Preview Newsletter
ACC AM Olivia (22/09/17)
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(ACC Mentioned) Will a ‘Use By’ Date Keep Us from Throwing Out Perfectly Good Food?
Sep 21, 2017 | Boston Globe
By Sarah Shemkus
The yogurt says it’s best by tomorrow, but the baby carrots have a sell-by date that came and went last week. The label on the artisanal pickles declares that they were born two months ago. -
Ex-Utility Lobbyist to Lead Public Engagement Office
Sep 21, 2017 | E&E Greenwire
By Kevin Borgardus
Tate Bennett, a former lobbyist working at U.S. EPA that attracted scrutiny from Democratic senators, has a new job at the agency: public engagement chief. -
(ACC Mentioned) California Bill Would Require Disclosure of Cleaning Product Ingredients
Sep 21, 2017 | National Law Review
On September 13, 2017, the California Senate passed the final version of the Cleaning Product Right to Know Act of 2017 (S.B. 258), which would require manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer’s website -
Practitioner Insights: Should Firms Ask for Chemical Risk Reviews?
Sep 22, 2017 | BNA Daily Environment Report
By Charles Franklin
As a general rule, chemical manufacturers (and their counsel) avoid actions that will encourage or increase regulatory scrutiny of their products or operations. Regulatory scrutiny generally is bad for business, since it exposes companies to risk of reputational injury, fines and injunctive actions, competitive disadvantage, and general market uncertainty. -
Chemical Companies See More Risk Than Reward in Brexit
Sep 22, 2017 | BNA Daily Environment Report
By Adam Allington
Chemical companies in the U.K. are skeptical about abandoning European Union regulations, including the landmark REACH regulation, as British Prime Minister Theresa May prepares to deliver a big Brexit speech in Italy Sept. 22. -
Staffers Huddle to Talk Energy, Environment
Sep 21, 2017 | E&E News PM
By Zack Colman
Trump administration officials gathered yesterday to discuss a forward-looking strategy on energy and environment issues to present a more coherent policy message, an administration official told E&E News. -
Fracking Rule May See Jumbled Comeback as Court Tosses Case
Sep 22, 2017 | E&E - Energywire
By Ellen M. Gilmer
Confusion and mixed messages dominated the conversation yesterday as court watchers unpacked a major ruling on the Obama administration's embattled hydraulic fracturing rule. -
Obama Fracking Rule Restored Temporarily as Court Halts Case
Sep 22, 2017 | BNA Daily Environment Report
By Alan Kovski
The Obama administration's 2015 rule governing hydraulic fracturing on federal and tribal lands was temporarily reinstated today when a federal appeals court dismissed a bloc of states’ lawsuit challenging the regulations. -
Dow Starts Up Two Key Petrochemical Projects on Texas Gulf Coast
Sep 21, 2017 | Natural Gas Intelligence
By Carolyn Davis
A unit of DowDuPont (Dow) on Thursday said its world-scale ethylene production facility and enhanced polyethylene (PE) production plant in Freeport, TX, considered the backbone of a $6 billion buildout on the Gulf Coast, have begun operations. -
Twice-Rejected U.S. LNG Exporter Gives Project Another Shot
Sep 22, 2017 | Bloomberg Markets
By Ryan Collins
The developer of a liquefied natural gas export terminal in Oregon that has already twice been denied permits by U.S. regulators is giving it another shot. -
Montana Set to Take Over Deadly Asbestos Cleanup Site
Sep 21, 2017 | Associated Press (in The Washington Post)
By Mathew Brown
The cleanup of a northwest Montana community where health professionals say hundreds of people have been killed by asbestos exposure entered a new phase Thursday as officials turn their focus to keeping residents safe over the long term. -
Judge Tentatively Approves Revised Chemical Spill Settlement
Sep 21, 2017 | Associated Press (in The Washington Post)
A federal judge has tentatively approved a revised settlement to a class-action lawsuit over a West Virginia chemical spill that left up to 300,000 people without tap water for up to nine days. -
The Latest: Chemical Company Told to Provide Bottled Water
Sep 21, 2017 | Associated Press (in The Washington Post)
The Latest on an unregulated chemical in drinking water in North Carolina (all times local) -
(ACC Mentioned) Exclusive - Persistent Rail Service Disruptions Dog CSX Customers
Sep 22, 2017 | Reuters
By Eric M. Johnson
CSX Corp (CSX.O) customers, including chemical, automotive and steel producers, are still battling delays and congestion despite the railroad’s assurances that it had moved past service disruptions, people familiar with the situation said. -
Oryx to Build 220-Mile Crude Oil System in Permian Delaware
Sep 21, 2017 | Natural Gas Intelligence
By Charlie Passut
After closing on a long-term oil transportation agreement, Oryx Midstream Services II LLC plans to begin building a 220-mile crude oil transportation pipeline system to serve the Permian Basin’s Delaware sub-basin, with initial capacity of up to 400,000 b/d. -
PLASTICS CEO Carteaux Fires Back at NYT Editorial on Kenya's Plastic Bag Ban
Sep 21, 2017 | Plastics Today
By Norbert Sparrow
The New York Times published an editorial on Sept. 14 arguing that the United States should follow the example of Kenya and ban plastic bags. Bill Carteaux, President and CEO of the Plastics Industry Association (PLASTICS; Washington, DC), thinks that’s a “frightening” idea. -
Novel Ruling Extends EPA Deference To State Implementing Clean Air Act
Sep 21, 2017 | Inside EPA
By David LaRoss
A federal district court judge has issued a novel ruling extending to Utah the deference that courts often give EPA on interpreting the Clean Air Act, potentially setting a new more-expansive marker on the authority that judges could give states as EPA increasingly seeks to delegate implementation of environmental laws to states. -
Superfund Cleanups Slowed by Decades-Long EPA Practices
Sep 22, 2017 | BNA Daily Environment Report
By Sylvia Carignan
The EPA administrator is vowing to change a longtime Superfund program practice blamed for slowing or in some cases stopping cleanup work at some hazardous waste sites.
Industry and Association News
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Environment News
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(ACC Mentioned) Will a ‘Use By’ Date Keep Us from Throwing Out Perfectly Good Food?
Sep 21, 2017 | Boston Globe
By Sarah Shemkus
The yogurt says it’s best by tomorrow, but the baby carrots have a sell-by date that came and went last week. The label on the artisanal pickles declares that they were born two months ago.
What to make of all these date references? The vague and somewhat arbitrary system of freshness dating for food can make assessing the contents of your fridge a perplexing task.
These labels don’t merely cause confusion — they might also be costing you money. The American Chemistry Council reports that the average American throws out about $640 worth of unused food each year. Adherence to freshness dates seems to be a major driver of this waste: 68 percent of people believe that throwing out food when the date on the label passes can help prevent food-borne illness, according to an Ohio State University study.
But there’s some good news. A coalition of major food sellers — including Walmart, Kellogg, and Campbell Soups — has announced a plan to standardize labels over the next two years, largely replacing the hodgepodge of “sell by” and “display until” and “freshest before” with a simple “use by.”
In the meantime, consumers can start looking for ways to cut their own food waste. After all, reducing the amount of food you toss even by half could save you hundreds of dollars each year. Here are some ideas:
Make a list, check it twice. Your most valuable tool is a well-crafted shopping list. Plan your meals for at least a few days at a time, list the ingredients, and buy only what you need. The more detailed the list, the better — if you note that you only need enough spinach for one meal, you won’t end up buying in bulk and tossing most of the greens a week later.
Rethink conventional wisdom. Bigger sizes do not always mean better value. The unit price on the super-sized salad dressing is probably better than on the smaller bottle, but if you throw away half of it, you are not actually realizing your potential savings.
Show storage savvy. Go ahead and buy the family-sized package of pork chops, but make sure you immediately throw anything you won’t use in the freezer. Stale bread can be frozen for later use as bread crumbs. And do a little online research to find the best conditions for storing particular kinds of produce — saving a few dollars can be as easy as moving your tomatoes from the fridge to a countertop.
https://www.bostonglobe.com/business/2017/09/21/will-use-date-keep-from-throwing-out-perfectly-good-food/EVbZhMj7t1jyL0PtMomC4N/story.html
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Ex-Utility Lobbyist to Lead Public Engagement Office
Sep 21, 2017 | E&E Greenwire
By Kevin Borgardus
Tate Bennett, a former lobbyist working at U.S. EPA that attracted scrutiny from Democratic senators, has a new job at the agency: public engagement chief.
Bennett has taken on a more senior role as EPA's associate administrator for public engagement and environmental education, according to the agency's website.
As head of the office, Bennett, one of President Trump's political appointees, helps set up and maintain EPA relations with both the public and private sectors.
Bennett joined the agency earlier this year. Her initial job at EPA was in its congressional office, specifically as deputy associate administrator for intergovernmental relations, as detailed in a June email sent out by chief of staff Ryan Jackson.
Bennett's prior position grabbed the attention of Democratic Sens. Sheldon Whitehouse of Rhode Island and Jeff Merkley of Oregon, two members of the Senate Environment and Public Works Committee.
The senators sent a letter to Administrator Scott Pruitt in May asking how Bennett, who was registered to lobby for the National Rural Electric Cooperative Association before joining EPA, could do her job given Trump's executive order on ethics (Greenwire, May 16).
A spokesman for Whitehouse told E&E News that EPA has not responded to the letter regarding Bennett. An EPA spokesman said a response was forthcoming.
"We will get back to Sen. Merkley and Sen. Whitehouse through the proper channel," said Jahan Wilcox, the agency spokesman.
Bennett has Capitol Hill experience, having worked as an energy adviser to Senate Majority Leader Mitch McConnell (R-Ky.). She joined NRECA in 2015, and records show she lobbied on several issues that involved EPA, including the Clean Power Plan and the Clean Water Rule.
https://www.eenews.net/greenwire/2017/09/21/stories/1060061359
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(ACC Mentioned) California Bill Would Require Disclosure of Cleaning Product Ingredients
Sep 21, 2017 | National Law Review
On September 13, 2017, the California Senate passed the final version of the Cleaning Product Right to Know Act of 2017 (S.B. 258), which would require manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer’s website. The Senate passed the bill by a vote of 27 to 13. The California Assembly passed the bill by a vote of 55 to 15, with nine votes not recorded, on September 12, 2017. Governor Jerry Brown (D) has until October 15, 2017, to sign the bill. He has not taken a public position on it.
Senator Ricardo Lara (D), who authored the bill, issued a September 12, 2017, press release after the California Assembly passed the bill. The press release states that “[c]hemicals in cleaning products have been shown to cause cancer, birth defects, asthma and other serious health effects, and ingredient labeling responds to consumers’ demand for transparency.” According to the press release, a poll commissioned by bill sponsors showed 78 percent of California voters support requiring ingredient disclosure. The press release notes that the bill is co-sponsored by non-governmental organizations Breast Cancer Prevention Partners, Environmental Working Group, Natural Resources Defense Council, and Women’s Voices for the Earth, as well as manufacturers of cleaning products, including Honest Company, Seventh Generation, Procter & Gamble, SC Johnson, RB - Reckitt Benckiser, Unilever, Eco Lab WD-40, fragrance maker Givaudan, and the Consumer Specialty Products Association.
According to the September 13, 2017, Senate floor analyses, consumer advocates and industry representatives worked for more than six months to reach a compromise that would provide ingredient information to consumers and workers about known chemicals of concern while ensuring that businesses are able to protect valid proprietary information for other chemicals. The bill was amended to clarify the disclosure obligation pursuant to the Act, including, but not limited to: (1) authorizing a manufacturer to protect as confidential business information (CBI) any intentionally added ingredient or combination of intentionally added ingredients that meet the definition of CBI; (2) specifying that a manufacturer of a designated product sold in California is required to disclose on the product label specified information, including a list of intentionally added ingredients that are on a designated list; and (3) providing for specifications on the disclosure requirements. The Senate analysis lists the following associations as “opposition,” as of September 7, 2017: American Chemistry Council; Auto Alliance; California Manufacturers & Technology Association; CropLife America; Grocers and Manufacturers Association; National Federation of Independent Business (NFIB) -- The Voice of Small Business; Pacific Association of Building Service Contractors; and Western Plant Health Association.
Under the bill as amended, a designated product is “a finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic, or institutional cleaning purposes.” Excluded products include personal care products such as toothpaste, shampoo, and hand soap; trial samples of designated products that are not packaged for individual sale, resale, or retail; and industrial products specifically manufactured for, and exclusively used in, oil and gas production, steel production, heavy industry manufacturing, industrial water treatment, industrial textile maintenance and processing other than industrial laundering, food and beverage processing and packaging; and other industrial manufacturing processes.
An intentionally added ingredient is “a chemical that a manufacturer has intentionally added to a designated product and that has a functional or technical effect in the designated product, including, but not limited to, the components of intentionally added fragrance ingredients and colorants and intentional breakdown products of an added chemical that also have a functional or technical effect in the designated product.” A nonfunctional constituent is defined as one of the following substances that is an incidental component of an intentionally added ingredient, a breakdown product of an intentionally added ingredient, or a byproduct of the manufacturing process that has no functional or technical effect on the designated product:
1,4 dioxane;
1,1 dichloroethane;
Acrylic acid;
Benzene;
Benzidine;
1,3 butadiene;
Carbon tetrachloride;
Chloroform;
Ethylene oxide;
Nitilotriacetic acid;
Butyl benzyl phthalate;
Butyl decyl phthalate;
Di(2-ethylhexyl) phthalate;
Diethyl phthalate;
Diisobutyl phthalate;
Di(n-octyl) phthalate;
Diisononyl phthalate;
Dioctyl phthalate;
Butylparaben;
Ethylparaben;
Isobutylparaben;
Methylparaben;
Propylparaben;
Formaldehyde;
1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride;
DMDM hydantoin;
Diazolidinyl urea;
Glyoxal;
Imidazolidinyl urea;
Polyoxymethylene urea;
Sodium hydroxymethylglycinate;
2-Bromo-2-nitropropane-1,3-diol;
N-Nitrosodimethylamine; and
N-Nitosodiethylamine.
CBI means any intentionally added ingredient or combination of ingredients for which a claim has been approved by the U.S. Environmental Protection Agency (EPA) for inclusion on the Toxic Substances Control Act (TSCA) Confidential Inventory, or for which the manufacturer or its supplier claim protection under the Uniform Trade Secrets Act. CBI shall not include an intentionally added ingredient or combination of ingredients that is on a designated list; a nonfunctional constituent; or a fragrance allergen included on Annex III of the European Union (EU) Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations, when present in the product at a concentration at or above 0.01 percent (100 parts per million).
A designated list is any of the more than 20 authoritative lists identified in the Act that “identify chemicals as causing cancer or other human health or environmental harm, including any subsequent revisions to those lists when adopted by the authoritative body.” These lists include the following state, federal, and international lists:
Proposition 65;
Chemicals classified by the EU as carcinogens, mutagens, or reproductive toxicants;
Chemicals included in the EU Candidate List of Substances of Very High Concern (SVHC) for endocrine disrupting properties, persistent, bioaccumulative, and toxic (PBT) properties, or very persistent and very bioaccumulative (vPvB) properties;
Chemicals for which the EPA Integrated Risk Information System (IRIS) has developed a reference dose or reference concentration based on neurotoxicity, or identified as carcinogenic to humans, likely to be carcinogenic to humans, or as Group A, B1, or B2 carcinogens;
Chemicals identified as persistent, bioaccumulative, and inherently toxic to the environment by the Canadian Environmental Protection Act (CEPA) Environmental Registry Domestic Substances List;
Group 1, 2A, or 2B carcinogens identified by the International Agency for Research on Cancer (IARC);
Neurotoxicants that are identified in the federal Agency for Toxic Substances and Disease Registry’s (ATSDR) Toxic Substances Portal, Health Effects of Toxic Substances and Carcinogens, Nervous System;
Reproductive or developmental toxicants identified in Monographs on the Potential Human Reproductive and Developmental Effects published by the National Toxicology Program (NTP) Office of Health Assessment and Translation;
Chemicals identified by EPA’s Toxics Release Inventory (TRI) as PBT chemicals that are subject to reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA);
The Washington Department of Ecology’s PBT chemicals identified in Chapter 173-333 of Title 173 of the Washington Administrative Code;
Chemicals that are identified as known to be, or reasonably anticipated to be, human carcinogens by the 13th Report on Carcinogens prepared by NTP. Subsequent revisions to this list shall not be incorporated;
Chemicals for which primary maximum contaminant levels have been established and adopted;
Chemicals that are identified as priority pollutants in the California water quality control plans, or identified as pollutants by the state or EPA for one or more water bodies in California;
Chemicals that are identified with noncancer endpoints and listed with an inhalation or oral reference exposure level by the Office of Environmental Health Hazard Assessment (OEHHA); and
Chemicals identified as priority chemicals by the California Environmental Contaminant Biomonitoring Program.
The online disclosure requirements would apply to a designated product sold in California on or after January 1, 2020. The product label disclosure requirements would apply to a designated product sold in California on or after January 1, 2021.
Commentary
Whether Governor Brown will sign the bill is unclear. This is not the first time this type of measure has been before the California legislature, and if it fails, it will not be the last. New York’s new initiative, the Household Cleaning Product Information Disclosure Program, requires similar disclosures, and advocates have been relentless in California in securing a similar law in that state. This go around reflects both some industry support, and strong industry push back. We will know soon as the October 15 deadline is fast approaching.
https://www.natlawreview.com/article/california-bill-would-require-disclosure-cleaning-product-ingredients
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Practitioner Insights: Should Firms Ask for Chemical Risk Reviews?
Sep 22, 2017 | BNA Daily Environment Report
By Charles Franklin
As a general rule, chemical manufacturers (and their counsel) avoid actions that will encourage or increase regulatory scrutiny of their products or operations. Regulatory scrutiny generally is bad for business, since it exposes companies to risk of reputational injury, fines and injunctive actions, competitive disadvantage, and general market uncertainty.
In 2016, the chemical industry seemingly bucked conventional wisdom by supporting legislation to enhance the Environmental Protection Agency's authority and mandate to review and manage risks from the tens of thousands of chemicals already in U.S. commerce and the hundreds of new chemicals proposed for commercialization each year. The statute also allows companies to volunteer their own chemical products for expedited review and to pay for that privilege. With the applicable regulations now in place, will there be any takers? For at least a small subset of steely manufacturers, the answer is yes.
On June 22, 2016, President Barack Obama signed the landmark Frank R. Lautenberg Chemical Safety Act for the 21st Century (LCSA) into law. The signing capped off a multiyear bipartisan effort by public and private stakeholders—including leading voices in the manufacturing and chemical industry—to amend the Toxic Substances Control Act for the first time since the law's passage in 1976.
Among other changes, the LCSA clarified and strengthened the EPA's authority to review the roughly 62,000 chemicals already in U.S. commerce in 1975 that were added to the TSCA Chemical Substance Inventory without formal review. At the time, it was expected that the EPA would review and address risky chemicals already in use under the statute's existing chemical review authority, but by 1990, the existing chemical review process was all but abandoned due to budgetary, legal, and policy obstacles.
A goal of the LCSA amendments was to reverse this trend and restore public confidence in the regulatory system by clarifying and strengthening the EPA's regulatory authority, setting quotas and deadlines for the agency's prioritization and review of existing chemicals. At the request of the chemical industry itself, the LCSA amendments also included provisions allowing manufacturers to request reviews for specific chemicals and requiring that these manufacturer-requested risk evaluations constitute between 25 percent and 50 percent of new chemical risk evaluations, presuming adequate industry demand.
In June 2017, as required by LCSA, the EPA issued rules for the conduct of chemical risk evaluation for existing chemicals (Risk Evaluation Rule). With the regulatory framework now in place, as well as guidance on preparing manufacturer-submitted risk assessments, a more fundamental question looms: Why would a manufacturer voluntarily subject itself to this risk evaluation process?
EPA's Risk Evaluation Process
Before answering this question, a quick overview of the process is in order. The EPA's risk review process is designed to evaluate and characterize the risks to human health and the environment from a chemical substance, based on its conditions of use, i.e, the circumstances under which that substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed, used, and disposed of (known as conditions of use, or COUs). Whether requested by a manufacturer or identified through the EPA's independent prioritization process, the agency appears to be subjecting all substances undergoing risk evaluation to the same rigorous, multistep risk evaluation process.
As a first step in a manufacturer-requested evaluation, the manufacturer must submit a detailed request package identifying the substance at issue and the specific COUs proposed for evaluation (the EPA will still conduct its own scope assessment to identify any additional conditions of use that should be included in the evaluation).
Because risk evaluations are highly technical and data-intensive exercises, manufacturers requesting an evaluation must provide a robust dossier of human health and environmental hazard data, exposure data, and detailed information on the storage, production, and use characteristics for the relevant conditions of use. This data must reflect the Best Available Science, defined generally as “science that is reliable and unbiased.”
Presuming the applicant's proposed conditions of use warrant consideration in a risk evaluation and the data the applicant provided is adequate and compliant with agency standards, the EPA will conduct a risk evaluation for the manufacturer-identified COUs and any other conditions of use the agency may deem relevant for the chemical.
The EPA has three years to complete the risk assessment (with a potential six-month extension), including several public comment opportunities during the process. The agency's evaluation will consider data, models, and default assumptions on potential hazards and exposure to characterize the risk from each applicable condition of use. Upon characterizing the relevant risks, the EPA will compare the risks identified for each COU against the federal safety standard established under the amended TSCA statute: “unreasonable risk of injury to health or the environment . . . based on the weight of the scientific evidence.”
The risk evaluation process culminates with the EPA issuing a determination of “unreasonable risk” or “no unreasonable risk” for each COU considered, either in a single notice or in staged notices as analyses for specific conditions are completed. When the EPA determines that a condition of use poses an “unreasonable risk,” the agency then has two more years to impose specific risk mitigation requirements. For conditions of use deemed to pose “no unreasonable risk,” the EPA's COU-specific risk mitigation process ends for that use.
Why Request a Risk Evaluation?
Manufacturer-requested risk evaluations will not make sense for most companies or chemicals. The evaluations are costly and data-intensive in the best of cases. Moreover, the EPA has yet to issue its required regulation establishing fee requirements for manufacturer-requested evaluations, creating further uncertainty regarding the financial investment required for a request. Cost aside, the first manufacturers to request evaluations will face considerable uncertainty with respect to how the EPA will implement its nascent and untried risk evaluation process, how it will evaluate manufacturer-submitted data, and how it will weigh these and other data in making risk determinations.
With these caveats in mind, the EPA's manufacturer-request provision does appear to offer strategic opportunities for certain data-rich companies with targeted objectives, including market differentiation, strategic pre-emption, litigation risk management, or defensive review.
1. Market Differentiation
During the past decade, a sizable market for “greener” and “safer” chemicals has developed, fueled by increased consumer interest, advocacy by nongovernmental organizations and social media, and the growth of government and third-party sustainability standards (the EPA Safer Choice, LEED, Green Seal, etc.). Manufacturers and retailers, in turn, are scrutinizing suppliers and products more carefully, and some are even imposing their own standards when making purchasing decisions.The increased demand for “sustainable” chemistries provides competitive opportunities for companies that can document the safety of their products. A “no unreasonable risk” determination for a chemical or specific condition of use could provide the manufacturer and its customers with tangible evidence of the product's lower risk profile, positioning it as a preferable alternative to other products that have yet to be tested against federal standards.
This strategy could be particularly promising for chemical ingredients that the EPA has already recognized as low-hazard substances, such as the roughly 850 substances covered under its Safer Choice voluntary labeling program. Because the EPA's risk evaluation rule allows manufacturers to limit their evaluation requests to specific conditions of use and to focus their data submissions on the requested uses, market differentiation opportunities also could be present for manufacturers that submit only a few specific low-risk conditions of use for evaluation, even where concerns might be present for some other COUs for the chemical.
2. Strategic Pre-Emption
One of the major drivers for industry support of the 2016 TSCA amendments was the desire to rein in state chemical regulations that could subject manufacturers to different standards and requirements in different states. In turn, states lobbied heavily to protect their right to impose state-specific restrictions they deemed necessary to protect the health and safety of their citizenry.The LCSA reflects a careful balance of these goals, pre-empting state action targeting the same conditions of use covered by a “no unreasonable risk” determination or a final risk management action, while protecting certain state regulatory prerogatives and pre-existing regulatory programs.
For example, states remain free to impose nonduplicative monitoring or reporting requirements; implement state water quality, air quality, waste treatment, and disposal laws (except to the extent they impose restrictions on the manufacture, processing, distribution, or use of the chemical at issue); implement state laws established before Aug. 31, 2003, or enforce chemical actions taken before April 22, 2016.
A prominent example of an exempted program is California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), which requires businesses to notify Californians about significant amounts of certain listed chemicals in products, businesses, and the workplace, and prevent discharges of listed substances to sources of drinking water. States also can seek a waiver from an applicable pre-emption.
For chemicals with strong and compelling safety data, a “no unreasonable risk” determination would not only provide an imprimatur of safety, but also pre-empt certain types of state actions that could threaten the marketability of the product in interstate commerce. Conversely, companies with chemicals likely to require risk management in the future are apt to find it strategically preferable to negotiate with the EPA on risk management rather than multiple state regulators.
Indeed, the EPA implicitly recognized this in its regulations governing prioritization of manufacturer evaluation requests. The Risk Evaluation Rule states that the “EPA will give preference to requests where there is evidence that restrictions imposed by one or more States have the potential to have a significant impact on interstate commerce or health or the environment.”
3. Litigation Risk Management
Under the express terms of the amended statute, federal risk determinations do not pre-empt private rights of action under state or federal law and do not constitute dispositive evidence in favor of plaintiffs or defendants. Courts retain the discretion, however, to admit or deny evidence from the EPA risk evaluations and TSCA risk management actions, consistent with each court's rules. Courts might be more amenable to admitting such evidence where it was sought and paid for by the defendant to ensure product safety. As such, a federal determination of unreasonable risk could be a valuable tool in discouraging future product liability litigation or in defending against such claims.4. Defensive Review
Even before the EPA's risk evaluation procedures had been finalized, manufacturers submitted risk evaluation requests for at least two substances, both fragrance ingredients. Each had already been identified as a potential persistent, bioaccumulative, and toxic (PBT) substance in the EPA's 2014 chemical work plan, subjecting it to an expedited statutory review process that would have skipped risk evaluation altogether and gone straight to issuance of proposed and final risk management requirements.Under the statute's persistent, bioaccumulative, and toxic provision, however, by requesting the risk evaluation the manufacturers halted the expedited process and reverted to the longer, more methodical risk evaluation and management process established for non-PBT chemicals.
By using the risk evaluation request process, the manufacturers likely accomplished multiple strategic objectives, including buying additional time in the EPA's risk management process, providing an additional opportunity to shape the agency's risk evaluation for the substances and potentially reducing the scope and impact of any imposed restrictions. The requests in this case reflect the unique regulatory pressures imposed on PBTs under the statute, however, and it is not clear whether manufacturers will see a similar business case for non-PBT chemicals.
Bottom Line
The EPA's manufacturer-requested risk evaluation program is a high-stakes game. Companies can burnish the reputation of low-risk products, reduce the risk of state regulatory action, hedge against future product liability claims, and help shape federal reviews. The price is steep, however.
Developing evaluation request data and documentation will be costly, both in terms of time and money, and application fees will only increase that cost. These financial barriers alone will price many smaller companies out of the market.
A bigger barrier may be the uncertainty regarding the manner in which the EPA will interpret and conduct its risk evaluation process in practice. The Risk Evaluation Process rule gives the EPA considerable discretion in interpreting critical terms like “reasonably available information,” “best available science,” “weight of scientific evidence,” and “unreasonable risk.” While this administration appears receptive to industry perspectives, companies have no guarantee that the EPA's scientific and policy staff will interpret the available data in a manner consistent with the findings of company scientists and consultants.
Companies also will have to contend with the scrutiny of competitors and nongovernmental organizations that will have multiple opportunities to review and comment throughout the risk evaluation process. Product opponents or skeptics may offer conflicting data, analyses, or public criticism to cloud the EPA's evaluation or undermine the company's attempts to highlight the safety of the product in the marketplace.
Given the potentially catastrophic consequences for the marketability of a chemical product and the reputation of the manufacturer from an unexpected adverse risk determination, companies have to be supremely confident in the safety of their product, as well as the business benefits of a review.
Finally, companies must be confident in the agency's ability to implement an industry-friendly process. On this last point, in particular, interested companies should be moving quickly to assess candidate chemicals/COUs for voluntary review. It's unlikely that future administrations will be as receptive to industry arguments as the current one.
Charles Franklin is in Akin Gump's policy advocacy, regulatory counseling, litigation and transactional support practices and assists clients in the chemical, pesticide and energy sectors. Stacey Mitchell focuses on environmental regulatory, litigation, and transactional matters in addition to incident response and criminal/civil enforcement actions.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121066238&vname=dennotallissues&fn=121066238&jd=121066238
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Chemical Companies See More Risk Than Reward in Brexit
Sep 22, 2017 | BNA Daily Environment Report
By Adam Allington
Chemical companies in the U.K. are skeptical about abandoning European Union regulations, including the landmark REACH regulation, as British Prime Minister Theresa May prepares to deliver a big Brexit speech in Italy Sept. 22.
Implemented in 2006, REACH (Regulation No. 1907/2006 on the registration, evaluation, and authorization of chemicals) was among the most sweeping chemicals regulatory structures ever passed, imposing new obligations on manufacturers, importers, and downstream users of chemicals within the EU. Despite one of the biggest lobbying battles over implementation in the EU's history, viewpoints have now shifted to concerns that abandoning REACH might put British companies at a disadvantage vis-a-vis their global peers.
A survey conducted by the British Coatings Federation (BCF), a trade association representing manufacturers of paint, printing inks, and wall coverings, found that the majority of coatings companies “see Brexit as a risk, rather than an opportunity.”
Tom Bowtell, chief executive of the BCF, said: “Over three-quarters of our members said that a separate U.K. chemical regulatory system would be bad for business.”
In a news release, Bowtell said that maintaining regulatory equivalence with EU regulations, including REACH, Classification, Labeling and Packaging (CLP) and Biocidal Product Regulation (BPR), remains critical for his members.
“The reality of the global chemicals industry is of complex supply chains, with raw materials, intermediates, and finished products crossing multiple borders on a continuous basis,” said Howard Chase, director of government affairs for Dow Europe.
Given the status quo set by REACH, Chase told Bloomberg BNA it's hard to see why the U.K., or other global consumers, would settle for lower regulatory standards than they have now, and even harder to see how weakening that framework could make U.K. business more competitive.
“The overwhelming requirement on Brexit is to not disrupt the frictionless flow of goods across the U.K. border with the EU27,” Chase said.
“In practice this means tangible items such as no tariffs, smooth customs procedures, and maximum regulatory consistency between the U.K. and the EU single market. If we do not get these things absolutely right, the costs will increase and the attractiveness of the U.K. as a business and investment destination will inevitably fall.”
Registration Investments
Companies already incurred significant cost obligations related to registering chemicals in the REACH database.
Those businesses now say it is unclear whether these registrations will remain valid once the U.K. leaves the EU on March 29, 2019. And that uncertainty is already having an impact on long-term investment decisions by companies.
“In the U.K. our members have already invested heavily in European Chemicals Agency [ECHA] registrations,” said Virginia Acha, executive director of the Association of the British Pharmaceutical Industry (ABPI).
“Will the registrations we've made previously still be functional post-Brexit? We have yet to get clarity on that from ECHA,” she said.
Acha told Bloomberg BNA that the ABPI has been lobbying the British government for an extension of REACH regulations for a period of years after Brexit, to allow the industry to make the necessary transitions to its supply chain.
“It's hard to transition a plant unless you know what specifications you're transferring it to,” she said.
Likewise, Acha points out that the U.K. currently serves as product testing site for medicines shipped all over Europe. However, if Britain is no longer in the EU, those facilities may need to go somewhere else, and it can takes years to transfer all of the analytical processes and infrastructure between labs.
“Especially if everyone is trying to do this at the same time. We need more time to do that,” said Acha.
With manufacturers planning future product specifications now, businesses point to the need for regulatory clarity to remain REACH compliant for export operations to the EU.
“Chemical regulation is a very difficult process,” said Michael Warhurst, executive director of CHEM Trust, an environmental watchdog group. Warhurst points out that registering chemicals in REACH is a complex scientific process. The EU has tried to make it easier by encouraging companies to work together to share research and costs. If a country is outside the EU, will they still have access to the data?
“The EU has been very clear that it doesn't share data,” Warhurst said. “They are happy to have other countries copy their decisions, but they do not support sharing data to help them pursue independent polices.”
Regulatory Cliff
Earlier this week more than 100 companies signed an open letter, urging May to seek a three-year transitional period after Brexit, warning that a failure to secure more time to avoid a cliff edge would jeopardize “our collective prosperity.”
The U.K. government is rumored to favor a special post-Brexit extension of customs arrangements, to allow the U.K. time to enter into new free-trade agreements with other countries. At the same time, the government is holding fast to its plan to take the U.K. out of the single market on withdrawal day.
The chemical industry has asked that an extension of REACH continuity throughout any transition period be part of those negotiations. However, after Brexit, there is no indication the EU will agree to grant an extension.
“The EU will want to be seen driving a hard bargain, because they want to hold the rest of the EU together. They are not going to give it away,” said Peter Newport, CEO of Britain's Chemical Business Association (CBA).
In functional terms, Newport told Bloomberg BNA, the U.K. will need to create or secure continued access to a number of expert committees, IT systems, and tools that are central to the effective operation of REACH.
“Up until the point the U.K. is able to create its own standalone version of ECHA [European Chemicals Agency],” Newport said.
The U.K. House of Commons committee on the future of chemical regulations released a report in April finding that the chemicals regulatory framework established by the EU through REACH would be “difficult to transpose directly into U.K. law.”
The fact that REACH was written under the assumption that participants were operating within the EU also meant that cooperation, mutual obligations, oversight and controls were also baked into the same pie.
“We've spent the last 40 years trying to integrate chemical regulation, and now we're trying to pick it apart in two,” Newport said.
Fallout from Weaker Regulations?
One of the arguments for leaving the EU was that Brussels was shackling member states with excessive environmental and product regulations.
After Brexit, environmentalists warn that a policy of loosening chemical regulation risks turning the U.K. into a place that attracts hazardous products and chemicals that don't have a market in the EU.
“Withdrawal from REACH could definitely attract the dirty end of industry,” said CHEM Trust's Warhurst.
“There could be time delay concerns, between BREXIT and a new British chemical regulatory regime. There could be less spending on pollution control.”
Warhurst points to an onslaught of products ranging in scope from furniture to antibacterial soaps, fabric coatings, plastic bottles, cosmetics—the list goes on. Divining appropriate regulation, he says, is therefore more efficient when countries pool resources and expertise and stand as a bloc in the face of pressure from industry.
But the CBA's Newport says concerns about environmental risks should be dismissed. “If you believe the U.K. will abandon all environmental regulations, I might question what you've been drinking,” he said.
Newport said the government's position will be to retain EU chemical regulations, and then take a considered view on a risk going forward.
“The U.K. will not become the ‘dirty man’ of Europe, after Brexit. Environmental regulations will continue. They'll just have the stamp of Her Majesty's government at the top instead of the blue flag and stars of the EU.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121066214&vname=dennotallissues&fn=121066214&jd=121066214
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Staffers Huddle to Talk Energy, Environment
Sep 21, 2017 | E&E News PM
By Zack Colman
Trump administration officials gathered yesterday to discuss a forward-looking strategy on energy and environment issues to present a more coherent policy message, an administration official told E&E News.
Climate change surfaced as a discussion topic amid a subset of broader matters like technology and energy security, the official said. The deputy assistants from the departments of the Treasury, Energy and others wanted to find a framework and legacy that differed from the Obama administration's climate-centric posture on energy and environment policy.
The meeting, which was first reported by Politico, came as the White House generated confusion at the United Nations this week regarding its commitment to the Paris climate accord and as a series of hurricanes that scientists say were intensified by climate change have ravaged the U.S. and Caribbean islands.
The administration official, however, said the meeting wasn't in response to anything in particular. The official said deputies are now meeting more frequently at the request of new White House Chief of Staff John Kelly to build cohesion on a number of policy issues, though the official noted there's no regularly scheduled meeting on energy and environment policy.
The Trump administration has dodged questions about its views on climate change in recent weeks. When asked whether Hurricanes Harvey and Irma had changed President Trump's views on climate change, White House spokeswoman Sarah Huckabee Sanders said last week: "The president has addressed this already. I don't think that it's changed over the last several weeks."
The White House also declined to offer specifics on what terms would need to change to spur "re-engagement" in the Paris process.
Trump announced an intent to withdraw from the deal June 1, but an Aug. 4 letter of intent from U.N. Ambassador Nikki Haley left a door open for such "re-engagement," leaving some diplomats to think Trump could be convinced to remain in the pact before formally exiting in November 2020.
A decision point is also nearing on the Clean Power Plan, President Obama's signature domestic climate policy that would curb power-sector emissions 32 percent below 2005 levels by 2030.
Industry groups, utilities and public health organizations have been meeting with the Trump administration to discuss the White House's plans for removing and potentially replacing the regulation.
https://www.eenews.net/eenewspm/2017/09/21/stories/1060061389
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Fracking Rule May See Jumbled Comeback as Court Tosses Case
Sep 22, 2017 | E&E - Energywire
By Ellen M. Gilmer
Confusion and mixed messages dominated the conversation yesterday as court watchers unpacked a major ruling on the Obama administration's embattled hydraulic fracturing rule.
The 10th U.S. Circuit Court of Appeals dismissed litigation over the Interior Department's fracking rule without directly weighing the core legal question of whether the federal government has authority over the oil and gas extraction process.
But the panel of judges also scrapped a lower court's 2016 ruling that struck down the regulation, clearing the way for the rule to take effect — however briefly — even as the Trump administration works to rescind it. The court has not yet issued a final mandate in the case, and the rule won't be revived until then.
Supporters and opponents of the fracking rule pushed dueling messages in the wake of the decision yesterday, each declaring victory.
Environmental groups celebrated the revival of the rule, claiming vindication after a yearslong legal battle (E&E News PM, Sept. 21). Sierra Club attorney Nathan Matthews said the ruling "reinstates much-needed protections."
Industry groups, meanwhile, cheered the 10th Circuit's conclusion that it would be a waste of the court's resources to answer the underlying legal question of fracking authority.
"Today's court decision confirms what IPAA has advocated all along: Dismissing the appeal would protect independent producers from the uncertainty of whether it was necessary to comply with regulations that are certain to be revoked," Independent Petroleum Association of America President Barry Russell said.
But the legal tug of war is likely far from over.
The Trump administration, backed by industry and several Western states, is expected to move quickly to block implementation of the fracking rule. Any such effort by Interior's Bureau of Land Management will face legal pushback from environmentalists that have defended the standards since their unveiling more than two years ago.
New litigation will likely follow any attempt by the Trump administration to avoid implementing the rule. And separate lawsuits are expected once Interior finalizes its official rescission of the rule.
The 10th Circuit's judgment doesn't officially take effect until the court issues a mandate. For cases involving the U.S. government, courts have 52 days after a ruling to issue the mandate. That would give the Trump administration until mid-November to delay the regulation or finalize its rescission before having to implement it.
BLM declined to comment on the decision. Interior is reviewing the ruling but was not ready to comment last night.The fallout
Widespread uncertainty over what the court's ruling means and what happens next stems from procedural and timing complexities in the litigation. The Obama administration released the regulation in March 2015, but a Wyoming district court quickly blocked it and ultimately found that Interior has no authority over fracking. The rule has never taken effect.
The Obama administration and environmental groups appealed the Wyoming decision to the 10th Circuit, but while the case was pending, President Trump took office, and the new administration announced plans to roll back the rule. Trump lawyers urged the court to freeze the case in light of the rescission plans.Fracking rule's winding path
November 2010Interior announces plans to consider disclosure rules for fracking
March 2015After considering two draft versions, Interior finalizes fracking rule for public and tribal lands; industry groups file suit, followed by states and tribes
September 2015Wyoming district court issues preliminary injunction freezing rule
June 2016Wyoming district court strikes down rule; Interior and environmental groups appeal to 10th Circuit
January 201710th Circuit pushes planned oral arguments to March
March 2017Interior announces plans to roll back rule; court delays oral arguments
July 2017 Trump administration formally begins process to rescind fracking rule; 10th Circuit hears oral arguments
Instead, the court scrapped the case entirely and nixed the underlying Wyoming decision — putting pressure on the Trump administration to take quick action on its rollback plans. The opinion noted that it's unclear how much time BLM will need to complete its proposal to rescind the fracking rule.
"Here, the BLM stated at our very recent oral argument that the 60 day notice and comment period could be extended, to say nothing of how many additional months or years would be needed to issue a final rule rescinding the regulation," wrote Judge Mary Beck Briscoe, a Clinton appointee.
Judge Jerome Holmes, a George W. Bush appointee, joined the opinion. Judge Harris Hartz, another Bush appointee, joined in the determination that the court should dismiss the case but opposed scrapping the lower court's decision.
Vacating the Wyoming decision means there is no legal mechanism in place to stop the fracking rule from taking effect. Earthjustice attorney Mike Freeman, who argued the case for a coalition of environmental groups, said the bottom line of the decision is that the government's authority to regulate fracking is no longer in question.
"We're happy that the court reached the result it did," he told E&E News. "Vacating the lower court's decision takes us back to the legal status quo before the [Wyoming] court's ruling, which was that there's a century of case law and precedent that makes clear that BLM has the authority to do what it did here."
Freeman added that the environmental community is eager to see the fracking rule finally take effect.
Other lawyers in the case expressed uncertainty over whether the court intended to revive the fracking rule, noting that the opinion includes language that seems to contemplate a continued "status quo" that does not include the regulation.
"The only 'harm' the Citizen Group Intervenors will suffer is the continued operation of oil and gas development on federal lands, which represents no departure from the status quo since 2015," the opinion says.
Hartz's partial dissent included the most explicit acknowledgement of the immediate implications of the court's decision, noting that the majority was "giving effect to the Regulation." Hartz parted from his colleagues, arguing that the panel lacked sufficient information to do that.
Kathleen Sgamma, president of the industry group Western Energy Alliance, dismissed the uncertainty over the rule's status as "technicalities" that will be worked out quickly.
"We're pleased that after today, IPAA and Western Energy Alliance are even closer to finally putting BLM's ill-conceived fracking rule to bed," she said in a statement. "As with the royalty valuation rule that was recently completely rescinded, there are some technicalities to work through in the short term, but just as the court recognizes that it is not worthwhile to expend judicial resources on a rule that is being overturned, it is clear that implementing the rule in the short term is likewise a waste of industry and government resources."
For BLM's Obama-era valuation rule, a federal court ruled that the Trump administration was unlawful in its attempt to freeze the rule, but the court declined to take further action in light of the agency's recently finalized rescission of the rule (Greenwire, Aug. 31).
The Trump administration is in the middle of its effort to unwind the fracking rule. BLM released a proposal to rescind it in July. Public comments are due next week, and the agency will then reach a final decision. It is unclear whether BLM plans to eventually replace any elements of the rule.An unpredictable path
Yesterday's decision is the latest twist in the unpredictable path of the Obama administration's fracking rule.
The years-in-the-making rule — President Obama's marquee effort to address concerns about the spread of high-volume fracking — was released in March 2015 and created a federal approval process for fracking on public and tribal lands. The rule set new standards for well construction, wastewater management and chemical disclosure for fracked wells.
It immediately faced legal challenges from industry groups, several Western states and American Indian tribes that saw it as an overly expensive and unworkable regulatory overreach. Wyoming and other states argued that it was beyond BLM's authority because the Safe Drinking Water Act put EPA in charge of fracking, and the Energy Policy Act of 2005 subsequently assigned that power to state overseers.
The U.S. District Court for the District of Wyoming promptly blocked the rule and eventually accepted the states' argument that the federal government lacks authority to regulate fracking.
The Trump administration has walked a fine line in legal briefs, defending its authority over fracking even as it seeks to scrap the regulation. Government lawyers urged the court to freeze the case while that rescission process plays out.
The 10th Circuit heard oral arguments in Denver in July (Energywire, July 28).
https://www.eenews.net/energywire/2017/09/22/stories/1060061415
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Obama Fracking Rule Restored Temporarily as Court Halts Case
Sep 22, 2017 | BNA Daily Environment Report
By Alan Kovski
The Obama administration's 2015 rule governing hydraulic fracturing on federal and tribal lands was temporarily reinstated today when a federal appeals court dismissed a bloc of states’ lawsuit challenging the regulations.
The U.S. Court of Appeals for the Tenth Circuit dismissed the court fight because the Trump administration has proposed rescinding the regulations. The court said that made the fight at the appellate level “unripe” for further action (Wyoming v. Zinke, 10th Cir., No. 16-8068, 9/21/17).
The appeals court also vacated a lower court's decision that invalidated the rule. That means oil and gas companies, which had opposed the 2015 regulations as expensive and needless, face the possibility of having to comply with the regulations while the administration goes through the process of eliminating them.
Kathleen Sgamma, president of the Western Energy Alliance, an oil and gas industry association, said it is highly unlikely the rule will ever take effect. If the administration were to take steps to require compliance, there probably would be a phase-in period, she said. Instead, the administration likely will continue working to revoke the rule.
“I don't think we will have to comply with it in the meantime,” Sgamma said.
Arguments Remain Unresolved
The 2015 rule was issued by the Bureau of Land Management (BLM), an Interior Department agency. The BLM said it was setting minimum standards for well-integrity testing, approval processes, chemical use reporting, and storage of waste fluids. It cited its authority under the Federal Land Policy and Management Act, the Mineral Leasing Act, and laws concerning natural resources on Indian lands.
The states of Wyoming, Colorado, North Dakota, and Utah sued the Interior Department, saying the regulations went beyond the authority of the BLM. The Ute Indian tribe, which joined in the lawsuit, said something similar but with different points specific to the tribe.
Industry groups Western Energy Alliance and the Independent Petroleum Association of America said the rule was arbitrary and capricious in its details and was an unnecessary burden atop existing state regulations.
The U.S. District Court for the District of Wyoming agreed in 2016 with the states and struck down the 2015 rule while saying the court did not need to reach a conclusion on the other allegations.
Before the appellate court, the BLM argued in defense of its authority to regulate fracking on federal and Indian lands, but at the same time said it would rescind the rule. The BLM asked that the case be held in abeyance pending a regulatory change, and the agency's request was supported by the states, the Ute tribe, and the industry groups.
Intervening environmental advocacy groups wanted the rule to be vacated, but only as a result of an overturning of the district court's decision concerning federal regulatory authority.
The three-judge panel of the appeals court said it was not reaching a decision on the merits of the case. It took action to avoid “a very wasteful use of limited judicial resources” on a case concerning regulations that were changing.
Rescinding of Rule Begun
The BLM proposal to rescind the 2015 rule and return to the prior status quo was published July 25 in the Federal Register. The public comment period for that proposal ends Sept. 25.
There is no set time for a rule to move from a proposed to a final stage.
There also is no word from the BLM on whether it will propose some regulations—undoubtedly less ambitious, given the Trump administration's regulatory philosophy—as replacements for the Obama administration's rule.
There also is the possibility that activists or others could litigate against a new rule. The Trump administration already has lost some court cases over attempts to delay environmental regulations and federal royalty regulations.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121066213&vname=dennotallissues&fn=121066213&jd=121066213
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Dow Starts Up Two Key Petrochemical Projects on Texas Gulf Coast
Sep 21, 2017 | Natural Gas Intelligence
By Carolyn Davis
A unit of DowDuPont (Dow) on Thursday said its world-scale ethylene production facility and enhanced polyethylene (PE) production plant in Freeport, TX, considered the backbone of a $6 billion buildout on the Gulf Coast, have begun operations.
The projects, spurred by supple natural gas feedstock from the U.S. onshore, are considered milestones for Dow, enabling the Midland, MI-based petrochemical giant to capture benefits from increasing U.S. shale gas growth.
Both Freeport units are to ramp up supply through the third quarter and reach full rates by the end of the year. The ethylene facility, considered the central component of the growth strategy, initially has nameplate capacity of 1.5 million metric tons (mmt). The 400,000 metric ton Elite PE production unit is the first of four derivative units planned at Dow manufacturing sites in Texas and Louisiana.
“This is a monumental moment for Dow as we advance our global growth strategy by fully deploying our unmatched molecular and physical integration,” said Dow CEO Andrew Liveris. “These facilities are an integral part of Dow’s investments on the U.S. Gulf Coast to meet increasing consumer-led demand in our core market verticals of packaging, infrastructure and consumer care, and will enable our next level of earnings and cash flow growth.”
As part of Dow’s next wave of growth investments, the ethylene unit would be expanded to 2 mmt, making it the world’s largest ethylene facility. The additional expansions, worth an estimated $4 billion over five years, include a 600,000 metric ton PE unit on the Gulf Coast and another Texas ethylene cracker.
“As we ramp these units to full production, we continue to solidify our early-mover advantage while significantly increasing our integration and growing our U.S. production capacity,” said DowDuPont Materials Science COO Jim Fitterling. DowDuPont eventually plans to launch the Materials Science division as an independent, publicly traded company.
“Dow’s new ethylene facility provides a solid, capital-efficient base in this attractive, feedstock-advantaged region, which will continue to fuel the industry’s broadest and most differentiated derivatives slate,” Fitterling said.
In addition to supporting Dow’s near-term capacity additions, the ethylene project is expected to support planned debottlenecks to unlock additional PE capacity and launch another world-scale polyethylene unit.
Dow has other derivative assets scheduled to come online on the Texas and Louisiana coasts late this year and into 2018.
Earlier this week Chevron Phillips Chemical Co. LLC said two PE units at Old Ocean east of Houston in Brazoria County had begun production, with each able produce up to 500,000 metric tons/year. The units, which achieved mechanical completion in June, are part of a wave of massive petrochemical expansion underway by Chevron Phillips and others on the Gulf Coast.
http://www.naturalgasintel.com/articles/111822-dow-starts-up-two-key-petrochemical-projects-on-texas-gulf-coast
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Twice-Rejected U.S. LNG Exporter Gives Project Another Shot
Sep 22, 2017 | Bloomberg Markets
By Ryan Collins
The developer of a liquefied natural gas export terminal in Oregon that has already twice been denied permits by U.S. regulators is giving it another shot.
Veresen Inc. said late Thursday that it filed another application with the Federal Energy Regulatory Commission for the $10 billion Jordan Cove LNG project that would ship gas to Asia. The agency denied the Calgary-based company approval last year, saying it failed to prove the terminal was needed. As part of its latest request, the company proposed route changes for a pipeline that would feed the terminal and eliminated plans for a power plant.
Veresen is making a third attempt just as the Trump administration promotes LNG exports as a means of establishing America’s dominance in global energy markets and creating jobs. Gary Cohn, the director of the White House’s National Economic Council, referenced the Northwest terminal during a talk in April, saying the government would step up approvals for such projects. It’s among the dozens proposed along the coasts of the U.S. to send shale gas overseas.
eresen said the project would create more than 200 permanent jobs and has said it would lower the U.S. current account deficit with Japan, one that President Donald Trump has complained about. In February, the company said it was in “advanced” negotiations with a third LNG buyer in Japan and that preliminary agreements with Jera Co., a joint venture between Tokyo Electric Power Co. Holdings Inc. and Chubu Electric Power Co., and Itochu Corp. were being finalized.
The application for Jordan Cove comes just weeks after Trump filled seats on the Federal Energy Regulatory Commission, restoring the quorum the agency needs to approve LNG projects and major natural gas pipelines.
https://www.bloomberg.com/news/articles/2017-09-22/twice-rejected-u-s-lng-exporter-gives-project-another-shot
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Montana Set to Take Over Deadly Asbestos Cleanup Site
Sep 21, 2017 | Associated Press (in The Washington Post)
By Mathew Brown
The cleanup of a northwest Montana community where health professionals say hundreds of people have been killed by asbestos exposure entered a new phase Thursday as officials turn their focus to keeping residents safe over the long term.
The five-member Libby Asbestos Superfund Advisory Team met for the first time after being established by the Montana Legislature earlier this year.
The advisory team of state and local officials and one citizen selected by Montana Gov. Steve Bullock will work with environmental agencies to come up with ways to prevent further exposure to asbestos that remains beneath the soil and in the walls of many houses in the small towns of Libby and Troy.
The contaminated material can cause fatal lung diseases and other health issues. It came from a W.R. Grace and Co. vermiculite mine that operated for decades just outside Libby, a town of about 2,700 people near the Idaho border.
Since 1999, a cleanup by the U.S. Environmental Protection Agency has removed more than a million cubic yards of dirt and building materials from almost 2,500 properties in the area. That work — conducted under the agency’s Superfund program for the cleanup of highly contaminated sites — is expected to be largely finished by next summer, EPA spokeswoman Lisa McClain-Vanderpool said Thursday.
The price tag for the cleanup reached $575 million last year, she said.
As the EPA gets ready to take much of the area off the Superfund list, state and local agencies must come up with ways to handle future asbestos discoveries, such as when a house is renovated or an underground vermiculite deposit is found during excavation work.
Thursday’s discussion among advisory team members centered on the hiring of a “superfund liaison” to help steer the state’s efforts. Montana Department of Environmental Quality Director Tom Livers said the liaison would need communication and crisis management skills along with technical knowledge about the cleanup process.
“We’re looking for a skill set you don’t always find in one person,” he said.
Money potentially available for future operation and maintenance of the cleanup includes $11 million in EPA funds and $5.2 million in state funds that came from settlements in W.R. Grace’s bankruptcy case, said DEQ spokeswoman Karen Ogden.
There’s been no attempt to quantify how much asbestos will remain when the cleanup is finished.
Health workers have estimated that as many as 400 people have died and almost 3,000 have been sickened from exposure in Libby and the surrounding area.
The W.R. Grace mine was shuttered in 1990. The company agreed in a 2008 settlement to pay the EPA $250 million for cleanup work.
There is not yet a cleanup plan for the highly-contaminated mine site and surrounding portions of the Kootenai National Forest — a nearly 16-square mile (41-sq. kilometer) area that also includes some state and private land.
https://www.washingtonpost.com/national/energy-environment/montana-preparing-to-take-over-after-epa-asbestos-cleanup/2017/09/21/040ed478-9eeb-11e7-b2a7-bc70b6f98089_story.html?utm_term=.dab8bd17f8d6
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Judge Tentatively Approves Revised Chemical Spill Settlement
Sep 21, 2017 | Associated Press (in The Washington Post)
A federal judge has tentatively approved a revised settlement to a class-action lawsuit over a West Virginia chemical spill that left up to 300,000 people without tap water for up to nine days.
U.S. District Judge John Copenhaver on Thursday scheduled a final hearing Jan. 9. The deadline for claims submissions is Feb. 21, 2018.
In January 2014, a tank at now-defunct Freedom Industries in Charleston leaked thousands of gallons of coal-cleaning chemicals that got into West Virginia American Water’s treatment plant 1.5 miles downstream.
Copenhaver previously raised concerns about terms of an earlier negotiated $151 million settlement with West Virginia American Water Co. and Eastman Chemical.
The amended plan would raise payments for a simple household claim from $525 to $550, and allow $180 for each additional household resident.
https://www.washingtonpost.com/business/judge-tentatively-approves-revised-chemical-spill-settlement/2017/09/21/2c4851ce-9f15-11e7-b2a7-bc70b6f98089_story.html?utm_term=.5fb9e505ffe0
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The Latest: Chemical Company Told to Provide Bottled Water
Sep 21, 2017 | Associated Press (in The Washington Post)
The Latest on an unregulated chemical in drinking water in North Carolina (all times local):
4:55 p.m.
State environmental officials are directing a chemical company to provide bottled water to 11 homes near its North Carolina plant.
The state Department of Environmental Quality said Thursday that preliminary test results showed residential water wells containing the little-studied compound GenX in amounts exceeding a state health target. The need for bottled water wasn’t established in 21 other nearby wells.
Delaware-based Chemours Co. said in a statement that it will provide neighbors whose wells showed elevated levels of the chemical free bottled water until a long-term solution is found.
GenX is a relatively new, unregulated chemical with little scientific data about its health effects. It is similar to other chemicals suspected of increasing cancer risks.
10 a.m.
Gov. Roy Cooper is vetoing legislation that contains some money to address a little-studied chemical in a North Carolina river because he says it doesn’t help state agencies improve protections for drinking water statewide.
Cooper said Thursday he would veto the measure sent to him three weeks ago. Now Republican legislators returning in early October must decide whether to try to override the veto — his 12th since taking office in January.
The wide-ranging environmental measure contained $435,000 for Wilmington-area utilities and the local university to clean up and monitor the chemical known as GenX. A plant upstream from Wilmington discharged the chemical into the Cape Fear River until recently. Two departments in the Democratic governor’s administration had wanted $2.6 million to hire more water quality monitors and scientists.
https://www.washingtonpost.com/national/the-latest-chemical-company-told-to-provide-bottled-water/2017/09/21/9dfc303e-9f0f-11e7-b2a7-bc70b6f98089_story.html?utm_term=.48bc2a71f7a5
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(ACC Mentioned) Exclusive - Persistent Rail Service Disruptions Dog CSX Customers
Sep 22, 2017 | Reuters
By Eric M. Johnson
CSX Corp (CSX.O) customers, including chemical, automotive and steel producers, are still battling delays and congestion despite the railroad’s assurances that it had moved past service disruptions, people familiar with the situation said.
The No. 3 U.S. railroad has halted all automobile shipments to or through its yard in Lordstown, Ohio, where new vehicles are unloaded from trains and trucked to dealerships, to give workers time to clear a backlog of rail cars and relieve congestion, according to a CSX email seen by Reuters.
CSX Assistant Vice President Maryclare Kenney apologised to customers in the email dated Sept. 8.
Such freight “embargos,” more commonly associated with hurricanes and other disasters, can send companies scrambling to find alternate, usually higher-cost ways of getting products to market.
The Surface Transportation Board, the U.S. rail regulator, is due to host a hearing in Washington, D.C., over CSX’s service on Oct. 11.
CSX spokesman Rob Doolittle said on Thursday that operations should return to normal in the near future.
The company emailed manufacturers about the Lordstown embargo on Sept. 8, two days after CSX executives said the railroad had made strides in fixing service problems in July and August.
“The railroad is now returning to a normal operating rhythm, and our performance metrics are improving,” Chief Executive Officer Hunter Harrison said on Sept. 6, when the company also cut its earnings forecast.
Harrison, who took over as CEO in March after leading turnarounds of Canadian railroads, has vowed to cut costs and streamline efficiency through his “precision scheduled railroading” strategy. He has blamed delays on pushback from some employees.
General Motors Co (GM.N), which builds the Chevy Cruze nearby and uses the facility, said on Wednesday that cars rolling out of its assembly plant continued to ship, but it declined further comment.
Six CSX employees told Reuters this week that Harrison’s rapid-fire changes were responsible for persistent problems. They requested anonymity because they were not authorized to speak to the media.
Harrison closed rail yards, lengthened trains, mothballed locomotives, and cut overtime pay and hundreds of jobs, while changing the way rail cars are sorted in yards and replacing “unit” trains with one commodity like coal or grain with trains carrying diverse freight.
“We’re back on our feet and committed to fully implementing our new operating model,” Harrison said in a statement on Thursday. “We remain confident that Precision Scheduled Railroading will provide lasting benefits to our customers, our employees and our shareholders.”
Doolittle said rail cars were spending less time idle than during the worst summer periods, and train velocity was essentially the same last week as it had been a year ago. He said customers had seen improvements.
Manufacturer JCI Jones Chemicals Inc withdrew its Aug. 31 notice to testify before the Surface Transportation Board after Harrison called to apologise for “transitional service issues” and to describe steps to quickly fix problems.
‘FAILING CUSTOMERS’
Phil McDivitt, chief executive officer of Houston-based plastics maker Ascend Performance Materials, said train transit times on multiple routes in place for years spiked in recent months by as much as 80 percent. He said the railroad had failed to communicate transit changes and at one point lost track for several days of tank cars carrying hazardous materials.
“CSX’s service is failing its customers,” McDivitt told the transportation board in a Sept. 13 letter seen by Reuters.
While Ascend has seen some improvements, a spokesman said, it has switched some freight to truckers and ordered staff to alert CSX customer service representatives as delays arise.
The American Chemistry Council trade group, which includes 3M Co (MMM.N), said CSX’s problems continued to affect product shipments, including roof coating component titanium dioxide.
“Some areas have improved, but by and large, there are still serious service problems,” spokesman Jeff Sloan said on Thursday. “In some cases, they have either caused members to shut down operations, or have brought them to the brink of shutting down.”
Sloan said Disruptions had been felt through Cincinnati, Nashville, and New Orleans.
CSX spokesman Doolittle said terminals on the company’s western corridor, including Nashville, were now fluid and showing improvement, adding, “Congestion in other areas has substantially recovered.”
http://uk.reuters.com/article/uk-csx-disruptions-exclusive/exclusive-persistent-rail-service-disruptions-dog-csx-customers-idUKKCN1BW36Q?feedType=RSS&feedName=GCA-GoogleNewsUK
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Oryx to Build 220-Mile Crude Oil System in Permian Delaware
Sep 21, 2017 | Natural Gas Intelligence
By Charlie Passut
After closing on a long-term oil transportation agreement, Oryx Midstream Services II LLC plans to begin building a 220-mile crude oil transportation pipeline system to serve the Permian Basin’s Delaware sub-basin, with initial capacity of up to 400,000 b/d.
The Midland, TX-based producer said the pipeline would provide receipt points in the Carlsbad, Stateline, Pecos and Pyote operating areas of the sub-basin, and deliver crude oil to Midland and Crane, TX. The company said the system would serve "every active county" in the Delaware, including New Mexico's Eddy and Lea counties, and the West Texas counties of Culberson, Loving, Pecos, Reeves, Ward and Winkler.
The system, expandable depending on shipper needs, is to to be built in phases and include 16-, 20- and 24-inch diameter pipeline. The system is to be placed into service by the end of 2018.
Oryx said it recently closed on a long-term regional oil transportation agreement with WPX Energy Inc. and other producers that dedicated 300,000 acres. When combined with separate agreements involving Oryx Midstream Services LLC, also known as Oryx I, the company said its total footprint in the Delaware would be more than 850,000 acres, with 600,000 b/d of system capacity.
"As ongoing improvements are made in drilling technologies and rig counts in the Delaware Basin increase, production growth from Oryx's customer base, including WPX, continues to be strong," said CEO Brett Wiggs. "With this strong production growth comes transportation bottlenecks, an issue that this new pipeline will address, providing much-needed takeaway capacity in the area."
Oryx President Karl Pfluger added that the company is "considering strategic opportunities to leverage the unique scale of our combined footprint to better serve producers in the Delaware Basin. One of these strategic opportunities includes a potential long-haul transport system to the Gulf Coast."
Oryx I was launched in 2014 by an initial equity commitment of up to $300 million from management, private investors and private equity from Quantum Energy Partners, Post Oak Energy Capital and Wells Fargo Energy Capital. Last March, Oryx II closed on an equity commitment of $340 million from the same sponsor group, bringing the total commitment to $640 million.
http://www.naturalgasintel.com/articles/111820-oryx-to-build-220-mile-crude-oil-system-in-permian-delaware
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PLASTICS CEO Carteaux Fires Back at NYT Editorial on Kenya's Plastic Bag Ban
Sep 21, 2017 | Plastics Today
By Norbert Sparrow
The New York Times published an editorial on Sept. 14 arguing that the United States should follow the example of Kenya and ban plastic bags. Bill Carteaux, President and CEO of the Plastics Industry Association (PLASTICS; Washington, DC), thinks that’s a “frightening” idea.
You may recall that Kenya passed a law last month that criminalized the manufacture and import of plastic bags. As Clare Goldsberry wrote in “ Use a plastic bag, go to jail ,” anyone caught making, selling or using plastic bags could be fined up to $38,000 or spend up to four years in jail.
The New York Times editorial notes that “more than 40 countries, including China, France and Rwanda, have taxed, limited or banned plastic bags.” In the United States, California has instituted a ban, and many cities and counties throughout the country have passed legislation designed to curb their use.
“The United Nations, which estimates that, by weight, there will be more plastic than fish in the world’s oceans by 2050 if the world doesn’t act, has begun a #CleanSeas campaign to eliminate the use of plastic microbeads and single-use plastic bags by 2022,” writes the Times Editorial Board. “Kenya and more than 40 other countries are acting now to help meet this goal. There is no excuse for the rest of the world to wait.”
To which Carteaux replied, Seriously? In response to the editorial, he dashed off a letter to the editor, which was published today in the New York Times . Here is what he wrote:
The idea of the United States taking environmental cues from Kenya, a country that ranks near the bottom for environmental performance, is frightening. Instead of following Kenya’s lead, we should build on initiatives that are already working in the United States to promote the recycling and reuse of plastic.
Banning plastic bags (or criminalizing them, as Kenya did) means increased food prices for low-income residents and higher costs for local store owners to provide more expensive options. It isn’t good for the environment either. With most bans, we’ve seen a move to thicker “reusable” bags that aren’t sufficiently reused, or cloth bags, which must be reused 131 times before their carbon footprint is less than a single plastic bag.
Plastic retail bags are half a percent of America’s waste and less than 1 percent of litter, so banning or taxing them will not produce meaningful benefits, though it will threaten American jobs.
Plastics is the third largest manufacturing sector in the United States, employing nearly a million Americans, including those who manufacture plastic bags. Reducing litter is everyone’s responsibility, which is why our members have installed 30,000 recycling drop-off points nationwide and are continuing to grow plastic film recycling.
https://www.plasticstoday.com/sustainability/plastics-ceo-carteaux-fires-back-nyt-editorial-on-kenyas-plastic-bag-ban/159601118857517
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Novel Ruling Extends EPA Deference To State Implementing Clean Air Act
Sep 21, 2017 | Inside EPA
By David LaRoss
A federal district court judge has issued a novel ruling extending to Utah the deference that courts often give EPA on interpreting the Clean Air Act, potentially setting a new more-expansive marker on the authority that judges could give states as EPA increasingly seeks to delegate implementation of environmental laws to states.
The Sept. 15 ruling by District Judge Clark Waddoups, of the U.S. District Court for the District of Utah, says judges should apply at least “some deference” to states tasked with implementing the Clean Air Act and other federal environmental laws, though the issue is “not well settled” at the appellate level.
Waddoups writes in his decision that “Whether a state agency is entitled to deference when administering federal law is not well settled” in the U.S. Court of Appeals for the 10th Circuit that oversees Utah. However, “other circuits have concluded that state agencies’ regulatory decisions may, nonetheless, merit some deference where the agency is administering federal statutes and regulations upon an express delegation from Congress as long as the agency’s interpretation or application is otherwise consistent with federal law.”
He goes on to apply that standard of deference in order to reject environmentalists' claims in Grand Canyon Trust v. Energy Fuels Resources, et al., that the company's disposal of uranium milling waste, or tailings, violates radon standards that EPA set under the Clean Air Act. The decision defers to how Utah crafted its regulations implementing the rule's limits on radon emissions from uranium mill tailing impoundments.
Observers reviewing the decision say it is unclear what standard Waddoups applied to decide if he should defer to the state's reading of the EPA radon standard, known as Subpart W.
George Washington University law professor Emily Hammond says, “The logic that the court applies is very much like you might see a different court using arbitrary-and-capricious analysis” -- the test for whether an agency violated the Administrative Procedure Act's bar on action that is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law."
However, Hammond says Waddoups' analysis to some extent uses the Supreme Court's test for applying Chevrondeference, which asks whether a statute is either ambiguous or contains “gaps” on topics that are left up to an implementing agency's discretion, and whether the agency's interpretation of that ambiguity is reasonable. If the answer to both questions is affirmative then courts will defer to the agency's interpretation.
State's Deference
Specifically, Waddoups defers to the Utah Department of Air Quality's (DAQ) determination that an evaporation pond at the Energy Fuels site does not fall under Subpart W, because the term “tailings” only applies to solid waste rather than the liquid in the pool.
The ruling explicitly states that Subpart W contains “gaps” on whether an evaporation pond should fall under tailings disposal, and looks to whether DAQ reasonably interpreted EPA's language.
“DAQ had to interpret the rule when presented with the task of approving” Energy Fuels' evaporation pond termed “Cell 4B,” in order to decide whether it would lead to the facility exceeding Subpart W's limit of two tailings impoundments, Waddoups writes. “In light of these gaps in the definitions . . . DAQ permitted Cell 4B to be built, concluding that doing so would not result in a violation of [Subpart W]. Thus, DAQ implicitly adopted the position that 'tailings impoundments' were only those containing tailings solids, not evaporation ponds, which receive only process solutions and other liquids.”
He says that finding deserves deference because “This does not contradict the definitions set out in Subpart W, and it is consistent with past EPA interpretation of the phased disposal work practice.”
Waddoups only references Chevron once in his opinion, to note that appeals courts have distinguished that doctrine from cases that involve state agencies. But Hammond says his analysis still seems to fit within the broad strokes of Chevron, since judges will sometimes apply the framework to situations other than a federal agency reviewing an ambiguous law.
“It's unsettled, but there are a number of categories where courts will say they are giving Chevron deference to things that are not within Chevron's scope,” she says.
Regulatory Ambiguities
In a Sept. 20 post at the Yale Journal on Regulation's Notice and Comment blog, Ohio State University law professor Chris Walker writes that the opinion also has parallels to the high court's Auer deference standard, which applies to agencies interpreting ambiguities in their own regulations.
“[I]t appears that the state agency interpretation is essentially of the EPA’s implementing regulations and not of the Clean Air Act itself. So this case isn’t really about Chevron deference to an administrative interpretation of a federal statute. Yet the district court makes no mention of Auer deference to an agency’s regulatory interpretation. This failure to engage with Auer deference probably still makes sense as Auer commands judicial deference to a federal agency’s interpretation of its own regulation” rather than a policy crafted by another agency, Walker writes.
However, Hammond notes that broad application of Chevron or a Chevron-like standard has been seen as risky for stakeholders interested in regulatory certainty, because it risks justifying court decisions that uphold different interpretations of EPA rules on a state-by-state basis even when those rules were designed to be uniform.
“Whatever else you think may be good or bad about Chevron, it would give certainty -- it doesn't allow the 12 federal circuits to come up with their own interpretations. . . . That principle works very poorly in a case like this, where you could end up with 50 different interpretations,” she says.
That uncertainty could make the case a prime candidate for appeal to the 10th Circuit, which might strike down Waddoups' use of deference even if it backs Utah's reading of Subpart W, Hammond continues.
“I think a better approach for this court to have taken might have been to say 'let's examine the state agency's rationale' and apply the test for reasonableness -- they didn't need to apply Chevron.”
https://insideepa.com/daily-news/novel-ruling-extends-epa-deference-state-implementing-clean-air-act
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Superfund Cleanups Slowed by Decades-Long EPA Practices
Sep 22, 2017 | BNA Daily Environment Report
By Sylvia Carignan
The EPA administrator is vowing to change a longtime Superfund program practice blamed for slowing or in some cases stopping cleanup work at some hazardous waste sites.
The Environmental Protection Agency didn't assign adequate staff to Superfund sites as needs changed, the agency's Office of Inspector General reported Sept. 19. That slowed cleanup and potentially left people exposed to contamination at some sites.
The independent office's findings show the agency can speed up remediation by reassigning staff to high-priority sites, though potential Superfund budget cuts and staff buyouts could compromise that solution.
An EPA spokesperson, responding to the report's findings Sept. 20, said Administrator Scott Pruitt has changed the agency's focus and “is ensuring the expertise of EPA staff is fully utilized where needed throughout the country.”
The inspector general said the EPA hasn't revamped its staffing practices in more than 20 years, despite repeated warnings that the agency should consider its existing workload when assigning employees to sites. For the past 30 years, the agency believed that reassigning staff would be too disruptive, the inspector general's report said.
Peter Hsiao, partner at Morrison Foerster, said there are disadvantages to shuttling employees around from one site to another. But, he noted, the report doesn't say which employees should be moved to higher-priority sites.
“The [inspector general] report doesn't fully take into account whether there are actually employees available to be moved,” he told Bloomberg BNA.
Superfund's Slow Pace
Frank Deveau, chair of the environmental practice at Taft Stettinius & Hollister LLP in Indianapolis, is representing a developer who wants to build an assisted living facility on a remediated Superfund site.
Deveau said there was “no shortage of manpower” from EPA's Region 5 office, which is managing the project.
“The thing that surprised me was not only that Region 5...was so cooperative, but they helped us meet our deadlines with investors,” he said.
But that is not a typical experience for potentially responsible parties, Deveau told Bloomberg BNA.
“My experience with EPA is that they're afraid to set a precedent; they're very slow in moving,” he said.
Lower Duwamish
The EPA's Region 10 office admitted to the inspector general that its work at the Lower Duwamish Waterway in Seattle, which was added to the National Priority List in 2001, exceeds the capacity of the staff there.
Boeing Co., the city of Seattle, the port of Seattle, and King County started investigating possible cleanup options at the site back in 2000. The city of Seattle declined to comment on the site.
Boeing told Bloomberg BNA it has made “significant progress,” but declined to comment on the pace of cleanup.
Meanwhile, those living close to the site continue to consume potentially contaminated fish and shellfish from the area, despite the warning signs local authorities have posted, according to the inspector general.
Re-Prioritizing Sites, Staff
The inspector general recommended prioritizing Superfund sites nationally to better distribute staff among high-priority sites.
The EPA's existing National Priority List does not automatically assign the most resources to the most contaminated sites. Each region's sites compete with each other for resources and must be reviewed by a national panel of EPA staff. The criteria they consider include human exposure to contamination, whether the contaminants are stable, how much of a contaminant is present, and its threat to the environment.
But determining which sites are the “worst” cases, in order to give them the most resources, is a subjective process, Hsiao said.
“I'm not sure how you make that determination without some weighing of political and social factors,” he said.
In its response to the report, the agency committed to creating a national staff distribution plan, but an agency spokesperson declined to confirm whether a new national list of sites would be part of the plan.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121066216&vname=dennotallissues&fn=121066216&jd=121066216
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