Preview Newsletter
ACC AM 9/15/17
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Oil and Chemical Spills From Hurricane Harvey Big, but Dwarfed by Katrina
Sep 15, 2017 | Reuters (In The New York Times)
By Emily Flitter and Richard Valdmanis
More than 22,000 barrels of oil, refined fuels and chemicals spilled at sites across Texas in the wake of Hurricane Harvey, along with millions of cubic feet of natural gas and hundreds of tons of other toxic substances, a Reuters review of company reports to the U.S. Coast Guard shows. -
(ACC Mentioned) TSCA Reporting Rule Negotiations Collapse, Forcing EPA To Begin Again
Sep 14, 2017 | Inside EPA
By Dave Reynolds
Even before a final meeting slated for October, a negotiated rulemaking panel convened to inform a future EPA rule to reduce reporting burdens for certain chemicals' uses has broken down after members agreed they would not reach a required consensus recommendation. -
(ACC Mentioned) Talks Fail in Bid to Cut Time Reporting Chemicals in Wastes
Sep 15, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Industries wanting to limit the time and money they spend reporting chemicals in recycled wastes have more work ahead of them after a committee formed to brainstorm ideas collapsed. -
Pentagon Bill Moves Ahead With Chemicals, Energy Measures
Sep 15, 2017 | E&E Daily
By Nick Sobczyk
Senate lawmakers pressed forward with another procedural vote on the National Defense Authorization Act yesterday, with provisions on chemical contamination and energy security set to make it into the final version of the bill. -
California Passes Chemical Disclosure Bill With Industry Support
Sep 15, 2017 | BNA Daily Environment Report
By Carolyn Whetzel
SC Johnson, Procter & Gamble, Unilever, and other manufacturers of air fresheners, detergents, and other household items would have to disclose potentially harmful ingredients in their products under a bill passed by California lawmakers. -
PPG: Look to China for Chemical Solutions to Pollution Problems
Sep 15, 2017 | BNA Daily Environment Report
By Pat Rizzuto
China's 2015 tax on paints and coatings containing volatile organic compounds immediately opened market opportunities for PPG, Chief Technology Officer David Bem recently told Bloomberg BNA. -
French and German Farmers Urge Renewal Of EU Glyphosate License
Sep 14, 2017 | Reuters
By Sybille de La Hamaide
French and German farmers jointly called on European governments to renew the license for glyphosate weedkiller, saying there was no evidence it was toxic and banning it would severely harm farming. -
(ACC Mentioned) The Effects of the Petrochemical Projects Boom in the US Gulf Coast on Real Estate Practices
Sep 15, 2017 | Who's Who Legal
By Susan Talley
In March of this year, ExxonMobil announced a US $20 billion investment to expand its chemical manufacturing capacity along the US Gulf Coast (news.exxonmobil.com, “ExxonMobil Plans Investments of $20 Billion to Expand Manufacturing in US Gulf Region”, 6 March 2017). -
(ACC Mentioned) OSHA and American Chemistry Council Form Safety Alliance
Sep 14, 2017 | Powder Bulk Solids
Seeking to generate awareness of the safety risks posed by workers’ exposure to diisocyantes in the polyurethane industry, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and the American Chemistry Council (ACC) entered into a two-year alliance to offer a web-based training program on safe use of the chemical and educate workers on the associated hazards. -
(ACC Mentioned) New OSHA Alliances Protect Workers From Grain Handling, Chemical Hazards
Sep 14, 2017 | Facility Executive Magazine
The Occupational Safety and Health Administration (OSHA) has formed two new alliances with the National Grain and Feed Association (NGFA) and the American Chemistry Council (ACC) with the goal of protecting the safety and health of workers who handle grain and isocyanates in their workplaces. -
Valero Houston Plant Underestimated Harvey Benzene Leak
Sep 14, 2017 | The Wall Street Journal
By Alexandra Berzon
The chemical plant that released a cloud of a carcinogenic chemical amid Hurricane Harvey and its aftermath in Houston’s Manchester neighborhood in August emitted far more of the chemical than it had previously disclosed, environmental regulators said Thursday. -
Elizabeth Warren Floats Bill To Curb Cyberthreats To Grid
Sep 15, 2017 | E&E Daily
By Nick Sobczyk
Sens. Elizabeth Warren (D-Mass.) and Thom Tillis (R-N.C.) this week introduced a bill aimed at addressing cybersecurity threats to the U.S. electric grid. -
Judges Weigh Arguments In Critical EPA Ozone Case
Sep 14, 2017 | E&E News PM
By Amanda Reilly
California regulators and greens sparred with U.S. EPA in federal court today over an Obama-era rule guiding implementation of the 2008 ozone standard. -
D.C. Circuit To Hear Oral Argument In Long-Running Suit Over Boiler MACT
Sep 14, 2017 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument Sept. 15 in one of the last remaining lawsuits over EPA's boiler maximum achievable control technology (MACT) air toxics rule, focusing on the issue of whether the agency erred in using carbon monoxide (CO) to set emissions limits in the rule. -
Carbon Capture Bill Gains Steam But Still Needs Republicans
Sep 15, 2017 | BNA Daily Environment Report
By Dean Scott
A bill to boost carbon capture incentives would seem to have the right ingredients to hit the Senate floor: It's backed by both the oil and gas industry and environmentalists and is led by an unlikely alliance of Democratic climate hawks and Republican climate policy critics. -
Judges Doubt EPA's Defense In Ozone NAAQS Rule 'Backsliding' Fight
Sep 14, 2017 | Inside EPA
By Stuart Parker
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit at Sept. 14 oral argument appeared skeptical of EPA's defense for fighting environmentalists' claim that its rule for how states should implement the 2008 ozone standard unlawfully allows “backsliding,” or weakening of existing air pollution controls. -
De Blasio Eyes Greenhouse Gas Cuts from City's Buildings
Sep 15, 2017 | BNA Daily Environment Report
By John Herzfeld
Greenhouse gas emissions from thousands of buildings in New York City would have to be sharply reduced under a plan by Mayor Bill de Blasio (D) targeting the city's top source of heat trapping emissions.
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Environment News
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Oil and Chemical Spills From Hurricane Harvey Big, but Dwarfed by Katrina
Sep 15, 2017 | Reuters (In The New York Times)
By Emily Flitter and Richard Valdmanis
NEW YORK/BOSTON — More than 22,000 barrels of oil, refined fuels and chemicals spilled at sites across Texas in the wake of Hurricane Harvey, along with millions of cubic feet of natural gas and hundreds of tons of other toxic substances, a Reuters review of company reports to the U.S. Coast Guard shows.
The spills, clustered around the heart of the U.S. oil industry, together rank among the worst environmental mishaps in the country in years, but fall far short of the roughly 190,000 barrels spilled in Louisiana in 2005 after Hurricane Katrina - the last major storm to take dead aim at the U.S. Gulf Coast.
Harvey slammed ashore in Texas on Aug. 26, unleashing record flooding around Houston that destroyed countless homes, displaced around a million people and killed scores.
The U.S. Environmental Protection Agency warned people affected by the storm to avoid floodwaters, saying they could contain bacteria and other dangerous substances, but the agency has so far provided few details about spills. The EPA said earlier this week it was responding to more than a dozen spills in the wake of Harvey, but said it could not immediately provide volume estimates.
The U.S. Coast Guard reports showed over 22,000 barrels of crude oil, gasoline, diesel, drilling wastewater, and petrochemicals spilled from refineries, storage terminals and other facilities in the days after the storm.Continue reading the main story
Nearly half of those came from a 10,988-barrel spill of unleaded gasoline from Magellan Midstream Partners' storage facility in Galena Park, Texas, according to the reports, confirmed by a company official.
"We expect clean-up operations to be completed within a few weeks," the company said in an email on Thursday. Most of the gasoline had been removed, it said, including quantities that spilled offsite and into the Houston Ship Channel, and remaining work was mainly focused on removing contaminated soil.
The Coast Guard filings also showed some 365 tons of toxic chemicals like sulfur dioxide, ammonia, toluene, benzene, and carbon monoxide escaped from facilities during the storm.
In addition, some 27 million cubic feet (765,000 cubic meters) of natural gas, 1,000 tons of asphalt, and unknown quantities of other substances from more than 200 other incidents also escaped, according to the data.
Officials for the Coast Guard and the EPA did not immediately respond to requests for comment on the filings.
As some spill estimates were preliminary, it was too early to assess pollution damage from the storm, said Tom Pelton, a spokesman for environmental advocacy group the Environmental Integrity Project.
Katrina caused 190,000 barrels of oil spills along the Louisiana coastline, according to Donald Davis, the administrator of the Louisiana Applied Oil Spill Research and Development Program, who presented his findings to the EPA in 2006.
https://www.nytimes.com/reuters/2017/09/15/us/15reuters-storm-harvey-spills.html
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(ACC Mentioned) TSCA Reporting Rule Negotiations Collapse, Forcing EPA To Begin Again
Sep 14, 2017 | Inside EPA
By Dave Reynolds
Even before a final meeting slated for October, a negotiated rulemaking panel convened to inform a future EPA rule to reduce reporting burdens for certain chemicals' uses has broken down after members agreed they would not reach a required consensus recommendation.
Environmentalists and others balked at possible reporting limits as too broad while industry argued the proposals failed to reduce burden.
The panel's collapse means EPA will have to start over on the issue, though the agency has also begun soliciting advice from environmentalists and other stakeholders over a rulemaking it is beginning to overhaul the Chemical Data Reporting (CDR) rule more broadly.
The CDR rule is the mechanism by which EPA receives most of its information on chemical production in the United States. EPA's latest regulatory agenda, released earlier this year, indicates that the agency plans to revise the CDR sometime in Spring 2018.
In a recent letter to the agency, environmentalists urged EPA to strengthen the CDR rule, charging that the measure will be essential as the agency will need to use the data to comply with statutory requirements to prioritize chemicals for assessment under the reformed toxics law.
EPA's broader effort to overhaul the CDR rule is running in parallel with the negotiated rulemaking. The negotiation was required by section 8(a)(6) of the new Toxic Substances Control Act (TSCA) law, which directs EPA to convene a negotiated rulemaking committee to address industry concerns about the CDR program and potentially craft a narrower rule limiting reporting requirements for inorganic byproducts in some cases.
During a Sept. 14 meeting in Washington, D.C., the CDR Inorganic Byproducts Negotiated Rulemaking Committee deadlocked after several months of discussions, and one month shy of a final October meeting when panelists hoped they would reach a consensus recommendation for EPA to pursue a burden reduction rule.
“Whatever package is developed has to reduce burden, and burden is primarily on industry reporters of CDR data,” said the American Chemistry Council's Karyn Schmidt. “It is in industry's collective view that” a package of potential changes that the group is considering “does not meet the statutory criteria."
Environmental group representatives to the panel, as well as a state regulator and EPA staff disagreed, arguing that negotiations had yielded ideas that would reduce industry's reporting obligation even if those changes did not affect all sectors or go as far as industry panelists would have liked.
“I certainly don't agree that what's in the proposal does not limit reporting, that is a pretty unrealistic view of what's on the table,” said David Lennett of the Natural Resources Defense Council (NRDC). “I understand why you might want to pitch that way, but it's certainly not a factual statement."
EPA 'Disappointed'
EPA's Susan Sharkey backed environmentalists' assertion that possible changes the panel discussed would reduce burden, though she noted those reductions would not affect all industries. Sharkey also cautioned that terminating negotiations would mean EPA would effectively start the process for any future byproducts rule over again, given that a consensus recommendation was required. The warning did not dissuade the group from declaring a stalemate.
“I am disappointed in the outcome of this because I see that there are quite a few changes [discussed] that do reduce the reporting requirements and in my mind it does meet the statutory requirement of limiting requirements of reporting under CDR,” Sharkey told the group.
Putting a positive spin on the failed negotiations, she added that the panel's deliberations would still be valuable to EPA officials as they continue to evaluate changes to CDR and related programs.
“EPA is in a much better position to knowingly look to the future of CDR,” Sharkey said. “Even though we didn't reach consensus we got a lot out of the effort that was put forth."
Sharkey was referring to hours of negotiations over several meetings, all of which she and other EPA staff attended, as well as to reports that the panel's competing interests may provide the agency, summing up their appraisal of issues discussed during the negotiations.
After talks broke down, industry officials argued that reports from the panel to EPA would be inappropriate because the group did not reach a consensus recommendation. After checking with EPA lawyers, Sharkey said that individual groups could provide input to EPA even though the panel itself will not provide an official report.
She also said that the agency will prepare a Federal Register notice to inform the public of the break down of the negotiated rulemaking.
The TSCA reform law included a requirement for the rulemaking committee to limit existing CDR requirements on manufacturers of inorganic byproducts when those products are recycled, reused, or reprocessed. Lawmakers included the requirement for the rulemaking committee in the law to address industry's confusion and criticism resulting from past administrations' regulatory updates.
For example, the Bush EPA in 2006 made changes to the requirements in the CDR, requiring for the first time reporting on inorganic chemicals' use and disposal, including metals, in volumes greater than 25,000 pounds. In the rule, EPA subjected inorganic metals to the same reporting requirements as organic chemicals, failing to take into account what sources say are differences among the materials.
But the Obama administration may have exacerbated the problem in a subsequent CDR rule that requires a manufacturer to report the fate of any substance that has to be removed from a byproduct by a reaction -- chemicals simply extracted are exempt from reporting -- which EPA then considers the manufacturing of a new chemical.
During the rulemaking committee's Aug. 16-17 meeting, the panel narrowed down a series of options that could inform a future rule, though environmental and industry panelists reached an impasse on how to address existing reporting exemptions, a central facet of the best received option.
In August, the group elected to pursue further negotiations until a final meeting scheduled for October, which has now been called off.
In an interview with Inside EPA, Lennett described the package of possible changes that the panel ultimately scrapped as limiting reporting requirements on industry, while also clarifying existing requirements, which would effectively expand some reporting since those requirements have not been well understood. He said the reduced reporting requirements would not have applied across also industries, and suggested that difference among sectors likely contributed to the talks breaking down.
“Whether we could figure out where we could reduce reporting but retain information was where the sweet spot was,” Lennett said. “That's where we were trying to move forward.”
https://insideepa.com/daily-news/tsca-reporting-rule-negotiations-collapse-forcing-epa-begin-again
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(ACC Mentioned) Talks Fail in Bid to Cut Time Reporting Chemicals in Wastes
Sep 15, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Industries wanting to limit the time and money they spend reporting chemicals in recycled wastes have more work ahead of them after a committee formed to brainstorm ideas collapsed.
The committee, required by the amended chemicals law, couldn't agree Sept. 14 on a strategy for the Environmental Protection Agency to reduce reporting requirements for mostly metal-containing waste byproducts. That means the EPA could—but isn't required to—move forward with its own rulemaking designed to help glass, circuit board, scrap metal, coal-fired power plants and other companies recycle, reuse, or reprocess the wastes.
After what committee members called “spirited” discussions, panel members said they could not agree on any path forward they all “could live with” that all would agree achieved the goals of reducing companies’ burden while giving the EPA adequate information.
TSCA Amendments Required Committee
The Toxic Substances Control Act amendments of 2016 sought to help such companies by requiring the EPA to establish a regulatory negotiations committee.
The law directed the committee, which included representatives of states, tribes, environmental groups, industry, and the EPA, to see whether members could agree on ways to make it easier for companies to provide the EPA information about chemicals in “inorganic byproducts”—mostly metal-containing ash, dust, sludge, and liquid—that get recycled or reused.
The EPA and state, tribal, and other non-industry groups sought to be sure, however, that the agency would get sufficient information to understand whether some of the metals and other chemicals in these wastes end up harming people or the environment.
Lobbing Begins Again
Committee members representing environmental and health groups, such as the Natural Resources Defense Council, the Sierra Club, and WE ACT for Environmental Justice, said they will submit their own ideas to the EPA. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, founder of Bloomberg L.P. Bloomberg BNA is an affiliate of Bloomberg L.P.
Karyn Schmidt, from the American Chemistry Council, said industry participants can continue to flesh out ideas that arose during the committee's discussion among themselves and in their own exchanges with the EPA.
The EPA too could propose changes to chemical reporting rules or the information it requires in light of what it learned during the nearly six-month committee process, said Susan Sharkey, a chemical engineer in the EPA's Existing Chemicals Branch. The agency is, however, not mandated to do so.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=120750409&vname=dennotallissues&fn=120750409&jd=120750409
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Pentagon Bill Moves Ahead With Chemicals, Energy Measures
Sep 15, 2017 | E&E Daily
By Nick Sobczyk
Senate lawmakers pressed forward with another procedural vote on the National Defense Authorization Act yesterday, with provisions on chemical contamination and energy security set to make it into the final version of the bill.
The Senate voted 84 to 9 to limit debate on a massive package of amendments from members on both sides of the aisle. Lawmakers are hoping to finish up with the bill next week after squabbling over the amendment package for the past few days.
"The fact is that we have incorporated over 100 amendments offered by senators of both parties," Armed Services Chairman John McCain (R-Ariz.) said on the floor yesterday. "And it means the NDAA becomes stronger as a result of including these amendments."
House debate on the bill in July featured a flurry of amendments by Pennsylvania lawmakers to push the Department of Defense to clean up perfluorooctanesulfonate (PFOS) and perfluorooctanoic acid (PFOA) contamination at military bases.
Though the issue has not been mentioned on the Senate floor this week, the amendment deal includes a provision from Pennsylvania Sens. Pat Toomey (R) and Bob Casey (D) that would require the Centers for Disease Control and Prevention to study the health impacts of the chemicals.
"Addressing this issue has been a priority of mine," Toomey said in a statement. "It is time for the CDC to ensure that appropriate exposure assessments related to any possible contamination in drinking water are completed."
The military used PFOS and PFOA in firefighting foam on its airfields for decades and has begun over the past several years to assess the scale of its chemical contamination problem.
Pennsylvania lawmakers say the problem is particularly prevalent in their home state, which has several military air stations.
The military is currently testing hundreds of installations nationwide, but Toomey said federal efforts to address the problem have fallen short. The amendment would require CDC to scrutinize eight current or former bases over the next five years.
Toomey and Casey were also managed to get a provision into the deal that would curb Russian energy supplies flowing to U.S. military installations in Europe.
The measure would direct DOD to brief Congress on its progress towards mitigating the risk that comes with buying fuels sourced in Russia.
"The DOD needs to take a longer-term look at its energy strategy for all bases in Europe," Toomey said. "Since many are reliant on energy sourced by Russia, and the threat from that nation is only likely to grow, identifying and addressing vulnerabilities now rather than in a crisis later is a prudent strategic path."Climate
Climate change has emerged as one of the hottest topics during NDAA talks this year. The Senate in its bill report pushed DOD to work to mitigate global warming, and the House passed a contentious amendment that would require the Pentagon to report on its vulnerable installations.
Sen. Bernie Sanders (I-Vt.) this week introduced two amendments to push the military to install renewable energy projects on its bases to reduce greenhouse gas emissions.
Sen. Ben Cardin (D-Md.) has also floated a provision to require DOD to study the national security implications of pulling out of the Paris climate accord.
Those measures are unlikely to see time on the floor, however, and the topic is not featured in the amendment package.
NDAA debate is generally a bipartisan affair, with Democratic and Republican lawmakers alike chiming in to prop up the armed services.
But talks were derailed more than once this week over a series of contentious provisions lawmakers had hoped to push into the amendment package, including measures on sequestration and Base Realignment and Closure.
Senate Majority Leader Mitch McConnell (R-Ky.) said yesterday that Democrats and Republicans had "reached an impasse" on amendment negotiations, forcing him to move to curb debate on the deal.
McCain, meanwhile, said he hoped the work done in committee would preclude spending too much time on flood debate. The bill passed 27-0 in committee, and despite "spirited" debate, McCain said it's time to press ahead.
"It's not the Bobbsey Twins," McCain said. "But once the committee has decided, then we move on."
https://www.eenews.net/eedaily/2017/09/15/stories/1060060737
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California Passes Chemical Disclosure Bill With Industry Support
Sep 15, 2017 | BNA Daily Environment Report
By Carolyn Whetzel
SC Johnson, Procter & Gamble, Unilever, and other manufacturers of air fresheners, detergents, and other household items would have to disclose potentially harmful ingredients in their products under a bill passed by California lawmakers.
The Cleaning Product Right to Know Act of 2017 (S.B. 258), if signed by Gov. Jerry Brown (D), would require companies to identify on labels and online information the chemical ingredients found in their products, including in fragrances.
The bill would “create an industry-wide ingredient communication program for manufacturers,” Wisconsin-based SC Johnson said in a written statement issued after the state Assembly approved the measure Sept. 12.
“Because of this legislation, consumers will have the opportunity to make more informed choices for their families,” Fisk Johnson, the company's chairman and chief executive officer, said.
Broad Support
More than 100 environmental, public health, and worker groups, the Consumer Specialty Products Association, and leading cleaning product makers like SC Johnson, Procter & Gamble, Unilever, RB-Reckitt Benckiser, and Seventh Generation, support the bill.
Industry buy-in, however, came after six months of negotiations that led to amendments to protect proprietary information and make implementation easier, bill author State Sen. Ricardo Lara (D) said.
Consumers and workers want to know what's in the cleaning products they use, Lara said in seeking Senate approval Sept. 13. Some chemicals in the products have been linked to cancer, birth defects, asthma and other adverse health effects, he said.
Passed in the Senate on a final 28-12 vote Sept. 13, the bill would give manufacturers until Jan. 1, 2020, to post ingredients and other product information on their websites. New labels listing intentionally added chemicals would be required a year later. Brown has until Oct. 15 to sign or veto the bill. He hasn't taken a position on the measure.
No federal regulations require the disclosure of most ingredients in cleaning products, although some companies, like SC Johnson, voluntarily provide the information.
Household, Institutional Products
The bill would apply to household and institutional products, and automotive care products, but not industrial products or cosmetics.
Ingredients identified by California, the federal EPA, European Union, or other authoritative bodies as causing cancer or other health and environmental harm would have to be identified on labels and online, according to the measure.
“The cleaning product industry recognized this consumer demand and worked with our coalition to craft a solution in Sen. Lara's bill,” Avinash Kar, a senior attorney with the Natural Resources Defense Council, said in a Sept. 13 written statement. “This bill will put California, once again, at the forefront of public health protections that will benefit all Americans.”
New York is finalizing industry guidance requiring cleaning product ingredient disclosure, Kar said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=120750412&vname=dennotallissues&fn=120750412&jd=120750412
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PPG: Look to China for Chemical Solutions to Pollution Problems
Sep 15, 2017 | BNA Daily Environment Report
By Pat Rizzuto
China's 2015 tax on paints and coatings containing volatile organic compounds immediately opened market opportunities for PPG, Chief Technology Officer David Bem recently told Bloomberg BNA.
In February 2015, the Chinese Ministry of Finance imposed a 4 percent tax on paints and coatings containing 420 grams per liter or more of volatile organic compounds (VOCs). “That immediately changed people's behaviors and the coatings we sold,” Bem said.
The tax, designed to reduce airborne concentrations of chemicals that contribute to smog, illustrates how company innovations respond to the power China is wielding to reduce air and water pollution, Bem said.
China's growing commitment to cleaning up its air and water—combined with the country's educational investments, standard-of-living improvements, and infrastructure development—mean it's designing chemical innovations that can help solve problems in other countries as well, said Bem and Chuck Kahle, who was PPG's chief technology officer until he retired in 2016. Kahle discussed chemistry's impact on the global economy during the American Chemical Society's annual meeting in August.
Working with its Chinese partners, PPG has nine research laboratories in China, Bem said. From its facilities there, PPG has both witnessed and responded to China's growing commitment to cutting air and water pollution.
Originally founded in Pennsylvania in 1883 as Pittsburgh Plate Glass, PPG today is a paints, coatings, and specialty materials manufacturer, employing about 47,000 people and operating 156 manufacturing facilities worldwide. It serves aerospace, architectural, automotive, marine, rail car, and consumer product manufacturers.
Functional Coatings, Energy
According to the U.S. Environmental Protection Agency, sufficient levels of exposure to formaldehyde can cause irritation of the skin, eyes, nose, and throat—and cancer at high levels of exposure.
As part of its global mandate, PPG set out to find a solution. Next month it will launch a “next-generation” paint to improve air quality by reducing the formaldehyde emitted from composite wood products, according to company officials. The paint—called Sigma Air Pure—uses an acrylic binder made with plant-based compounds to reduce up to 70 percent of the formaldehyde present in indoor air, according to the Sigma Coatings website. PPG will debut the paint in the Netherlands and Belgium in October before introducing it to other European markets in early 2018.
Partnering with China seemed like an organic opportunity for PPG. Chinese chemists have been trailblazers in developing functional finishes such as architectural paints and coatings that neutralize free formaldehyde molecules when they contact the painted wall, according to Bem.
China's determination to find environmental solutions, the government's ability to transform markets through public policies, and the sheer size of the Chinese market mean it will be a hotbed of innovation and commercial opportunity, Bem and Kahle said.
“If you can satisfy China's market, you're manufacturing at scale for any market,” Bem said.
China is primed to take the lead developing new chemicals for solar energy panels along with chemicals that cut energy use, Kahle said.
A combination of pigments and primers that PPG developed for airplanes illustrates that type of functionality, according to information the company sent Bloomberg BNA. The coating system cuts aircraft exterior temperatures up to 25 degrees Fahrenheit, reducing interior cabin temperatures 5 to 7 degrees, and air conditioning-related energy use, PPG says.
Global Regulations
PPG's experiences in China are just part of its global dealings in which chemical and environmental regulatory changes offer both opportunities and challenges, Bem said. It's challenging for companies to keep track of the pace of chemical regulations around the world, he said.
“Changes to chemical registration regulations have been proposed or implemented in the EU and many other countries, including China, Canada, the United States, and Korea,” PPG said in its 2016 10-K filing with the U.S. Securities and Exchange Commission. “Because implementation of many of these programs has not been finalized, the financial impact cannot be estimated at this time. We anticipate that the number of chemical registration regulations will continue to increase globally, and we have implemented programs to track and comply with these regulations.”
Chemical regulations in different parts of the world reflect different social and economic philosophies, Bem said. There are regulators that will require some duplicative tests due to their specific requirements, he added. Leveraging chemical toxicity and other data so that information generated for one regulatory body can support regulations in different parts of the world is a good idea, but “you can't also leverage all of it,” he said.
TSCA, Fuel Standards
Some regulatory changes—such as the 2016 overhaul of the U.S. Toxic Substances Control Act—will be a boon for chemical makers as a nationwide approach to chemical management is more workable that a patchwork of state rules, he said. “Very rarely is a product designed just for a particular state.”
Regulations also create market opportunities, according to Bem. For example, the Corporate Average Fuel Economy, or CAFE, standards require car manufacturers to make lighter components for automobiles. That, in turn, has spurred paint and coating innovations, he said.
Chemical Safety Tests
The amended TSCA requirement that the U.S. EPA develop and implement a plan to promote the regulatory use of in vitro, computer-based, and other new approaches to predicting how chemicals affect people and the environment will promote scientific understanding and regulatory use of new testing technologies, Bem said.
Regulatory bodies are playing catch-up with emerging scientific understandings about ways chemicals could move through, affect, and be transformed by living organisms, he said. Yet markets are responding to new science, Bem said.
To illustrate his point, Bem discussed industries’ response to concerns that some scientists have raised about bisphenol A (BPA), a chemical used to soften plastic products and coat metal cans to prevent food spoilage.
Market Drives Change
The question of whether BPA poses reproductive and developmental risks divides the scientific community. The U.S. EPA has described BPA as weakly estrogenic, meaning it can mimic female hormones. Many scientific advisers to regulators have said the chemical's current use levels are safe, yet some of those agencies also have regulated the chemical.
Companies began to switch to alternatives years before regulations were in place, Bem said. The U.S. Food and Drug Administration, for example, declared in 2012 that bisphenol A could no longer be used to make plastic baby bottles or children's “sippy cups” because it agreed with industry petitioners’ claims that it was no already no longer used in those applications.
Increasingly, even if the toxicology isn't clear, the market—not regulations—is the driver, Bem said. PPG's toxicologists are working with their supply chain partners to predict chemical toxicity and environmental effects using safety tests that aren't mandated by current regulations, he said.
These teams tend to work with classes of chemicals that are well known “where there's plenty of information, so we don't have to take leaps of faith,” he said.
Sustainability Goals
About 80 percent of chemical makers have adopted sustainability codes, meaning they are accountable to their shareholders for meeting specific goals, Kahle said. For PPG, that has meant developing reflective paints and coatings to cut energy use, Bem said.
PPG wants to use more biobased chemicals in its products, but the supply chain that could provide them isn't consistent enough to satisfy global demand, he said.
The growth in customers’ sustainability and other value-based requirements also drive PPG's innovations, Bem said.
For example, one European customer focused on ergonomics for painting contractors, he said. The contractors carried large paint containers, similar to a five-gallon pail rather than the traditional one-gallon can familiar to homeowners. The customer and PPG designed a light-weight paint that was easier to carry and reduced fuel delivery costs, Bem said.
In another case, PPG worked with an automaker that wanted paints and coatings with a high recycled content that also could perform well on car parts made with recycled materials, he said. The customer's focus spurred PPG to work in an area that it might not have undertaken on its own due to the cost and complexity involved.
Corporate and customer sustainability expectations mean environmental performance is an important measure of success, he added.
Robots, Driverless Cars
Even somewhat farther afield, PPG works with sensors used in automated manufacturing system robots and self-driving vehicles, he said.
To prevent corrosion and for aesthetic reasons, industrial robots and autonomous vehicles need to be painted or coated, Bem said. Any coverings, however, can't interfere with a sensor's ability to “see,” he said. PPG has worked with its aerospace customers on coatings that protect the sensors while improving their “vision” and function under a range of temperatures, humidity, and weather conditions, Bem said.
The chemical innovations that new technologies necessitate, coupled with new Chinese environmental policies, mean the pace of innovation emerging from China will continue to accelerate, Kahle said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=120750417&vname=dennotallissues&fn=120750417&jd=120750417
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French and German Farmers Urge Renewal Of EU Glyphosate License
Sep 14, 2017 | Reuters
By Sybille de La Hamaide
PARIS (Reuters) - French and German farmers jointly called on European governments to renew the license for glyphosate weedkiller, saying there was no evidence it was toxic and banning it would severely harm farming.
The European Union is due to decide by the end of the year whether to extend the licensing of one of the world’s most widely-used weedkillers. Glyphosate was initially created by U.S. agricultural company Monsanto which sells it under the brand name Roundup. A vote is planned early next month.
Consumers are concerned about potential health risks after the World Health Organization’s (WHO) cancer agency, the International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic” in 2015.
“We need to be able to continue to use some crop protection products, not because of some kind of stupid addiction like some say, but because the alternative means are not there,” French oilseed growers group FOP Arnaud Rousseau said on Thursday.
France’s environment ministry said in August Paris would vote against renewing the license. A qualified majority of member states is needed for the renewal to go ahead.
Berlin’s stance will depend on the outcome of the Federal elections due to take place on Sept. 24. Chancellor Angela Merkel, who is seeking a fourth term, has backed glyphosate but has not found enough support in her coalition government.
“We strongly hope that with the new government there will be a new approval of glyphosate,” said Wolfgang Vogel, head of German oilseeds industry association UFOP. “It would be very hard for farmers if they had to renounce glyphosate.”
France and Germany, the two largest EU members and top grain producers, had both abstained in earlier votes.
The question of glyphosate in France was now “purely political” Vogel said, as public studies both at French and EU level have said that glyphosate should not be classified as a cancer-causing substance, he said.
Grain growers issued a separate statement saying France’s position was “purely unacceptable” at a time when farmers are suffering from a sharp drop in income due to poor grain prices.
French pollster Ipsos, estimated earlier this month that a ban on the weedkiller would cost the French grains sector 1.1 billion euros ($1.3 billion) and 900 million for wine makers.
Analysts have estimated that Monsanto could lose out on up to $100 million of sales if glyphosate was banned in Europe.
https://www.reuters.com/article/column-russell-coal-lng/column-political-headaches-as-china-sucks-up-australian-coal-lng-russell-idUSL4N1LV2ML
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Sep 15, 2017 | Who's Who Legal
By Susan Talley
In March of this year, ExxonMobil announced a US $20 billion investment to expand its chemical manufacturing capacity along the US Gulf Coast (news.exxonmobil.com, “ExxonMobil Plans Investments of $20 Billion to Expand Manufacturing in US Gulf Region”, 6 March 2017). According to the press release, the planned investment includes 11 projects over a 10-year period between 2013 and 2022, which are projected to create over 45,000 jobs. Two months later, Dow Chemical followed with its own announcement of a five-year $4 billion spending programme in the Gulf South, including the capacity expansion of an ethylene cracker and the construction of a polyethylene production unit (Oil & Gas Journal Online, “Dow Chemical Unveils $4-billion US Investment Plan”, 12 May 2017).
The investments by ExxonMobil and Dow Chemical are part of a petrochemical manufacturing renaissance in the United States. According to the American Chemistry Council, 294 projects representing nearly $180 billion in capital investment have been announced since 2010 (www.americanchemistry.com, News and Resources, “US Chemical Investment Linked to Shale Gas: $179 Billion and Counting”, March 2017). Cheap and plentiful natural gas has been the primary driver of this growth. By far the largest concentration of investment has taken place along the Gulf Coast, where considerable shale gas deposits, access to deep water coastal ports and significant petrochemicals infrastructure make states such as Texas and Louisiana particularly well suited for these projects (www.americanchemistry.com, News and Resources, “Shale Gas in Louisiana”, October 2016).
Other recent examples of petrochemical expansion include large capital investments in Lake Charles, Louisiana by Sasol and by a joint venture between Lotte Chemical and a division of Westlake Chemical. Sasol is scheduled to complete an $11 billion ethane cracker in 2018 (Bloomberg Online, “Sasol Says $11 Billion US Project on Track for 2018 Start”, 27 February 2017). Lotte and Westlake are not far behind with a $1.9 billion ethane cracker and a $1.1 billion monoethylene gycol plant scheduled to open in 2019 (www.opportunitylouisiana.com, “Lotte Chemical, Axiall Break Ground on $3 Billion Complex in Louisiana”, 14 June 2016).
What does this mean for real estate lawyers? It has meant, and will continue to mean, a lot. The projects are real estate intensive
In many ways, these transactions are just as much real estate as project finance deals. The megaprojects occupy significant footprints. In addition, whether by requirement of applicable law or regulation, or as a defensive measure to mitigate potential environmental and toxic tort claims, there is often a surrounding buffer of undeveloped land. Further, they tend to need many rights of way for utilities, feedstock and product delivery. Accordingly, much time is devoted to land and property rights assemblage. By way of example, one project in southwest Louisiana necessitated the acquisition of entire residential subdivisions, in some instances one home at a time. The projects are complex
Because of the nature of their operations, these projects often involve multiple parties. A provider of feedstock materials that go into the process may have piping, meters, tanks and other equipment situated onsite by way of a ground lease, easement or other property interest. The same may be true of off-takers who have made long-term commitments to purchase the end product of a facility. There might be one or more co-locators – a company taking one byproduct of the operations and using it in that company’s own processes. A co-locator may hold a ground lease or other property interest for the pad on which it is situated, coupled with access, pipeline and similar easement rights leading to and from its pad. There might be rail or docking facilities. Water access will frequently involve not only private parties, but governmental bodies. In other words, there are numerous property rights that have to be negotiated and documented. They need to be financeable; and, most important, all of the pieces and parts must work together. Think of these projects as a unique form of mixed-use development.The projects entail land use and zoning challenges
As one might expect, petrochemical projects often pose land use and permitting hurdles. Although state and local economic development officials might welcome them with open arms due to the job-creation effects they have, the projects may confront opposition from local residents. Even where there is no opposition, conditional use or other special zoning permits may be necessary. Furthermore, these projects can present unique questions of zoning interpretation. For example, even in locales that are home to existing projects, zoning codes may speak in terms of “buildings” (where the vast bulk of the improvements may not be buildings at all), lot sizes, floor area ratios for buildings, setbacks and other terms and requirements that do not fit these developments. Real estate lawyers with land use expertise are often needed to undertake a zoning review and work with local regulators to make sure the project is permitted under applicable zoning and land use laws. Satisfying land use requirements is a long-lead item. Besides the company developing the project, equity investors and financiers will be looking for opinions, title insurance endorsements or other assurances that the project is properly zoned.The projects pose unique title insurance challenges
Speaking of title insurance, nothing is simple about the title insurance for these projects. Real estate counsel with considerable title insurance experience has to be engaged early on. First, because of the amounts involved, no single underwriter can insure these projects. It takes a consortium of title insurers. Also, some of the substantial cost items in one of these projects may not constitute real property interests. Counsel for all of the parties dealing with title insurance must work with their respective clients to make sure that appropriate coverages are obtained and premiums are not being paid for expenditures that do not relate to the value of the insured estate. Further, with a consortium of title insurers, most underwriting decisions, including the endorsements to be delivered, must be made by multiple underwriting counsel.
Because these projects are often located in areas that were formerly agricultural or areas with limited prior development, there can be coverage questions running the gamut from missing heirs to former burial sites to riparian rights. Each one of these title questions must then be analysed and blessed by the underwriters. In addition, because these projects are often developed in phases, where the timing of construction overlaps, mechanics’ lien coverage may be an issue. Depending on the state, the various ALTA endorsements that are available may be limited or very costly. Finally, where they are critical to the project operations, it may be necessary to insure easement rights benefitting the project. That can entail examining title to the properties underlying miles of pipeline.
The same complexities of these projects implicate what land surveys are required, to what standard will they be prepared and the manner in which title insurance exceptions will be shown. Key to all of this is assembling a real estate title and due diligence team from the outset.The projects are complicated to finance
Anytime there is a complex real estate project, financing is never easy. That is certainly the case here. Real estate lawyers detailed to the mortgage or deed of trust collateral must be prepared to draft carefully and “herd cats”. The collateral may include fee, ground lease and easement rights. There may be a number of third parties from whom non-disturbance agreements are required. Similarly, there may be leasehold mortgagee cure rights and “new lease” provisions to negotiate with a variety of parties having different requirements. And, while the collateral documents may be granted for the benefit of a single collateral agent, the terms of all of these documents must be satisfactory to a range of financing participants. The projects are often international
As one can tell from the introduction, the investors in these projects and the companies operating them span the globe. Any entity acquiring real property interests needs to be structured in a way so as to address the Foreign Investment and Real Property Tax Act and similar legislation.
***
The boom in petrochemical infrastructure spending in the Gulf Coast region of the United States has resulted in the kinds of economic growth that one might expect – jobs, construction spending and an improved tax base. This has also provided opportunities for the real estate practice groups of law firms that are prepared to tackle these sometimes daunting but also interesting and exciting projects.
http://whoswholegal.com/news/features/article/34095/effects-petrochemical-projects-boom-us-gulf-coast-real-estate-practices/
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(ACC Mentioned) OSHA and American Chemistry Council Form Safety Alliance
Sep 14, 2017 | Powder Bulk Solids
Seeking to generate awareness of the safety risks posed by workers’ exposure to diisocyantes in the polyurethane industry, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and the American Chemistry Council (ACC) entered into a two-year alliance to offer a web-based training program on safe use of the chemical and educate workers on the associated hazards.
“OSHA’s new alliance with ACC will help ensure that employers and employees who work with the identified chemicals better understand the health hazards associated with these potentially hazardous chemicals, and the methods to control employee exposures,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt in an agency press release.
Diisocyantes, used as a raw material in the production of polyurethane, can cause skin and mucous membrane irritation, chest tightness, and impact breathing. Some exposed to the substance have developed asthma and other lung issues.
In addition to offering web-based training, the alliance between OSHA and ACC plans to hold best practices seminars on health and safety procedures and develop guidance on medical surveillance and clinical evaluation of workers using the chemicals.
The ACC operates the Center for the Polyurethanes Industry (CPI) and has panels on diisocyanates and aliphatic diisocyanates.
http://www.powderbulksolids.com/news/OSHA-and-American-Chemistry-Council-Form-Safety-Alliance-09-14-2017
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(ACC Mentioned) New OSHA Alliances Protect Workers From Grain Handling, Chemical Hazards
Sep 14, 2017 | Facility Executive Magazine
The Occupational Safety and Health Administration (OSHA) has formed two new alliances with the National Grain and Feed Association (NGFA) and the American Chemistry Council (ACC) with the goal of protecting the safety and health of workers who handle grain and isocyanates in their workplaces.
Through its Alliance Program, OSHA works with unions, consulates, trade and professional organizations, faith- and community-based organizations, businesses, and educational institutions to prevent workplace fatalities, injuries, and illnesses. The purpose of each alliance is to develop compliance assistance tools and resources to educate workers and employers about their rights and responsibilities.
The two-year alliance with ACC will raise awareness of how workers are exposed to diisocyantes, and promote safe practices for their use in the polyurethane industry. Isocyanates are raw materials used to make polyurethane products, such as insulation, car seats, foam mattresses, shoes, and adhesives. Exposure to isocyanates can cause irritation of the skin and mucous membranes, chest tightness, and difficulty breathing. More serious health effects include asthma and other lung problems.
The alliance calls for the creation of a web-based training program on the safe use of chemicals and the potential routes of exposure to users. It will also develop guidance on medical surveillance and clinical evaluation techniques for employers and workers using the chemicals. The agreement also calls for best practices seminars on health and safety procedures for OSHA, On-Site Consultation, and State Plan staff.
“OSHA’s new alliance with ACC will help ensure that employers and employees who work with the identified chemicals better understand the health hazards associated with these potentially hazardous chemicals, and the methods to control employee exposures,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt.
The ACC comprises the Center for the Polyurethanes Industry (CPI), and the Diisocyanates and Aliphatic Diisocyanates panels. Members of these groups include manufacturers and distributors of chemicals and equipment used to make polyurethane. CPI serves as the voice of the polyurethanes industry, covering more than 220,000 workers nationwide.
The two-year alliance with NGFA will focus on preventing exposure to hazards associated with grain bin entry, machine guarding, respiratory protection, falls, heat exposure exposures, combustible dust, struck-by equipment, and lockout/tagout. Alliance participants will share recommended practices or effective approaches for recognizing and preventing grain handling hazards with OSHA staff, and industry safety and health professionals. Participants also plan to support and promote events such as the Grain Industry Stand-Up, which focuses on engulfment prevention.
“Grain handling operations pose numerous hazards that can cause serious, sometimes fatal injuries,” said Sweatt. “We look forward to working with NGFA to find ways to reduce exposures to hazards and promote workplace safety and health.”
Founded in 1896, the NGFA is a non-profit trade association that represents and provides services for grain, feed, and related commercial businesses. The association has more than 1,000 member companies, which handle more than 70 percent of all U.S. grains and oilseeds used in domestic and export markets. Its activities focus on enhancing the growth and economic performance of U.S. agriculture.
https://facilityexecutive.com/2017/09/new-osha-alliances-protect-workers-from-grain-handling-chemical-hazards/
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Valero Houston Plant Underestimated Harvey Benzene Leak
Sep 14, 2017 | The Wall Street Journal
By Alexandra Berzon
The chemical plant that released a cloud of a carcinogenic chemical amid Hurricane Harvey and its aftermath in Houston’s Manchester neighborhood in August emitted far more of the chemical than it had previously disclosed, environmental regulators said Thursday.
The plant, Valero Energy Partners ’ Houston refinery, suffered a hurricane-related spill Aug. 27 from the damaged roof of a light crude storage tank, the U.S. Environmental Protection Agency concluded in an investigation.
Valero initially reported to the state that because of the spill, seven pounds of the carcinogenic chemical benzene were released into the air.
Subsequently, Valero “has informed the EPA that it believes it significantly underestimated the amount of [volatile organic chemicals] and benzene released in its original report to the State of Texas Environmental Electronic Reporting System,” a state official said in an emailed statement Thursday.
The state said it didn’t yet have the amount the company had underreported.
A spokeswoman for Valero didn’t respond to requests for comment Thursday.
The company believes that the emissions were high immediately after the roof failure and diminished over time as the company pumped residual crude material from the tank and assessed how to safely remove the crumpled roof from the tank, according to the state official.
A spokesman for the Texas Commission on Environmental Quality said Valero hadn’t yet filed its final report on the incident, including an explanation of the cause of the damage.
Environmental advocates said the state should have done more to assess the safety of the situation sooner. Plants are supposed to report the highest possible amounts of emissions during unusual events and then revise them lower as more information comes in, said Elena Craft, a scientist at the Environmental Defense Fund who inspected the air around the plant with a mobile unit that came from California.
State air monitoring systems were shut down for several days during the storm. The state began using a specially equipped bus to analyze atmospheric gases on Sept. 5, while the EPA did chemical assessments from an airplane starting Aug. 30, according to a state official.
The tests showed air toxin readings below levels of health concern, he said.
Twenty residents from the Manchester area called a city hotline to report disturbing gas odors between Aug. 25 and Aug. 31, which prompted the city to take a reading of the area’s air quality on Aug. 31, said Loren Raun, chief scientist for the city of Houston’s health department.
While that reading didn’t find anything unusual, a subsequent measurement Sept. 2 showed high levels of benzene, which increased in a reading two days later to 325 parts per billion, said Ms. Raun.
According to the Agency for Toxic Substances and Disease Registry, amounts of nearly twice that in a 15-minute period can cause acute health effects such as dizziness and headaches. Still, it is unclear how much exposure there was and over what period of time, so the possible effects are difficult to assess, Ms. Raun said.
The benzene levels varied based on the wind and later disappeared, she said.
“The concentrations were concerning,” Ms. Raun said. “We really want to make sure the community is protected from benzene at levels like that. ”
“We just don’t know, and we did have the opportunity to know sooner than we did,” said Ms. Craft, whose organization assisted in the city effort.
Other plants outside Houston also had significant outlays of benzene emissions during the storm period.
The environmental group Environment Texas, which tracks emissions reports to the state, said as of Wednesday companies had estimated in initial reports that there were 5.9 million pounds of emissions, primarily from shutdown and startup operations, because of the storm, including 55,000 pounds of benzene and 212,000 pounds of the carcinogen 1,3-butadiene.
That data are likely to be revised as companies update their initial reports in the coming days.
Corrections & Amplifications
Valero’s Houston plant underestimated its benzene leak during Hurricane Harvey. An earlier version of the headline on this article incorrectly spelled the chemical as benzine. (Sept. 14, 2017)https://www.wsj.com/articles/valero-houston-plant-underestimated-harvey-benzene-leak-1505432176
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Elizabeth Warren Floats Bill To Curb Cyberthreats To Grid
Sep 15, 2017 | E&E Daily
By Nick Sobczyk
Sens. Elizabeth Warren (D-Mass.) and Thom Tillis (R-N.C.) this week introduced a bill aimed at addressing cybersecurity threats to the U.S. electric grid.
The "Securing the Electric Grid to Protect Military Readiness Act" would require the Department of Defense to report to Congress on grid vulnerabilities and examine how they could affect military readiness.
"The success of our military operations depends significantly upon maintaining a stable and secure electrical grid here at home," Warren said in a statement. "This legislation would help address critical vulnerabilities in our electrical infrastructure to further strengthen our military readiness."
This isn't the first time Warren has waded into grid security issues. She introduced a nearly identical amendment to this year's National Defense Authorization Act, though that provision has yet to see time on the floor during debate on the annual defense bill (see related story).
The bill introduced this week would require DOD to coordinate with the departments of Energy and Homeland Security, as well as the Office of the Director of National Intelligence, to plan to address grid security risks.
As the U.S. faces increased cyberthreats from Russia and elsewhere, Tillis said DOD needs to look more closely at the nation's infrastructure.
"As the global threats evolve and our adversaries continue to develop new ways to attempt to disrupt our military operations, it is important to recognize our key vulnerabilities," Tillis said.
https://www.eenews.net/eedaily/2017/09/15/stories/1060060749
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Judges Weigh Arguments In Critical EPA Ozone Case
Sep 14, 2017 | E&E News PM
By Amanda Reilly
California regulators and greens sparred with U.S. EPA in federal court today over an Obama-era rule guiding implementation of the 2008 ozone standard.
A panel of three federal judges of the U.S. Court of Appeals for the District of Columbia Circuit heard nearly an hour and a half of arguments in the case. The court's decision could define the parameters for future EPA action on the national ozone standard.
Judges at times appeared skeptical of EPA, pointing out what they suggested were discrepancies between the agency's briefs and its arguments in the courtroom. But the judges also acknowledged the complexity of the issues.
"You guys have a lot of arguments here," Chief Judge Merrick Garland, who presided, said as the proceedings reached the one-hour mark.
Ground-level ozone is a key component of smog that's formed when nitrogen oxides react with volatile organic compounds in sunlight. In 2008, during the George W. Bush administration, EPA set the national ambient air quality standard (NAAQS) for ozone at 75 parts per billion.
At issue in the lawsuit: EPA's follow-up rule guiding states on how to improve air quality in areas that exceed that limit.
Along with setting due dates for states to submit plans to address ground-level ozone pollution, the agency's final rule in 2015 established control technologies for meeting the standard, emissions inventory requirements and processes for areas to demonstrate compliance.
The rule also eliminated the 1997 ozone standard of 84 ppb for regulatory purposes. Both a coalition of environmental groups and a California air district filed suit.
The case's outcome could carry an enduring impact.
Seven months after the rule's publication, the Obama administration tightened the national ozone standard to 70 ppb, followed last November by a proposed implementation rule largely modeled on that of the 2008 standard. The Trump administration, which is weighing whether to stick with the 70-ppb benchmark, has not yet finalized the related implementation proposal, which includes two options for revocation of the 2008 standard.
Assuming that the Trump administration finalizes the implementation proposal, the litigation heard today "might very well give a precedent that EPA has to follow in implementing the 2015 standard," Craig Oren, a professor at Rutgers Law School, said in an interview.
In their suit, green groups — the Sierra Club, the Conservation Law Foundation, Downwinders at Risk and Physicians for Social Responsibility-Los Angeles — raised a slew of legal arguments that the rule is too weak, many of them stemming from EPA's decision to fully revoke the 1997 ozone standard.
EPA says that the 1997 standard has become largely superfluous because "it is mathematically impossible to attain the 2008 ozone NAAQS without first attaining the 1997 ozone NAAQS."
But greens say that, by getting rid of the old standard, EPA delayed deadlines for areas with the worst air pollution to adopt and put in place controls. And the decision allows areas that haven't yet achieved the old standard to avoid "bump-ups" to levels of ozone pollution that come with more stringent regulatory requirements, they say.
"Timely attainment of the 1997 standard is just as important as ever," environmental groups said in a court document. "Yet EPA's revocation decision allows millions of American to be exposed to unhealthful air for far longer than Congress permitted."'Nothing changed'
The court today appeared to agree that EPA has the authority to revoke the 1997 standard. But judges struggled with what happens next.
Garland and Judge Judith Rogers, both Clinton appointees, both appeared sympathetic to greens' concerns about what getting rid of the 1997 standard means for deadlines for achieving air quality improvement.
As interpreted in the past by the D.C. Circuit, the Clean Air Act "has a different scheme than the scheme in the rule anticipates," Rogers said.
The key question, according to Rogers, is what does revoking the 1997 standard mean for areas that have not already attained it at the time of the 2015 rule?
Justice Department attorney Heather Gange maintained that "nothing changed" and that states are required to still enforce controls as part of anti-backsliding measures included in the rule.
But the environmental groups say EPA illegally got rid of certain provisions in areas that attained the 2008 standard regardless of their status with respect to the 1997 standard. Greens also object to EPA's decision to eliminate the requirement that maintenance areas, or previously nonattainment areas that have now achieved the 1997 standard, develop a second "maintenance plan" to ensure that they'll stay in compliance.
"By omitting the teeth that Congress required ... EPA failed to include adequate backsliding measures," Seth Johnson, an attorney with Earthjustice, today told the judges.
Senior Judge David Sentelle, a Reagan appointee, today faulted EPA for not being clear on how it viewed the redesignation of areas from out of compliance to in compliance with the 1997 standard.
In its court briefs, EPA said it would allow for anti-backsliding requirements to be lifted through what it termed a "redesignation substitution" process. In effect, EPA would require states to show that areas have met the statutory criteria to be labeled in attainment under the 1997 standard.
But in court today, Gange argued that areas would no longer even be subject to the criteria in the law because all existing designations under the 1997 standard disappeared when it was revoked.
Sentelle said the agency appeared to have taken two different positions.
"We need you to address the statutory requirements," he said.
Judges today didn't dig too deeply into the other arguments raised by environmentalists. Those include that EPA allowed states to "cherry-pick" a baseline year by which to measure progress in meeting the 2008 standard, to unlawfully average emission sources and to avoid a requirement that nonattainment areas show a 15 percent reduction in volatile organic compounds.'Context is important'
The South Coast Air Quality Management District's lawsuit, on the other hand, centers on the requirement that nonattainment areas show "reasonable further progress" toward achieving the standard.
EPA has historically allowed a nonattainment area to demonstrate progress in part by relying on emissions reductions in upwind areas. But in its rule for the 2008 standard, the agency required that reductions come from within the nonattainment area.
The agency changed its long-standing policy to take into account a 2009 lawsuit challenging an interstate emissions trading program. There, the D.C. Circuit concluded that the Clean Air Act required reasonably available control technology to be imposed on sources within the nonattainment area.
But the South Coast Air Quality Management District says that the change makes it impossible for areas like the Coachella Valley — where there are few sources and mostly mobile ones — to show reasonable progress in achieving the ozone standard.
"We think context is important for this case," said Megan Lorenz, the district's senior deputy counsel.
Legally, the district argues that the 2009 court decision concerned a different part of the Clean Air Act and that EPA is free to interpret the phrase "in the area" differently in other sections of the law.
Garland, though, appeared to think the Clean Air Act itself was clear about what the contested phrase meant. He noted that it appears in a section of the law that's about nonattainment areas.
"How can it mean anything other than a nonattainment area, regardless of what we said in the other case?" Garland asked, adding, "I'm just having trouble finding what's ambiguous about it."
Sentelle also appeared to side with EPA, saying the law's language was "more consistent" with EPA's interpretation.
Rogers, though, appeared concerned with what she said were the "practical implications" of disallowing nonattainment areas from relying on outside emission reductions to show progress in meeting the standard. Where would that leave places like Ventura County, Calif., where transported emissions from the South Coast Air Basin contribute to degraded air quality, the judge pondered.
Gange today acknowledged that EPA understood that its policy makes it "difficult" for downwind areas to show progress. But the agency contends that it's constrained by the 2009 court decision. To solve the issues, Gange said that California could always ask for the boundaries of its nonattainment areas to be withdrawn.
The court is likely to issue a decision in the case in the coming months.
Reporter Sean Reilly contributed.
https://www.eenews.net/eenewspm/2017/09/14/stories/1060060729
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D.C. Circuit To Hear Oral Argument In Long-Running Suit Over Boiler MACT
Sep 14, 2017 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument Sept. 15 in one of the last remaining lawsuits over EPA's boiler maximum achievable control technology (MACT) air toxics rule, focusing on the issue of whether the agency erred in using carbon monoxide (CO) to set emissions limits in the rule.
In the long-running suit, Sierra Club v. EPA, environmentalists are testing whether EPA can use CO as a “surrogate” for air toxics to set the limits, and specifically whether the agency's acceptable pollution threshold of 130 parts per million of CO is rational and defensible. Environmentalists argue that EPA cannot demonstrate that toxic, hazardous air pollutants (HAPs) are absent from boiler emissions at CO levels below this threshold.
Environmentalists are further seeking to overturn EPA's use of “work practice standards” as an alternative for hard numeric emissions limits during periods of boiler startup and shutdown.
The MACT allows operators to fully engage emissions controls four hours after generation of useful thermal energy, and to engage controls “as expeditiously as possible” after boilers commence burning “non-clean fuels.” Clean fuels are low-emitting fuels -- such as natural gas -- used in boilers otherwise burning more-polluting fuels such as coal. But environmentalists say EPA cannot lawfully substitute work practice standards for numeric limits.
EPA in briefing has argued that verifying compliance with numeric emissions limits for HAPs is impractical during startup, when emissions controls do not yet operate effectively.
The issues the court will hear in Sierra Club were unresolved by the D.C. Circuit in its July 2016 ruling in U.S. Sugar Corp., et al., v. EPA, et al., where the court first vacated, then later remanded to EPA without vacatur, a series of emissions limits for large “major source” boilers for not being tough enough.
Some industry groups then sought Supreme Court review of U.S. Sugar to challenge EPA's startup, shutdown and malfunction (SSM) policy, which does not allow blanket SSM exemptions or “affirmative defenses” against civil liability for malfunction emissions. However, the high court June 23 declined to hear the case.
Sierra Club therefore appears to be the last active litigation against the boiler rules, although it may not necessarily be the last case filed despite years of regulatory revisions and legal challenges.
Sources notes that EPA has yet to respond to the D.C. Circuit's remand in U.S. Sugar, which will likely result in the agency issuing tougher emissions limits for the units. That rule will qualify as a final agency action subject to judicial review, providing an opportunity for fresh litigation, sources note.
https://insideepa.com/daily-news/dc-circuit-hear-oral-argument-long-running-suit-over-boiler-mact
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Carbon Capture Bill Gains Steam But Still Needs Republicans
Sep 15, 2017 | BNA Daily Environment Report
By Dean Scott
A bill to boost carbon capture incentives would seem to have the right ingredients to hit the Senate floor: It's backed by both the oil and gas industry and environmentalists and is led by an unlikely alliance of Democratic climate hawks and Republican climate policy critics.
But the Future Act (S. 1535), which would gradually boost tax credits for companies that capture carbon dioxide emissions to as much as $50 a ton a decade from now, may need more than the six current Republican cosponsors for it to move, supporter Sen. Sheldon Whitehouse (R.I.) told a carbon capture forum Sept. 14 .
A House carbon capture bill—the Carbon Capture Act—which also would bolster credits for carbon capture, was introduced Sept. 14 by Agriculture Committee Chairman Mike Conaway (R-Texas) with 29 cosponsors.
Both the House bill and the Senate Furthering Carbon Capture, Utilization, Technology, Underground Storage, and Reduced Emissions Act would increase carbon capture tax credits under Section 45Q of the tax code.
Concerns include how the bill would be paid for, although one option is to get it attached to the tax plan Republican leaders and President Donald Trump hope to move this fall. Companies backing the legislation include Occidental Petroleum Corp. and NRG Energy, which helped develop the $1 billion Petra Nova carbon capture project southwest of Houston.
“I think we are in pretty good shape on this, but we need to round up a bunch more Republican cosponsors so it doesn't get too out of balance” and become a mostly Democratic bill that won't get any traction with Senate Majority Leader Mitch McConnell (R-Ky.), Whitehouse said.
If supporters can get more Republicans to sign on “or tell the leader they will vote for it, then we are at a pretty good place to get this passed,” Whitehouse said.
McConnell isn't a cosponsor of the Senate carbon capture legislation, though he has cosponsored previous versions of the bill.
Technology Touted For Coal's Future
Other senators at the forum included Future Act sponsor Sen. Heidi Heitkamp (D-N.D.), who faces a tough reelection campaign in 2018, and Sen. Shelley Moore Capito (R-W. Va.). Capito said it's clear that technologies to capture carbon emissions will need more widespread deployment to keep coal competitive in the future.
The bill “helps coal miners in every single way,” she said. “Because in order to keep mining coal, we do have to to move in this direction.”
The forum was held a day after the Senate Environment and Public Works Committee held a hearing on technical barriers to encouraging more deployment of carbon capture and storage technologies. While such technology is nothing new for the oil and gas industry—carbon dioxide has been used for decades in enhanced oil recovery operations—it remains in its infancy for coal-fired and natural-gas fueled power plants.
Some environmental groups view trapping and storing emissions from power plants to be crucial in addressing climate change, given the likelihood that fossil fuels will remain a significant source for power generation for the foreseeable future.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=120750408&vname=dennotallissues&fn=120750408&jd=120750408
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Judges Doubt EPA's Defense In Ozone NAAQS Rule 'Backsliding' Fight
Sep 14, 2017 | Inside EPA
By Stuart Parker
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit at Sept. 14 oral argument appeared skeptical of EPA's defense for fighting environmentalists' claim that its rule for how states should implement the 2008 ozone standard unlawfully allows “backsliding,” or weakening of existing air pollution controls.
During argument in the consolidated litigation over the rule, South Coast Air Quality Management District (SCAQMD), et al. v. EPA, et al., the judges also questioned a separate claim by SCAQMD that the agency erred by not allowing credit for “out-of-area” emissions cuts that improve the district's air quality. The district has argued that prior EPA policy allowed such credit, and that the agency's decision to bar the credit was unlawful.
The skepticism from D.C. Circuit Chief Judge Merrick Garland and Judges Judith Rogers and David Sentelle could bolster environmentalists in seeking a ruling invalidating key parts of the ozone implementation rule.
Whatever decision the court issues in the case will have significant implications for EPA's future rules that outline what the agency will, and will not, allow in state implementation plans that detail the pollution control measures states will impose on industrial emissions sources in order to comply with the ozone national ambient air quality standard (NAAQS) -- including a pending implementation rule for the more recent 2015 ozone NAAQS.
Argument in SCAQMD focused on the agency's March 6, 2016, implementation rule for the 2008 ozone standard of 75 parts per billion (ppb), which is weaker than the 2015 standard set at 70 ppb. The rule revoked the 1997 ozone NAAQS expressed as 84 ppb -- a provision environmentalists say unlawfully allows for backsliding.
Environmentalists are asking the court to vacate the revocation of the 1997 standard, which they say would address most of their concerns about worsening air quality. Environmentalists argue that although the 2008 NAAQS is tougher, revoking the weaker 1997 standard can still lead to areas lifting pollution control requirements. This in turn can lead air quality to actually deteriorate, contrary to the purpose of the Clean Air Act, as least until new standards are fully implemented, they say. And full implementation of the 2015 NAAQS is still years away.
In the legal fight, EPA and environmentalists are at odds over when and how the agency can revoke an old NAAQS. Department of Justice (DOJ) attorney Heather Gange, representing EPA, asserted the agency's right to revoke old NAAQS, and with them implementation deadlines for various aspects of states' clean air programs.
Gange insisted that states cannot simply remove pre-existing pollution control requirements, which are still written into their state implementation plans (SIPs) for air law compliance and cannot be removed without notice-and-comment federal rulemaking. The 2016 implementation plan included all the anti-backsliding measures that the D.C. Circuit has previously said should apply in the transition from one NAAQS to another, Gange said.
Judges' Doubts
But the judges appeared unsatisfied, pressing Gange in particular on EPA's “redesignation substitute” procedure that states can use to determine that they are “functionally” attaining the now-revoked 1997 standard, a necessary step to get anti-backsliding controls lifted.
Environmentalists allege the “substitute” procedure is “extra-statutory” and fails to meet all the air law conditions for redesignation of an area from “nonattainment” to “attainment."
Gange said “it is easy to believe” that states “can get away with something” as a result of the 1997 ozone standard being revoked, but that is not the case.
She further argued that because EPA has revoked the 1997 NAAQS, the statutory terms for redesignation do not apply. Yet in its redesignation substitute, EPA “attempted to ground that at least somewhat in the statute,” she added.
This confused the judges, who pressed Gange on where EPA spells this out in prior briefing in the case. “In your brief, I don't see the argument that you made today,” Rogers said.
Gange was forced to repeatedly apologize “if the briefing was unclear."
Meanwhile, Earthjustice attorney Seth Johnson, representing environmentalists, said that EPA's revocation of the 1997 NAAQS has already had tangible negative consequences.
States have not imposed Clean Air Act new source review (NSR) permit requirements, or “transportation conformity” requirements to review transportation projects, such as road building, to ensure they do not result in emissions increases that violate NAAQS.
Also, states have in some cases avoided areas being “bumped up” to a more serious nonattainment status, which carries with it the duty to impose tougher pollution controls, he said.
“Things did change,” contrary to EPA's claim, because deadlines for states to comply with 1997 NAAQS implementation requirements have been eliminated, Johnson said. He used the Houston metropolitan area as an example, where tough NSR requirements would now apply had the 1997 NAAQS simply remained in effect. “EPA allowed air quality in the area to retreat,” he said.
Congress, Johnson argued, intended for areas not simply to attain the NAAQS, as most have for the 1997 standard, but also to maintain the standard.
Johnson conceded, however, that certain contingency fees still apply if areas do not meet their former deadlines to attain the 1997 NAAQS, even after the standard has been revoked, but noted this does not apply to other “key consequences” that no longer apply. “Vacating the revocation would solve the issues before the court,” Johnson said.
Environmental groups have already expressed their opposition to EPA's proposal to revoke the 2008 NAAQS in a similar fashion in its forthcoming implementation rule for the 2015 standard, teeing up a likely legal challenge if EPA finalizes that rule as proposed.
SCAQMD's Argument
Also during oral argument, SCAQMD, representing the greater Los Angeles area, struggled to convince the court why EPA should revert to its prior policy that allowed areas to get credit for “out-of-area” emissions reductions when demonstrating “reasonable further progress” (RFP) toward NAAQS attainment. RFP is “intimately” connected to NAAQS attainment, argued Megan Elizabeth Lorenz Angarita for the district.
South Coast wants to allow areas to count such out-of-area emissions because it says that the air law reference to “the area” in question is ambiguous. EPA changed its longstanding position that had allowed states to count such emissions to demonstrate RFP after the D.C. Circuit in a 2009 ruling in Natural Resources Defense Council v. EPAfound emissions from outside a nonattainment area cannot count toward meeting reasonably available control technology (RACT), another air law requirement.
EPA says the language of the air law provisions on RFP and RACT is near-identical, and therefore it cannot take a different approach to each. South Coast counters that when determining a nonattainment area's obligations, EPA routinely considers out-of-area emissions.
But the judges were unconvinced of the district's legal interpretation. “I am having trouble finding what is ambiguous about it,” said Garland, noting that the term “in the area” appears in a Clean Air Act section that explicitly addresses nonattainment areas. “Aren't you just fighting with Congress here?” he asked, suggesting that while South Coast may have a good policy argument, that is a matter for Congress to address.
The practical consequence of EPA sticking with its policy is that areas such as Ventura County, CA, will find it harder to demonstrate RFP. But a better option for them would be to ask EPA to redraw the boundaries of nonattainment areas under air law section 107, rather than “torturing the language” of the act on RFP, Gange said.
Gange conceded, however, that if the court finds EPA's position on the issue is in error, a remand would be appropriate, as sought by South Coast.
Johnson indicated that environmentalists would oppose such a step. He argues that South Coast has failed to meet “a high bar” to demonstrate one of its key legal arguments that EPA's new approach would produce “absurd results” by punishing areas for emissions they cannot control.
https://insideepa.com/daily-news/judges-doubt-epas-defense-ozone-naaqs-rule-backsliding-fight
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De Blasio Eyes Greenhouse Gas Cuts from City's Buildings
Sep 15, 2017 | BNA Daily Environment Report
By John Herzfeld
Greenhouse gas emissions from thousands of buildings in New York City would have to be sharply reduced under a plan by Mayor Bill de Blasio (D) targeting the city's top source of heat trapping emissions.
De Blasio's proposed legislative plan, announced Sept. 14, would require owners of all buildings in the city larger than 25,000 square feet to make improvements to boilers, heat distribution systems, hot water heaters, roofs, and windows. Further changes would be required during replacement or refinancing cycles over the next 12 to 17 years.
The plan would make New York the first city to mandate cuts in emissions from fossil fuels burned for heat and hot water in buildings, which constitute 42 percent of all greenhouse gases in the city, de Blasio said. He said the plan was part of a broader response by cities to the federal government's inaction on climate issues.
“No matter what happens in Washington, we will not shirk our responsibility to act on climate in our own backyard,” de Blasio said in a statement.
Mandated energy efficiency upgrades will help the city to “continue to honor the goals” of the Paris climate agreement, he said.
The mayor's plan expands on the city's previously announced goals to cut carbon emissions by 80 percent from 2005 levels by 2050, as well as a long string of city code changes, emissions reduction programs, and voluntary agreements on building energy efficiency.
In June, de Blasio issued an executive order backing climate change targets in the wake of President Donald Trump's decision earlier this year to withdraw the U.S. from the Paris agreement. The international accord, reached in 2015, set goals for signatory countries to reduce emissions and make efforts to mitigate impacts of global warming.
Benchmark Seen
“New York City's leadership sets a benchmark for cities in the United States and around the world,” Brendan Shane, North American regional director of the C40 Cities Climate Leadership Group, said in a statement. New York is a charter member of the international coalition of city governments.
The plan also has the backing of a range of environmental and labor groups.
The mandates in the plan would trigger replacement of fossil fuel equipment and efficiency upgrades in the city's worst-performing 14,500 buildings, which account for 24 percent of the city's total greenhouse gas emissions, de Blasio said.
The new targets would reduce total citywide emissions 7 percent by 2035, he said. The plan requires approval by the overwhelmingly Democratic-controlled City Council.
However, the real estate industry cautioned that how compliance is measured could affect the program's success.
“The city's goals could inadvertently promote buildings that use less overall energy without regard to how the energy is used.” John Banks, president of the Real Estate Board of New York, said in a statement. “A trading floor with many terminals and employees might not meet targets but an empty windowless building used for storage would meet the target.”
Penalties Down the Road
In examples of penalties for noncompliance, the city said that a 30,000-square-foot residential building operating substantially above its energy target would pay $60,000 per year, starting in 2030. A million-square-foot building operating well over its energy target would pay as much as $2 million per year. Failure to comply also would affect the ability of building owners to receive future permits for major renovations.
A city financing program would be established to help owners of small buildings meet the targets. The program potential could provide $100 million annually for energy efficiency and clean energy projects.
The plan, the city said, would create 17,000 “green jobs” for plumbers, carpenters, electricians, engineers, architects, and energy specialists. The city also estimated the plan would lower energy costs by up to $300 million per year for owners of multifamily buildings.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=120750402&vname=dennotallissues&fn=120750402&jd=120750402
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