Preview Newsletter
ACC AM (25/09/17)
-
Hearing On Energy Technology
Sep 26, 2017 | Energy and Commerce Subcommittee on Energy
Location: 2123 Rayburn / 10:00 AM -
Hearing On Evidence-based Policymaking
Sep 26, 2017 | Oversight and Government Reform
Location: 2154 Rayburn / 10:00 AM -
Hearing On NOAA, PHMSA, CPSC Nominees
Sep 27, 2017 | Commerce, Science and Transportation
Location: 253 Russell / 10:00 AM -
Hearing On Agency Compliance With Congressional Review Act
Sep 28, 2017 | Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Location: 2141 Rayburn / 10:00 AM -
(ACC Mentioned) How To Empower The Next Generation Of Chemists
Sep 25, 2017 | Chemical & Engineering News
Andrea d’Aquino did not have a home computer while growing up in Bellingham, Wash. Rather than let that stop her, she spent hours in the school library researching how to fund her education. -
(ACC Mentioned) Chemical Industry to Trump: Don't Kill the NAFTA Golden Goose
Sep 25, 2017 | BNA Daily Environment Report
By Adam Allington
The overriding objective of negotiations resuming this weekend to overhaul the North American Free Trade Agreement should be to “do no harm,” American Chemistry Council Director of Global Affairs Greg Skelton told Bloomberg BNA. -
(ACC Mentioned) With Latest Nafta Proposals, U.S. Takes on Bigger Targets, Critics
Sep 23, 2017 | Fox Business
By William Mauldin and Paul Vieira
The Trump administration plans to take aim at the areas of the North American Free Trade Agreement it finds most objectionable as negotiators for the U.S., Canada and Mexico gather Saturday in Ottawa, setting the stage for a contentious third round of talks. -
Businesses Struggle With Trump's Indecision
Sep 24, 2017 | PoliticoPro
By Emily Holden, Andrew Restuccia, Aaron Lorenzo and Ted Hesson
President Donald Trump has threatened to pull out of NAFTA, the Paris climate agreement and the Iranian nuclear deal — unless he opts to stay. He decided to revoke legal protections for the DREAMers, then urged Congress hours later to enact new ones. -
Proof In Pudding: EPA Toxics Nominee Dourson Has Consistently Recommended “Safe” Levels For Chemicals That Would Weaken Health Protections
Sep 22, 2017 | Environmental Defense Fund
By Richard Denison
Earlier this week the New York Times ran an article on the Trump Administration’s nominee to run the EPA toxics office, Michael Dourson. The article detailed Dourson’s longstanding ties to the chemical industry, citing examples of work he did on specific chemicals paid for by the companies that make or use them. -
Senators Take Up PHMSA, NOAA And CPSC Picks
Sep 25, 2017 | E&E Daily
By Corbin Hiar
The Senate Commerce, Science and Transportation Committee will consider this week three nominees for important health and safety positions. -
Suit Over Rejected Fluoride Petition Could Test EPA's Stance On TCSA 'Uses'
Sep 22, 2017 | Inside EPA
By Maria Hegstad
EPA is poised to respond to environmentalists' suit challenging the agency's rejection of their petition seeking to ban the practice of fluoridating water under the Toxic Substances Control Act (TSCA), but the case could test EPA's stance on which chemical uses it must consider in its risk analyses as it has taken a different position on the issue in recently issued TSCA rules. -
(ACC Mentioned) CPSC Votes To Limit Flame Retardants In Plastics
Sep 22, 2017 | Plastics News
By Steve Toloken
The U.S. Consumer Product Safety Commission narrowly voted Sept. 20 to limit use of a group of flame retardants in plastics and other materials, saying that they see growing evidence that the chemicals are harmful. -
(ACC Mentioned) Science Triumphs Over Disinformation in Initial Flame Retardant Victory
Sep 25, 2017 | Union of Concerned Scientists
By Genna Reed
In a stunning victory for consumer safety and a powerful display of the ability of independent science to spur policy change, the Consumer Product Safety Commission (CPSC) voted this week to ban a class of additive, polymeric organhalogen flame retardants (OFRs) that are present in many consumer products. -
EPA's Hazardous Waste Reporting System on Track
Sep 25, 2017 | BNA Daily Environment Report
By Sylvia Carignan
States and hazardous waste handlers say they are looking forward to ditching paper tracking documents as the EPA prepares a new electronic tracking system, which it will test-release this winter. -
Greens Urge Court To Rethink Rejection Of HFC Rule
Sep 25, 2017 | E&E News PM
By Amanda Reilly
Environmentalists asked the U.S. Court of Appeals for the District of Columbia Circuit today to reconsider its decision tossing out a U.S. EPA rule requiring companies to replace potent heat-trapping chemicals. -
Backers Ask D.C. Circuit To Reverse Panel's Rejection Of EPA's HFC Rule
Sep 22, 2017 | Inside EPA
By Lee Logan
Environmentalists and two chemical manufacturers are urging the U.S. Court of Appeals for the District of Columbia Circuit to reverse a split panel ruling vacating EPA's rule to reduce refrigerants that act as potent greenhouse gases, arguing that the agency's interpretation of a key Clean Air Act provision is entitled to deference. -
Twice-Rejected LNG Exporter Gives Project Another Shot
Sep 25, 2017 | BNA Daily Environment Report
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. -
EPA Seeks To Clarify Use Of CO Threshold In Boiler MACT
Sep 22, 2017 | Inside EPA
EPA is seeking to clarify its use of a specific carbon monxide (CO) threshold as a proxy for regulating air toxics from boilers in its maximum achievable control technology (MACT) emissions rule for the units, after federal appeals court judges at recent oral argument questioned the agency's use of the threshold in the regulation. -
California Sets Demands for Talking Emissions Targets with Trump
Sep 25, 2017 | BNA Daily Environment Report
By John Lippert and Ryan Beene
California could be willing to re-open discussions on its greenhouse gas limits for cars and trucks for 2025—so long as automakers and the Trump administration embrace the significantly tougher targets it's contemplating for later years. -
California, Quebec, Ontario Ink Deal to Join Carbon Markets
Sep 25, 2017 | BNA Daily Environment Report
By Carolyn Whetzel
California, Quebec, and Ontario cemented plans Sept. 22 to launch North America's largest carbon allowance market next year. -
Trump Climate Confusion Is the New Brexit, Top UN Official Says
Sep 25, 2017 | BNA Daily Environment Report
By Jessica Shankleman and Brian Eckhouse
When U.K. Prime Minister Theresa May criticized President Donald Trump for taking the U.S. out of the landmark Paris climate change deal this week, she might as well have been talking about another kind of exit closer to home. -
Inspector General Details Upcoming Reviews Of EPA Air Quality Programs
Sep 25, 2017 | Inside EPA
By Stuart Parker
A top EPA Office of Inspector (OIG) official says the office is working on several reviews of major agency air quality programs, including previously announced research into the accuracy of EPA's methods for estimating methane emissions from the oil and gas sector, and a long-pending review of ambient air monitoring data. -
EPA Sends Ozone 'Thresholds' To OMB, NAAQS Designations Face Delay
Sep 25, 2017 | Inside EPA
By Stuart Parker
EPA has sent for White House review a proposal for the air quality thresholds used to define the severity of areas out of attainment with the 2015 ozone standard, but the agency is yet to issue any designations for nonattainment areas and appears likely to miss a looming Oct. 1 Clean Air Act deadline for finalizing those findings. -
Trump Races Conservative Pressure On Paris Withdrawal
Sep 22, 2017 | Inside EPA
The Energy & Environmental Legal Institute (E&E Legal), a free-market group opposed to climate policy, is urging President Donald Trump to remain firm in his plan to withdraw from the United Nations Paris Agreement on climate change, after news reports hinted that he might remain in the pact after negotiating a better deal for the United States.
Congressional Hearings
Industry and Association News
LCSA News
Chemical Management News
Energy News - There are no clips to report at this time.
Chemical Security News - There are no clips to report at this time.
Transportation and Infrastructure News - There are no clips to report at this time.
Environment News
-
Sep 26, 2017 | Energy and Commerce Subcommittee on Energy
-
Hearing On Evidence-based Policymaking
Sep 26, 2017 | Oversight and Government Reform
-
Hearing On NOAA, PHMSA, CPSC Nominees
Sep 27, 2017 | Commerce, Science and Transportation
-
Hearing On Agency Compliance With Congressional Review Act
Sep 28, 2017 | Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law
-
(ACC Mentioned) How To Empower The Next Generation Of Chemists
Sep 25, 2017 | Chemical & Engineering News
Andrea d’Aquino did not have a home computer while growing up in Bellingham, Wash. Rather than let that stop her, she spent hours in the school library researching how to fund her education.
“I come from a very big family, and no one had gone on to higher education,” says d’Aquino. “No one could quite tell me how you pay for college or get into college.” Fortunately, she won a scholarship from the Gates Millennium Scholars Program and undertook her undergraduate studies at Western Washington University.
Alicia McGeachy was also the first member of her family to receive a degree, which she achieved though the same determination and resourcefulness. McGeachy went to a large school in Brooklyn, N.Y. “The teachers were supportive, but they didn’t have a lot of time,” she explains. Her father encouraged her to help herself. She did her research and, with that in hand, went on to secure scholarships for Spelman College in Atlanta.
McGeachy and d’Aquino faced the kind of hurdles many college students never have to contemplate, but they overcame them, and now both are graduate students at Northwestern University. McGeachy is researching how nanotechnology can mitigate the health and environmental effects from batteries, such as those from cars and laptops. D’Aquino intends to apply her knowledge in organometallic supramolecular chemistry to help answer questions about energy, the environment, and health.
D’Aquino and McGeachy believe that encouraging more diverse perspectives throughout science, technology, engineering, and mathematics (STEM) education and industries will help us find innovative solutions to society’s most pressing global challenges, from finding clean energy alternatives to discovering new ways to make chemical manufacturing sustainable. McGeachy, as a black American woman, and d’Aquino, as an Asian American woman, drew on their experiences when they set up Northwestern University Building on Diversity (NUBonD) to foster “inclusivity and diversity of thought, ideas, and backgrounds” within chemistry.
“I don’t think people necessarily connect the importance of diversity with chemistry,” McGeachy says. “People don’t see how it changes things, but even the questions we ask and how we ask them and the communities we impact—that is all driven by our own perspectives.”ATTRACTING AND RETAINING TALENT
McGeachy and d’Aquino’s work is sorely needed. In a 2015 report titled “Reaching the Full Potential of STEM for Women and the U.S. Economy,” the U.S. Chamber of Commerce Foundation notes that the U.S. will need to fill 6.6 million STEM jobs over the next 10 years. However, women account for just 25% of workers in STEM fields. A 2016 fact sheet published by the U.S. Department of Education notes that from 2008 to 2013, African Americans received just 7.6% of all STEM bachelor’s degrees.
Diversity in the workforce is important because it brings greater perspective to the questions that industry can ask and the solutions it devises. The Chamber of Commerce Foundation report neatly sums it up: “A diverse workforce keeps our perspectives fresh and our ideas innovative.”
As a volunteer STEM teacher, d’Aquino has witnessed firsthand how young girls and underrepresented minority students often “self-select out of science.” She notes that it’s important “to target young girls and underrepresented minorities at a young age and to encourage them to pursue science,” adding that they need to be told that they can be leaders.
Industry could support the diversification of the talent pool by making it more reflective of the population. By nurturing future chemists throughout their K–12 education, not just at the college or postgraduate level, industry can become more inclusive, according to Stephanie Rogers, managing director for Accenture’s resources industry group. She notes that the chemical industry can improve its attractiveness to STEM graduates—something that’s sorely needed. Accenture partnered with the trade association American Chemistry Council to conduct a survey, which showed that only 30% of chemistry-related graduates are working in the chemical industry.
Rogers says companies can create “targeted talent strategies that both support the chemical companies’ business model and translate these needs to reflect a career path that is interesting and attractive to the current and future workforces.” For example, to attract, retain, and nurture female (and, increasingly, male) talent, Rogers suggests promoting flexible work schedules that support child care, aging parents care, and parental leave.
Duane Dickson, vice chair and global and U.S. chemicals and specialty materials sector leader for Deloitte, thinks that the chemical industry ought to be more responsive to changing attitudes. “One of the big things we’ve found is that this generation’s STEM talent looks for employers who give them the ability to solve problems important to society,” he explains. Rogers agrees, saying chemical companies could “make a good case for how the industry is contributing to resolving a host of challenges, from feeding growing populations to enabling reduced energy consumption.”MAKING CAREER CHOICES
Like other graduate students, McGeachy and d’Aquino are contemplating what they will do once they’ve earned their degrees. Emily Weiss, Northwestern professor of chemistry and of material science and engineering, advises industry to seek the best talent early. “Students are extremely goal oriented these days and thinking about their postgraduate plans earlier,” Weiss says. “If companies want these types of students, I think they need to go after them in their first and second years.”
To choose a career in industry, McGeachy says she’d be attracted to public-facing positions in companies that emphasize closer interactions with communities. She encourages industry recruiters to talk about managerial, as well as laboratory, positions when meeting with students. For d’Aquino, it is about having more opportunities to experience industry. “This may be through internship programs, collaborative projects, or even just student site visits,” she says.
Models for industry-academic partnerships do exist. At Northwestern, students have access to a Management for Scientists & Engineers training course offered by Kellogg School of Management and can take part in internships through Northwestern’s Innovation & New Ventures Office. They can also attend Industrial Associates events, where graduate students and industry representatives can interact. Co-op programs are a staple of major engineering programs nationwide.
Besides attracting talent, companies also should have ways to retain talent. McGeachy explains that she would be inclined to stick with a company that offered a fast-paced and flexible working environment. “I think it would also help if I were part of a company that truly valued my opinion and the opinions and needs of all their constituents,” she adds.
The industry can retain talent by promoting a sense of employee ownership of projects and encouraging professional development opportunities. As female graduates progress through their careers, ensuring that inspiring role models are visible in the company also keeps a working environment attractive. “Another big signal to midcareer and senior leaders is the visual sign of women being part of the leadership team, including the board of directors,” Rogers says.”A DIVERSE AND INNOVATIVE FUTURE
D’Aquino and McGeachy represent the future of STEM because they have clear goals and want to contribute to society. To build a dynamic workforce, the chemical industry can listen to, support, and actively court talent such as theirs.
Through their work with NUBonD, d’Aquino and McGeachy are opening discourse on the power of diversity. They invite scientists from different backgrounds to discuss the issue of diversity and consider how it affects their research. By encouraging diversity in STEM—from the classroom to the boardroom—the chemical industry can gain the breadth of perspective that is needed in a rapidly changing world. As d’Aquino says, “You can only be better with more diversity.”
http://cen.acs.org/sponsored-content/how-to-empower-the-next-generation-of-chemists.html
-
(ACC Mentioned) Chemical Industry to Trump: Don't Kill the NAFTA Golden Goose
Sep 25, 2017 | BNA Daily Environment Report
By Adam Allington
The overriding objective of negotiations resuming this weekend to overhaul the North American Free Trade Agreement should be to “do no harm,” American Chemistry Council Director of Global Affairs Greg Skelton told Bloomberg BNA.
President Donald Trump has threatened to pull out of NAFTA multiple times, saying the U.S. got fleeced in the 1994 pact among the U.S., Canada, and Mexico, which he has called “the worst trade deal ever.”
Yet few industries exemplify the success of the trade pact like the chemical sector—where trade has more than tripled, from $20 billion in 1994 to $63 billion in 2014. The U.S. now runs a $16.5 billion trade surplus in chemicals with Canada and Mexico, the two largest markets for U.S. chemical exports.
The U.S. is expected to engage in more horse trading in the third round of negotiations that kick off in Ottawa on Sept. 23. Trade politics however, have grown increasingly complex in the U.S. as anti-globalist sentiment has found support on both the left and right.
‘Not Interested in a Mere Tweaking’
Speaking at a press briefing last month after the first meeting of U.S., Canadian and Mexican negotiators, U.S. Trade Representative Robert Lighthizer laid out the Trump administration's aggressive “America first” approach.
“I want to be clear, he [Trump] is not interested in a mere tweaking of a few provisions and a couple of updated chapters,” Lighthizer said. “NAFTA has fundamentally failed many, many Americans and needs major improvement.”
But chemical industry leaders worry that talk like that may end up hurting American companies most of all. “North America has become so integrated, throwing up tariffs or taxes would be like putting a toll booth in the middle of a factory,” Skelton told Bloomberg BNA Sept. 21.
“More than 70 percent of U.S. chemical imports and 50 percent of exports are intra-company trade. That's why we're making the argument that tariffs are basically a pure tax,” he said.
Modernizing NAFTA
The American Chemistry Council—which represents the interests of all the major U.S.-based chemical companies, including DowDupont, Eastman Chemical and ExxonMobil Chemical—does feel, however, that a modernized NAFTA presents an opportunity for manufacturers to further reduce barriers and create even greater supply chain efficiencies, Skelton said.
Earlier this year the U.S., Canadian, and Mexican chemical industry associations released a joint statement outlining priorities for NAFTA modernization, including recommendations for enhancing regulatory cooperation and relaxing “Rules of Origin” requirements.
Rules of origin stipulate the percentage of input components allowed from non-NAFTA countries, in order to still qualify for duty-free benefits. The groups propose raising the value of non-qualifying materials allowed under NAFTA from 7 to 15 percent. The groups also are pushing for rules to make it easier to qualify substances undergoing processes such as purification and blending in NAFTA countries.
According to the joint statement, a more efficient regulatory environment also would bring NAFTA into line with more recent trade agreements, and provide a significant boost to innovation and job growth, “while also ensuring that regulatory objectives are achieved to increase the overall health and safety for end use of products.”
“This might include greater alignment of classification and labeling procedures and a streamlined approach to regulatory approvals for new chemicals,” according to the statement.
The chemical groups also highlight the need to update NAFTA for the internet era by facilitating digital trade, and establishing stronger protections for cross-border data flows, which is an essential element of global value chains.
Jobs, Jobs, Jobs
During the 2016 campaign, Trump made jobs his number one issue, and not just any jobs, but manufacturing jobs he said were lost as a result of over-regulation and trade deals such as NAFTA and the Trans Pacific Partnership. The deals, Trump claimed, cost states hundreds of thousands of jobs.
Many economists argue that to divine NAFTA's role in job creation over its 23 year history is pretty difficult when trying to assign jobs lost to automation vs. jobs lost to recessions and lost to Mexico.
A 2014 study by the Peterson Institute for International Economics found that about 15,000 U.S. jobs on net are lost each year because of the pact—but that for each of those jobs lost, the economy gains roughly $450,000 in the form of higher productivity and lower consumer prices.
Linda Dempsey of the National Association of Manufacturers touted the job-creating success of NAFTA, particularly for the U.S.
“Canada and Mexico purchase one-fifth of all manufactured goods produced in the United States, supporting the jobs of more than 2 million manufacturing workers,” Dempsey told reporters Sept. 22 on a conference call.
Strengthening Investment Protections
In addition to safeguarding access to markets and reducing barriers, business leaders are turning up the pressure on the White House to safeguard NAFTA's investor protections.
Specifically, Chapter 11 of the trade pact focuses on so-called Investor-State Dispute Settlements (ISDS). Highly controversial, the ISDS provision ensures that corporations making investments and business deals in partner countries will have due process and compensation, according to the rule of law.
In practice, critics of the rule argue that ISDSs amount to little more than corporate kangaroo courts, allowing companies to avoid having to comply with the laws and regulations of sovereign nations.
On Sept. 19, Sen. Elizabeth Warren (D-Mass.), wrote to U.S. Trade Representative Lighthizer, urging him to push for the removal of ISDS provisions as he renegotiates the terms of NAFTA.
Warren maintains ISDS provisions, “would allow foreign companies to challenge U.S. laws—and potentially to pick up huge payouts from taxpayers—without ever stepping foot in a U.S. court.”
CEOs from top U.S. trade associations strongly disagreed in a Sept. 22 conference call with reporters: “From our industry perspective, ISDS is a critically important part of NAFTA,” said Jack Gerard, president of the American Petroleum Institute.
“We are concerned it hasn't been put forward as a priority by current administration,” he said. ISDS protects investment by allowing disputes to be brought into international arbitration, which provides more incentive for his members to invest abroad, Gerard said.
‘We Go Where the Resource Is’
“When you think of natural resource extraction—we go where the resource is,” said Gerard. “We have major operations in Mexico that are being run out of Houston, not to mention export opportunities.”
Gerard's comments were echoed by Cal Dooley, CEO of the American Chemistry Council.
“Any talk that is about eliminating ISDS will have the impact of discouraging the confidence of a company to make a major investment,” said Dooley.
In the past, Trump has criticized the ISDS provision as a threat to U.S. sovereignty. The administration is reportedly considering the option of allowing NAFTA governments to “opt in, or out” of the ISDS requirement, a move that would surely raise the ire of businesses and Republicans in Congress.
Dooley also dismissed the idea of a NAFTA “sunset” after a period of five years, which he claimed would not maintain the “certainty that a company needs to capitalize on investment.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121124837&vname=dennotallissues&fn=121124837&jd=121124837
-
(ACC Mentioned) With Latest Nafta Proposals, U.S. Takes on Bigger Targets, Critics
Sep 23, 2017 | Fox Business
By William Mauldin and Paul Vieira
The Trump administration plans to take aim at the areas of the North American Free Trade Agreement it finds most objectionable as negotiators for the U.S., Canada and Mexico gather Saturday in Ottawa, setting the stage for a contentious third round of talks.
"At this point in the negotiations, more challenging issues will start taking center stage, and the U.S. remains committed to advancing and negotiating substantial changes to Nafta for an agreement that benefits all Americans," John Melle, the U.S. chief Nafta negotiator, said in a statement to The Wall Street Journal.
Mr. Melle didn't elaborate. But according to people familiar with the Nafta strategy, the moves seek to bring in the "America First" theme championed by Mr. Trump, including by rolling back international arbitration and other forms of dispute resolution enshrined in the current version of the trade pact. The Trump administration has expressed strong reservations about such binding arbitration decisions, seeing them as an erosion of national sovereignty.
But such proposals aren't likely to face opposition from only Canada and Mexico -- they also are causing an uproar at home in the U.S. business community and among members of Congress in both parties, according to the people familiar with the matter.
U.S. Trade Representative Robert Lighthizer this week backed a preference for government-to-government consultations and negotiations to resolve disputes rather than binding solutions imposed by an arbitrator.
As for Nafta talks in general, he said they were "moving at warp speed but we don't know whether we're getting to a conclusion."
The U.S. has said it wants to do away with one of these dispute systems, known as Chapter 19, in which panels of trade experts resolve conflicts over tariffs.
Any move to abolish them is bound to face stiff opposition, especially from Canada. That country's exporters see the dispute-resolution panels as an essential safeguard against U.S. protectionist whims in areas such as softwood lumber.
Pressure this week from Capitol Hill and the business community means that these changes are unlikely to be introduced in a formal written proposal this round, but are set to be informally discussed with senior Canadian and Mexican officials, according to people briefed on the U.S. strategy.
In recent days, the U.S. has floated proposals in Washington that would overhaul Nafta's Chapter 20, too, which sets out the rules for resolving general disputes among the three countries, according to two people familiar with the U.S. position.
In addition, they said the office of Mr. Lighthizer has discussed sweeping changes to the investor-state dispute-settlement system, which allows investors from one country to challenge governments in another country before an arbitration board. The U.S. has been working on a proposal that would allow it to withdraw from the system.
But the moves away from arbitration panels are creating alarm among U.S. companies that are major international investors, including those in the energy industry, because they say the panels protect their interests overseas. Two people familiar with briefings between the Trump administration and congressional staffers said the discussions were tense and involved what one of the people called a "crazy" approach to dispute settlement. Other backers of traditional U.S. trade policy agreed with that description.
"Any talk about eliminating investor-state dispute settlement will have a harmful impact," said Cal Dooley, president of the American Chemistry Council, in a call Friday with business groups concerned about the potential loss of international investor arbitration.
Still, the administration's approach has support from labor and other left-leaning organizations in the U.S. that don't want trade agreements to give American businesses what they see as international protections.
Also unclear is the fate this round of other controversial measures the Trump administration has floated, such as increasing the amount of U.S. content in North American-produced cars; demanding a "sunset clause" that could reopen Nafta to renegotiations every five years; and measures aimed at narrowing the U.S. trade deficit with Mexico.
Canada and Mexico officials have grown frustrated over the lack of detail from the U.S. on matters expected to be flashpoints during the talks.
"We still aren't very sure about what the real ask is from the U.S.," said Jayson Myers, a Guelph, Ontario, trade consultant and former chief lobbyist for Canadian manufacturers. "There's a lot of political rhetoric going on, but when it comes to negotiations, there's not a lot to work on."
Mexico Economy Minister Ildefonso Guajardo warned this week the success of the Nafta renegotiations hinge on addressing "elephants in the room." He told a Mexico City audience that seven Nafta chapters are close to completion, with some of them likely done in the Ottawa round.
However, echoing the sentiments of U.S. negotiators ahead of this week's talks, he said work remained on another 13 chapters "that represent some degree of difficulty."
--Jacob M. Schlesinger contributed to this article.
Write to William Mauldin at william.mauldin@wsj.com and Paul Vieira at paul.vieira@wsj.com
OTTAWA -- The Trump administration plans to take aim at the areas of the North American Free Trade Agreement it finds most objectionable as negotiators for the U.S., Canada and Mexico gather Saturday in Ottawa, setting the stage for a contentious third round of talks.
"At this point in the negotiations, more challenging issues will start taking center stage, and the U.S. remains committed to advancing and negotiating substantial changes to Nafta for an agreement that benefits all Americans," John Melle, the U.S. chief Nafta negotiator, said in a statement to The Wall Street Journal.
Mr. Melle didn't elaborate.
"We are all putting text on the table at this point," Steve Verheul, Canada's chief Nafta negotiator, told reporters Saturday as he entered the negotiating rooms, adding he expects talks to intensify over the next five days.
But according to people familiar with the Trump administration's Nafta strategy, the U.S. moves at the Ottawa round seek to bring in the "America First" theme championed by Mr. Trump, including by rolling back international arbitration and other forms of dispute resolution enshrined in the current version of the trade pact. The Trump administration has expressed strong reservations about such binding arbitration decisions, seeing them as an erosion of national sovereignty.
But such proposals aren't likely to face opposition from only Canada and Mexico -- they also are causing an uproar at home in the U.S. business community and among members of Congress in both parties, according to the people familiar with the matter.
U.S. Trade Representative Robert Lighthizer this week backed a preference for government-to-government consultations and negotiations to resolve disputes rather than binding solutions imposed by an arbitrator.
As for Nafta talks in general, he said they were "moving at warp speed but we don't know whether we're getting to a conclusion."
The U.S. has said it wants to do away with one of these dispute systems, known as Chapter 19, in which panels of trade experts resolve conflicts over tariffs.
Any move to abolish them is bound to face stiff opposition, especially from Canada. That country's exporters see the dispute-resolution panels as an essential safeguard against U.S. protectionist whims in areas such as softwood lumber.
Pressure this week from Capitol Hill and the business community means that these changes are unlikely to be introduced in a formal written proposal this round, but are set to be informally discussed with senior Canadian and Mexican officials, according to people briefed on the U.S. strategy.
In recent days, the U.S. has floated proposals in Washington that would overhaul Nafta's Chapter 20, too, which sets out the rules for resolving general disputes among the three countries, according to two people familiar with the U.S. position.
In addition, they said the office of Mr. Lighthizer has discussed sweeping changes to the investor-state dispute-settlement system, which allows investors from one country to challenge governments in another country before an arbitration board. The U.S. has been working on a proposal that would allow it to withdraw from the system.
But the moves away from arbitration panels are creating alarm among U.S. companies that are major international investors, including those in the energy industry, because they say the panels protect their interests overseas. Two people familiar with briefings between the Trump administration and congressional staffers said the discussions were tense and involved what one of the people called a "crazy" approach to dispute settlement. Other backers of traditional U.S. trade policy agreed with that description.
"Any talk about eliminating investor-state dispute settlement will have a harmful impact," said Cal Dooley, president of the American Chemistry Council, in a call Friday with business groups concerned about the potential loss of international investor arbitration.
Still, the administration's approach has support from labor and other left-leaning organizations in the U.S. that don't want trade agreements to give American businesses what they see as international protections.
Also unclear is the fate this round of other controversial measures the Trump administration has floated, such as increasing the amount of U.S. content in North American-produced cars; demanding a "sunset clause" that could reopen Nafta to renegotiations every five years; and measures aimed at narrowing the U.S. trade deficit with Mexico.
On the prickly issue of auto-sector-rules, Mr. Verheul told reporters he "didn't expect to see anything radically new at this point."
Canada and Mexico officials have grown frustrated over the lack of detail from the U.S. on matters expected to be flashpoints during the talks.
"We still aren't very sure about what the real ask is from the U.S.," said Jayson Myers, a Guelph, Ontario, trade consultant and former chief lobbyist for Canadian manufacturers. "There's a lot of political rhetoric going on, but when it comes to negotiations, there's not a lot to work on."
Mexico Economy Minister Ildefonso Guajardo warned this week the success of the Nafta renegotiations hinge on addressing "elephants in the room." He told a Mexico City audience that seven Nafta chapters are close to completion, with some of them likely done in the Ottawa round.
However, echoing the sentiments of U.S. negotiators ahead of this week's talks, he said work remained on another 13 chapters "that represent some degree of difficulty."
http://www.foxbusiness.com/features/2017/09/23/with-latest-nafta-proposals-u-s-takes-on-bigger-targets-critics.html
-
Businesses Struggle With Trump's Indecision
Sep 24, 2017 | PoliticoPro
By Emily Holden, Andrew Restuccia, Aaron Lorenzo and Ted Hesson
President Donald Trump has threatened to pull out of NAFTA, the Paris climate agreement and the Iranian nuclear deal — unless he opts to stay. He decided to revoke legal protections for the DREAMers, then urged Congress hours later to enact new ones. And he has repeatedly demanded that lawmakers enact major legislation on health care, tax reform and a $1 trillion infrastructure plan — without making it clear what he wants the final product to look like.
Of all the factors that have made the president’s first year so turbulent, one of the most important has been Trump himself: Combining quick mood shifts, a rancorous White House staff and his own fuzziness on the details, the self-proclaimed dealmaker has left his options way open on a range of contentious decisions — while inducing whiplash in many of the political insiders, business leaders and even foreign governments with a stake in the outcomes.
Some business groups are making long-range decisions based on their best guesses of where the administration will land, while others try to outflank the White House by talking to key lawmakers before Trump does.
“It’s exhausting because there are so many places that you have to touch, so many different bases, because you never know who he’s listening to,” said Brian Wild, a Republican adviser to businesses on energy, tax, labor, transportation and health care at the law firm Brownstein Hyatt Farber Schreck. ”You never know who’s going to get the final 'yes.'”
One longtime GOP lobbyist added: “You would’ve never seen a situation with Bush or Obama when a position in the administration got flipped overnight. Sometimes you win, sometimes you lose, sometimes you get half a loaf, but rarely do you ever just change sides."
“I think he thinks of everything as a trial balloon,” the lobbyist said of Trump.
The flux is especially vexing for conservatives who were invigorated after Trump won but now worry that their years of pushing to lower tax rates and repeal former President Barack Obama’s health care law might have been in vain.
"Nobody is happy,” said another Republican lobbyist. “It's very likely that at the end of the year, we'll be left with Obamacare and the same tax code."
White House spokespeople rejected the idea that the president has waffled on policy issues, saying he’s been “abundantly clear” that he’ll leave the Paris agreement if he doesn’t get a better deal and has been “very clear” he wants Congress to act on immigration.
“President Trump was put into office precisely because he isn't beholden to lobbyists and special interests,” White House spokeswoman Kelly Love said. "If they're upset that they can't stroll into the White House and drive administration policy anymore, that's a badge of honor for a president who was elected to drain the swamp. This president makes his decisions based on what's best for Main Street, not K Street."
But the frustration has repercussions far beyond the Beltway. As tax talks between the White House and lawmakers stall, more than half of CEOs surveyed by Business Roundtable said they would have to shelve plans to hire and invest more if an already long-delayed overhaul doesn’t move through Congress.
The outcome of the tax debate will determine whether Guy Chemical Co. in Somerset, Pa., can buy extra equipment, hire 10 new employees and give raises to existing staff, company President Guy Berkebile said. But Berkebile, who was recently in Washington to urge lawmakers to lower business tax rates, said he’s not getting his hopes up.
“I am already thinking what I will do with the extra money at Guy Chemical if business taxes are lowered,” he said. “If tax reform does not get done, I will continue to grind away with the same typical investment I have put back into my company over the past 10 years.”
The details of what Trump wants in a tax overhaul are still in flux, complicating his sales pitch to conservative Republicans. The uncertainty includes whether the White House will insist on his oft-stated desire to cut the corporate tax rate to 15 percent, down from 35 percent.
On health care, Trump has spent the entire year pushing Congress to repeal Obamacare but has offered vague, often contradictory clues about what he wants to see take its place. At times he’s promised “insurance for everybody,” supported a House Republican bill that guaranteed nothing of the sort, or mused about letting Obama’s system “explode” on its own or moving on to other issues like taxes.
Trump’s tough talk on trade has also left industries he’s vowed to support hanging.
The United Steelworkers Union complains that foreign steel imports have “skyrocketed” since April, when the White House suggested the U.S. might limit them for national security reasons. Data from the American Iron and Steel Institute show that steel imports jumped more than 21 percent in the three months following the announcement versus the first three months of the year.
The Commerce Department was supposed to issue recommendations at the beginning of June but has delayed them indefinitely.
Vagueness and wishy-washiness might seem unlikely problems for Trump, who’s shown no reluctance to speak his mind and often expresses his thoughts in the most caustic terms — including using the epithet “Rocket Man” last week for North Korean leader Kim Jong Un. He’s spent years espousing certain consistently held policy beliefs, such as his charge that “stupid” trade deals are letting other countries rip off the U.S.
But that doesn’t make it any easier to predict the details of what Trump will decide as president, especially on the myriad issues where he’s offered no well-formed opinion. And he’s changed his mind on a host of issues — such as endorsing an influx of new U.S. troops to Afghanistan after previously calling for a pullout. Or holding a Rose Garden celebration in May after the House passed a bill to repeal Obamacare, only to describe the same bill as “mean” a month later in a meeting with Republican senators. Or deciding in early September to end the Obama-era program that prevented deportations for thousands of young undocumented immigrants who were brought to the United States as children — only to say hours later that he has “love for these people” and wants Congress to “help them.”
“Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?” he tweeted about the so-called DREAMers a week later. “Really!”
Despite those kind words, 29-year-old Dallas systems engineer Erik Burgos said Trump's decision threatens to turn his world upside-down.
“A lot of uncertainty and fear starts to creep in,” said Burgos, who was brought to the U.S. from Mexico at age 2 and later enrolled for protection under the Obama program. After Trump's announcement, Burgos postponed his plans to purchase a house and wonders if Congress will find a fix before his permit expires.
Still, he said, Trump’s unpredictability gives him “a glimmer of hope” that his ability to work legally will continue.
Trump is different from most politicians, said Wild, who previously served as an adviser to top Republicans such as then-House Majority Whip Kevin McCarthy and former Speaker John Boehner.
“Typically, all these candidates build out a pretty profound policy notebook throughout the campaign, and then when they get elected they’re implementing that,” Wild said. But with Trump and his aides, “they’re kind of building this policy notebook in real time.”
The second Republican lobbyist also blamed congressional leaders for the uncertainty on many policy fronts, noting that House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell have had trouble controlling their divided Republican caucuses on issues like health care.
White House aides insist that the lack of policy detail is sometimes strategic — though they acknowledge that Trump sees himself as a dealmaker, not an ideologue, and is apt to change his mind. A detailed set of legislative principles on issues like tax reform and infrastructure could draw attacks not just from Democrats but from conservatives who are essential to the passage of any bill. And having learned from the earlier collapse of Obamacare repeal efforts, the White House is eager to let Congress take the lead so Trump won't have the sole blame if a bill fails.
Wiggle room exists even in some of Trump’s most starkly ideological decisions, on issues he alone controls.
In June, for example, he announced that the U.S. would withdraw from the 2015 Paris climate agreement, a decision championed by his most staunchly nationalist advisers. But he also said his administration would “begin negotiations” to either re-enter the nearly 200-nation accord or join an entirely new deal.
“So we’re getting out,” Trump said at the time. “But we will start to negotiate, and we will see if we can make a deal that’s fair. And if we can, that’s great. And if we can’t, that’s fine.”
Since then, international diplomats have been left in the dark about what precisely the United States wants. (Some have even groused privately that Trump should just pull the trigger and leave.) Many people missed the nuance in June about possibly remaining in the deal, until that detail provoked a welter of confusing news headlines last weekend following an international meeting of energy ministers in Montreal.
Despite all the back-and-forth, high-ranking officials only this week had a meetingon aligning their messaging on climate change.
Similar ambiguity reigns about Obama’s 2015 nuclear deal with Iran, which Trump denounced at the United Nations this week as “one of the worst and most one-sided transactions the United States has ever entered into.” He later said he had decided whether to exit the agreement — but refused to tell anybody, includingBritish Prime Minister Theresa May, what his verdict was.
Trump has also threatened to withdraw from NAFTA unless Mexico and Canada agree to new terms and has raised the idea of a “sunset” provision, in which the agreement would terminate after five years unless the countries agreed to renew the terms.
Such a withdrawal “could endanger literally hundreds of thousands of jobs” and damage security cooperation among the countries, argued John Murphy, senior vice president for international policy at the U.S. Chamber of Commerce. Republican leaders in Congress have expressed alarm about the idea too. But a month after formal talks among the three nations began, it’s unclear where the discussions are headed.
"In our trading relationships, we need certainty and security about what the terms of trade are going to be going forward, over multiple years,” Murphy said. “Investments are made on the basis of that kind of certainty, and economic growth and job creation flow from it."
U.S. Trade Representative Robert Lighthizer said the countries were “moving at warp speed” to try to strike a deal by the end of the year, but he couldn’t guarantee it would happen.
“We don't know whether we're going to get to a conclusion,” Lighthizer said. “That's the problem. We're running very quickly somewhere."
In one key domestic policy, Trump has repeatedly pledged a big-ticket plan to rebuild the nation’s roads and bridges — and demanded last month that Republican leaders “get back to work” and put “a great Infrastructure Bill on my desk for signing.” But his administration hasn’t offered much detail on what such a package would entail, aside from a six-page outline it issued last spring. Nor has it been clear how Trump would dole out his proposed $200 billion in new federal infrastructure spending, although Transportation Secretary Elaine Chao said in May that some of the money would go projects meant to “lift the American spirit.”
Marcia Hale, the president of the advocacy group Building America’s Future, said the administration has done more behind the scenes on infrastructure than may be apparent — though she acknowledged that it has “been a little more, shall we say, hectic than even some of the most recent administrations, and a little less predictable.”
“You always know with this administration that things could change quickly, or policies could change quickly, or allegiances could change quickly,” Hale said. “So you just go with the flow.”
Despite the confusion, some people trying to persuade the administration have found at least one common theme they can use for making their arguments.
“We’re telling our clients that ... any argument that has a jobs impact has to be framed as a jobs argument,” said Stewart Verdery, CEO of the Republican lobbying firm Monument Policy Group, who has represented tech companies including Amazon and Microsoft. “An intellectual argument, a fairness argument, even a federal spending argument is not nearly as powerful as a jobs argument.”
https://www.politicopro.com/energy/story/2017/09/businesses-struggle-with-trumps-indecision-162337
-
Sep 22, 2017 | Environmental Defense Fund
By Richard Denison
Earlier this week the New York Times ran an article on the Trump Administration’s nominee to run the EPA toxics office, Michael Dourson. The article detailed Dourson’s longstanding ties to the chemical industry, citing examples of work he did on specific chemicals paid for by the companies that make or use them.
What is remarkable about Dourson’s work in light of his nomination is not just his conflicts, but the fact that his paid work consistently has led to him recommend “safe” levels of his clients’ chemicals that were less health-protective than government standards or guidelines prevailing at the time. The Times article referred to an analysis by EDF in discussing the example of the pesticide chlorpyrifos. Chlorpyrifos is one of 10 chemicals included in EDF’s analysis, which is provided in this post.
EDF first reviewed papers and reports that Dourson or other employees of his company, Toxicology Excellence for Risk Assessment (TERA), co-authored that focused on specific chemicals and that disclosed the work was paid for by companies or trade associations with a vested financial interest in those chemicals. (The one exception is PFOA, where Dourson was hired by the state of West Virginia based on the recommendation of its producer, DuPont.)
We then focused on the subset of those papers or reports that argued for a specific numeric “risk value” or release or exposure limit for the chemical in question. That left us with 10 such chemicals.
Finally, we compared Dourson’s recommended value for a chemical with existing standards or guidelines issued by federal or state government agencies or, in their absence in two cases, by the American Conference of Governmental Industrial Hygienists (ACGIH). [Note: Because what matters most regarding the “safe” level of a chemical is that for the most sensitive endpoint, our comparisons are generally between the values for endpoints that Dourson and others designate to be the most sensitive. The values being compared, therefore, may not always be for the same endpoint, or derived from the same type of risk value.]
The table here (click to enlarge) summarizes the results of our analysis. It shows who funded Dourson’s work on each chemical. Details of the analysis with links to relevant sources are available here.
Several features of this analysis bear mention:
· For all 10 chemicals, Dourson’s recommended “safe” level was less health-protective than the prevailing standard(s) at the time of his work, often dozens or even thousands of times less health-protective – see the right-hand column of the table.
· For several chemicals, government standards have tightened significantly since Dourson’s work, making his standard even less health-protective based on more recent information. (Our table includes comparisons of Dourson’s values to newer standards for 1-bromopropane, PFOA and chlorpyrifos.)
· Three of the chemicals are among the first 10 chemicals EPA is now reviewing under the recently reformed Toxic Substances Control Act (TSCA). If confirmed, Dourson would immediately be overseeing these reviews.
· Finally, in every case where Dourson or TERA published a paper of their results, that paper was published in Regulatory Toxicology and Pharmacology. I have blogged previously about the large fraction of Dourson’s papers published in this one journal, which has extensive ties to both the tobacco and chemical industries.
Recently The Intercept uncovered an internal industry memo revealing that chemical company employees regarded Dourson and his firm TERA as the place to go when they wanted to develop a new “safe” level for their chemical and then work to “sell” it to EPA or other agencies.
The proof is in the pudding: Dourson has deployed a consistent modus operandi, which as our analysis presented here shows, has led him to consistently recommend chemical safety standards that would weaken our health protections. He’s the last person to be running EPA’s chemical safety program.
http://blogs.edf.org/health/2017/09/22/proof-in-pudding-epa-toxics-nominee-dourson-has-consistently-recommended-safe-levels-for-chemicals-that-would-weaken-health-protections/
-
Senators Take Up PHMSA, NOAA And CPSC Picks
Sep 25, 2017 | E&E Daily
By Corbin Hiar
The Senate Commerce, Science and Transportation Committee will consider this week three nominees for important health and safety positions.
Foremost among these is Howard "Skip" Elliott, President Trump's pick to head the Pipeline and Hazardous Materials Safety Administration.
The Transportation Department agency develops and enforces regulations on the nation's 2.6 million miles of pipelines and nearly 1 million daily shipments of hazardous materials.
As head of PHMSA, he would oversee a budget of more than $264 million and provide direction to nearly 500 employees within the agency's Washington, D.C., headquarters and regional offices.
Elliott is vice president of public safety, health, environment and security at CSX Transportation Inc., the largest coal shipper east of the Mississippi River.
He may face questions about whether his experience can translate to the new job. Elliott has worked in the rail industry for 40 years but never held a government position.
The pipeline industry, though, thinks he is up to the task. Elliott's nomination earned praise from the Interstate Natural Gas Association of America, which said he would bring "extensive experience and leadership in safety, security, operations and emergency management" to the agency.
Pipeline companies and its allies in Congress complain PHMSA doesn't communicate well with stakeholders. For their part, Democratic lawmakers claim the agency moves too slowly in issuing regulations.
Rep. Peter DeFazio (D-Ore.), ranking member on the Transportation and Infrastructure Committee, called it "pretty much a dysfunctional agency" at a hearing earlier this year (E&E Daily, April 27).CPSC
Lawmakers will also be vetting former New York Republican Rep. Ann Marie Buerkle for chairwoman of the Consumer Product Safety Commission, an independent agency tasked with protecting the public from deadly or needlessly dangerous products.
In February, Buerkle took on the role of acting chairwoman at CPSC, which has a budget of $126 million. She joined the agency in 2013 and, if confirmed by the Senate as CPSC's permanent chairwoman, she could stay there through October 2024.
During her time on the commission, Buerkle has consistently opposed the civil penalties imposed by its soon-to-end Democratic majority (Greenwire, Sept. 22).
"We should not be hoping for multimillion-dollar penalties," Buerkle said in a May 2016 statement.
"We should be hoping for zero penalties — that is, a world in which every company subject to the [Consumer Product Safety Act] reporting requirements understands its reporting obligations and complies with them," she said, referring to the law that established and guides CPSC.
Buerkle is unlikely to encounter much opposition from the committee, which four years ago approved her nomination to CPSC by unanimous consent.NOAA
The panel also plans to consider Trump's nominee for the No. 2 job at the Commerce Department's NOAA. Earlier this month, the president nominated former Rear Adm. Timothy Gallaudet to be assistant secretary of Commerce for oceans and atmosphere.
As a Navy oceanographer, Gallaudet had a long history of tracking climate change for the Pentagon, making his pick a surprise to many Trump critics (Climatewire, Sept. 7).
Gallaudet has a doctorate in marine acoustics from the Scripps Institution of Oceanography at the University of California, San Diego, and retired from the Navy on Aug. 31, after 32 years of service.
Trump has yet to nominate a NOAA administrator, the top job at the agency. Last week, he broke a record by leaving the job vacant longer than any other president (Greenwire, Sept. 21).
At the same time it vets the three Trump health and safety picks, the committee will consider Walter Copan's bid to be the Commerce undersecretary for standards and technology, as well.
Schedule: The confirmation hearing is Wednesday, Sept. 27, at 10 a.m. in 253 Russell.
Witnesses: Ann Marie Buerkle, retired Rear Adm. Timothy Gallaudet, Howard Elliott and Walter Copan.
Reporters Sam Mintz and Rob Hotakainen contributed.
https://www.eenews.net/eedaily/2017/09/25/stories/1060061519
-
Suit Over Rejected Fluoride Petition Could Test EPA's Stance On TCSA 'Uses'
Sep 22, 2017 | Inside EPA
By Maria Hegstad
EPA is poised to respond to environmentalists' suit challenging the agency's rejection of their petition seeking to ban the practice of fluoridating water under the Toxic Substances Control Act (TSCA), but the case could test EPA's stance on which chemical uses it must consider in its risk analyses as it has taken a different position on the issue in recently issued TSCA rules.
The suit, Food & Water Watch Inc., et al, v. EPA filed in the U.S. District Court for the Northern District of California, challenges EPA's decision last February to deny the group's 2016 petition seeking a ban on fluoridation -- a single use of a class of chemicals.
In its rejection notice, the agency said the petition – filed by Food and Water Watch (FWW), the Fluoride Action Network (FAN), and others – was at odds with TSCA's mandate to review chemicals and address risks from all their uses.
The interpretation was consistent with the Obama EPA's draft rules setting up the framework for how to regulate existing chemicals under the reformed TSCA. The groups argue in their suit that EPA's denial is based on flawed scientific assessment of fluoride's neurotoxic risks and an inaccurate reading of the chemical uses issue in the toxics law update enacted last June.
But the Trump EPA altered the agency's interpretation of which uses to consider in TSCA analyses when it finalized the framework rules in June. The final rules – governing risk evaluation procedures and chemical prioritization practices – suggest instead that EPA has more discretion in the uses that it chooses to consider in prioritizing chemicals for assessment, evaluating their risks and, if necessary, regulating them.
For example, EPA's decision to narrow the uses it considers in its evaluations means that the agency does not plan to address legacy uses of some substances, such as asbestos, in evaluations and any future regulatory requirements.
But the question of how much discretion EPA has to identify the uses it considers is likely to be one of the major issues in pending appellate litigation challenging the framework rules. Environmentalists and their supporters are already charging the agency took too narrow a view of what qualifies as a chemical use subject to review.
They say that EPA is required to follow the statutory language, which requires the agency to review “all reasonably foreseen uses” of a chemical.
Industry groups and their supporters say the agency has significant deference to determine what uses to consider.
But even before briefing begins in the two appellate cases – currently pending before the 4th and 9th Circuits – the issue is likely to get attention in the federal district court in San Francisco, where EPA is slated to respond to the groups complaint on Sept. 25.
Judge Edward Chen has ordered EPA to respond to the groups' complaint by Sept. 25. The order, which Chen signed Sept. 5, suggests that EPA will move to dismiss the suit. It gives the plaintiffs a month to respond to a motion to dismiss.
The suit has spent months toiling through an alternate dispute resolution (ADR) process, but now appears poised to enter briefing for litigation.
“I think all sides agreed ADR won't be fruitful,” says Michael Connett, an attorney representing the plaintiffs.
Petitioners' Challenge
Connett says that if EPA bases its dismissal argument on the Obama administration's argument that the agency is required to consider all uses, the subsequent change in position on uses could be raised at argument. “If EPA moves to dismiss on that ground, I'll definitely pay attention to that,” Connett says.
Observers tracking EPA's implementation of the new TSCA law said last spring shortly before the suit was filed that it would provide a test case for the agency's interpretation that petitioners must provide a comprehensive analysis of all uses of a chemical in order to seek a restriction on a particular use.
“This asserted view, that only a comprehensive risk evaluation considering all conditions of use will suffice, presents a very high threshold for action -- and seemingly an impossibly high threshold to move EPA to act," stated a blog post from the law firm Bergeson & Campbell March 7.
The novel rationale for rejecting the request drew the attention of the firm, which suggested in the blog that the interpretation essentially obviates the purpose of section 21 petitions for agency action under section 6, which has traditionally been to draw the agency's attention to a chemical hazard that had not previously been a focus.
EPA's denial outlined general obligations petitioners should meet in seeking chemical restrictions under the updated version of the toxics law. “This requirement includes addressing the full set of conditions of use for a chemical substance and thereby describing an adequate rule under TSCA section 6(a) -- one that would reduce the risks of the chemical substance 'so that the chemical substance or mixture no longer presents' unreasonable risks under all conditions of use,” the agency said.
“Rather than comprehensively addressing the conditions of use that apply to a particular chemical substance, the petition requests EPA to take action on a single condition of use (water fluoridation) that cuts across a category of chemical substances (fluoridation chemicals),” the agency added.
Bergeson and Campbell attorneys said that EPA's denial is "essentially arguing that since EPA must assess 'all conditions of use' in any control rule they might promulgate, then any outside petition must include all of the same homework before it can be granted.”
New Study
Connett also says a recently released study showing IQ losses in children exposed to fluoride in utero could bolster the groups' case because it could be used to challenge EPA science in court as TSCA section 21 allows federal judges to review agency decisions de novo.
The study, by Morteza Bashash of the University of Toronto's public health school and colleagues, compared fluoride levels in more than 200 pregnant women with IQ scores in their children four or more years after birth. It found that “higher prenatal exposure to fluoride . . . was associated with lower [General Cognitive Index (GCI)] scores in children at approximately 4 years old, and with lower Full-Scale IQ scores at 6–12 years old.”
The study estimates that “GCI and IQ scores were about 3 and 2.5 points lower in association with a 0.5 [milligram per liter (mg/L)] increase in prenatal exposure, respectively.”
“The associations with GCI appeared to be linear across the range of prenatal exposures, but there was some evidence that associations with IQ may have been limited to exposures above 0.8 mg/L,” it adds.
Connett describes the study, published in the journal Environmental Health Perspectives earlier this month, as “a big boost to our case against EPA. It strengthens our case considerably, especially given the low doses [that pregnant women and children were exposed to] in the study. EPA has always criticized the human studies we rely on. I think this study addresses those concerns.”
Connett noted that the study was funded by a grant from the National Institute of Environmental Health Sciences, and conducted by a team with expertise in neurological effects, rather than expertise in fluoride toxicology.
Connett expects to be able to present this study and others, which he argues should lead to the end of fluoridation, a common practice by American water utilities and localities for some 40 years as a preventative for tooth cavities and decay.
TSCA section 21 is unusual in that it allows petitioners to challenge EPA's response in federal district court de novo, meaning that the petitioners' original case is presented before a judge, "who will independently review the evidence without deference to the agency," he said last March.
"De novo review is very rare in administrative law," Connett said in the interview last spring, adding that most legal challenges to final agency decisions are governed by the Administrative Procedure Act, where judges review agency responses using the standard of whether they are unlawfully arbitrary and capricious.
"One of the reasons I was interested in the TSCA petition was to obtain a different forum" for fluoride and its risks, Connett said. "It will be good to get the issue considered by people not entrenched in the issue," he added. "EPA never really applied its own risk assessment procedures to fluoride. We believe if EPA does, then it will see . . . that fluoridation would be incompatible with the dose that would be appropriate."
The section 21 petition allows Connett the opportunity to prove to a judge that “we're right, not that EPA screwed up,” he says now.
The groups' petition argues that fluoride in drinking water often exceeds doses linked to IQ loss and other neurotoxic effects, and that TSCA allows for a "more targeted" ban than under federal drinking water law. EPA, in its most recent six-year review of drinking water contaminants as required by the Safe Drinking Water Act, did not consider fluoride a candidate for review of its drinking water standard.
https://insideepa.com/daily-news/suit-over-rejected-fluoride-petition-could-test-epas-stance-tcsa-uses
-
(ACC Mentioned) CPSC Votes To Limit Flame Retardants In Plastics
Sep 22, 2017 | Plastics News
By Steve Toloken
The U.S. Consumer Product Safety Commission narrowly voted Sept. 20 to limit use of a group of flame retardants in plastics and other materials, saying that they see growing evidence that the chemicals are harmful.
The American Chemistry Council sharply criticized the decision to restrict organohalogens, arguing that CPSC commissioners ignored their own agency staff recommendation against taking action, and said it was "disheartening that the discussion has lacked almost any consideration of fire safety."
But the CPSC decision was praised by a coalition of health and safety groups, including the American Academy of Pediatrics, the International Association of Fire Fighters and the Consumer Federation of America, which said that their widespread use in consumer products are a major public health concern.
Those groups submitted a formal petition in 2015 to CPSC asking it to ban the flame retardants in a series of products, including the plastic casings of electronic devices, upholstered furniture, mattresses, toys and children's products.
Officially, the five commissioners voted 3-2 to take three steps: begin a rulemaking to ban the chemicals, issue guidance to advise manufacturers not to use them and convene a federal scientific panel to advise CPSC staff as it moves ahead with a formal rulemaking.
"The CPSC sent an unequivocal message today that it will protect children, firefighters and all consumers from the known and well-documented hazards posed by organohalogen flame retardants in consumer products," said Rachel Weintraub, legislative director and general counsel at Consumer Federation of America, in a statement.
Other groups in the coalition, including the Learning Disabilities Association of America, said there is scientific consensus "that even low levels of halogenated flame retardants can harm the developing brain."
But Washington-based ACC expressed "extreme disappointment" in the CPSC action, and said it flew in the face of other CPSC priorities, including the agency's many recalls of products for fire hazards.
"Not only did the three commissioners who voted in favor of the petition fail to fully consider the importance of product fire safety, they also ignored the recommendations of their scientific staff," ACC's North American Flame Retardant Alliance said in a statement.
"There is no reason CPSC commissioners should have to choose between chemical safety and fire safety, as they can have both," NAFRA said.
CPSC staff had recommended that the commission deny the petition from the health, safety and consumer groups for various reasons, including that the studies available did not support addressing all the various flame retardants as one class of chemicals.
As well, staff said use of the chemicals may be declining and questioned whether CSPC had the staff resources to develop such a far-reaching rule.
"The limited OFR toxicity and exposure data and variations in this data do not support assessing OFRs at the class level by staff to conclude that all products defined by the petitioners with OFRs are hazardous substances under the FHSA," the CPSC staff said.
But the three commissioners who supported the vote said there is a consensus among all five commissioners that the OFRs are hazardous, even if not all felt that evidence was enough to move ahead with a rulemaking.
The two "no" votes had pushed for convening the federal scientific review panel but delaying official CPSC work toward a ban.
Robert Adler, the lead commissioner pushing for CPSC to move ahead with strict restrictions, said it would be very impractical to treat the OFRs as separate chemicals, and do regulation one by one because people are exposed to a broad mix of them.
He said that while data gaps exist, he views the evidence as strongly pointing toward the chemicals as hazardous and they should be grouped as a class.
"There are certainly a number of OFRs where we have no studies to provide us with proof of harm, but years of experience confirm every time we get sufficient data to evaluate the risk of any specific OFR, we always find it to be so toxic that we start to remove it from our products," he said.
"In other words, the more evidence that accumulates, the stronger we see the case against the use of these chemicals," he said.
Adler said it could be a "multi-year project" for CPSC to develop its rule.
http://www.plasticsnews.com/article/20170922/NEWS/170929948/cpsc-votes-to-limit-flame-retardants-in-plastics
-
(ACC Mentioned) Science Triumphs Over Disinformation in Initial Flame Retardant Victory
Sep 25, 2017 | Union of Concerned Scientists
By Genna Reed
In a stunning victory for consumer safety and a powerful display of the ability of independent science to spur policy change, the Consumer Product Safety Commission (CPSC) voted this week to ban a class of additive, polymeric organhalogen flame retardants (OFRs) that are present in many consumer products. Last week, I was one of many individuals who testified before the CPSC urging the body to grant a petition to ban the class of organohalogen flame retardants from four classes of consumer products: mattresses, children’s products, furniture, and electronic casings.
Of the 31 individuals who testified last week, there were only two individuals who advised the CPSC not to ban OFRs: representatives from the American Chemistry Council (ACC) and the Information Technology Industry Council. As Commissioner Marietta Robinson pointed out during the hearing, the only comments opposing the ban “represent those with a financial interest in continuing to have these potentially toxic, and some of them definitively, toxic, chemicals in our environment.” She also noted that the presentations by those opposed to the petition were not transparent and used materials relating to chemicals that were irrelevant to the petition, a drastic contrast to the numerous scientists and scholars whose heavily footnoted statements provided evidence to support the arguments of the well-bounded petition.Scientific information trumps corporate disinformation
Commissioner Robert Adler, who submitted the motion to grant the petition, compared the chemical industry’s talking points at the hearing on reasons not to ban OFRS to the tobacco industry’s same denial of the health impacts of smoking. His statement read, “if we took the tobacco industry’s word on cigarette safety, we would still be waiting. Similarly, we have waited for years for our friends the chemical industry to provide us with credible evidence that there are safe OFRS. I have little doubt that we will still be waiting for many years, to no avail.” Sadly, he’s probably right.
We have seen this trend time and time again. Whether it was the tobacco industry, the asbestos industry, the sugar industry, the PCB industry, the agrochemical industry, the pharmaceutical industry, and the oil and gas industry, corporate bad actors have known about risks of their products and have chosen not to act to protect the public for years, sometimes decades. Not only do they deny that there is harm, but they actively push for policies that allow them to conceal the truth for even longer. As Oxford University’s Henry Shue wrote about fossil fuel companies like Exxon in a recent Climatic Change article, noting that “companies knowingly violated the most basic principle of ‘do no harm.’” It is unethical and unacceptable that the public is not afforded the information we deserve on the harms of products we are exposed to every day in the air we breathe, the water we drink, the food we eat, and everything in between.
Case in point: ACC’s statement after the CPSC’s vote included sticking to its talking points and pivoting from whether OFRs are safe to whether they reduce fire risk. During the hearing, the ACC representative argued that the petition was overly broad and that there was insufficient data on each OFR to ban them as a class. However, when asked by Commissioners for evidence that certain OFRs did not cause harm, he was unable to point to a specific chemical or cite relevant research. At a certain point, there is no place to pivot when the facts are stacked against you.
Dust is something I never gave much thought to growing up. If anything, “dusting” was always my favorite chore when faced with the options of vacuuming or washing the dishes. I never really gave much thought to what that elusive substance was composed of. I certainly wouldn’t have guessed that within those seemingly innocuous dust bunnies hiding behind bookshelves were a mix of chemicals that could impact my health. Dusting has taken on new meaning for me since conducting research on flame retardants.
For decades now, consumers have been left powerless and at the whim of manufacturers who have decided for us what chemicals go into our homes and end up in our dust.
The result? Most Americans have at least one type of flame retardant present in our blood, young children have higher levels than their mothers, and children of color and those from low income communities bear disproportionately high levels of these chemicals in addition to a host of other chemical burdens.
Shue writes,
To leave our descendants a livable world is not an act of kindness, generosity, or benevolence…it is merely the honoring of a basic general, negative responsibility not to allow our own pursuits to undercut the pre-conditions for decent societies in the future.
This ban is beyond due. Moving away from these chemicals toward safer alternatives is a win for all, this generation and next.Product safety is not a political issue
During the vote, Commissioner Adler said that he holds strong to the belief that “product safety is not a partisan issue and should never politicized” after a statement from one of the two Republican Commissioners that granting this petition through a vote down party lines would turn the issue into a political football. Commissioner Robinson defended Adler, stating that she was “absolutely flummoxed” and had “absolutely no clue what the science of this petition and these flame retardants has to do with whether you’re a Democrat or Republican nor what it has to do with my term being potentially up.” The granting of a petition rooted in rigorous science is not a political action. However, obstructing this science-based rulemaking process would be.
While the CPSC has voted to begin the process of rulemaking to ban OFRs under the Federal Hazardous Substance Act and to convene a Chronic Hazard Advisory Panel, the Commission will be shifting its composition as Marietta Robinson’s term ends in September. It is possible that this scientific issue could become politicized once President Trump nominates a Republican to join the CPSC and take back the majority. In fact, chairwoman Buerkle even suggested that the ban be overruled once the Republicans take back the majority. President Trump intends to nominatecorporate lawyer, Dana Baiocco, who has defended companies that have faced charges regarding safety and misleading advertising of consumer and industrial products and medical devices.
We urge the Commission to continue the progress begun during yesterday’s vote to educate the public about the risks of OFRs and to create the policy that will ban these chemicals in consumer products for good. Let’s let science, not politics, have the final word. Our children will thank us someday.
http://blog.ucsusa.org/genna-reed/science-triumphs-over-disinformation-in-initial-flame-retardant-victory
-
EPA's Hazardous Waste Reporting System on Track
Sep 25, 2017 | BNA Daily Environment Report
By Sylvia Carignan
States and hazardous waste handlers say they are looking forward to ditching paper tracking documents as the EPA prepares a new electronic tracking system, which it will test-release this winter.
The Environmental Protection Agency also says it expects the system to create more accurate records of hazardous waste shipments, including what the waste is, how much is being shipped, where it came from, and where it's going.
While hazardous waste generators and recipients will not have to pay to use the system yet, the agency says it's on track to release a final version with fees in June 2018. The system had a partial release at the end of June that allows facilities that receive waste to sign manifests electronically. Both receivers and generators can upload manifests to the system.
The test version will allow the public to view waste tracking data and will accommodate paper manifests.
Paper Vs. Electronic
Stephen Cobb, chief of the Government Hazardous Waste branch of the Alabama Department of Environmental Management's land division, told Bloomberg BNA the system is something the state has looked forward to.
Alabama currently uses paper manifests to track hazardous waste.
“The boxes of manifests that come in ... there's no resources to routinely go through all of them,” Cobb said. The department currently checks them on an “as-needed” basis. When the e-manifest system goes live, Cobb said, the department may want to review submitted manifests more often.
Some of Delaware's Department of Natural Resources and Environmental Control staff have already been trained on the new e-manifest system, according to Michael Globetti, a spokesperson for the department.
“It provides more timely access to manifest data, offers more accurate information, and will eliminate what we have long considered extraneous paperwork,” Globetti told Bloomberg BNA.
Thousands of hazardous waste generators are in each state, though many are marked as “very small quantity” or “small quantity” generators. They generally have less than 6,000 kilograms, or about 13,200 pounds, of hazardous waste on site at any given time.
Enterprise Holdings, which operates car rental services through Alamo, Enterprise. and National Car Rental, is looking forward to the electronic system. The company is considered a hazardous waste generator.
“Paper reduction is always a benefit, short- as well as long-term,” Laura Bryant, a spokesperson for the company, told Bloomberg BNA.
Next Steps
EPA's advisory board for the e-manifest system will hold a public meeting Sept. 26 through Sept. 28 in Arlington, Va., to discuss how users will register, activate, and maintain accounts for the system.
The 2012 Hazardous Waste Electronic Manifest Establishment Act, which is part of the Solid Waste Disposal Act, defines the system's voluntary users as hazardous waste generators, transporters, and owners and operators of storage, treatment, recycling or disposal facilities. The electronic manifest act intends for the system to be maintained by user fees.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121124841&vname=dennotallissues&fn=121124841&jd=121124841
-
Greens Urge Court To Rethink Rejection Of HFC Rule
Sep 25, 2017 | E&E News PM
By Amanda Reilly
Environmentalists asked the U.S. Court of Appeals for the District of Columbia Circuit today to reconsider its decision tossing out a U.S. EPA rule requiring companies to replace potent heat-trapping chemicals.
A three-judge panel in August found the Obama EPA exceeded its authority in issuing the rule, which eliminated some uses for hydrofluorocarbons (HFCs) and approved certain replacements. The judges sent the rule back to EPA.
In a petition for rehearing today, the Natural Resources Defense Council argued in part that the panel misread the Clean Air Act as barring EPA from regulating HFCs and "erected improper burdens for climate change regulation."
"If the decision stands, HFCs will continue fueling dangerous climate change and increasing the harms suffered by millions of Americans experiencing extreme weather events and other climate impacts," NRDC said.
The group also argues the decision will block EPA from limiting hazardous substances in the future. NRDC is seeking en banc review in front of the full D.C. Circuit.
Manufacturers of HFC replacements also filed a petition today seeking rehearing. A group of law professors today submitted an amicus brief in support of the requests; NRDC says another supportive brief is coming from California and other states.
The Trump administration has not filed a petition for rehearing but will likely be asked to respond to the hearing requests.
"This is an opportunity for EPA Administrator Scott Pruitt to show support for an important environmental protection measure that's backed by both industry and environmentalists," David Doniger, director of NRDC's climate and clean air program, said in a blog post.
The Obama administration made phasing out HFCs a key part of its climate agenda. While short-lived in the atmosphere, HFCs are thousands of times more potent as greenhouse gases than carbon dioxide.
The EPA rule in 2015 effectively banned 38 individual HFCs or HFC blends in 25 uses in four industrial sectors: aerosols, air conditioning for new cars, retail food refrigeration and foam blowing. It was the first of two phaseout rules EPA issued during the Obama administration.
Backed by two conservative judges, the D.C. Circuit in August issued a split 2-1 opinion sending the rule back to EPA. The court sided with two foreign manufacturers of HFCs that had argued EPA couldn't use its Significant New Alternatives Policy (SNAP) Program, a Clean Air Act program geared toward phasing out ozone-depleting substances, to replace HFCs, which do not deplete the ozone layer of the Earth's stratosphere.
Judge Brett Kavanaugh, a George W. Bush appointee, wrote the opinion. Another Bush appointee, Judge Janice Rogers Brown, joined the opinion but has since retired from the court. Judge Robert Wilkins, an Obama appointee, wrote a forceful dissent (Greenwire, Aug. 8).
In their rehearing petition today, NRDC argued that the majority committed "two serious errors": improperly invalidating requirements of the original SNAP rule issued in 1994 and incorrectly finding that the word "replace" is unambiguously a one-time occurrence in the Clean Air Act.
Kavanaugh found that, in requiring companies to substitute HFCs — which themselves were a replacement for ozone-depleting substances — EPA had stretched the word replace "beyond its ordinary meaning" in a manner that "borders on the absurd."
NRDC said Kavanaugh's interpretation of the word "is hardly the only possible one."
"The majority's construction has illogical consequences," the green group said.
The D.C. Circuit rarely grants petitions for rehearing en banc. But the retirement of Brown, who was one of the court's staunchest conservative voices, could increase the chances that the court will rehear the case.
https://www.eenews.net/eenewspm/2017/09/22/stories/1060061483
-
Backers Ask D.C. Circuit To Reverse Panel's Rejection Of EPA's HFC Rule
Sep 22, 2017 | Inside EPA
By Lee Logan
Environmentalists and two chemical manufacturers are urging the U.S. Court of Appeals for the District of Columbia Circuit to reverse a split panel ruling vacating EPA's rule to reduce refrigerants that act as potent greenhouse gases, arguing that the agency's interpretation of a key Clean Air Act provision is entitled to deference.
Supporters of the rule also raise an interesting argument concerning the court's jurisdiction, given that the ruling scrapped part of a 23-year-old regulation, even though the air law generally limits parties to challenging air rules within 60 days of being issued.
The case focuses on air law section 612, which gives the agency authority to require companies to “replace” chemicals that deplete the ozone with safer chemicals. Under the program, EPA publishes a list of unacceptable chemicals that must be phased out, as well as another list for acceptable chemicals that can be used in their place.
In the 2015 rule at issue in Mexichem Fluor v. EPA, et al., EPA changed the status of hydroflurocarbons (HFCs) -- substances that do not deplete the ozone but are potent GHGs -- from acceptable to unacceptable.
While the Aug. 8 panel ruling upheld EPA's decision to include HFCs on the unacceptable list, it vacated the rule to the extent that it requires manufacturers already using HFCs to replace them with substitutes with a lower global warming potential (GWP).
The panel majority, led by Judge Brett Kavanaugh and joined by then-Judge Janice Rogers Brown, found that the term “replace” in section 612 is unambiguously a “one-time occurrence."
It added that “EPA's authority ends when product manufacturers adopt substitutes that do not deplete ozone -- no matter what other health or environmental dangers they may pose -- because then 'there is no ozone-depleting substance to replace,'” according to a Sept. 22 petition for rehearing en banc by the Natural Resources Defense Council (NRDC).
However, NRDC says that the panel dissent, authored by Judge Robert Wilkins, emphasized that deciding the case in such a manner requires “clear and unambiguous congressional intent” and that statutory language requiring companies to “replace” substances “is susceptible to multiple interpretations in this context.”
In addition to NRDC, chemical companies Honeywell and Chemours also filed for en banc review.
A group of administrative law professors and a California-led state coalition filed amicus briefs in support of overturning the panel ruling.
EPA did not file an en banc petition. However, NRDC's David Doniger writes in a Sept. 22 blog post that the D.C. Circuit is likely to seek the views of both the agency and plaintiff chemical companies that oppose the rule.
“This is an opportunity for EPA Administrator Scott Pruitt to show support for an important environmental protection measure that’s backed by both industry and environmentalists,” he writes, noting that the agency “deserves credit” for defending the regulation during the previous court proceeding.
1994 Regulation
Environmentalists also fault the panel ruling because it “improperly invalidated” parts of a 1994 regulation that prohibits manufacturers from using “unacceptable” chemicals after a date certain. The Clean Air Act requires parties to file challenges to rules within 60 days, and “rules may not be attacked subsequently,” NRDC says, meaning that the court lacked jurisdiction to scrap the 1994 provision.
The petition says “EPA properly raised the jurisdictional issue” in the litigation, but “the panel did not address it.”
NRDC adds that the 1994 regulation “explicitly provided that the acceptable and prohibited lists may be changed based on new data on risks and the availability of safer alternatives.” It adds that the panel majority “did not address the fact that the restriction on using prohibited substitutes is found not in the 2015 rule, but in the 1994 rule.”
The petition from Honeywell and Chemours, two companies that have long invested in lower-GWP refrigerants, also claims that the court incorrectly acted outside of its jurisdiction in scrapping the 1994 provision that directly said EPA might re-classify chemicals previously deemed acceptable.
“As a result, the decision renders years of massive investment by companies that developed safer chemicals all but worthless,” the filing says.
It adds that a prior lawsuit over the 1994 rule “challenged this very issue,” but the suit was dropped after settlement negotiations. “As such, this does not constitute a 'newly ripened' claim, and there is nothing unfair about precluding petitioners from challenging the 1994 rule now,” the companies say.
They add that the ruling “severely undermines EPA's efforts to combat climate change, which remains one of the global community's most imperative problems,” particularly given that HFCs are potent GHGs.
“Based on a strained, counterintuitive, and non-contextual reading of a single word in the statute, the panel’s decision deprives EPA of a principal mechanism provided by Congress for addressing a major contributor to climate change. The consequences will be irreversible,” the chemical companies say.
'Illogical' Outcomes
NRDC also cites a host of possible “illogical” outcomes from the panel ruling, including that it upheld EPA's decision to list HFCs as a prohibited chemical before it “made the listing meaningless by barring EPA from requiring HFC-using product manufacturers to adopt safer alternatives. The majority never explained why Congress would establish such an illogical structure.”
Additionally, the group says that the majority's interpretation “defeats the Section 612(d) right to petition to update the safe and prohibited lists,” because such a process would be gutted if EPA can replace an ozone-depleting substance only once.
Also, NRDC says the interpretation would have scrapped a 1999 regulation that blocked the use of a certain substitute chemical that was later shown to lead to kidney damage. “Under the panel opinion, EPA could not have used Section 612 to protect affected factory workers because [that chemical] does not deplete ozone. There is no evidence Congress intended that dangerous result.”
In addition to seeking rehearing by the full court, both NRDC and the chemical firms ask the panel to reconsider its decision. However, that step in this case could be complicated because one of the members of the panel majority, Brown, retired Aug. 31 and opted not to take senior status.
One attorney tracking the case says it is not clear if the D.C. Circuit would assign another judge to take Brown's place on the panel. However, this source notes that if Kavanaugh and Wilkins “came to agreement, say on the jurisdictional question that the panel did not address, then they could issue a changed panel decision.”
Otherwise, the source says, if those two judges remained deadlocked and the court did not fill Brown's spot, “any change would have to come from the full court.”
https://insideepa.com/daily-news/backers-ask-dc-circuit-reverse-panels-rejection-epas-hfc-rule
-
Twice-Rejected LNG Exporter Gives Project Another Shot
Sep 25, 2017 | BNA Daily Environment Report
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 Sept. 21 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.
Veresen 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.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121124848&vname=dennotallissues&fn=121124848&jd=121124848
-
EPA Seeks To Clarify Use Of CO Threshold In Boiler MACT
Sep 22, 2017 | Inside EPA
EPA is seeking to clarify its use of a specific carbon monxide (CO) threshold as a proxy for regulating air toxics from boilers in its maximum achievable control technology (MACT) emissions rule for the units, after federal appeals court judges at recent oral argument questioned the agency's use of the threshold in the regulation.
The U.S. Court of Appeals for the District of Columbia Circuit heard oral argument Sept. 15 in Sierra Club v. EPA, the last active lawsuit over the MACT which EPA finalized in 2011 and modified several times since. The case tests two remaining facets of the rule not already adjudicated in earlier litigation: EPA's use of the CO threshold to determine that air toxics emissions are within safe limits, and the agency's allowance of compliance with “work practice standards” instead of numeric emissions limits during periods of boiler startup and shutdown.
Judges at argument asked for clarification of how EPA arrived at its conclusion that once CO emissions have been reduced to 130 parts per million (ppm), no further reductions of hazardous air pollutants (HAPs) are observed. While CO is not itself a HAP regulated under the MACT, EPA uses it as a “surrogate” for limits on individual HAPs.
However, Judge Nina Pillard called EPA's decision on the CO threshold “a black box,” and Judge Sri Srinivasan also sought further clarification of the threshold.
In a Sept. 21 letter to the court, Department of Justice attorney Norman Rave, representing EPA, clarified that in its rule, “EPA explained that because CO is 'a difficult to destroy refractory compound' it is a conservative surrogate for organic HAPs, that at that CO threshold HAP emissions are extremely low, and that lowering the floor below 100 ppm at 7 percent oxygen (which is equivalent to 130 ppm at 3 percent oxygen) 'will not provide reductions in organic HAP emissions.'”
Rave says EPA granted reconsideration of the issue because it had not taken comment on the CO threshold. But after taking comment, “EPA determined that the data submitted in comments was consistent with the Agency’s prior determination that there was no further reduction in organic HAP emissions below the threshold CO level.”
https://insideepa.com/daily-feed/epa-seeks-clarify-use-co-threshold-boiler-mact
-
California Sets Demands for Talking Emissions Targets with Trump
Sep 25, 2017 | BNA Daily Environment Report
By John Lippert and Ryan Beene
California could be willing to re-open discussions on its greenhouse gas limits for cars and trucks for 2025—so long as automakers and the Trump administration embrace the significantly tougher targets it's contemplating for later years.
Automakers have “a whole laundry list of things they've asked for” to ease the state's standards leading up to 2025, and California is willing to at least discuss reviving talks, Mary Nichols, chair of the California Air Resources Board, said in a Sept. 22 interview at Bloomberg headquarters in New York. Michael Catanzaro, a Trump special assistant, called her recently to get conversations with the administration started, she said.
“The price of getting us to the table is talking about post-2025,” she said. “California remains convinced that there was no need to initiate this new review of the review and that the technical work was fully adequate to justify going ahead with the existing program, but we're willing to talk about specific areas if there were legitimate concerns the companies raised—in the context of a bigger discussion about where we're going post-2025.”
Talk of a possible three-way negotiation between California, carmakers and the federal government comes after President Trump's administration reinstated in March a review of national greenhouse-gas rules that run through 2025, which he said “would have destroyed” the auto industry. California could choose to keep its rules unchanged even if the federal targets are loosened. But doing so would create headaches for carmakers dealing with a patchwork of legislation, and it would risk raising the ire of Trump and the industry as California tries to push through tougher targets for 2030.
Federal Backpedaling
So far, Trump hasn't launched what could be his most potent weapon—a court challenge to California's special authority to write its own pollution rules, which dates back to the 1970 Clean Air Act. A compromise today could help prevent a court showdown later.
“If there's a way they can keep us all united without having to roll over California, they'd like that,” Nichols said of her impressions of the White House's position.
The federal government in 2011 originally agreed to greenhouse gas targets that mirror California's, boosting fuel economy to an average of more than 50 miles per gallon by 2025. When Trump overturned an Obama EPA decision to uphold the standards on the books earlier this year, automakers praised Trump's move.
But carmakers don't want changes at the federal level to create a rift with California and the handful of states who've adopted the same targets, fearing costly discrepancies if emissions standards diverge. Pressure for a compromise is also building because, even in California, zero-emission vehicle sales have been stuck at about three percent since 2014.
“I really feel like if the industry folks are as ready as I think they are to talk about future standards, it shouldn't be all that hard,” Nichols said. “But there are differences in the kind of relief they want.”
Nichols said that while the state is willing to at least discuss compromise in the short term, California has no intention of retreating from its legislative mandate to cut carbon dioxide emissions to 40 percent below 1990 levels by 2030. California Governor Jerry Brown and the state's Air Resources Board have vowed to remain a bulwark against the president's push for environmental deregulation, and Nichols said long-term goals haven't changed.
Automakers can't abandon the cleaner-car goals entirely either, since major car markets China and the European Union are now contemplating their own zero-emission vehicle mandates modeled after California's. China said this month it will set a deadline for automakers to end sales of fossil-fuel-powered vehicles, becoming the biggest market to do so and driving global demand for battery-operated autos.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121124845&vname=dennotallissues&fn=121124845&jd=121124845
-
California, Quebec, Ontario Ink Deal to Join Carbon Markets
Sep 25, 2017 | BNA Daily Environment Report
By Carolyn Whetzel
California, Quebec, and Ontario cemented plans Sept. 22 to launch North America's largest carbon allowance market next year.
The agreement officially links three individual cap-and-trade programs, creating “an expanded and dynamic carbon market, which will drive down greenhouse gas emissions,” California Gov. Jerry Brown (D) said in a written statement.
Ontario's integration with the existing California-Quebec market has been planned for some time. The agreement establishes the framework and terms for the new, larger market and outlines a process for other states and provincial governments to join the market.
“The linkage expands the allowance market significantly,” California Air Resources Board spokesman Stanley Young told Bloomberg BNA in an email. “Ontario's market is roughly 40 percent to 50 percent the size of California's carbon market. Quebec's is 15 percent of California's.”Greater Reductions
Ontario Premier Kathleen Wynne, Quebec Premier Philippe Couillard, and Brown signed the agreement at a meeting in Quebec City.
“The expanded market coverage starts to represent a meaningful fraction of overall North American carbon emissions,” Chris Busch, an analyst at Energy Innovation, a San Francisco-based energy and environment policy research company, told Bloomberg BNA in an email. “This is very important and part of a rising tide of climate change commitments in North America to counter the backsliding happening in Washington D.C.”
In a statement, Wynne said: “We are stronger together and by linking our three carbon markets we will achieve even great reductions at the lowest cost.”
Large Sources Targeted
The California Air Resources Board oversees the state's multi-sector greenhouse gas emissions cap-and-trade program requiring oil refineries, power plants, natural gas and transportation fuel distributors, and other large sources of emissions to meet declining annual emissions caps. Covered entities comply by either reducing emissions to meet the caps or purchasing allowances, or permits. Quebec linked its cap-and-trade program with California's in 2014.
Both the Quebec and Ontario programs are modeled after California's. All three conform to the template the Western Climate Initiative developed to harmonize individual programs and create a regional trading system.
Each program caps emissions of large industrial sources, power and fuel suppliers and applies to the same seven greenhouse gases: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, and nitrogen trifluoride.
Linking the programs allows the exchange of carbon allowances and offset credits among participants of all three trading programs, making it easier to find trading partners and lowering overall cost of compliance, saod Erica Morehouse, an attorney at the Environmental Defense Fund, in a written statement.
A status report indicating “all systems are go” for the Jan. 1 launch will be delivered to Brown's office Nov. 1, CARB's Young said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121124840&vname=dennotallissues&fn=121124840&jd=121124840
-
Trump Climate Confusion Is the New Brexit, Top UN Official Says
Sep 25, 2017 | BNA Daily Environment Report
By Jessica Shankleman and Brian Eckhouse
When U.K. Prime Minister Theresa May criticized President Donald Trump for taking the U.S. out of the landmark Paris climate change deal this week, she might as well have been talking about another kind of exit closer to home.
The similarities and between Brexit and Trump leaving the Paris Agreement are stark, says Rachel Kyte, a special representative of the United Nations secretary-general for the Sustainable Energy for All program, of which she is chief executive officer.
Both involve inconsistencies, questions over whether it will ever actually happen and prominent dissenters trying to resist leaving or find a back door to nullify the effects of leaving.
“The U.K.: we're leaving, details to be worked out,” Kyte said in an interview in New York Sept. 21. “Trump: we're leaving, details to be worked out. The U.K. is in the club, but not in the club. The U.S. is in the club, but not in the club.”
The U.S. remains in the Paris deal for now because it can't legally exit until 2020. Entrance to the club was voluntary, as were the pollution targets it wrote and accepted in 2015. Similarly, the U.K. can't formally quit the European Union for two years after it officially gave notice to leave.
In her veiled rebuke to Trump at the U.N. General Assembly this week, May said the climate change agreement is a sign of “the fundamental values that we share, values of fairness, justice and human rights, that have created the common cause between nations to act together.”
Those opposed to Brexit could perhaps use the same description for the EU to make their case.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121124844&vname=dennotallissues&fn=121124844&jd=121124844
-
Inspector General Details Upcoming Reviews Of EPA Air Quality Programs
Sep 25, 2017 | Inside EPA
By Stuart Parker
A top EPA Office of Inspector (OIG) official says the office is working on several reviews of major agency air quality programs, including previously announced research into the accuracy of EPA's methods for estimating methane emissions from the oil and gas sector, and a long-pending review of ambient air monitoring data.
In a Sept. 21 presentation to the Association of Air Pollution Control Agencies' fall meeting in Raleigh, NC, the OIG's Air Evaluations Director James Hatfield detailed the pending air program reviews.
For example, he said OIG is conducting preliminary research on whether EPA's oversight of state vehicle inspection and maintenance programs -- used to ensure vehicles' emissions are controlled in line with Clean Air Act mandates -- is adequate to ensure such programs are “effective and efficient in reducing emissions.”
In a separate review, the OIG is researching the effectiveness of EPA's process for reviewing and approving state air quality dispersion models recommended for use by state and local air agencies.
Hartfield said the OIG is already in the drafting phase of a report on EPA “ambient monitoring data changes and gaps,” after previously in 2013 launching research into whether air monitoring networks were achieving their objectives.
The OIG is also researching “how EPA estimates methane emissions from oil and gas production,” a project that it initially announced in June.
The OIG is specifically looking at “the extent to which EPA has used the results of 2013 and 2014 emission studies conducted jointly” by the Environmental Defense Fund (EDF) and the University of Texas at Austin to estimate emissions. The OIG wants to know “whether concerns about technical or other problems with the EDF/UT-Austin studies were identified or brought to EPA's attention, and how EPA addressed and resolved any such concerns.”
The OIG's investigation appears to stem from oil and gas industry concern about possibly overstated emissions from the sector, but Hatfield in his presentation did not elaborate. The estimated emissions support federal air regulations for the sector widely contested by industry and GOP lawmakers.
Meanwhile, the OIG's annual plan for fiscal year 2017 lists another area of inquiry, to assess “the impact of the EPA’s revised high-priority violation policy on the agency's enforcement decisions regarding violations of standards limiting air pollutant emissions from malfunctions, maintenance, startup and shutdown."
EPA in 2014 revised the policy for these violations that normally would attract enhanced monitoring and enforcement actions, reducing the number of categories of violation from 10 to six and allowing for some high priority violations not to trigger “additional tracking and attention at a national level,” according to an Aug. 25, 2014 policy memo from air enforcement chief Phillip Brooks to EPA regional offices and states.
The Trump administration is reconsidering the agency's policy toward startup, shutdown and malfunction emissions, which currently bans regulatory exemptions during these periods, allowing only case-by-case enforcement discretion after appellate rulings that said the earlier waivers were unlawful.
https://insideepa.com/daily-news/inspector-general-details-upcoming-reviews-epa-air-quality-programs
-
EPA Sends Ozone 'Thresholds' To OMB, NAAQS Designations Face Delay
Sep 25, 2017 | Inside EPA
By Stuart Parker
EPA has sent for White House review a proposal for the air quality thresholds used to define the severity of areas out of attainment with the 2015 ozone standard, but the agency is yet to issue any designations for nonattainment areas and appears likely to miss a looming Oct. 1 Clean Air Act deadline for finalizing those findings.
The agency on Sept. 21 sent for White House Office of Management & Budget (OMB) pre-publication review its proposed thresholds rule, and OMB's website does not project any date for publication of the rule in Federal Register-- although it says the final version of the rule is due for release by October 2018. Mandatory OMB review typically takes 90 days but it can take much more or less time depending on the regulation.
The rule is part of EPA's implementation of the 2015 ozone national ambient air quality standard (NAAQS) of 70 parts per billion (ppb), and is separate from another pending rule that will designate areas as either attaining or in nonattainment with the standard -- which the air law requires by Oct. 1.
However, EPA has said it is likely to miss that deadline for some areas after it withdrew plan to delay all designations by one year until Oct. 1, 2018. The fact that the agency has only just sent the thresholds rule to OMB and is yet to submit the designations suggests it will miss this year's deadline. States have warned this will create significant uncertainty in crafting their plans for meeting the NAAQS.
The pending rule under review “will establish the air quality thresholds that define the classifications assigned to all nonattainment areas for the 2015 ozone national ambient air quality standards."
Areas that are classified in nonattainment are ranked from “marginal” nonattainment to “extreme,” and the more severe the classification the stricter the mandates for reducing ozone.
Air Thresholds
The rule appears to be a revised version of an Obama EPA proposal from Nov. 17 that proposed thresholds for 2015 NAAQS nonattainment areas, and included an implementation schedule for submission of various required elements in states' compliance plans, as well as attainment deadlines.
EPA in that proposal detailed options for states and EPA to identify areas of the country out of attainment with the new standard, and to craft ozone-reduction state implementation plans (SIPs). These included deadlines for state and EPA action, measures to be contained in SIPs, two options to revoke its 2008 ozone NAAQS, and “anti-backsliding” measures to prevent any relaxation of pollution controls that could result in worsening air quality.
The proposal drew heavily on the prior implementation rule EPA issued with respect to its 2008 NAAQS of 75 ppb. That implementation rule faces a pending legal challenge in the U.S. Court of Appeals for the District of Columbia Circuit, which heard oral argument Sept. 14.
Environmentalists and some Eastern states in their comments on the November proposed rule questioned whether EPA's proposal will adequately help reduce ozone levels, with several environmental groups attacking the plan to revoke the 2008 NAAQS. Meanwhile, Western states and industry groups in their comments criticized EPA's policy preference to limit NAAQS compliance exemptions for air pollution stemming from foreign countries, by reserving the exemptions for areas along the U.S. border. This restriction would wrongly punish areas away from the border for international emissions transported far into the United States, they said.
It is unclear how the pending proposal under OMB review responds to the criticisms raised over the Obama-era rule, or when EPA plans to publish the rule in the Register.
Designations Delay
But the agency appears certain to miss the Clean Air Act's Oct. 1 deadline for issuing attainment designations, which would trigger an air law clock for states to craft their compliance SIPs.
Speaking at the fall meeting of the Association of Air Pollution Control Agencies in Raleigh, NC, Sept. 21, EPA air official Anna Marie Wood in a presentation said only that the timing of a final rule for implementation of the 2015 NAAQS is “to be determined."
It is unclear how SIP and NAAQS compliance deadlines in a reworked implementation rule for ozone might be affected by a likely delay in area designations.
EPA Administrator Scott Pruitt in June announced a one-year delay in designations for all areas, citing inadequate information to issue designations. Under intense criticism from Eastern states and faced with litigation from environmentalists, Pruitt then changed course and withdrew that decision.
However, EPA will be unable to issue final designations for areas where it disagrees with state recommendations for area designations, or where states disagree with each other over areas that straddle state lines. One such area will likely be the New York City metropolitan area nonattainment zone, where several states are at odds over the proper extent of the nonattainment area, sources say.
For such areas, EPA must by law inform states 120 days before it issues a final designation, and the window to do so before Oct. 1 has already passed. In other, non-controversial areas, EPA could attempt to designate by direct final rule, bypassing the need for public notice-and-comment, but even for those areas time is running short.
Meanwhile, environmentalists have already indicated their willingness to sue the agency to compel issuance of area designations as soon as possible.
https://insideepa.com/daily-news/epa-sends-ozone-thresholds-omb-naaqs-designations-face-delay
-
Trump Races Conservative Pressure On Paris Withdrawal
Sep 22, 2017 | Inside EPA
The Energy & Environmental Legal Institute (E&E Legal), a free-market group opposed to climate policy, is urging President Donald Trump to remain firm in his plan to withdraw from the United Nations Paris Agreement on climate change, after news reports hinted that he might remain in the pact after negotiating a better deal for the United States.
The group Sept. 21 released an updated version of its “energy poverty” video that claims tens of thousands of poor and elderly are dying in Europe or forfeiting heat in the winter because of climate policies, and warns that “those numbers will be higher in the U.S. if the president changes his mind on withdrawing from the Paris treaty.” The group adds that lawyers are already asking courts to enforce the agreement against the United States.
“Ask yourself, what is the right number of the most vulnerable to kill, for no impact on the climate? . . . There are no acceptable terms for a treaty that promises policies that kill the most vulnerable.”
E&E Legal says in a statement that it updated the video in response to concerns that Trump may be wavering on his plan to withdraw from Paris, after some administration officials suggested a possible shift.
For example, Secretary of State Rex Tillerson told CBS's “Fact the Nation” Sept. 17 that Trump is willing to work with other nations under the agreement to construct terms that are fair and balanced for Americans. And National Security Adviser H.R. McMaster struck a similar tone when he told ABC's “This Week” that the president “left the door open to re-entering at some later time if there can be a better deal for the United States.”
Those comments followed a Wall Street Journal report that the administration was seeking to find a way to remain in Paris, though the White House quickly refuted that and said Trump's position had not changed.
At this week's U.N. meeting, Trump faced some criticism for his plan to withdraw that he did not publicly address.
E&E Legal says some administration officials are continuing to persuade the president to reverse course before he formally withdraws -- a step that can only be initiated in late 2019 and cannot formally take effect until November 2020 -- and the group is seeking to support a firm resolve.
“The president, along with EPA Administrator Scott Pruitt and White House Counsel's Office, have taken a lifesaving position in ensuring global elitists both here and abroad don't shipwreck the U.S. economy through climate policies that have already devastated Europe, and we commend him and urge him to stay strong and realize what is truly at stake,” said E&E Legal president Craig Richardson.
The statement accuses environmentalists of having an “anti-energy agenda” and says that “turns morality on its head, and the public needs to know what, it seems, many advisers are apparently unwilling to let on. The evidence is clear and continued ignorance of the truth should no longer be tolerated.”
The video comes as the White House is seeking to revise its overall climate message and appears to be concerned that it appears out of touch with climate science. Also, EPA continues to remove climate references from its website, this time from the SmartWay voluntary truck program.
Additionally, E&E News reports that Pruitt has reached out to climate skeptics at the Heartland Institute to develop his planned “red team, blue team” debate on climate science.
The agency's recent steps appear unlikely to help with any White House plans to shift its messaging.
https://insideepa.com/daily-feed/trump-faces-conservative-pressure-paris-withdrawal
Congressional Hearings
Industry and Association News
LCSA News
Chemical Management News
Energy News - There are no clips to report at this time.
Chemical Security News - There are no clips to report at this time.
Transportation and Infrastructure News - There are no clips to report at this time.
Environment News
Add recipients
Suggested