Preview Newsletter
ACC AM 27/09/17
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(ACC Mentioned) Lobbying World
Sep 27, 2017 | The Hill
... Law firm Bracewell hired away Anna Burhop from the American Chemistry Council (ACC) to serve as a principal in its Washington office. -
(ACC Mentioned) Who Not to Pick for the EPA’s Science Advisory Board
Sep 27, 2017 | Union of Concerned Scientists
By Genna Reed
In its effort to fill fifteen positions on the Science Advisory Board, the EPA has posted a list of 132 nominees to be a part of the esteemed EPA Science Advisory Board (SAB). The SAB is a group of over forty scientists, experts in a range of disciplines, who provide peer review and expert advice on EPA issue areas. -
How Trump’s Chemical Safety Nominee Greenwashed Toxic Pesticides for Monsanto, Dow
Sep 26, 2017 | Environmental Working Group
By Sonya Lunder
Before he became President Trump’s nominee to oversee the safety of pesticides sprayed on our food, Michael Dourson sought to weaken pesticide safety standards for Monsanto and Dow. -
EPA Seeks To Dismiss Fluoride Suit, Defending Stance On TSCA 'Uses' Issue
Sep 27, 2017 | Inside EPA
By Maria Hegstad
EPA is urging a federal court to dismiss environmentalists' suit challenging its rejection of their petition seeking to ban the practice of fluoridating water under the Toxic Substances Control Act (TSCA), with the agency defending its views on the key issue of which chemical uses must be considered in TSCA assessments and possible future regulation. -
(ACC Mentioned) US Aug Specialty Chems Growth Slows Due To Harvey - ACC
Sep 27, 2017 | ICIS
By David Haydon
The American Chemistry Council’s (ACC) specialty chemicals market volume index increased only 0.1% in August from July, reflecting the effects of Hurricane Harvey, the trade group said on Tuesday. -
US Phthalates Ban Will Add Costs, Says Toy Association
Sep 27, 2017 | Chemical Watch
By Tammy Lovell
The Toy Association in the US says that a rule to ban the use of five phthalates in children's products will necessitate testing which "adds cost for the consumer with no safety benefit". -
EPA Extends Compliance Deadlines for Formaldehyde Emission Standards in Composite Wood Products
Sep 26, 2017 | The National Law Review
By Michael J. Sullivan and Christa E. Burger
EPA published a final rule in the federal register extending the compliance deadlines in its Formaldehyde Emission Standards for Composite Wood Products as follows: -
(ACC Mentioned) Petrochemicals: Leveraging Saudi Arabia’s Sweet Spot
Sep 27, 2017 | Forbes Middle East
By Hetain Mistry
The expansion will add 2.6 million mt/year of capacity to the existing 2.4 million mt/year of chemicals currently produced by PetroRabigh, a joint venture of state-oil giant Saudi Aramco and Japan’s Sumitomo. -
Energy Companies Wary of Proposed Tax Changes
Sep 27, 2017 | BNA Daily Environment Report
By Nushin Huq
For some energy companies, a lower federal corporate tax rate, depending on how low the rate is, may not offset losses due to changes in deductibility of expenses. -
Frack My Land or Lose the Rights, Ohio Woman Tells Driller
Sep 27, 2017 | BNA Daily Environment Report
By Alex Ebert
A company that is drilling for oil could be forced to extract natural gas, as well, on an Ohio property or lose those rights as part of a lawsuit that tests the requirements of a 37-year-old contract signed before fracking became commonplace. -
Cabot Oil & Gas Settles Fracking Lawsuit With Pennsylvania Families
Sep 27, 2017 | Reuters
By David DeKok
Cabot Oil & Gas Co. [COG.N] has settled a lawsuit filed by two families in Dimock, Pennsylvania, who alleged their homes’ drinking water became contaminated with methane not long after the company began drilling for natural gas in 2007. -
BP Wins Dismissal of Worker's Deepwater Horizon Claim
Sep 27, 2017 | BNA Daily Environment Report
By Peter Hayes
BP won dismissal of personal injury claims brought by a deck hand who alleges he was exposed to toxic substances while delivering cargo to boats assisting in the cleanup of the Deepwater Horizon spill (Townsend v. BP Exploration & Prod., Inc., 2017 BL 338531, N.D. Ala., No. 16-CV-301, 9/25/17). -
Cybersecurity Gaps Leave Data Vulnerable — IG
Sep 27, 2017 | E&E News PM
By Sam Mintz
The Department of Energy, which has a key role in protecting the country's energy infrastructure from cyberattacks, has some work to do when it comes to its own fight against hackers. -
EPA Nominee’s Case Against OSHA Rule draws Skepticism From Judges
Sep 26, 2017 | PoliticoPro - Whiteboard
By Alex Guillen
Federal judges seemed skeptical today of arguments made by William Wehrum, President Donald Trump’s pick to head EPA’s air office, against the Occupational Safety and Health Administration’s silica rule. -
Harris County To Sue Arkema Over Crosby Explosions
Sep 27, 2017 | Chron
By Matt Dempsey
Harris County Commissioners Court on Tuesday authorized the county attorney to file a lawsuit against Arkema over its struggles to manage stores of hazardous chemicals during Hurricane Harvey. -
Pallone Urges IG To Probe Pruitt's Push On Paris
Sep 26, 2017 | E&E News PM
By Kevin Bogardus
A senior House Democrat asked U.S. EPA's internal watchdog to investigate Administrator Scott Pruitt's advocacy to leave the Paris climate change accord. -
D.C. Circuit Queries State's Standing For Philadelphia Ozone NAAQS Suit
Sep 27, 2017 | Insdie EPA
By Stuart Parker
The U.S. Court of Appeals for the District of Columbia Circuit is querying Delaware over whether it has legal standing for its suit challenging EPA's decision to give Philadelphia an extra year to attain federal ozone standards, suggesting a high bar for the First State to overcome procedural hurdles for the case ahead of Oct. 5 oral argument.
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Environment News
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(ACC Mentioned) Lobbying World
Sep 27, 2017 | The Hill
• The Corn Refiners Association hired Allison Cooke to serve as its director of food policy. She comes from the public affairs and consulting firm Kellen, where she worked with organizations including the Calorie Control Council, the International Food Additives Council and the Infant Nutrition Council of America. At the refiners, she will be helping to develop its international, federal and state advocacy efforts.
• Crowell & Moring hired Alexis Gilman to be a partner in the firm’s antitrust group. He’s fresh off seven years at the Federal Trade Commission (FTC), where he most recently served as the assistant director of the Bureau of Competition, the area of the FTC that handles mergers and deals with antitrust law. He worked on many high-profile mergers and acquisitions, including Sysco and U.S. Foods, DraftKings and FanDuel, and the merger of Albertsons and Safeway.
• Doug Emhoff, husband of Sen. Kamala Harris (D-Calif.), has left Venable, where he helped build out the law firm’s presence on the West Coast, for DLA Piper. He will serve as a partner in its intellectual property and technology practice as well as its media, sport, and entertainment sector. He will work out of DLA Piper’s Los Angeles and Washington, D.C., offices.
• Mike McDonald has left the Treasury Department to rejoin Ernst & Young to work in its national tax and international tax services departments. McDonald most recently served in the Treasury Department’s Office of Tax Analysis. He also represented the United States at the Organization for Economic Cooperation and Development’s Committee on Fiscal Affairs and was a member on a United Nations subcommittee that dealt with international transfer pricing issues.
• Casey Clark is leaving the public affairs firm FTI Consulting, where he had been for a decade. Clark has landed at the American Gaming Association and will work as the trade group’s vice president of strategic communications.
• Law firm Bracewell hired away Anna Burhop from the American Chemistry Council (ACC) to serve as a principal in its Washington office. Prior to that, she served as the director of regulatory and technical affairs at ACC and as a professional Republican staff member on the Senate Environmental and Public Works Committee.
http://thehill.com/business-a-lobbying/lobbying-contracts/352583-lobbying-world
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(ACC Mentioned) Who Not to Pick for the EPA’s Science Advisory Board
Sep 27, 2017 | Union of Concerned Scientists
By Genna Reed
In its effort to fill fifteen positions on the Science Advisory Board, the EPA has posted a list of 132 nominees to be a part of the esteemed EPA Science Advisory Board (SAB). The SAB is a group of over forty scientists, experts in a range of disciplines, who provide peer review and expert advice on EPA issue areas.
While many of the nominees are highly qualified and distinguished in their fields, there are a handful of individuals that are extremely concerning due to their direct financial conflicts, their lack of experience and/or their historical opposition to the work of the EPA in advancing its mission to protect public health and the environment..
Many of these concerning individuals were nominated by Heartland Institute—an organization that has actively worked to sow doubt about climate change science—and have the seal of approval by Trump EPA transition team member and Heartland staffer, Steve Milloy. When interviewed about some of the names on the nominee list, Milloy said that he is glad that EPA administrator Scott Pruitt is in office since he’ll be brave enough to reconstitute the SAB. A “thumbs up” from Milloy is an immediate red flag for me.
My colleague, Andrew Rosenberg, categorized questionable political appointees in three distinct buckets: the conflicted, the opposed, and the unqualified. The same can be said of nominees for the SAB. You don’t have to dig too deep to find individuals who may appear to be qualified on paper, but have a track record of undermining the work of the EPA and advancing policies that benefit special interests over the general public. Appointing these individuals to the SAB would be in direct opposition to the critical work of the SAB itself and to the EPA’s mission.
Take Dr. Michael Honeycutt, lead toxicologist at the Texas Commission on Environmental Quality, for example. Industry representatives, including at the American Chemistry Council, ExxonMobil, and the Texas Oil and Gas Association launched a campaign to get Honeycutt appointed to the CASAC in 2016, which fortunately was unsuccessful. Now Honeycutt’s name is on the list for the SAB.
He co-authored an article in 2015 that argued that available science did not support the EPA’s assertion that tighter ozone standards would provide significant public health benefits. In criticizing the scientific studies used by the EPA, Honeycutt has cherrypicked studies to exaggerate uncertainty on risks of ozone pollution, including making hay of the argument that ozone pollution isn’t a huge issue because “most people spend more than 90 percent of their time indoors,” which has been picked up and spouted off by climate deniers, like Michael Fumento.
Honeycutt has also served on the steering committee of the Alliance for Risk Assessment (ARA), along with President Trump’s nominee to head the Office of Chemical Safety and Pollution Prevention, Michael Dourson. The ARA was created by the TERA, an organization founded by Dourson that does research for industry and maintains a database of risk assessments.
According to its website, about a third of TERA’s funding comes from the private sector, including the American Chemistry Council and Coca-Cola. Rena Steinzor, professor at the University of Maryland School of Law has accused TERA of “whitewashing the work of industry.” The TCEQ has awarded TERA at least $700,000 in contracts between 2010 and 2014. As a steering committee member, Honeycutt oversaw ARA scientific reviews of TCEQ work. While Honeycutt claims that he recused himself from those projects, the quagmire of ties between TCEQ, ARA, and TERA are hard to dispute, especially when you consider that during those same years, the TCEQ loosened two-thirds of the already-weak protections for the 45 chemicals it chose to reassess between 2007 and 2014. In 2013, The TCEQ paid $1.6 million to another industry-friendly consulting firm, Gradient, to review EPA’s science on ozone.
Honeycutt has spent his career at TCEQ politicizing the EPA and actively working to obstruct science used to inform important standards at the agency, so it seems out of character for him to want so badly to be a member of an EPA science advisory committee. Unless, of course, he is interested in the platform or the ability to provide formal advice to his personal friend, Michael Dourson.
What does Honeycutt have in common with fellow nominee, Dr. John Graham? Under Graham’s leadership in January 2006, The White House Office of Management and Budget (OMB) released a proposed Risk Assessment Bulletin which would have covered any scientific or technical document assessing human health or environmental risks.
OMB asked the National Academy of Sciences’ National Research Council (NRC) to conduct an independent review of the document. Its study gave the OMB a failing grade, calling the guidance a “fundamentally flawed” document which, if implemented, would have a high potential for negative impacts on the practice of risk assessment in the federal government. Among the reasons for their conclusions was that the bulletin oversimplified the degree of uncertainty that agencies must factor into all of their evaluations of risk. This idea for standardized risk assessment is of interest to regulatory reform advocates like Graham and has made its way into the dangerous Regulatory Accountability Act in Congress and into the new toxic substances rules under the Frank Lautenberg Chemical Safety for the 21st Century Act that Graham’s protégé and former ACC staffer, Nancy Beck, is now crafting from her position as Deputy Assistant Administrator of the EPA.
Before his stint at OMB, Graham led the Harvard Center for Risk Analysis, which notably skewed risk analyses in favor of industry: costs saved by not regulating versus lives saved regulating. In one case, Graham’s OMB rejected a National Highway Transportation Safety Administration rule that would reduce the toll of vehicle rollovers by requiring that automakers install tire pressure warning systems. Graham made this decision despite the direct conflict of interest as his Harvard think tank was funded by General Motors Corp., Ford Motor Co., Volvo Car Corp. and the Alliance of Automobile Manufacturers.
Another individual that the SAB should steer clear of is Dr. Richard Belzer, an agricultural economist and, like Graham, is a cost-benefit-analysis enthusiast who worked for the OMB’s Office of Information and Regulatory Affairs (OIRA) from 1988 to 1998. In 2000, Belzer criticized SAB’s rolein peer reviewing the EPA’s evaluation of costs and benefits of the Clean Air Act. Belzer and his co-author called SAB’s reviews “ineffective” because, in their opinion, they couldn’t force the agency to change the direction of policy.
Belzer appears to misunderstand the purpose of the SAB which is to simply advise the agency on its science. The EPA has the discretion to heed that advice and apply it to policies. SAB members are not decision-makers, they are esteemed scientists whose expertise is best suited to evaluate scientific considerations, not political ones. In 2010, Belzer participated in a panel on “The EPA’s Ambitious Regulatory Agenda” sponsored by the American Enterprise Institute, the description of which includes the erroneous statement: “all major EPA decisions are contentious.” According to his bio, his clients include ExxonMobil and American Chemistry Council. And speaking of American Chemistry Council…
Kimberly White, senior director of chemical products and technology at the ACC is among those nominated to serve on the SAB. She has been summoned by House Science Committee Majority Staff, Lamar Smith, to testify at the hearing called “Making EPA Great Again” earlier this year where she spoke about the need to improve the SAB’s transparency and peer review methods and accused the EPA of being too involved in the SAB’s peer review process: “conversations that are happening in that peer review get stymied by [the] EPA’s input during the peer-review process so it’s not as independent as it should be.”
She also agreed when one member of congress suggested that the SAB was not truly balanced and that there should be a devil’s advocate on the committee. Perhaps Dr. White wants to fill that very role. The problem with that, however, is that the American Chemistry Council and her previous employer, the American Petroleum Institute, are organizations that actively work to spread disinformation about a range of scientific topics to thwart the EPA’s work to keep us safe. Dr. White has criticized an EPA assessment on formaldehyde, for example, because it wasn’t inclusive enough of science. Formaldehyde is a known carcinogen and thanks in large part to ACC, the EPA’s emissions standard for wood products set to be enforced in December has been delayed at least four months.
Who Pruitt appoints for the fifteen open positions will be a test to see whether he is going to continue seeking exclusive counsel from polluters. There are a handful of qualified scientists who have only served one term that can be easily reappointed for a second, which is common practice for the board. For the sake of continuity, it would behoove Pruitt to keep those experts on. For the other positions, it would be in the agency’s best interest for Pruitt to choose a balanced roster of new members from the dozens of well-qualified scientists on the list, rather than stack the committee with folks who have spent their careers working to undermine the mission of the EPA and weaken policies that are supposed to keep us safe.
All members of the public can submit comments encouraging the EPA to appoint independent and qualified scientists as advisors. You have until Thursday, September 28th at 11:59pm to email your comment to Thomas Carpenter, the Designated Federal Officer of the SAB, at carpenter.thomas@epa.gov.
http://blog.ucsusa.org/genna-reed/who-not-to-pick-for-the-epas-science-advisory-board
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How Trump’s Chemical Safety Nominee Greenwashed Toxic Pesticides for Monsanto, Dow
Sep 26, 2017 | Environmental Working Group
By Sonya Lunder
Before he became President Trump’s nominee to oversee the safety of pesticides sprayed on our food, Michael Dourson sought to weaken pesticide safety standards for Monsanto and Dow.
EWG has identified at least three cases in which Dourson directed a safety evaluation of pesticides. For all three, pesticide companies paid him to set a “safe” dose of the chemicals the companies made. In each case, his panel set "safe" levels that were far less protective than the government agency decisions that followed.
In 2006, Dow AgroSciences hired Dourson to study the effects of chlorpyrifos on children’s brain development. Dourson’s panel recommended a safety level that was roughly 5,000 times weaker than what a 2016 assessment by the Environmental Protection Agency recommended for 1-to-2-year old children. Dourson was then paid by CropLife America, a trade and lobby association of pesticide producers to meet with EPA officials and voice his opposition to the agency’s proposed ban of chlorpyrifos on food crops.
Dourson was also paid by Dow and Monsanto to propose safe exposure levels for breakdown products of two widely used herbicides, alachlor and acetochlor, in an attempt to counter water standards developed by Wisconsin and Minnesota. Both chemicals are associated with higher cancer rates in male agricultural workers and have been detected in Midwestern water. Dourson’s panel recommended exposure levels that were 4.6 to 280 times less protective than those set by Minnesota and Wisconsin, according to a 2012 report by the Center for Progressive Reform.
Dourson’s work on the fumigant pesticide chloropicrin follows the trend. Chloropicrin is a gas injected into the soil to kill soil organisms. When it evaporates, it can cause severe eye and throat irritation, and long-term exposures increase risk of developing cancer.
In 2005, pesticide manufacturers hired Dourson’s science-for-hire consulting firm, TERA, to evaluate the safety of one-hour exposures to chloropicrin. Dourson’s panel proposed that one-hour exposures to 40 parts per billion in the air would not irritate and damage the eyes of workers and bystanders, or cause any other health problems. The EPA later used the TERA analysis as the basis for its own safety levels. When California examined the risks posed by chloropicrin inhalation, it set air concentrations for acute exposure that were 10 times lower than the TERA-calculated values for both adults and children.
If confirmed, Dourson would play a central role in EPA decisions related to chlorpyrifos, which Administrator Scott Pruitt has pledged to review by 2022; neonicotinoid pesticides, which can kill bees and other pollinators; the herbicide glyphosate, which has been linked to cancer and which the EPA must renew; and the herbicide atrazine, which Europe banned and is under EPA review for re-registration.
Given Dourson’s record of underestimating the risks posed by pesticides, it’s no wonder that the top lobbyist for the pesticide industry called him a “perfect fit” for the job.
Dourson hasn’t only greenwashed pesticides for companies like Monsanto and Dow. He has repeatedly sought to weaken safety standards for PFOA, a carcinogen formerly used to make Teflon; perchlorate, a jet fuel chemical that hinders the development of babies’ brains; the food chemical diacetyl, which gives workers “popcorn lung”; and TCE, the cancer-causing chemical made infamous by the book and movie “A Civil Action.”
Next week, a key Senate committee will hold a hearing on Dourson’s nomination. Will senators put the needs of the pesticide industry ahead of public health?
http://www.ewg.org/planet-trump/2017/09/how-trump-s-chemical-safety-nominee-greenwashed-toxic-pesticides-monsanto-dow#.Wct9_VuCyUk
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EPA Seeks To Dismiss Fluoride Suit, Defending Stance On TSCA 'Uses' Issue
Sep 27, 2017 | Inside EPA
By Maria Hegstad
EPA is urging a federal court to dismiss environmentalists' suit challenging its rejection of their petition seeking to ban the practice of fluoridating water under the Toxic Substances Control Act (TSCA), with the agency defending its views on the key issue of which chemical uses must be considered in TSCA assessments and possible future regulation.
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 groups' 2016 petition seeking a ban on fluoridation -- a single use of a class of chemicals.
In a Sept. 25 motion to dismiss, the agency reiterated its view that 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, and is insufficiently specific in describing the chemicals it wants EPA to act upon.
The petition requested that EPA regulate 'fluoridation chemicals' but did not identify the specific chemical substances for which action was requested,” the motion to dismiss states. It adds that the the petition “did not provide any analysis of any conditions of use of the chemical substances covered by the petition other than use in fluoridating drinking water.”
EPA's critics and plaintiffs in the case have argued that EPA's rejection of the petition on the grounds that it did not address all uses was at odds with the position the agency took on the issue when it issued risk evaluation, prioritization and other framework rules for implementing the new law to address existing chemicals.
There, the agency gives itself discretion to determine which conditions of use the agency must include in its evaluation of a chemical.
EPA's position is “extremely disingenuous,” says an environmental attorney not involved with the case.
The source points to EPA's final risk evaluation rule, where the agency makes “clear they have broad discretion to pick the uses they address in risk evaluations and here in this brief they are saying that risk evaluations need to be comprehensive except perhaps for a few uses that might be excluded at EPA's discretion.”
“It seems they're trying to straddle the fence on this in a way that gives them the best of both possible worlds,” the source adds.
A range of environmental groups have since sued EPA over the risk evaluation and other framework rules, which describe how the agency will prioritize chemicals for assessment and evaluate them. They argue that the final rules are substantially different from the draft rules released shortly before the end of the Obama EPA, and that they do not follow statute in their narrowing of the uses that EPA must consider in performing its risk evaluations.
And Michael Connett, an attorney for the plaintiffs, indicated he would make this an issue if it is raised as part of EPA's defense in the motion to dismiss, in a recent interview with Inside EPA. Plaintiffs have until Oct. 25 to respond to EPA's motion, and then EPA is provided an opportunity to respond. EPA has requested a Nov. 30 hearing date over the motion.
EPA Discretion
But EPA in the motion to dismiss continues to re-state its original argument that the petition was insufficiently comprehensive in addressing all uses of fluoride chemicals. EPA also tries to argue that its own position, that it has discretion over which uses to evaluate, is consistent.
“In promulgating the regulations required by the Amendments to implement the new risk evaluation procedure, EPA explained that, while the statute gives the Agency some discretion to limit the conditions of use included within the scope of its evaluation, '[a]s EPA interprets the statute, the Agency is to exercise that discretion consistent with the objective of conducting a technically sound, manageable evaluation to determine whether a chemical substance -- not just individual uses or activities -- presents an unreasonable risk,'' EPA argues.
Further, EPA states that it “made clear that, while EPA could, in its discretion, exclude from the risk evaluation conditions of use that are de minimis or otherwise insignificant and therefore do not require evaluation, the evaluation must include those activities that are necessary to determine whether the substance presents an unreasonable risk.”
EPA argues that Congress intended that section 21 petitions requesting that EPA take action using its section 6(a) authority, as in the case of the fluoride petition, present risk evaluations consistent with what EPA would conduct. If EPA were to accept a petition that does not address all uses, it would require the agency to conduct a risk evaluation of those other uses, placing undue hardship on the agency, EPA argues.
“Congress could not have intended this result, i.e., that an administrative petition addressing only a single use could compel EPA to undertake a risk evaluation for a chemical substance that had not been through the risk prioritization process,” the motion argues. The motion points to the “considerable demands” already placed on EPA resources as the agency works to implement the new program while beginning evaluation of the first 10 chemicals it was directed by statute to start in that process.
“Because the grant of a section 21 petition requesting a TSCA section 6(a) rule has the same effect as a finding of unreasonable risk by EPA . . . i.e., it requires EPA to commence a rulemaking to eliminate the unreasonable risk posed by the chemical substance, the statutory scheme would be substantially undermined if section 21 petitions were not required to present a scientific basis for action that is reasonably comparable, in its quality and scope, to a risk evaluation by EPA under TSCA section 6(b),” the brief states.
It continues by arguing that at “the very least, a petitioner must identify the chemical substance(s) at issue, address the conditions of use of the chemical substance(s), and either evaluate the risks associated with those conditions of use or explain why those conditions of use are insignificant or otherwise unnecessary to include within the scope of a risk evaluation. If a petition does not do so, it does not provide the basis for EPA to proceed with a section 6(a) rulemaking that complies with the statute.”
In a footnote, EPA states that petitioners are free to re-submit their petition in future, once they have addressed the issues identified in the agency's denial of the petition.
EPA Being 'Disingenuous'
But the attorney not involved in the case argues that EPA's position in the case appears to be at odds with language in the risk evaluation rule.
For example, the source points to language in the rule that states that “in cases where EPA has sufficient information to determine whether or not the chemical substance presents an unreasonable risk under particular conditions of use, the Agency may issue an early determination for that subset of conditions of use, while EPA continues to evaluate the remaining conditions of use.”
The source says this indicates “that EPA can in fact make determinations of unreasonable risk for individual uses, even before it completes the entire risk evaluation. It might decide a particular use presents an unreasonable risk, or that it doesn't.” This means that “plaintiffs' attorneys can find plenty in the risk evaluation rules to argue that EPA is just being disingenuous here, not explaining how they use conditions of use in risk evaluations.”
The attorney also notes that EPA's interpretation of TSCA section 21 places an unduly high bar on petitioners -- as plaintiffs maintain. “If you go with EPA's interpretation, section 21 would be unworkable,” the source says. “Congress included a citizen's remedy in the statue for a reason.”
https://insideepa.com/daily-news/epa-seeks-dismiss-fluoride-suit-defending-stance-tsca-uses-issue
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(ACC Mentioned) US Aug Specialty Chems Growth Slows Due To Harvey - ACC
Sep 27, 2017 | ICIS
By David Haydon
HOUSTON (ICIS)--The American Chemistry Council’s (ACC) specialty chemicals market volume index increased only 0.1% in August from July, reflecting the effects of Hurricane Harvey, the trade group said on Tuesday.
The marginal growth in the US specialty chemicals market was virtually flat compared with a revised 0.5% gain in July. The data is reported on a three-month moving average (3MMA) basis.
Of the 28 specialty chemical segments monitored by the ACC, 15 expanded in August. Nine markets experienced decline, the ACC said, while four were stable.
Large market volume gains of 1.0% and over occurred only in oilfield chemicals, the ACC noted.
On an unadjusted basis, the August data showed a 0.8% decline. The ACC said that only 11 segments expanded based on this basis.
Overall, the specialty chemicals volume index was up 5.1% on a year-on-year 3MMA basis.
The index stood at more than 109% of its average 2012 levels, the ACC said, which is an equivalent to 3.42m tonnes.
On a year-on-year basis, 20 market and functional specialty chemical segments saw gains. Compared to last year, the ACC said volumes were down in seven segments.
https://www.icis.com/resources/news/2017/09/26/10146744/us-aug-specialty-chems-growth-slows-due-to-harvey-acc/
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US Phthalates Ban Will Add Costs, Says Toy Association
Sep 27, 2017 | Chemical Watch
By Tammy Lovell
The Toy Association in the US says that a rule to ban the use of five phthalates in children's products will necessitate testing which "adds cost for the consumer with no safety benefit".
Earlier this month, the US Consumer Product Safety Commission agreed to finalise a rule by 18 October, banning the following phthalates in children’s toys at levels greater than 0.1%. They are: diisobutyl phthalate (DIBP); di-n-pentyl phthalate (DnPP); di-n-hexyl phthalate (DnHP); dicyclohexyl phthalate (DCHP); and diisononyl phthalate (DINP).
The move follows a lawsuit by three NGOs to to compel the CPSC to finalise the rule, which was proposed in 2014 at the recommendation of the Chronic Hazard Advisory Panel (CHAP).
Alan Kaufman, SVP of technical affairs at The Toy Association, told Chemical Watch that, from a sourcing and production perspective, effects on the toy industry will be limited because the substances are not widely used in toys.
Several phthalates have been restricted in the US, since the passage of the Consumer Product Safety Improvement Act (CPSIA) in 2008.
Mr Kaufman said that the physical and chemical properties of DCHP, DnPP and DnHP made them generally unsuitable for the types of plasticised materials used in toys. DnPP is also on the California Proposition 65 list.
DINP is currently allowed in non-mouthable toys (defined as all dimensions 5cm or greater), but its use is very limited, because most producers have elected to use non-phthalate substitutes. Likewise DIBP is also currently allowed, Mr Kaufman said: "But again, we believe usage to be minimal as non-phthalate alternatives are readily available and in wide use, and it is additionally a REACH candidate substance."Testing burden
Mr Kaufman said the passage of the rule would "take the US out of alignment with the rest of the world, necessitating a separate test regimen for this market".
"Some of the phthalates proposed for restriction will never be used in toys," he added. "But due to the fact that CPSIA mandates third-party testing in order to certify compliance, producers will be in the position of having to test for substances they know not to be present and will never be present, increasing the already not-inconsiderable cost burden imposed by these mandatory tests.
"Testing at significant additional cost, to demonstrate the absence of something which is already known not to be present, is simply an exercise that adds cost for the consumer with no safety benefit."
Meanwhile, a CPSC rule exempting seven plastics from the requirement to conduct independent testing to demonstrate compliance with phthalates prohibitions in children's products, will go into effect on 29 September. If the commission finalises restrictions on additional substances, the testing rule will be amended to include them.
Mr Kauffman said the Toy Association would like to continue to work with the CPSC to reduce the testing burden.
"We think there are additional materials where you are not likely to find phthalates, so would like to see an increase in the universal materials that don’t need to be tested going forward."
The American Chemistry Council has also criticised the decision on DINP as "arbitrary and capricious", and said the proposed phthalates rule is not rooted in current science.
https://chemicalwatch.com/59297/us-phthalates-ban-will-add-costs-says-toy-association
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EPA Extends Compliance Deadlines for Formaldehyde Emission Standards in Composite Wood Products
Sep 26, 2017 | The National Law Review
By Michael J. Sullivan and Christa E. Burger
EPA published a final rule in the federal register extending the compliance deadlines in its Formaldehyde Emission Standards for Composite Wood Products as follows:
The date for the emission standards, recordkeeping, and labeling provisions has been extended from December 12, 2017 to December 12, 2018;
The date for import certification provisions has been extended from December 12, 2018 to March 22, 2019;
The date for laminated product producer provisions has been extended from December 12, 2023 to March 22, 2024; and
The conclusion of the transition period for CARB Third-Party Certifiers (TPCs) has been extended from December 12, 2018 to March 22, 2019.
This final rule, which takes effect on October 25, 2017, will provide manufacturers with additional time to adjust business processes and record-keeping practices to achieve compliance with the HCHO Rule. Pursuant to a prior final rule that took effect on August 25, 2017, businesses can begin labeling product “TSCA Title VI compliant” as soon as compliance is achieved and need not wait until December 2018 to do so.
https://www.natlawreview.com/article/epa-extends-compliance-deadlines-formaldehyde-emission-standards-composite-wood
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(ACC Mentioned) Petrochemicals: Leveraging Saudi Arabia’s Sweet Spot
Sep 27, 2017 | Forbes Middle East
By Hetain Mistry
The expansion will add 2.6 million mt/year of capacity to the existing 2.4 million mt/year of chemicals currently produced by PetroRabigh, a joint venture of state-oil giant Saudi Aramco and Japan’s Sumitomo.
Meanwhile, international alliances are extending the Kingdom’s influence. For example, one of the world’s largest petrochemical companies, Riyadh-based Sabic, signed a strategic cooperation agreement with China’s state-owned Sinopec Group in March to explore joint venture petrochemical projects in both countries.
As Saudi Arabia’s expansion plans continue, two points cannot afford to slip from the top of the checklist; continued investment in human capital and innovative research and development (R&D). Quality trumps quantity – an equation that cannot be diluted by market forces, including the fact that the supply of cheap gas feedstock is not as plentiful as it once was.
The GCC increased its year-on-year chemical R&D spend by 38% to $729 million in 2015, versus a 9.5% decline in the global market.
But the GPCA said the region’s overall contribution to global spending is still just 2%. GCC and global producers could also benefit from deepening their commercial acumen in sales, marketing and management of the supply chain.
Consultants BCG estimate that GCC producers’ product value loses 3-5% to middlemen due to an over-reliance on off-takers and traders to sell products. This is an unaffordable loss; global jostling for new business means each ton holds more competitive value than ever.
China and India are spearheading Asia’s rapidly growing market, with China potentially moving into Saudi Arabia’s ‘back garden’ if discussions with Egypt to establish a petrochemical industries complex in the Gulf of Suez gain traction.
In the US, the shale revolution has unlocked huge quantities of cheap natural gas liquids, including ethane, a primary feedstock for ethylene production, and encouraged nearly a decade’s worth of major investment into the country’s industry.
The American Chemistry Council estimates that approximately 15% of the world’s chemicals are now produced by the US’ chemical industry, while Platts Analytics said 2.7 million mt/year of new ethylene capacity will come online by the end of this year alone, at locations such as Freeport, Baytown and Cedar Bayou in Texas.
According to Platts Analytics, the US accounts for 18% of global ethylene capacity currently and by 2025, this is expected to increase to 21%, if all projects come online as planned.
Closer to home, the lifting of most of the Western sanctions on Iran in January 2016 has rejuvenated the petrochemical ambitions of a country that is home to the world’s second largest natural gas reserves and which benefits from plentiful feedstock from the giant South Pars field.
Based on projects that are most likely to come online in the next five years, Platts Analytics estimates that Iran’s ethylene capacity will climb by 54% from today’s 7 million mt/year to 12 million mt/year by 2025. Iran’s ability to source and inject up to $85 billion of the funds required for its petrochemical industry over the coming decade remains to be seen.
Saudi Arabia has long been abreast of the tide of change, embracing it while others shy away and risk being left out in the commercial cold. Such intellectual and operational flexibility will only become more valuable as the Kingdom needs to ringfence market share from well-equipped and ambitious challengers.
Hetain Mistry, Managing Analyst, S&P Global Platts
https://www.forbesmiddleeast.com/en/petrochemicals-leveraging-saudi-arabias-sweet-spot/
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Energy Companies Wary of Proposed Tax Changes
Sep 27, 2017 | BNA Daily Environment Report
By Nushin Huq
For some energy companies, a lower federal corporate tax rate, depending on how low the rate is, may not offset losses due to changes in deductibility of expenses.
House Republicans are preparing to release a tax plan calling to cut the corporate rate to 20 percent and the passthrough rate to 25 percent, tax lobbyists told Bloomberg BNA Sept. 25. The lobbyists spoke on condition of anonymity because the framework is not yet public. For foreign-based companies with large investments in the U.S., lower corporate rates may not necessarily offset new limits to deductions, such as interest deductions. Companies are eagerly waiting to see the details so they can model potential impacts to their companies.
Shell and other similar energy companies are running a number of models to see how changes in the tax code would affect different aspects of their business. Shell, an integrated company with operations throughout the oil and gas production cycle, is an inbound company—a foreign company with U.S. income and activities. Some of the proposed changes to the tax code, such as limits on interest deductions, could make investments in the U.S. less competitive than money investments in other parts of the world, Emily Whittenburg, senior tax adviser for tax policy and government relations at Shell Oil Co., a subsidiary of Royal Dutch Shell Plc, said during the panel discussion in Houston.
“When we look at tax reform and look at the various proposals, we may look at it from a different lens than maybe U.S.- based companies,” Whittenburg said.
Shell has been spending a lot of time modeling and looking at what could happen with tax code changes, Whittenburg said.
Interest Deduction Scenarios
One scenario relating to interest deduction is a 30 percent limitation based on earnings before interest, taxes, depreciation, and amortization (EBITDA), Warren Payne, senior tax and trade policy adviser for Mayer Brown LLP, said Sept. 25. His firm has been asked by members of Congress and the Trump administration to look at these types of limits in other countries, like France, Britain, and Germany.
“There's no signal that they're stopping at broad limitation,” Payne said. “The signal is that they're going to do something on related party. Interestingly enough, the folks who are forward leaning are saying, we're not stopping at interest. We need to look at related party transactions much more broadly.”
If you are an inbound company, you have to work extra hard to get your story out, Payne said. The observation was made during a tax policy panel at an energy tax conference sponsored by Bloomberg BNA and Mayer Brown in Houston.
“We have to tell the foreign investment story,” Shell's Whittenburg said. “Companies like mine employ almost over 25,000 folks here in the U.S. and a lot of other related jobs around the industry.”
Shell and other inbounds face a lot of the same issues as other domestic energy companies, but there are some areas, including interest deduction, that they are concerned about.
“I think what is also interesting in the inbound is a cross between the politics and the optics of job growth,” Whittenburg said. “They talk about American jobs and American companies and American workers. We're sensitive because we do create a lot of jobs here.”
Shell keeps an open dialogue with trade associations like the American Petroleum Institute to make sure their white papers are neutral and avoid political language.
No Official Position From API
The American Petroleum Institute's members include both U.S.-based companies as well as inbound companies. With their members often having differing positions, the API hasn't take an official position on the specifics of interest deductibility because of its complexity and because its members are in different situations, Stephen Comstock, API's director of tax and accounting policy, said.
Putting in general restrictions that may apply to an inversion situation or some other politically problematic situation is not a one-size-fits-all in the energy industry, Comstock said.
“We need to explain that,” Comstock said. “There's a reason why a company like Shell or other inbound company may need to have that interest deductibility. They do have headquarters overseas but they are bringing in significant investments here in the United States. Telling that story is a totally different story that lawmakers understand in terms of inbound situation. “
API is focusing on trying to understand what the big tax package is, Comstock said.
“We have gone through various iterations of tax reform and looked at possibilities over time and what we found is that we can't peg this. So we decided to just focus on the industry issues.”
The oil and gas industry is very unique, Comstock said. The things important to the energy industry are things such as cash flow, cost recovery, rates and the international system. The industry lobby group is working on educating law makers on specifics of how their member companies work.
“We also realize, we're running into a lot of headwinds,” Comstock said. “A lot of the problems people perceive in the tax code are dealing with people that aren't necessarily our issue. We're worried about being collateral damage.”
Lack of Details
There's also been a lack of detail on the proposals, Comstock said. House Ways and Means Committee Chairman Kevin Brady (R-Texas) doesn't want to come out with a lot of specifics, Comstock said.
“He's seen what happens when you throw a lot of detail out there,” Comstock said. “People like me come out with their knives and start cutting it up and start mobilizing bases.”
As other members of the House—notably the ultra-conservative House Freedom Caucus—have been clamoring for details, information has slowly been leaked out.
“They've hit this impasse, we're going to have to release some details, is it going to be all candy or will there be some spinach in there,” Comstock said.
The leaked proposal details focus on the “candy” part of tax reform, including accelerated cost recovery and lower corporate and passthrough rates, Mayer Brown's Payne said. Mayer Brown's experts think some of the broad parameters will also include some “spinach.”
“That's going to bring us back to the inbounds,” Payne said. “Obviously, one of the big things people are going to be talking about is going to be the limitation on the deductibility of interest.”
Reconciliation
When companies, like Shell, plan large-scale projects, they are long-term, making tax changes in a reconciliation process less than ideal, Whittenburg said.
“We're building infrastructure that's there for 20, 30 years,” Whittenburg said. “We're not just popping up a business and moving somewhere else. We'd like some certainty on how all the various proposals interact in the global business.”
Besides the political viability of making major tax changes outside the reconciliation process, Payne said that many congressional leaders feel comfortable with passing these changes after the tax cuts passed under President George W. Bush. Many of those cuts were eventually made permanent.
“There's an assumption that at some point it will be permanent,” Payne said.
With assistance from Laura Davison and Colleen Murphy in Washington.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121296674&vname=dennotallissues&fn=121296674&jd=121296674
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Frack My Land or Lose the Rights, Ohio Woman Tells Driller
Sep 27, 2017 | BNA Daily Environment Report
By Alex Ebert
A company that is drilling for oil could be forced to extract natural gas, as well, on an Ohio property or lose those rights as part of a lawsuit that tests the requirements of a 37-year-old contract signed before fracking became commonplace.
The lawsuit, considered by the Ohio Supreme Court Sept. 26, turns on a 1980 contract that Linda Alford signed with Collins-McGregor Operating Co., allowing it to drill for oil on 74 acres of her property near Ohio's West Virginia border.
The drilling company has continually extracted oil from the property as required by the contract, but Alford wants to force the company to dig deeper for natural gas—or allow her to sell those rights to another firm now that hydraulic fracturing is more practical and lucrative (Alford v. Collins-McGregor Operating Co., Ohio, No. 2016-1281, oral argument 9/26/17).
Forcing Collins-McGregor to explore deep fracking would be the first such requirement in the nation and would be prohibitive to smaller companies only interested in oil, Brent Barnes of Geiger Teeple Robinson & McElwee PLLC, the attorney representing the company, said at the court hearing. He estimated fracking Alford's property would cost between $8 million and $10 million.
Imposing the requirement retroactively also would force drilling companies to perform work they never intended when they entered into contracts with landowners, Barnes said.
Court Skeptical
A majority of justices appeared reluctant to expand this new duty to oil and gas leases in Ohio. Justices R. Patrick DeWine, Terrence O'Donnell, Patrick Fischer, and Chief Justice Maureen O'Connor all asked questions that seemed to show they were concerned about implications for the industry.
“So, because you have a right you must use it?” O'Donnell asked Alford's attorney Sean Scullin of Scullin & Cunning LLC. “So the lease just says, ‘develop,’ and they're in compliance because they're developing their shallow rights.”
Scullin argued that the deeper rights weren't part of the contract at all back in 1980 because fracking wasn't in the picture. For older contracts that still include these inherent duties, companies should be required to develop natural gas through fracking or allow landowners to re-sell those fracking rights so that the industry can take full advantage of the state's natural resources, he said.
Only Justice William O'Neill asked questions that could be seen as supporting extending this duty on drillers.
“Do the people have a right to say, you're not doing as well as my neighbors, so you're gone?” he asked Scullin. O'Neill also questioned whether the lawsuit was properly dismissed by the common pleas court and indicated he might have let the case go to trial there.
Both the common pleas and appellate courts previously ruled for Collins-McGregor. Although Ohio law protects property owners whose land goes undeveloped, the courts held that the state doesn't separate the deep rights used for fracking from the closer-to-surface rights used for oil extraction. The courts said that since the company is holding up its end of the bargain by extracting oil, Alford doesn't have a case.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121296671&vname=dennotallissues&fn=121296671&jd=121296671
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Cabot Oil & Gas Settles Fracking Lawsuit With Pennsylvania Families
Sep 27, 2017 | Reuters
By David DeKok
HARRISBURG, Pa. (Reuters) - Cabot Oil & Gas Co. [COG.N] has settled a lawsuit filed by two families in Dimock, Pennsylvania, who alleged their homes’ drinking water became contaminated with methane not long after the company began drilling for natural gas in 2007.
The Ely and Hulbert families initially won $4.2 million in damages in a federal jury trial in Scranton last year, but Magistrate Judge Martin Carlson threw out the verdict as unjustified and ordered the parties to begin settlement talks.
The terms of the settlement have not been made public. Leslie Lewis, the New York lawyer who represented the families, declined on Tuesday to comment on the terms.
“After nine long years, the plaintiffs are happy and relieved to put the matter behind them,” Lewis told Reuters.
Neither Cabot Oil & Gas spokesman George Stark nor the company’s lead lawyer, Stephen Dillard, could be reached for comment on Tuesday.
Carlson approved the settlement on Sept. 21, court records show.
Dimock, Pennsylvania was at the heart of the Marcellus Shale gas fracking boom that began in 2007. Residents complained that Cabot’s drilling caused methane gas to migrate to their wells, so much that they could light their tap water on fire.
Flaming tap water in Dimock was a highlight of the 2010 Oscar-nominated documentary, “Gasland,” written and directed by Josh Fox. Residents also complained that their water had turned brown and corrosive.
Cabot contended that there had always been underground methane in Dimock and that there was no proof its drilling had caused the contamination.
“The issues they have are cosmetic and aesthetic,” Dillard told Reuters last year. “Those can be treated, but it’s not toxic.”
Fifteen families in Dimock filed a lawsuit over water contamination in 2009. All but the Elys and Hulberts settled with Cabot in 2012.
Lewis said there has been no change in the poor quality of the family’s well water since the trial in 2016.
https://www.reuters.com/article/us-pennsylvania-fracking-cabot-oil-gas/cabot-oil-gas-settles-fracking-lawsuit-with-pennsylvania-families-idUSKCN1C12GO
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BP Wins Dismissal of Worker's Deepwater Horizon Claim
Sep 27, 2017 | BNA Daily Environment Report
By Peter Hayes
BP won dismissal of personal injury claims brought by a deck hand who alleges he was exposed to toxic substances while delivering cargo to boats assisting in the cleanup of the Deepwater Horizon spill (Townsend v. BP Exploration & Prod., Inc., 2017 BL 338531, N.D. Ala., No. 16-CV-301, 9/25/17).
Robert Townsend failed to show that toxic chemicals he encountered in the cleanup efforts caused his alleged injuries, the U.S. District Court for the Northern District of Alabama ruled.
In order to prove his injury, Townsend would need to provide expert testimony showing he was exposed to chemicals and that the exposure caused his injury, the court said.
Townsend, who appeared without an attorney, filed his claim under the Medical Benefits Class Action Settlement Agreement approved by the Eastern District of Louisiana in January 2013.
The agreement governs claims arising from the cleanup of the 2010 rig explosion, fire and massive spill in the Gulf of Mexico.
Judge Karon Owen Bowdre issued the opinion.
Robert Townsend appeared pro se.
Williams & Connolly, LLP represented British Petroleum, BP Exploration & Production Inc., and BP America Production Co.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=121296675&vname=dennotallissues&fn=121296675&jd=121296675
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Cybersecurity Gaps Leave Data Vulnerable — IG
Sep 27, 2017 | E&E News PM
By Sam Mintz
The Department of Energy, which has a key role in protecting the country's energy infrastructure from cyberattacks, has some work to do when it comes to its own fight against hackers.
DOE has failed to implement cybersecurity requirements that, in some cases, have existed for more than 10 years, the agency's inspector general said in a new report.
The probe focuses on DOE's use of — or, in this case, failure to use — multifactor authentication. The practice requires users to provide more than just their username and password to confirm their identity to access a computer, service or system.
DOE has not fully planned or implemented multifactor authentication at 18 information systems, including at agency headquarters and national labs, the IG found.
"Without development and implementation of a Department-wide multifactor authentication process, the Department's information, including sensitive data, will continue to be at a higher-than-necessary risk of compromise," said the report.
That is despite an Office of Management and Budget policy dating back to 2005 that requires federal agencies to implement multifactor authentication.
The report's recommendations boil down to implementing multifactor authentication plans and improving communication between DOE headquarters and its many other sites across the country.
In a response, DOE concurred with the inspector general's findings but argued that it has been using multiple forms of multifactor authentication for years and that the IG focuses on one form of it: personal identity verification cards.
One facet of multifactor authentication is that it protects against "phishing" attacks, when an email tells employees to click on a link that then prompts them to enter their email password on a malicious website.
Phishing threats are likely what pushed DOE to crack down on employee webmail access in December, experts told E&E News at the time (Energywire, Dec. 8, 2016).
The agency's cybersecurity head, Chief Information Officer Max Everett, joined DOE in July after the December departure of Michael Johnson, who had been in that position for two years (Energywire, Dec. 19, 2016).
DOE declined to comment beyond its written response to the report.
https://www.eenews.net/eenewspm/2017/09/26/stories/1060061747
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EPA Nominee’s Case Against OSHA Rule draws Skepticism From Judges
Sep 26, 2017 | PoliticoPro - Whiteboard
By Alex Guillen
Federal judges seemed skeptical today of arguments made by William Wehrum, President Donald Trump’s pick to head EPA’s air office, against the Occupational Safety and Health Administration’s silica rule.
Wehrum, an attorney at Hunton & Williams, argued on behalf of various industry groups that OSHA had not proven that lowering the silica standard would provide any significant health benefits.
“OSHA had a thumb on the scale” because it had already decided to lower the standard and had “lost objectivity,” Wehrum told a three-judge panel at the D.C. Circuit Court of Appeals.
Judge David S. Tatel called Wehrum’s comment “curious” and pointed to reams of data and studies OSHA used to justify the new standard.
Chief Judge Merrick Garland noted that there are some legitimate disagreements among scientists about silica’s health effects — but he said the law says the regulation in such situations should lean in favor of caution. “There’s supposed to be a thumb on the scale in terms of safety,” Garland said.
“We believe that skepticism is well warranted,” Wehrum replied.
A Justice Department attorney defending the rule faced light questioning from the judges about OSHA’s methodologies and called Wehrum’s arguments about uncertainty in epidemiology “flimsy.”
As air administrator, Wehrum would be charged with implementing or writing new versions of a number of health-based standards, including the 2015 ozone rule. EPA officials last week noted that Wehrum can argue against the OSHA rule since it is not an EPA regulation and is unrelated to his nomination.
WHAT’S NEXT: The D.C. Circuit will weigh Wehrum’s argument along with arguments made by other attorneys on technological, economic and union issues with the silica rule. Wehrum’s nomination hearing was postponed last week and has not yet been rescheduled.
https://www.politicopro.com/energy/whiteboard
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Harris County To Sue Arkema Over Crosby Explosions
Sep 27, 2017 | Chron
By Matt Dempsey
Harris County Commissioners Court on Tuesday authorized the county attorney to file a lawsuit against Arkema over its struggles to manage stores of hazardous chemicals during Hurricane Harvey.
The county's Pollution Control Services Department found serious violations of the Texas Clean Air Act by Arkema, County attorney Vince Ryan said in a statement. The county will try to recover the costs from responding to the crisis at the company's Crosby plant. It will ask the court to review Arkema's emergency preparedness plan and its environmental practices. The commissioners made the decision to approve the suit as part of its agenda wide unanimous vote.
"We've shown if you're a bad actor, we'll hold you accountable," said Precinct 2 Commissioner Jack Morman.
Arkema's Crosby facility is in Morman's precinct.
The county attorney's office said it is preparing the suit which could be filed as soon as Friday.xxx
Arkema lost control of its Crosby facility after floodwaters cut the power and wiped out its back up generators. With the power out and cooling systems failing, volatile organic peroxides exploded multiple times over a week, producing towering pillars of fire and thick plumes of black smoke.
A 1.5 mile evacuation zone was set up when government officials got access to the company's chemical inventories. About 300 homes were evacuated during the crisis.
"During the height of this storm event, we had to have literally dozens of first responders tied up at this facility when they could have been in other areas of the county," said Rock Owens, managing attorney for the county attorney's environmental group.
Arkema's claims that there was no way to anticipate six feet of water inundating the Crosby plant isn't believable, Owens said. "We all knew for a week that we might get up to 50 inches of rain," he said. ," Owens said. "That's not true."We all knew it was coming."
The company has repeatedly insisted that the flooding was an unprecedented event. In a Sept. 11 post on Arkema's web site, the company stated it, "cooperated completely with all first responders and numerous regulatory agencies... to keep the public safe."
The company did not have an immediate comment about the pending Harris County suit.
Arkema is already facing a lawsuit by a group of first responders and Crosby residents filed a civil suit against the company earlier this month over not who complain they were not warned about the potential exposure to hazardous chemicals.
The plantiffs in that case described deputies and medical personnel vomiting and gasping for breath, some getting sick outside of the evacuation zone. In previous statements, Arkema stated the danger was only in the evacuation zone.
Also named in that suit was Bureau Veritas, a global environmental testing company hired by Arkema to do air monitoring around the facility. The company was accused of not disclosing critical information about the chemical hazards to the public.
The Chemical Safety Board, Texas Commission on Environmental Quality and the Environmental Protection Agency are conducting investigations into what happened at Arkema. Each has requested documents from the company on how it planned for Hurricane Harvey and how it responded throughout the situation created by the flooding.
Morman heard a lot from constituents and county employees when the 1.5 mile evacuation zone was set up.
"You couldn't print what we heard from constituents in a family newspaper," said Dave Walden, Morman's chief of staff.
Outside of the safety of residents, one of Morman's biggest concerns was a county road maintenance facility just outside the evacuation zone. The facility had large vehicles there being used throughout the county for emergency response. Dozens of employees were going in and out of the area.
"Working 24/7 access to the facility was critical for storm recovery and response," Morman said. "There was a big concern about what would happen if the evacuation zone had to expand."
http://www.chron.com/news/houston-texas/article/Harris-County-to-sue-Arkema-over-Crosby-explosions-12229866.php
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Pallone Urges IG To Probe Pruitt's Push On Paris
Sep 26, 2017 | E&E News PM
By Kevin Bogardus
A senior House Democrat asked U.S. EPA's internal watchdog to investigate Administrator Scott Pruitt's advocacy to leave the Paris climate change accord.
In a letter to the EPA inspector general, New Jersey Rep. Frank Pallone, ranking member of the House Energy and Commerce Committee, asked the IG to "develop a comprehensive factual record" of where Pruitt may have violated anti-lobbying and propaganda laws in his push to have the United States leave the Paris Agreement.
Pallone focused on an April 2017 meeting the EPA chief had with the National Mining Association, where he reportedly urged the trade group's members to push for the United States to leave Paris. The lawmaker also requested in an Aug. 1 letter that the Government Accountability Office offer a legal opinion to see whether Pruitt had violated the law.
"Prior to GAO conducting an analysis of whether recent actions by Administrator Pruitt violated the Antideficiency Act and the publicity or propaganda and anti-lobbying provisions of the [Consolidated Appropriations Act of 2017], it is necessary to establish a factual record," Pallone said in his letter to the EPA IG today.
"I therefore request the EPA Office of Inspector General develop a comprehensive factual record for instances where possible legal violations may have occurred, including the April 2017 meeting between Administrator Pruitt and the National Mining Association."
IG spokesman Jeff Lagda confirmed the watchdog office had received Pallone's letter.
Pruitt's meetings with industry groups have drawn scrutiny from Democrats and environmental groups. EPA has recently released the administrator's public calendar that shows Pruitt had met with several corporations and trade associations with interests before the agency (Greenwire, Sept. 25).
https://www.eenews.net/eenewspm/2017/09/26/stories/1060061753
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D.C. Circuit Queries State's Standing For Philadelphia Ozone NAAQS Suit
Sep 27, 2017 | Insdie EPA
By Stuart Parker
The U.S. Court of Appeals for the District of Columbia Circuit is querying Delaware over whether it has legal standing for its suit challenging EPA's decision to give Philadelphia an extra year to attain federal ozone standards, suggesting a high bar for the First State to overcome procedural hurdles for the case ahead of Oct. 5 oral argument.
In State of Delaware v. EPA, the three-judge panel that will hear the suit issued a Sept. 21 order asking Delaware to prepare to answer at argument “(1) whether Delaware supported the EPA’s action during the rulemaking process and, if so, (2) whether it may now petition this court for review,” suggesting the judges have doubts over the state's legal standing. If the court rejects the challenge on standing grounds it could avoid ruling on the merits of EPA's decision.
Delaware is suing over EPA's May 2016 rule granting a one-year extension -- from July 20, 2015, to July 20, 2016 -- of the deadline for the metropolitan Philadelphia area to meet the agency's 2008 ozone national ambient air quality standard (NAAQS). EPA set the 2008 NAAQS at 75 parts per billion (ppb), and has since tightened this standard in 2015 to 70 ppb, although implementation of the tougher standard is still ongoing. Projections from Northeastern state air regulators suggest the same Philadelphia area may also fail to meet the 2015 standard.
Delaware disagreed with EPA and other states with territory in the four-state Philadelphia nonattainment area that the region qualified for an extension of its “marginal” nonattainment status for the 2008 NAAQS. The state said EPA should “bump up” Philadelphia's nonattainment to “moderate” and trigger stricter pollution control mandates in the four states' air quality planning. Delaware experiences high levels of ozone blown-in from outside the state, and seeks tougher pollution controls in neighboring states to mitigate its own ozone problems.
But the other states that are partially included in the affected area -- Maryland, New Jersey and Pennsylvania -- did not oppose the extension, so the suit tests the power of one state to fight such extensions when that position is at odds with other states.
In a Sept. 28, 2015, comment letter to the agency, Delaware said it “believes that the EPA finding of attainment and attainment date extensions make sense when all measures needed for attainment have been implemented, and the current air quality meets the standard, and the only issue remaining is that the design value calculation includes air quality data from years prior to the full implementation of the necessary measures. This is not the case here.” Design values are three-year averages of air pollution readings.
“Upwind emissions that are the primary cause of our nonattainment have not been mitigated and favorable meteorology is the likely cause of our clean air,” Delaware said in its comments.
“Based on the air quality measurements from 2012, 2013, and 2014, the Philadelphia Area should be reclassified to moderate nonattainment . . . because the air quality does not achieve the NAAQS due to permanent, enforceable emissions reductions,” Delaware said in a Feb. 16 brief in the case. Other states have not taken the steps necessary in their state implementation plans (SIPs) outlining how they will meet the NAAQS to ensure emissions reductions are “permanent and enforceable,” Delaware argues.
Nonattainment Fight
Delaware says that the Philadelphia metropolitan area should now be considered in moderate nonattainment, with a compliance deadline of July 20, 2018 and requirements for tougher pollution controls, including reasonably available control technology (RACT) for industrial sources of pollution.
However, the state in its brief also appears to concede that it did not raise this line of argument in its written comments on EPA's proposed one-year extension, creating a potential procedural bar to its suit.
Nevertheless, the brief says that the environmentalist law firm Earthjustice “objected to the issuance of the 1 year extension” in a September 2015 comment letter, “specifically on the basis that not all states requested the extensions, the lack of the states self certification into compliance with their SIPs and EPA’s lack of substantive inquiry into whether relevant states had met their SIP compliance requirements as required” by the Clean Air Act. “Their comments preserve Delaware’s ability to litigate these issues.”
In a footnote to the legal brief, the state adds, “Delaware does not have to have raised the issue, which need only be adequately raised for EPA to have the opportunity to respond to the issue.”
The state asserts its “quasi-sovereign” status in asserting its standing to sue over air pollution issues in order to protect the health of its residents.
In addition, Delaware says that the air law clearly “requires that every state in a multistate area apply for the Extension Year, before EPA can grant it,” calling EPA's position a “flimsy language-based justification.”
The air law says EPA may grant up to a maximum of two one-year extensions “upon application by any state,” provided that “the State has complied with all the requirements and commitments pertaining to the area in the applicable implementation plan.”
Delaware says granting a one-year extension based on only one state with territory in a nonattainment area meeting its “requirements and commitments” does not make sense, and so all states in the area must request the extension.
EPA's Defense
But EPA disagrees, saying in a Feb. 16 brief that the agency “interpreted 'any State' in accord with its plain meaning and reasonably determined that Congress intended to give EPA the discretion to grant a one-year extension upon the request of any state in a multi-state nonattainment area.” If there is any ambiguity over the term, the court should defer to EPA's interpretation under the Chevron legal doctrine, which holds that where statutes are silent or ambiguous on a topic, courts should defer to agencies' reasonable interpretations.
EPA also notes Delaware's arguments were missing from its comments on the proposed version of the one-year extension. “Delaware’s argument that the states in the Philadelphia Area are not in compliance with their EPA-approved state implementation plans almost entirely revolves around identified and alleged deficiencies in the states’ EPA-approved plans,” EPA says. “Not only were some of these deficiencies not pointed out to EPA during the rulemaking, meaning these arguments have been waived, but deficiencies with an EPA-approved state implementation plan are not a bar to an extension because” the air law “only addresses plan compliance, not plan adequacy.”
The three-member D.C. Circuit panel of Senior Circuit Judge Douglas Ginsburg and Judges Thomas Griffith and Judith Rogers will weigh the competing claims from Delaware and EPA at the Oct. 5 oral argument.
Transport SIP
Meanwhile, EPA in a direct final rule and parallel proposal scheduled for publication in the Sept. 27 Federal Register approves Delaware's interstate ozone transport SIP for the 2008 ozone NAAQS.
The SIP outlines measures the state will take to satisfy the air law's “good neighbor” requirement to mitigate emissions that interfere with NAAQS attainment or maintenance in downwind states. If EPA received adverse public comment on the proposed version of the rule, it will scrap the direct final rule and proceed instead with the proposal. EPA will take public comment on the rule until Oct. 27.
https://insideepa.com/daily-news/dc-circuit-queries-states-standing-philadelphia-ozone-naaqs-suit
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