemical plant disaster that followed Hurricane Harvey's inundation of an Arkema Inc. facility northeast of Houston. -
What Scott Pruitt Still Gets Wrong About Chemical Safety Post-Hurricane Harvey
Sep 12, 2017 | The Union of Concerned Scientists
By Yogin Kothari
In a recent interview with ABC’s “Powerhouse Politics” podcast, EPA Administrator Scott Pruitt was asked about the agency’s role in responding to Hurricanes Irma and Harvey and the devastation caused in Florida and Texas by the natural disasters. -
Trump Nominates CSX's Elliott to Head PHMSA
Sep 12, 2017 | Progressive Railroading
President Donald Trump has nominated CSX Corp. Vice President Howard "Skip" Elliott to serve as administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA). -
Alaska Teens Petition for Statewide Climate Change Policy
Sep 12, 2017 | AP (In The New York Times)
A group of Alaska teenagers has sent a petition to the state's environmental agency in hopes of tightening climate change policy. -
Environmentalists Defend Timeliness of 'Hot Spot' Air Guidance Suit
Sep 12, 2017 | Inside EPA
Environmentalists are defending the timeliness of their lawsuit challenging an EPA guidance for how to assess air pollution “hot-spots” in transportation projects, saying the suit is not preempted by the Clean Air Act's 60-day window on suing over agency decisions because the agency's release of the guide never triggered that deadline.
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5 Facts About Michael Dourson, Trump’s Chemical Safety Nominee
Sep 12, 2017 | Environmental Working Group
By Maura E. Walsh
Yet again, a fox is officially on its way to guard the henhouse.
Michael Dourson, President Trump’s nominee to oversee chemical safety at the Environmental Protection Agency, has made his career being paid by polluters – like Monsanto, Dow, DuPont and the Koch brothers – to weaken chemical safety standards.
Let that sink in: The guy who will decide which chemicals are “safe” enough to be in our air and our water – and ultimately in people, including fetuses in the womb – is a paid shill for chemical and pesticide companies.
Dourson’s Senate confirmation hearing has yet to be scheduled. Before it’s too late, EWG is working to expose the truth about Dourson and his decades-long record of greenwashing toxic chemicals at the behest of his polluting funders.
The stakes could not be higher.
As head of the EPA’s Office of Chemical Safety and Pollution Prevention, Dourson would oversee the agency’s work on the chemicals and pesticides Americans come into contact with every day. Judging by his track record, he would allow polluters to put more toxic chemicals into our air and water, our consumer products and our bodies. The more chemicals in our environment, the harder it will be to protect our families.
1. Dourson founded and ran a science-for-hire consulting firm, Toxicology Excellence for Risk Assessment, or TERA, that was paid for by chemical companies to greenwash safety assessments of their own chemicals.
2. In a DuPont-funded study for the state of West Virginia, Dourson recommended a “safe” level for exposure to the Teflon chemical PFOA that was 2,000 times less protective than the EPA’s health guideline and 150,000 times higher than the level the best, most current science says is safe.
3. Dourson advocated for the continued use of a toxic industrial chemical called TCE, which the EPA determined was carcinogenic to humans by all routes of exposure. TCE was the chemical linked to leukemia in children in the 1998 film “A Civil Action.”
4. When asked about TERA receiving funding from chemical companies, Dourson responded: “Jesus hung out with prostitutes and tax collectors. He had dinner with them.”
5. Dourson argued that the pesticide chlorpyrifos, made from nerve gas chemicals, was safe, despite three major studies showing that mothers and children who consume it are “more at risk of giving birth to kids with ADHD and other neurological problems.”
If you want your taxpayer dollars at the EPA to be used to reduce – not increase – the number of toxic chemicals we are exposed to every day, be sure to share these facts with your friends and family before the Senate votes to hand over the nation’s top chemical safety job to Dourson.
http://www.ewg.org/planet-trump/2017/09/5-facts-about-michael-dourson-trump-s-chemical-safety-nominee#.WbgEsLIjHIU
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Sep 12, 2017 | Environmental Defense Fund
By Jack Pratt
For decades, a weak law left Americans at risk from toxic chemicals in everyday products such as cleaners and fabrics. As a result, chemicals tied to infertility, learning disabilities and even cancer found their way into all our homes, schools and workplaces.
A turn-around looked likely in 2016 when Congress passed a strong, bipartisan law to overhaul the Toxic Substances Control Act to better protect our health. The agency charged with carrying out the new law hit the ground running and was making good progress.
That is, until a new president was elected and new leadership took over the reins at the U.S. Environmental Protection Agency.
The Trump administration first installed a top official from the main chemical industry lobbying group to oversee changes to rules that will determine how chemicals are reviewed for safety. The changes she made could undermine efforts to protect us from harmful chemicals for many years to come, according to Politico.
The push to return America to its toxic past may now accelerate with Trump’s subsequent nomination of Michael Dourson to run the EPA’s entire chemical safety program.
Dourson has made a career as a hired gun for the chemical industry, helping clients play down concerns over toxic chemicals with known and potentially severe health effects.
Defended tobacco and Teflon
If confirmed to the top job at the EPA’s Office of Chemical Safety and Pollution Prevention, Dourson will be regulating his old industry friends. It’s a pattern we keep seeing with Trump’s administration as the president and his appointees turn the federal government’s mission to protect public health on its head.
Dourson’s paid work for industry goes back several decades and includes work he did for the tobacco industry in the late 1990s and early 2000s.
Also on his resume is his work involving the “Teflon” chemical PFOA, which continues to affect drinking water in places such as West Virginia, Ohio, New York and Vermont. And he worked for the manufacturer of the controversial pesticide chlorpyrifos, which Dourson defended and the Trump EPA decided not to ban despite expert calls to do so.
Dourson: Toxic toys? Kids should wash hands.
Among other things, Dourson’s company used industry money to develop and run a now-defunct website, “kidschemicalsafety.org,” with copy penned by staff from chemical industry consulting firms who sought to put chemical hazards “into context.”
The website told parents, for example, that even water can be toxic at high exposure levels, “but few people would want to ban” water.
It also played down concerns about chemicals in products such as toys, shifting the burden to parents by suggesting they make sure to read labels, keep toys out of their children’s mouths, and make sure kids wash their hands after playing.
His defense: Jesus hung out with shady people, too
Of course, none of Dourson’s work will come as a shock to anyone who has followed industry tactics closely. Whether professional climate deniers or big tobacco, manufacturing doubt is a well-known dark art.
The problem here is that if the Senate votes to confirm him, Dourson will speak from a government office.
Running the toxics office at the EPA is unlikely to change Dourson’s outlook. After all, this is the man who defended his work for tobacco to downplay concerns about second-hand smoke by saying “Jesus hung out with prostitutes and tax collectors.”
That logic may help Dourson sleep at night, but it won’t provide much solace to those of us who were hoping the new law would do a better job protecting us from toxic chemicals.
https://www.edf.org/blog/2017/09/12/tobacco-industry-epa-latest-trump-nominee-bad-news-vulnerable-chemical-safety-law
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DowDuPont Revises Breakup Plan Opposed by Activist Investors
Sep 12, 2017 | The New York Times
By Prashant S. Rao and Chad Bray
DowDuPont, the chemicals giant, said on Tuesday that it would shift the focus of its reorganization plan after shareholders opposed a proposal to break up the company.
The decision is the latest response by a big company to activist shareholders who have taken on ever-larger targets in recent years, demanding changes to corporate strategies. Household names like Procter & Gamble, Nestlé and Samsung have all found themselves in the sights of such investors.
The new plan, announced in a statement, would divide DowDuPont into three distinct businesses: an agricultural company, a materials science specialist and a specialty products business.
But as part of the reorganization announced on Tuesday, DowDuPont would shift several units that had been destined for the materials science company, which makes plastics and materials, into the specialty products business instead. As a result, the material science company would be smaller than originally planned and the specialty products business bigger.
The new specialty products division will add several businesses that are expected to account for more than $8 billion in combined sales this year. The change is expected to ease concerns by some investors that the materials science company would have too broad a product range, dividing its focus.
After the realignment, the new materials science company, which is expected to be called Dow, is expected to have about $40 billion in annual revenue. The specialty products business would have about $21 billion in annual sales and the agriculture business would have about $14 billion in annual revenue.
Andrew N. Liveris, the DowDuPont executive chairman, said in an interview that the reorganization created a “more focused material company, an exciting specialty products company that will have four distinct, independent business that will have growth because they’re best in breed in each of their market verticals.”
“That’s the work we’ve done,” Mr. Liveris said. “If you study any other chemical company out there, they’re still in 30 or 40 markets. There’s been no corporate restructuring of this type, of this value creation, in any sector, let alone the chemicals sector.”
Activist investors had criticized the original plan as unwieldy and unfocused, and the hedge fund Third Point had urged in May that the company be split into six, rather than three, businesses. That suggestion was not accepted, but Third Point’s warning that several units might be “stranded” in the new materials science company appears to have had an effect.
The merger behind DowDuPont was announced in December 2015, bringing together DuPont, the inventor of Kevlar, which was founded more than 200 years ago, and Dow, a maker of plastics and chemicals that is more than a century old.
It has taken nearly two years to complete the transaction as the companies have navigated regulatory concerns.
The European Union signed off on the deal in March after the companies agreed to sell off parts of DuPont’s global pesticide business. In June, the United States Justice Department required the companiesto sell certain herbicides, insecticides and plastics products in order for the transaction to proceed.
At the time they announced the transaction, the two companies made clear that they intended to separate the merged company into three. But that plan met opposition from activist investors like the hedge funds Trian Partners and Third Point, which argued that the new companies would each be too large and unfocused.
DowDuPont had been working with the consulting firm McKinsey & Company for several months on the reorganization plan — as part of the merger, a review of the combined company’s operations had been long planned for after regulatory review.
“We have better penetration in certain industries, a broader breadth of product for given customers in an industry,” Edward D. Breen, the DowDuPont chief executive, said in an interview.
The company’s shares rose 1.9 percent in early trading to $68.13.
Trian Partners, the hedge fund run by the billionaire investor Nelson D. Peltz, welcomed the announcement on Tuesday, saying it “fully supports the portfolio adjustments announced today by DowDuPont.”
“We commend the company’s management, board and advisers for successfully optimizing the portfolio construction of its three core businesses,” it added. “We believe this is a great outcome for shareholders.”
Third Point said it was “pleased to be part of a dialogue that created such a positive outcome for all of DowDuPont’s shareholders.”
Glenview Capital Management, another activist firm that called for changes in the breakup proposal, also praised the new plan.
Activist investors have gone after some of the world’s biggest companies in recent years as their influence has increased.
The upscale grocery chain Whole Foods Market agreed to sell itself to Amazon in June for $13.4 billion as it faced pressure from activist shareholders unhappy with its share price.
The same month, General Electric announced that Jeffrey R. Immelt, its longtime chief executive, would retire this year. The industrial giant, which has been planning his succession for several years, has been the subject of calls from Mr. Peltz to cut costs and improve its returns.
Mr. Peltz’s Trian Partners also has turned its focus this summer to the consumer products giant Procter & Gamble, which was previously targeted by another billionaire investor, William A. Ackman.
And in August, Avon Products said that its chief executive, Sherilyn S. McCoy, would step down next year as the company has tried to fend off pressure from activist investors to reshape its management and speed its turnaround.
https://www.nytimes.com/2017/09/12/business/dealbook/dowdupont-activist-trian-third-point.html?_r=0
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(ACC Mentioned) This Speaks Volumes: Industry Rushes in to Defend EPA's New TSCA Regulations
Sep 12, 2017 | Environmental Defense Fund
By Richard Denison
Environmental Defense Fund has made no secret of our view that many elements of the final framework rules issued by the Trump EPA in July to implement recent reforms to the Toxic Substances Control Act (TSCA) are contrary to law and fail to reflect the best available science. The rules EPA had proposed in January were heavily rewritten by a Trump political appointee, Dr. Nancy Beck, who until her arrival at the agency at the end of April was a senior official at the chemical industry’s main trade association, the American Chemistry Council (ACC).
In our view, the final rules largely destroyed the careful balance that characterized the efforts to reform TSCA and the final product of that effort, the Lautenberg Act. In many respects, the final rules governing how EPA will identify and prioritize chemicals and evaluate their risks now mirror the demands of the chemical industry, reflected in comments they had submitted earlier – some of which Beck herself had co-authored.
These are among the reasons EDF as well as other NGOs and health and labor groups have had no choice but to file legal challenges to these rules.
Lest you have any doubt that the final rules are heavily skewed in industry’s direction, a development in these legal cases just yesterday should dispel it. A broad coalition of industry groups – including Dr. Beck’s previous employer ACC – has filed motions to intervene in these cases in order to defend EPA’s rules (see here and here). Parties to the motion constitute a remarkable list:
· American Chemistry Council
· American Coatings Association
· American Coke and Coal Chemicals Institute
· American Fuel and Petrochemical Manufacturers
· American Forest and Paper Association
· American Petroleum Institute
· Battery Council International
· Chamber of Commerce of the United States of America
· EPS (Expanded Polystyrene) Industry Alliance
· IPC – Association Connecting Electronics Industries
· National Association of Chemical Distributors
· National Mining Association
· Polyurethane Manufacturers Association
· Silver Nanotechnology Working Group
· Society of Chemical Manufacturers and Affiliates (SOCMA)
· Styrene Information and Resource Center
· Utility Solid Waste Advocacy Group
Yesterday was the deadline for parties seeking to intervene in the cases to have done so. Among those that had issued a “call to arms” to industry to intervene to defend EPA’s rules were leading Washington, DC industry law firms that represent these trade groups and their members. For example, Wiley-Rein issued this client alert five days after our lawsuits were filed (emphasis added):
Also on August 11th the Natural Resources Defense Council, Safer Chemicals Healthy Families Coalition, the Environmental Defense Fund and other environmental advocacy organizations filed lawsuits challenging the EPA’s final Prioritization and Risk Evaluation Rules. While the petitions are light on details, they generally allege that EPA abused its discretion when issuing the final rules. The specific issues the petitioners have with the final rules are not yet clear, but these groups have publicly expressed concern with EPA’s interpretation of how it will review the conditions under which a chemical is known or reasonably foreseen to be used. Therefore, companies that make, import, process or use a chemical that is being evaluated by EPA now or in the future need to consider getting involved and supporting the rule [sic] as it now stands.
Step back for a minute and consider the unusual nature of this development: When was the last time such a heavy-hitters list of industry groups rushed in to support EPA regulations?
More evidence of the topsy-turvy world we’re living in under the most anti-environmental and anti-regulatory administration in modern history.
Despite its professed support just over a year ago for balance and compromise in TSCA reform, the industry has shifted in this new political climate to short-term, opportunistic thinking. But that isn’t going to solve the problem that brought the industry to the TSCA negotiating table: The lack of confidence in the safety of its enterprise, a problem that can only be expected to grow as regulations are rolled back and the public learns more about the millions of pounds of chemicals released into the environment from industrial facilities in the wake of hurricanes.
http://blogs.edf.org/health/2017/09/12/this-speaks-volumes-industry-rushes-in-to-defend-epas-new-tsca-regulations/
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(ACC Mentioned) US EPA Pilots New PMN Guidelines
Sep 12, 2017 | Chemical Watch
The US EPA is conducting a small pilot study, aimed at developing guidance to support the pre-manufacture notice (PMN) process. This has been dogged by problems since its revamp under new TSCA – also known as the Frank R Lautenberg Chemical Safety for the 21st Century Act (LCSA).
Initially the process slowed down, as the agency applied greater scrutiny to check the safety of chemicals and their uses covered in PMN submissions. This led to a huge backlog of chemicals waiting to enter the market.
In August, the agency announced it had processed many of these submissions. However, companies continue to be concerned by reported inconsistencies and a lack of clarity in some of the EPA’s findings. Specifically, they report that the agency is requesting additional testing or risk management measures without providing clear justification.
One industry source said: "We need to know in detail what information is required by EPA for the agency to do an effective evaluation. Hopefully, it will provide some clarifying guidance soon."
Industry groups, such as the American Chemistry Council and the Society of Chemical Manufacturers and Affiliates, are supportive of EPA's promise of additional guidance.
"Socma is hopeful that any EPA guidance on PMNs will clarify that the agency will have an improved, more focused view on the uses of chemicals," said Robert F Helminiak, managing director of government relations.
Collaborations
In December last year, the ACC created the Center for Chemical Safety Act Implementation to serve as a scientific, technical and advocacy hub to help both members and non-members implement new TSCA. It says this collaboration can also help inform EPA decisions on chemical risk evaluations and risk management options.
And, the law firm Bergeson & Campbell has formed the TSCA New Chemicals Coalition which is intended to give the chemical community greater opportunity to engage with EPA on constructive improvements to the new chemical review process.
"About 50 companies so far have expressed interest in joining the coalition," said the firm's managing partner Lynn Bergeson. "One of the key objectives is to work with EPA's Office of Pollution Prevention and Toxics (OPPT) to ensure it has as much information as possible to make informed decisions."
NGO concern
Meanwhile, Richard Denison of the Environmental Defense Fund (EDF)says: "I think it is a good thing for EPA to issue more specific guidance to companies so that they understand what information will be needed by the agency to conduct its reviews of new chemicals. Our concern is with other aspects of EPA's announced changes to [these]."
These include the agency's apparent intent to promulgate so-called significant new use rules to require notification of reasonable uses, which Dr Denison says is squarely at odds with what the law requires. He adds that it also appears to be seeking to recreate the 'infamous Catch-22' of old TSCA, under which it could only require testing where it already had evidence of risk.
He also describes the agency’s tendency only to share information on the anticipated changes with new chemical submitters as "highly disturbing, and further undercuts public confidence in EPA's implementation of the reformed law".
https://chemicalwatch.com/58621/us-epa-pilots-new-pmn-guidelines
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New York's Stand Against NatGas Throws Fate of Opposed Pipelines Into Doubt
Sep 12, 2017 | Natural Gas Intelligence
By Jamison Cocklin
*This is Part 4, the final story in a series examining the effects of New York’s energy policies on Appalachian natural gas producers, consumers and the Northeast. What comes next for New York’s infrastructure projects -- and those facing similar challenges -- that have hit a wall?
If it wasn’t already clear that New York state is taking a stand against the natural gas industry and its supporters, it should be by now.
To hear officials at the New York State Department of Environmental Conservation (DEC) tell it, the federal government has given up “its responsibility on climate change,” leaving New York as a “driving force for protecting our natural resources for future generations.”
New York’s natural gas industry is still reeling from the punch of a high-volume hydraulic fracturing (fracking) ban more than two years after it went into effect. Constitution Pipeline Co. LLC and National Fuel Gas Co.’s (NFG) Northern Access expansion are fighting the DEC in court over the agency’s three-year process to deny the FERC-approved projects key water quality certificates (WQC) for stream or wetlands crossings under Section 401 of the federal Clean Water Act (CWA). DEC also denied Millennium Pipeline Co. LLC a WQC at the end of August for its Valley Lateral Project. So, what’s next?
In the days after the U.S. Court of Appeals for the Second Circuit denied Constitution’s challenge, energy attorneys said pipeline companies should take notice.
Constitution had asked the court to review and vacate DEC’s decision based on the standard that it was “arbitrary and capricious.” NFG has argued the same. But in Constitution’s case, DEC said it denied the project’s WQC application because it was incomplete, mainly over a disagreement about trenchless crossings and staff’s contention that it didn’t have enough information to determine environmental impacts.
The Second Circuit agreed, upholding DEC’s review and deferring on whether the agency failed to issue a decision within the statutory timeframe to the U.S. Court of Appeals for the District of Columbia. Constitution has since filed a petition to rehear the case en banc, or before all of its active judges, arguing that if the three-judge panel's opinion is allowed to stand it could have far-reaching implications for gas infrastructure projects across the country.
“Constitution demonstrates that a state has the power to determine what information it wants and that determination is dispositive,” wrote attorney Frederick Lowther, of Blank Rome LLP, in a blog post after the decision.
While the DEC denied Northern Access’ WQC because it said the project would harm the environment, ClearView Energy Partners LLC said the Second Circuit’s opinion still doesn’t bode well for the expansion.
ClearView analysts said Constitution could request that the Federal Energy Regulatory Commission find that DEC waived its CWA review by exceeding the statutory timeframe; appeal the Second Circuit decision to the U.S. Supreme Court or even resubmit the application to the DEC.
NFG has already filed at FERC for reconsideration of the certificate order authorizing the project. It argues that DEC permits are preempted by the Natural Gas Act (NGA) and the state waived its requirement for the project to obtain a WQC by failing to issue it in time. That was filed in March, even before DEC reached its decision. NFG has since filed a motion to expedite its rehearing request.
“We do not consider a waiver ruling from FERC as a foregone conclusion, nor are we convinced that a subsequent challenge from DEC would fail,” ClearView analysts said.
Indeed, Richard Drom, who practices before FERC at Washington, DC-based Eckert Seamans Cherin & Mellott, said the Commission is “entirely correct in not butting into these controversies,” given the authority it has under the NGA. Some also fear that such an intervention could upend the careful balance between states and the federal government under the CWA.
Things have changed at FERC, however. Sources said they hope that President Trump’s administration can influence the Commission to intervene in New York and get Constitution and Northern Access going again.Two of Trump’s FERC nominees have been confirmed and two more are soon expected to join the Commission soon, giving it a full five members and a Republican majority.
FERC could assert its jurisdiction over interstate commerce, picking a fight with the courts and pushing the pipelines through before their opponents can act. The Commission’s first public meeting since January is scheduled for next Wednesday (Sept. 20).
With its quorum only recently having been restored, though, a spokeswoman said the Commission has not yet decided on priority cases. FERC’s website lists more than 40 major pipeline projects pending, some filed as long ago as 2013. The new commissioners will have some studying to do to get up to speed on all the major pending gas and electric cases that have been waiting since the agency lost its quorum in February.
One thing is clear: Constitution and Northern Access, along with New York’s fracking ban, have become powerful symbols of anti-fossil fuel sentiment. Whether New York’s regulatory approach is right or wrong is a matter of opinion.
Environmental groups have welcomed the agency’s decisions, but they also want to see more like them. The Natural Resources Defense Council wrote after the Second Circuit issued its Constitution opinion that it hoped the “decision will have effects beyond New York, and other states will be empowered to block future natural gas pipelines planned for construction within their borders.”
WQC application reviews have been weaponized by environmental groups. The Virginia Department of Environmental Quality in July expanded its review of the Atlantic Coast Pipeline and the Mountain Valley Pipeline (MVP) after opponents criticized it for not going far enough in its CWA process.
Facing a petition for review filed in federal court by environmental groups of its decision to issue the Mountain Valley Pipeline a WQC, the West Virginia Department of Environmental Protection last week vacated the certificate and is reevaluating the company’s application.
After the state threw out the certificate, a Sierra Club spokesman told NGI that environmental groups have no plans to withdraw their petition for review, saying recent court cases “have upheld states’ rights...and we expect that to be true in future cases as well.”
Complicating matters further for infrastructure is a ruling by the DC Circuit that found FERC’s environmental impact statement for the Southeast Market Pipelines Project failed to adequately consider the impact of greenhouse gas emissions. New York cited that opinion when it denied the Valley Lateral Project a WQC.
Attorney Daniel Markind of Weir & Partners LLP wrote in a note that the Second Circuit ruled narrowly insofar as it did not address the “ultimate issue” of whether Constitution would adversely impact New York’s waterways.
There could be a better outcome for the industry if a court ultimately takes up that issue. In any event, both NFG and Constitution have acknowledged that it could be years before the pipelines are given the approvals needed to build. Mired in litigation and with other options on the table to move natural gas out of the Appalachian Basin, there’s also a chance they won’t get built at all.
http://www.naturalgasintel.com/articles/111704-ny-part-4-new-yorks-stand-against-natgas-throws-fate-of-opposed-pipelines-into-doubt
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Samson Resources Stepping Up Wyoming Drilling Projects
Sep 12, 2017 | Natural Gas Intelligence
By Carolyn Davis
Tulsa-based Samson Resources II LLC is accelerating its drilling plans in Wyoming, with five wells underway in Sweetwater County and a ramp-up planned next year in the Powder River Basin.
The privately held producer, which emerged from bankruptcy earlier this year, said it would drill five operated wells on its Fort Union property using two rigs. Production per well is estimated 3.7 Bcfe, with each well costing on average $2.9 million. First sales are expected in early 2018.
“We are very excited to announce the commencement of this drilling program as Samson gets back to what we do best, finding oil and gas production and reserves at attractive rates of return,” said CEO Joseph Mills.
“We believe this program will position us for an active drilling plan in the Greater Green River and Powder River Basin of Wyoming in 2018.”
In addition to an accelerated drilling program, Samson has begun an aggressive plan to acquire state and federal permits for its Powder River projects ahead of an active drilling program in the second half of 2018, when the next regulatory drilling window is open.
The producer had signaled in August it would turn its attention to Wyoming’s Green River and Powder River basins after selling East Texas and North Louisiana assets for $525 million. The sale is set to be completed later this month, with proceeds used to retire existing debt of $210 million to fund a distribution and a drilling/completion program in 2018.
Formerly Samson Resources Corp., the formerly publicly held producer filed for Chapter 11 in September 2015. Since emerging from bankruptcy in March, it has completed close to $20 million of asset and equipment sales.
http://www.naturalgasintel.com/articles/111703-samson-resources-stepping-up-wyoming-drilling-projects
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EPA Starts Probe of Post-Harvey Plant Disaster
Sep 12, 2017 | E&E Greenwire
By Corbin Hiar
U.S. EPA has begun investigating a chemical plant disaster that followed Hurricane Harvey's inundation of an Arkema Inc. facility northeast of Houston.
Cheryl Seager, director of EPA's compliance assurance and enforcement division, sent an information request to the French company on Sept. 7 "in order to determine compliance" with the Clean Air Act.
The letter asks Arkema for "a detailed description and timeline of events," documents on the hazards and handling of the organic peroxide chemicals stored at the facility, and the disaster response plans it had and actions it took.
Seager gave Jean-Marie Cencetti, Arkema's director of environment and sustainable development, 10 days to respond to her request, which was obtained by E&E News from an agency official who asked not to be identified.
EPA will then have to review the company's answers before it can consider potential punitive measures.
Arkema couldn't confirm receiving the letter, but spokeswoman Janet Smith emphasized in a statement that the facility experienced unprecedented flooding and that the company was cooperating with federal investigations by "a number of federal agencies."
She added that "when those investigations are concluded, we will all have the benefit of a detailed examination of what happened."
It is unclear how many agencies are looking into the disaster. The only investigation Arkema's statement specifically acknowledged was one launched by the U.S. Chemical Safety Board while the plant was still on fire (Greenwire, Sept. 1).
The disaster began late last month when containers of organic peroxides, a feedstock for plastics and vinyl, began exploding after Harvey's floodwaters knocked out power and backup cooling systems for the highly volatile chemicals (Greenwire, Aug. 31).
Smoke from the ensuing blaze led to the hospitalization of more than a dozen first-responders, seven of whom are now suing the company for allegedly failing to prepare for the storm and misleading the public about the danger the plant posed. Arkema plans to fight the lawsuit (Energywire, Sept. 8).
https://www.eenews.net/greenwire/2017/09/12/stories/1060060421
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What Scott Pruitt Still Gets Wrong About Chemical Safety Post-Hurricane Harvey
Sep 12, 2017 | The Union of Concerned Scientists
By Yogin Kothari
In a recent interview with ABC’s “Powerhouse Politics” podcast, EPA Administrator Scott Pruitt was asked about the agency’s role in responding to Hurricanes Irma and Harvey and the devastation caused in Florida and Texas by the natural disasters. During the conversation, one of the hosts asked Administrator Pruitt about the EPA’s Risk Management Plan (RMP) rule and his decision to delay implementation of the amendments to modernize the standards for chemical facility safety (relevant because a chemical plant covered by this rule exploded after Hurricane Harvey hit Houston).
In the subsequent back and forth, Administrator Pruitt said something very concerning. He argued that one of the reasons the EPA delayed the new rule was not to limit information to the communities living next to chemical plants, but due to national security concerns. He argued that the 12,500 chemical plants covered under the RMP are in fact soft targets for terrorists. He went on to say that if you had too much information in the RMP, terrorists could use that and cause harm to the communities.
But this is not an accurate or truthful portrayal of the RMP amendments. Administrator Pruitt is either willfully ignorant or simply confused about how the RMP works currently and the updated rule.
First, the new rule does not require additional information to that which must already be disclosed to the public under existing laws and regulations. What the updated rule does do is provide an easier avenue of access to RMP data for local communities and emergency responders. If the updated rule was implemented, facilities would have to disclose certain basic information (such as 5-year accident history, safety data sheets, planned emergency exercises, and evacuation information) directly upon request from the public. Under current regulation, the public has to visit Federal Reading Rooms or file public records requests to gather this information in what is a really time-consuming and overly burdensome process.
Second, the RMP amendments were developed in close consultation with the Department of Homeland Security (DHS) so that the final rule is consistent with anti-terrorism standards and ensure that national security concerns are appropriately addressed. In fact, in its own FAQs about the RMP amendments, the EPA highlights that it coordinated the rulemaking closely with DHS and security professionals so that the agency could “strike a balance between information sharing and security.” The EPA already struck a balance between national security concerns and the safety of workers, communities, and first responders when it finalized the RMP amendments.EPA, implement the RMP amendments
The bottom line is that Administrator Pruitt’s desire to cloak his actions to delay a critical public safety and security safeguard is unjustified and flagrantly irresponsible. If he truly cares about public safety as he claims, the most immediate threat is already here. A lack of access to crucial chemical safety information led first responders to be needlessly exposed and caused mass confusion among the public and media as we scrambled to assess public risks.
By pivoting to national security, Administrator Pruitt is simply shifting the responsibility for his actions to gut a public protection that should have been implemented months ago. First responders in Houston are already suing Arkema for gross negligence (a reminder, Arkema submitted comments opposing the RMP amendments, specifically raising concerns about sharing information with first responders and the public). This is exactly why we need to have the updated regulations implemented right away. The RMP amendments, among other things, would result in:
· Better access to information for emergency first responders and communities, along with a specific charge to improve coordination between facilities and emergency personnel
· Ensuring that lessons are learned from serious accidents
· A requirement that facilities with the worst accident records assess options for safer alternatives to remove hazards
The Union of Concerned Scientists has a long history of advocating for stronger chemical facility safety protections. We have submitted extensive comments to the EPA asking the agency to do more to secure chemical facilities and ensure safety for fenceline communities. We have worked in partnership with our colleagues at Texas Environmental Justice Advocacy Services (t.e.j.a.s.), based in Houston, on a report highlighting the impact chemical facilities have had on neighboring communities for several years, if not decades, and the need for stronger chemical facility safety regulations. And as a result of Administrator Pruitt’s decision to postpone implementation of the RMP amendments, we have joined community and environmental justice groups, including t.e.j.a.s., in litigation to force the agency to reverse its decision.
Before Administrator Pruitt says that this is not the right time to talk about the RMP and chemical facility safety (like he did with climate change), let me just say that it’s not just the right time to talk about the science of the risks that these communities face, it’s actually long overdue. The New York Times reported that more than 40 sites have released approximately 4.6 million pounds of hazardous airborne pollutants due to Hurricane Harvey. The EPA needs to act to improve safety at chemical plants by immediately implementing the updates to the RMP rule. Fenceline communities in Houston and around the country, which are predominantly low-income communities and communities of color, cannot afford to wait any longer.
http://blog.ucsusa.org/yogin-kothari/what-scott-pruitt-still-gets-wrong-about-chemical-safety-post-hurricane-harvey
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Trump Nominates CSX's Elliott to Head PHMSA
Sep 12, 2017 | Progressive Railroading
President Donald Trump has nominated CSX Corp. Vice President Howard "Skip" Elliott to serve as administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA).
A 40-year veteran of the U.S. freight-rail industry, Elliott is group vice president of public safety, health, environment and security for CSX. His responsibilities cover hazardous materials transportation safety, homeland security, railroad policing, crisis management, environmental compliance and operations, occupational health management, and continuity of business operations.
Elliott is a pioneer and leading advocate in developing and implementing computer-based tools to assist emergency management officials, first responders and homeland security personnel in preparing for and responding to a railroad hazardous materials incident, according to a press release issued by the White House.
Also, Elliott is a recipient of the Association of American Railroads' Holden-Proefrock Award for lifetime achievement in hazardous materials transportation safety.
The Interstate Natural Gas Association of America (INGAA) yesterday announced its support for Trump's nomination of Elliott, which must be confirmed by the U.S. Senate.
"If confirmed, [Elliott] would bring extensive experience and leadership in safety, security, operations and emergency management to PHMSA," said INGAA President and Chief Executive Officer Don Santa in a press release.
In 2016, Elliott was a presenter at Progressive Railroading's Secure Rail Conference.http://www.progressiverailroading.com/people/news/Trump-nominates-CSXs-Elliott-to-head-PHMSA--52756
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Alaska Teens Petition for Statewide Climate Change Policy
Sep 12, 2017 | AP (In The New York Times)
A group of Alaska teenagers has sent a petition to the state's environmental agency in hopes of tightening climate change policy.
The teens' petition calls for the state to reduce carbon emissions, monitor the greenhouse gasses it does emit and come up with a strategy for the future, Alaska's Energy Desk reported (http://bit.ly/2wTjHSE ) Monday.
The group, named Alaska Youth for Environmental Action, hand-delivered the petition in August to the Department of Environmental Conservation's commissioner, Larry Hartig.
The petition follows a 2011 climate change lawsuit filed by a different group of Alaska teens, which made it all the way to the state Supreme Court before justices ruled that it was a matter for the executive or legislative branch.
Brad DeNoble, a lawyer from Eagle River who helped craft both the lawsuit and the current petition, said the state could be obligated to do more to address climate change under a common law with ancient roots that is called the public trust doctrine.
"Certain resources are essentially so important to society that they have to be protected," DeNoble said. "They're incapable of private ownership."
Seb Kurland, 17, is among the teens fighting for climate change policy. Kurland said she has noticed the landscape around her hometown of Juneau looks different than it did not that long ago — especially because the Mendenhall Glacier is shrinking.
"You know, one of the hard things especially about being a teenager with these concerns is that you don't feel like you can do anything about it," Kurland said. "Basically what we're saying with this petition is, 'Hey you're not doing that!' "
The state has until Sep. 29 to respond to the petition. Officials can reject it or call a public hearing.
Young people in other parts of the country have tried to pressure governments on their climate change policies as well. In Oregon, 21 young Americans filed a lawsuit against the Obama administration claiming their rights have been violated because the federal government has allowed greenhouse gas pollution to be pumped into the atmosphere for 50 years, despite knowing the risks.
https://www.nytimes.com/aponline/2017/09/12/us/ap-us-alaska-teens-climate-change.html
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Environmentalists Defend Timeliness of 'Hot Spot' Air Guidance Suit
Sep 12, 2017 | Inside EPA
Environmentalists are defending the timeliness of their lawsuit challenging an EPA guidance for how to assess air pollution “hot-spots” in transportation projects, saying the suit is not preempted by the Clean Air Act's 60-day window on suing over agency decisions because the agency's release of the guide never triggered that deadline.
The U.S. Court of Appeals for the District of Columbia Circuit recently sought supplemental briefing from EPA and environmentalists on whether the 60-day deadline barred the case, because the agency released the guidance in November 2015 but environmentalists did not file suit over it until March 2016.
If the court finds that the 60-day limit applies then it could reject the case on procedural grounds for being time-barred.
But Sierra Club, Citizens for a Greater Denver, Elyria and Swansea Neighborhood Association and the Cross Community Coalition in a Sept. 11 filing say that because the agency never published the guidance in the Federal Register, it never triggered the 60-day window for filing a legal challenge.
The argument builds on the environmentalists' previous defense of the timing of the March 15, 2016, suit, which they have previously said is within the 60-day window because they were first notified of the guide's existence on Jan. 15, 2016, when it was referenced in a Colorado Department of Transportation conformity determination for a proposed highway expansion to I-70.
If the court instead believes that the final agency action subject to judicial review took place in November 2015 when the agency published the guide on its website, the environmentalists say that their suit is still valid because the 60-day clock to sue does not start until EPA publishes the guidance in the Register.
Environmentalists note that the Administrative Procedure Act says citizens cannot be adversely affected by “a matter required to be published in the Federal Register and not so published.” They argue that EPA's unpublished revised guidance “cannot adversely affect the rights of citizens and duties of transportation agencies, deprive citizens of their right to challenge unlawful actions, or deprive this Court of jurisdiction to adjudicate the lawfulness of EPA’s final action.”
The Clean Air Act's 60-day clock does not start for unpublished actions, the environmentalists say, noting that a 1977 amendment to the air law links the time to file a petition for judicial review with publication of the contested action in the Register. The air law's “legislative history demonstrates that Congress did not intend the 60-day time limit to bar judicial review of final agency action not published in the Federal Register. EPA guidance confirms this interpretation,” the filing says.
Their arguments follow a Sept. 8 filing from EPA in which the agency says that because it never published the guidance in the Register, the court should instead apply the six-year statute of limitations outlined in the Federal Tort Claims Act (FTCA) governs timelines for challenging agency decisions. That would ensure that the case is not time-barred as it filed just months after release of the guidance.
EPA's filing suggests it is looking for a broader ruling from the court rejecting the suit on more sweeping procedural grounds than if they had simply argued for dismissal on statute of limitations grounds -- including prohibiting suits over agency guidance as final actions, and making it harder for environmentalists to prove legal standing to sue over guidance documents.
The environmentalists' supplemental brief does not appear to reference the FTCA six-year statute of limitations issue and instead focuses on claiming the guidance suit is not subject to the Clean Air Act's 60-day limit.
https://insideepa.com/daily-feed/environmentalists-defend-timeliness-hot-spot-air-guidance-suit
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