Preview Newsletter
ACC AM 10/12/17
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(ACC Mentioned) Hashtags, Real Problems, Symbols, And What They Mean For The Industry
Oct 12, 2017 | Plastics News
By Don Loepp
Social media has the plastics industry on its toes. I'm not talking about Facebook posts with funny photos from the company golf outing. I'm talking about the surge in social media posts calling on people to stop using single-use plastic products. -
(ACC Mentioned) Why US Industry Is Backing SE Asia Recycling Infrastructure
Oct 11, 2017 | Plastics Recycling Update
By Jared Paben and Colin Staub
Organizations raising $150 million to prevent ocean plastics in Southeast Asia say the region will present challenges wholly different from those in the U.S. Two groups recently offered new details on the goals and logistics of the effort. -
(ACC Mentioned) Scott Pruitt’s EPA Is Letting Industry Lobbyists Roll Back Environmental Protections
Oct 11, 2017 | DeathRattleSports.com
By Klopa Robin
Scott Pruitt, the Environmental Protection Agency (EPA) administrator, is a public official uncommonly close to private industry. Goodwill toward corporations features prominently in his vision for the nation’s natural resources. -
EPA Seeks ‘Single Best Way’ to Work With States
Oct 12, 2017 | BNA Daily Environment Report
By Abby Smith
The EPA will review its oversight responsibilities to find the “single best way” to monitor state actions, part of Administrator Scott Pruitt's promise to “rebalance” the agency's relationship with the states. -
US Polyurethanes Firms Stick With New Blowing Agents Despite Court Ruling
Oct 11, 2017 | ICIS
By Al Greenwood
Companies are continuing to use fourth-generation blowing agents in their polyurethane (PU) formulations, despite a recent US court decision that is raising doubt about how the process will proceed or if it will even continue. -
Chemical Industry Attorneys Call For EPA Rule Clarifying TSCA CBI Policy
Oct 11, 2017 | Inside EPA
By Dave Reynolds
Chemical industry attorneys are urging EPA to issue a rule clarifying its policy for substantiating companies' claims of confidential business information (CBI) under the revised Toxic Substances Control Act (TSCA) law, arguing the agency has provided limited guidance on potential exemptions and should seek industry's input. -
EPA Eyes Major Toxics Office Reorganization To Implement TSCA Reform
Oct 11, 2017 | Inside EPA
By Maria Hegstad
EPA is considering a major re-organization of its Office of Pollution Prevention and Toxics (OPPT) to bolster its implementation of the reformed Toxic Substances Control Act (TSCA), weighing plans that include collapsing the office's current divisions, expanding the risk assessment division, and downgrading the Toxic Release Inventory (TRI), according to documents obtained by Inside EPA. -
(ACC Mentioned) EPA's Waste Office Rejects Industry Push To Suspend TCE Cleanup Policy
Oct 11, 2017 | Inside EPA
By Suzanne Yohannan
EPA's waste office is rejecting an appeal from chemical manufacturers to suspend an Obama-era guidance for assessing sites contaminated with trichloroethylene (TCE) for risks of cardiac birth defects, while also finding no foundation for industry's claims that it has incurred higher cleanup costs as a result of the guidance. -
Proposition 65 'Clarification' Could Expand Multilingual Warning Requirements
Oct 12, 2017 | Chemical Watch
By Julie A Miller
A proposed clarification to Proposition 65 rules could expose manufacturers to litigation if retailers post consumer information in a language other than English, the state of California Chamber of Commerce said in a recent consultation. -
Canada Finds 13 of 14 Phthalates Under Assessment Pose No Risk
Oct 12, 2017 | Chemical Watch
By Julie A Miller
The Canadian government has concluded that 13 of 14 phthalates it is assessing are not sufficiently harmful to human health or the environment to merit action under the Canadian Environmental Protection Act (Cepa). -
Did Monsanto Ignore Evidence Linking Its Weed Killer to Cancer?
Oct 11, 2017 | The Nation
By Rene Ebersole
In 1970, John E. Franz, a 40-year-old chemist from Springfield, Illinois, hit upon a discovery that would profoundly change agriculture: a chemical that works its way into the leaves of weeds and down to their roots, eventually killing them. Franz sold the patent for the breakthrough to his employer, Monsanto, for $5. Four years later, Monsanto released Roundup. -
Echa To Set Up Supply Chain Network To Promote Substitution
Oct 12, 2017 | Chemical Watch
By Leigh Stringer
Echa plans to set up a European multi-stakeholder network that focuses on promoting the substitution of hazardous chemicals. -
EU Member States Approve Restrictions To CMR Substances
Oct 12, 2017 | Chemical Watch
EU member state officials have backed the addition of 18 carcinogenic, mutagenic or reprotoxic (CMR) substances to REACH Annex XVII – the restricted substances list. -
NAFTA Negotiators to Tackle Energy Issues During Friday Meeting
Oct 12, 2017 | BNA Daily Environment Report
By Catherine Traywick and Eric Martin
NAFTA negotiators are gathering in Washington for their fourth round of talks to update the trade deal, and energy is on the agenda -- if only for two hours. -
Energy Transfer Beats Bid to Turn Off Dakota Access Pipeline
Oct 12, 2017 | BNA Daily Environment Report
By Andrew Harris
Energy Transfer Partners LP's controversial $3.8 billion Dakota Access Pipeline can keep pumping crude oil for now while its environmental impact is reviewed, a federal judge ruled, sparing the company tens of millions of dollars in costs. -
Pipelines Might Face New Burdens From Easement Rule Proposal
Oct 12, 2017 | BNA Daily Environment Report
By Denise Lugo
Pipeline companies might have major paperwork headaches if proposed changes to accounting for land easements go through. -
Federal Court Keeps Pipeline In Service
Oct 11, 2017 | E&E News PM
By Ellen M. Gilmer
The Dakota Access pipeline will not shut down while the Trump administration takes a closer look at its potential impacts on tribes, a federal court ruled today. -
Strange Bedfellows Prep For 'Big Fight' With Perry On Hill
Oct 12, 2017 | E&E Daily
By Hannah Northey and Geof Koss,
A growing list of powerful lobbying groups — from big oil and gas to wind and solar — appears to be headed for a "big fight" on Capitol Hill as Energy Secretary Rick Perry arrives today to defend his proposal to boost coal and nuclear. -
CSX, Shippers Clash Over Service Problems
Oct 12, 2017 | The Wall Street Journal
By Paul Ziobro
Chief Executive Hunter Harrison says his railway has never run more smoothly. Some of his largest customers disagree. -
Rail Safety Targeted in Fuel Transport Study on Shale Boom
Oct 12, 2017 | BNA Daily Environment Report
By Meenal Vamburkar
Routes used to ship crude oil, natural gas, and ethanol by rail need better and more frequent inspections, according to a report by a national science group that also urged added training for local first responders. -
Experts Urge Railroads To Improve Tracks, Tank Cars For Hazardous Fuel Shipments
Oct 11, 2017 | USA Today
By Bart Jansen,
Railroads need to repair tracks better and continue to upgrade tank cars as they haul more hazardous cargo such as crude oil and natural gas, says a report Wednesday from the National Academies of Sciences, Engineering and Medicine. -
STB 3Q Report To Congress: We’re Working On It
Oct 11, 2017 | Railway Age
By William C. Vantuono
In its Third-Quarter 2017 report to the Senate Committee on Commerce, Science and Transportation-Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security, the Surface Transportation Board provided an update on no fewer than nine pending STB regulatory proceedings, “matters that may be of interest”: -
(ACC Mentioned) U.S. EPA Moves To Kill Power Plant CO2 Rules
Oct 11, 2017 | Chemical & Engineering News
By Jeff Johnson
The Trump Administration’s recent steps to kill the Obama Administration’s regulations to curb power plant emissions are unlikely to stop a U.S. and international movement away from coal use. -
Clean Power Plan's Legal Fight Continues Amid Repeal Efforts
Oct 12, 2017 | BNA Daily Environment Report
By Abby Smith
The EPA's proposal to ax the Obama administration's plan to cut carbon emissions from the power sector hasn't silenced the legal back-and-forth over the regulation's merits. -
EPA Floats ANPR For Replacing Clean Power Plan But Schedule Uncertain
Oct 11, 2017 | Inside EPA
EPA has submitted to the White House Office of Management & Budget (OMB) its draft advance notice of proposed rulemaking (ANPR) seeking comment on options for replacing the Obama administration's Clean Power Plan (CPP), a measure that will launch a lengthy and uncertain process for how -- or whether -- the agency will regulate power sector greenhouse gases. -
Environmentalists Detail Legal Arguments Over EPA CPP Repeal Proposal
Oct 11, 2017 | Inside EPA
By Lee Logan
Environmentalists are outlining early legal arguments they will make over EPA's just-released proposal to repeal the Clean Power Plan (CPP) greenhouse gas rule for power plants, including a major question of whether EPA must take a narrow view of its Clean Air Act authority to set GHG targets for power plants and other stationary sources. -
Environmentalists Fault Iowa's SO2 Reduction Plan As Too Weak
Oct 11, 2017 | Inside EPA
Environmentalists are faulting EPA's proposed approval of Iowa's state implementation plan (SIP) to comply with federal sulfur dioxide air pollution reduction mandates, echoing broad concerns among environmental groups that the agency is increasingly approving SIPs that they allege fall short of Clean Air Act requirements.
Industry and Association News
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(ACC Mentioned) Hashtags, Real Problems, Symbols, And What They Mean For The Industry
Oct 12, 2017 | Plastics News
By Don Loepp
Social media has the plastics industry on its toes. I'm not talking about Facebook posts with funny photos from the company golf outing. I'm talking about the surge in social media posts calling on people to stop using single-use plastic products.
Don't believe me? Go to Twitter and do a search on "plastic straws." You'll get hundreds (if not thousands) of recent results, including many with hashtags like #StopSingleUse, #EndOceanPlastics, #RefuseTheStraw and #StrawsAreForSuckers.
A year ago, plastic straws were barely part of debates about single-use plastics and ocean pollution. Today, it's a movement that's growing every day. And that's just straws. You'll find the same results if you search on plastic bags, polystyrene cups, plastic water bottles or balloons.
Most plastics processors don't make straws or single-use grocery bags or polystyrene foam takeout containers. So you may think this social media phenomenon doesn't impact you. But if you look at the big picture, you'll realize that it does. To understand why, let's take a look at a few stories from last week.Reducing marine litter
First, the environmental group Ocean Conservancy on Oct. 4 announced that it was spearheading a $150 million investment fund targeted at reducing plastic marine litter in Southeast Asia.
Experts say about half of the plastic waste in the ocean comes from Asia, specifically from Indonesia, the Philippines, Vietnam and Thailand. Helping those countries develop better infrastructure for collecting and recycling waste will make a big impact on one of the plastics industry's biggest issues.
The idea is to offer startup funds to help projects that recycle plastics. Where do North American plastics processors fit in? Well, plastics and consumer products industries are already part of the project, including the American Chemistry Council. Resin suppliers are evaluating making contributions to $150 million; I won't be surprised if they end up being the largest benefactors.Pressuring Starbucks on straws
Second, As You Sow, a foundation that promotes corporate social responsibility, is putting pressure on Starbucks to stop using plastic straws. It's part of a resolution that the foundation is trying to get Starbucks shareholders to vote on at the next annual meeting.
Most shareholder resolutions fail, but the attention they generate has a way of getting companies to eventually take action. No company wants to be seen as a business that's in favor of creating more ocean pollution.
As someone who spends a fair amount of time picking up roadside plastic trash, I agree with the sentiment that plastic straws are overused. I think we've just about reached a point where businesses are going to stop handing them out willy-nilly with every takeout order. That will impact everyone.Al Gore and the nation of Trash Isles
Finally, last month Al Gore (remember him?) stepped in to bring attention to the plastic ocean litter issue by accepting an honorary citizenship from the Trash Isles.
Trash Isles is a made-up country, an idea being pushed by Plastic Oceans Foundation with news and entertainment publication LadBible. They created a flag, a passport, a currency and stamps, and they asked the United Nations to recognize Trash Isles as the world's 196th country.
Gore did a video for the group that will draw some attention, as will his proposals: using biodegradable materials instead of conventional plastics, introducing a carbon tax and increasing recycling.
Getting involved
Now I admit some of this is silly, and quite a bit is primarily symbolic. Starbucks uses a lot of straws, but if they completely stopped tomorrow, it wouldn't make a big difference in the volume of ocean litter.
Still, there's plenty that the industry can do to help. Participate in Operation Clean Sweep. Volunteer in community beach and river cleanups. Show people outside the industry that being in plastics doesn't mean you're in favor of litter.
http://www.plasticsnews.com/article/20171011/BLOG01/171019965/hashtags-real-problems-symbols-and-what-they-mean-for-the-industry
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(ACC Mentioned) Why US Industry Is Backing SE Asia Recycling Infrastructure
Oct 11, 2017 | Plastics Recycling Update
By Jared Paben and Colin Staub
Organizations raising $150 million to prevent ocean plastics in Southeast Asia say the region will present challenges wholly different from those in the U.S. Two groups recently offered new details on the goals and logistics of the effort.
Announced Oct. 4, the project will raise money to fund waste management and recycling solutions in the region, which contributes greatly to the global ocean plastics problem. Supporting the effort are the Ocean Conservancy, Trash Free Seas Alliance and Closed Loop Partners, which will manage funding for the project.
In looking at Southeast Asia, Closed Loop Partners described a gap between what’s currently possible on the ground, the investment opportunities, and expertise and knowledge about waste management infrastructure.
“That’s what we bring to the table, is an understanding of those systems, but there’s a lot of things we don’t know firsthand,” said Rob Kaplan, managing director of Closed Loop Partners. “The local context, culture, behavior change elements – it’s not going to be as simple as rolling out carts. It’s significantly more complicated.”
Some major names are behind the dollar commitment. The Trash Free Seas Alliance is made up of 28 nonprofit and for-profit organizations. Five members of the group have already pledged money to the effort: PepsiCo, 3M, Procter & Gamble, the American Chemistry Council (ACC) and the World Plastics Council.Developing the right approach
Closed Loop Partners, which has invested millions into recycling infrastructure in the U.S., increased its interest in addressing ocean plastics about a year ago. Its investors were putting more and more emphasis on global waste management issues, and the organization began talking with its advisory board about the possibility of using its funding model to help develop recycling infrastructure in emerging markets. The move came as public awareness of ocean plastics as a global environmental problem grew.
“Five years ago, it was barely on the national agenda,” Kaplan said. “Today it’s on the global agenda, at the G8, the U.N., everywhere.”
In the U.S., the Closed Loop Fund has focused on funding projects in the collection, sortation, processing and end-market development arenas. It’s too early to say specifically which types of projects the Southeast Asia fund will finance, but so far the partners anticipate a similar strategy, said Bridget Croke, Closed Loop Partners’ head of external affairs.
“Our hypothesis today is that we will likely invest across the whole value chain like we are in North America, because there are solutions that are needed across that,” Croke said.
That being said, Closed Loop Partners knows that Southeast Asia presents a different challenge. For instance, in the U.S. there’s a regulatory framework in place that helps back many U.S. programs as they develop. Additionally, landfill tipping fees limit lower-cost alternative options.
But in an emerging economy in which residents have dumped trash in waterways for generations, introducing recycling – let alone charging for the service – is a much different proposition, Kaplan said.
The recognition of local conditions is something ACC liked about Closed Loop Partners’ approach to the project, said Steve Russell, vice president of plastics at the ACC.
“One of the things that’s really attractive to us about the way Closed Loop Partners is approaching this is they are crystal clear that whatever we fund needs to be respective of local conditions and to respond to the local needs, rather than our preconceived idea of what might be needed,” Russell said.Raising and providing money
Nearly half of the plastic that flows into the ocean every year comes from five countries: China, Indonesia, Philippines, Thailand and Vietnam. Russell said he expects the initial investments to be in Indonesia and the Philippines. That’s because those countries’ leaders have identified the issues as national priorities, and they’ve expressed a desire in different ways to partner with NGOs and the private sector, Russell said.
But the specifics of how disbursement will work and how the fund is organized are still in development.
“We’re not sure exactly the appropriate structure for this kind of entity,” Kaplan said. He explained the organizers don’t necessarily want to prescribe those decisions at this stage, because much of the logistics will depend on where the projects are. Some of the uncertainty is due to the fact there haven’t been similar projects on this scale in the past.
There’s also not a good sense of how to deploy capital to this region, Kaplan said, but that’s because there hasn’t been capital available to deploy.
Russell said the first phase of the project involves establishing the funding mechanism and conducting scoping and validation exercises in the target countries. He expects that work will be completed next year. The plan is to fully capitalize the fund within three years.
As is the case with the Closed Loop Fund’s operations in the U.S., the money will help catalyze further investment but isn’t intended to pay the whole bill. That’s one of the things ACC liked when it examined the business plan developed by Closed Loop Partners, he said.
“Catalytic investment is money that’s designed to unlock the participation of people who otherwise might not invest,” he said.
Beyond specifically addressing Southeast Asia, one of Closed Loop Partners’ goals, particularly with the first phase of the project, is to create a sort of playbook for how to apply this funding model in different markets.
“We know that the political situation and the cultural situation on the ground in different markets will vary, so we’re not expecting it to be applied exactly the same in different markets,” Croke said. “But we do want to build something semi-modular so it’s not starting from scratch every time we go into a new market.”
https://resource-recycling.com/plastics/2017/10/11/us-industry-backing-se-asia-recycling-infrastructure/
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(ACC Mentioned) Scott Pruitt’s EPA Is Letting Industry Lobbyists Roll Back Environmental Protections
Oct 11, 2017 | DeathRattleSports.com
By Klopa Robin
Scott Pruitt, the Environmental Protection Agency (EPA) administrator, is a public official uncommonly close to private industry. Goodwill toward corporations features prominently in his vision for the nation’s natural resources.
That attitude—apparently present at least from his time as Oklahoma’s attorney general, when he was seen as doing the bidding of energy concerns—became only more clear with Tuesday’s announcement of the EPA’s “Smart Sectors Program,” which will allow regulated industries to have a greater say in how they are regulated.
In contrast to most environmental initiatives, Smart Sectors does not aim to protect the American public, the nation’s waterways or its national parks. Instead, its purpose is to “reduce unnecessary regulatory burden,” according to a listing in the Federal Register published in late September. As such, it represents something of a departure from what many see as the EPA’s mission.
Environmentalists were outraged by the announcement. “Scott Pruitt is apparently done pretending; he is now openly selling out environmental protection in America to every corporate polluter he can find,” Liz Perera, who directs climate policy at the Sierra Club, tells Newsweek.
“Make no mistake, that is exactly what this outrageous ‘program’ is designed to do,” she says. “Pruitt is essentially hiring staff from polluter lobby groups to work directly with their former colleagues in order to more quickly eliminate public health and environmental safeguards. Every family in America is at risk because of Pruitt’s dirty relationship with polluters.”
“Scott Pruitt is the worst EPA administrator in history,” said Tom Steyer, the California-based activist who founded NextGen America to advocate for green policies and politicians who will support them. “His only priority is to roll back protections so corporations can maximize their profits at the expense of destroying our air and water,” Steyer added of Pruitt.
The EPA would likely counter that Smart Sectors is based on sound precedent. The program bills itself as a reinvention of Sector Strategies, an agency-industry partnership created by President George W. Bush in 2003. The Bush program was itself a reinvention of an arrangement fostered by President Bill Clinton, the Common Sense Initiative. Sector Strategies was canceled by President Barack Obama in 2009.
In a Tuesday press release, the EPA depicted Smart Sectors as the agency “partnering with trade associations that represent the engine of the American economy and significant opportunities for environmental improvement.”
A trade association is a lobbying group, often named in a way to disguise its nakedly political aims. The American Iron and Steel Institute, for example, spent $709,975 on lobbying in 2016, according to publicly available records. Earlier this year, it joined other trade associations in pushing for a loosening of regulations regarding methane waste prevention. On Tuesday, the AISI sent several approving tweets about the EPA’s plan “to develop a more sensible regulatory framework.”
The sectors that will collaborate with the EPA on regulatory matters include mining, energy extraction, aerospace, agriculture, concrete production, chemical manufacturing and power generation. The goals of the partnership will include “decreased operating costs” and “lower costs for the American taxpayer.” The final of six goals listed in the EPA press release is “better environmental protection.”
EPA officials did not immediately respond to a request for comment sent early Wednesday morning. The agency’s main spokesperson, Liz Snyder Bowman, comes to the EPA from the American Chemistry Council, a lobbying group for chemical manufacturers. One press release she appears to have authored for that organization in 2015 argues against the removal of phthalates from vinyl flooring. Research points to a causal relationship between phthalate exposure and an incidence of breast cancer.
Bowman did provide a statement to Newsweek on Wednesday afternoon. “The Smart Sectors program is certainly not a shift in regulatory powers to industry,” the statement said in part. “Rather, it’s a partnership program aimed at meaningful collaboration with industry sectors so that together we can find forward-thinking ways to improve environmental outcomes. The narrative that if you’re pro-business you’re not pro-environment was peddled by the previous administration, and we believe that it’s false.”
The new EPA initiative seems to only further the narrative that Pruitt is intent on canceling regulations that serve as a hindrance to business interests. Doing so would render the EPA as powerless as it has ever been since its creation by President Richard Nixon in 1970.
A recent New York Times review of his daily schedules found that Pruitt “has held back-to-back meetings, briefing sessions and speaking engagements almost daily with top corporate executives and lobbyists from all the major economic sectors that he regulates—and almost no meetings with environmental groups or consumer or public health advocates.”
Days earlier, The Washington Post reported that Pruitt has installed a $25,000 communications booth, presumably so his conversations could not be monitored. “No previous EPA administrators had such a setup,” the Post drily noted.
Smart Sectors will be headed by five EPA liaisons to industry who, according to the press release, will work closely with the trade associations. The press release does not plainly say that enforcing regulations, or enacting new ones, will be within the purview of the liaisons. Those do not appear to be primary Smart Sectors goals.
The program leader is Daisy Letendre, who until this summer was the communications director for Senator James Inhofe, Republican of Oklahoma, Pruitt’s home state. Inhofe is among the staunchest deniers in Congress of human-caused climate change. “The claim that global warming is caused by man-made emissions is simply untrue and not based on sound science,” he said in 2003.
Nena Shaw, who will also be one of the program’s overseers, is a former lawyer with the firm Hunton & Williams, where, according to her EPA profile, she “represented corporate clients, including utilities, home builders, big-box retailers, and chemical manufacturers on environmental law issues primarily under the Clean Air Act and Clean Water Act.”
Shaw has been with the EPA since 2007, according to her LinkedIn page, meaning she was hired during the Bush administration (she was not, however, a political appointee). She continued to serve under Barack Obama, but in 2015 was strongly criticized by a federal judge for slow-walking a Freedom of Information Act request by a conservative watchdog group. The judge said Shaw was “surely negligent” and “at best…demonstrated utter indifference to EPA’s FOIA obligations” and “at worst…is lying,” according to a Politico report on the ruling.
The other three administrators are Elizabeth Corona, Robert Sachs and Kristinn L. Sharpe. They are all longtime EPA employees.
http://deathrattlesports.com/scott-pruitts-epa-is-letting-industry-lobbyists-roll-back-environmental-protections/103584
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EPA Seeks ‘Single Best Way’ to Work With States
Oct 12, 2017 | BNA Daily Environment Report
By Abby Smith
The EPA will review its oversight responsibilities to find the “single best way” to monitor state actions, part of Administrator Scott Pruitt's promise to “rebalance” the agency's relationship with the states.
The way the Environmental Protection Agency interacts with states “has not been re-evaluated in some time,” Henry Darwin, the EPA's chief of operations, told Bloomberg BNA in an interview about the agency's draft four-year strategic plan.
States have “become more sophisticated in the execution of EPA's delegated responsibilities,” Darwin said.
The agency will be looking for places to streamline implementation of environmental programs that could involve shifting enforcement and other responsibilities more fully to the states, he said.
Environmental Groups Concerned
Agency and state officials hope such a dialogue could lead to quicker approval of such things as state-crafted implementation plans and environmental permits.
But environmental groups have expressed concern that the agency is looking to pull back on enforcement, suggesting states do not have adequate resources to assume such duties without significant help from the agency.
“If they're going to be handing over some of these authorities to states, if they're not handing over money too, how are the states going to run these programs?” Albert Huang, an attorney with the Natural Resources Defense Council, said.
He also said there are some areas that make more sense to be controlled at the federal level, such as cross-state air pollution or civil rights issues, which is Huang's specialty area.
“When you leave regulations to states, it really depends on that state's view of regulation,” he told Bloomberg BNA. “We're going to continue to see states that are behind the ball not get better.”
But Darwin said the EPA's review is not to suggest the agency would be “derelict in carrying out our oversight duties. We simply haven't taken a close look” at the EPA-state relationship “in a long time.”
Seeking Better Coordination
For regulated companies, the EPA's push could lead to better coordination of requirements and more efficient use of resources, Megan Berge, an attorney with Baker Botts LLP, which represents several utilities, told Bloomberg BNA.
“We've seen in the past instances, where states work hard and engage with industry to develop program plans, only to have them not succeed at the federal level,” she said. State regulators often work closely with companies to develop plans to implement federal air quality standards, for example.
If the EPA rejects that plan and instead issues a federal plan for a state, “given the amount of resources and effort that goes into those plans, that can be a tremendous waste,” Berge said.
States ‘Primary Implementers’
“States are the primary implementers of the majority of environmental programs,” Todd Parfitt, Wyoming's top environment official and the president of the Environmental Council of the States, told Bloomberg BNA.
He said oversight by the EPA should focus on “non-discretionary” areas, where the agency is designated by statute as the primary enforcer. And for those areas that are discretionary, the EPA should provide “that flexibility to the states to be the lead agency and make the decisions on how best to implement in their particular state.”
Cooperative federalism is one of the three key tenets of the EPA's draft fiscal year 2018-2022 strategic plan, a document produced by the agency every four years that outlines its overarching priorities. Darwin, who served as Arizona's top environment official from 2011-2015, said the EPA hopes to retool its relationship with the states in collaboration with groups like the Environmental Council of States.
He said discussions already have begun among political and career staff at the agency, particularly with the regional offices, to get a better idea of how oversight responsibilities are performed “in an effort to kind of find the single best way to oversee” state actions.
Deeper Conversations
Alexandra Dunn, Environmental Council of States executive director and general counsel, told Bloomberg BNA it is too early in the process to know the states’ role in the EPA's review. But she said there will be an opportunity with the new administration “to have conversations go a bit more deeply into oversight of delegated programs and workload sharing.”
States made progress during the Obama administration to improve collaboration between the EPA and states in such processes as management of solid waste, Dunn said. But the federal and state agencies still could more effectively divide the workload in other areas, she said.
One step the EPA can take is to allow the states to take the lead on implementation of air quality standards and other environmental protections, Clinton Woods, director of the Association of Air Pollution Control Agencies, told Bloomberg BNA. That means the agency would impose fewer federal implementation plans on states and enable more “timely approvals” of state-crafted plans.
Woods and Dunn also said the EPA's various offices need to deal with state agencies in a more consistent manner. For example, Dunn said some regions have quarterly meetings with their states to review permitting portfolios that allow for “early troubleshooting” on complex permits.
“That is an example of a habit in one region that works well, and perhaps could become intentional across the country,” Dunn said.
There also needs to be more robust interaction among state agencies and the EPA's policy, enforcement, research, and other headquarters-based offices, Woods said.
Getting States Involved
David St. Pierre, executive director of the Metropolitan Water Reclamation District of Greater Chicago, told Bloomberg BNA that while he has never had problems working with the EPA, he suggested the EPA could improve integrated planning efforts and provide states greater flexibility when implementing environmental regulations.
But St. Pierre said some flexibility exists already. “It's like any organization. They have tradition. But I've really found that even in those situations, if you come up with an idea that's a better idea, they'll let you try that out.”
Woods suggested Pruitt could increase the number of state experts on the EPA's advisory boards. He said his group has supported several such experts who have been nominated to serve on the EPA's Science Advisory Board and its Clean Air Scientific Advisory Committee. Pruitt is in the position to fill several open slots on both advisory panels, and Woods cited comments his group submitted to the agency late last month supporting state experts for those roles.
He said choosing state experts “could be a key element of the overall strategic plan.”
More broadly, Dunn and Woods said their groups plan to review the EPA's strategic plan more closely and provide input to the agency.
The EPA is accepting comments until the end of the month, and Darwin said the agency aims to release numeric targets for each of the plan's measures in February.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122036961&vname=dennotallissues&fn=122036961&jd=122036961
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US Polyurethanes Firms Stick With New Blowing Agents Despite Court Ruling
Oct 11, 2017 | ICIS
By Al Greenwood
Companies are continuing to use fourth-generation blowing agents in their polyurethane (PU) formulations, despite a recent US court decision that is raising doubt about how the process will proceed or if it will even continue.
That court decision could throw out a portion of the US programme that is phasing out older blowing agents and replacing them with those that are much less potent greenhouse gases.
If the court decision takes effect, the main US environmental regulator cannot compel companies to substitute these older blowing agents with newer ones on the basis of their potential effect on global warming. The blowing agents would need to meet other criteria, such as their threat to the ozone layer, but global warming would not be one of the conditions.
The court decision is still the subject of appeals and challenges. Until these are worked through the court system, the Environmental Protection Agency (EPA) will continue its current schedule of phasing out these older blowing agents, said Margaret Sheppard, an environmental scientist with the regulator.
She made her comments during a presentation at the Polyurethanes Technical Conference, held by the Center for the Polyurethanes Industry (CPI).
Sheppard herself did not know when the challenges could work their way through the legal system. But she said others have estimated that it could be weeks or months. Until then, it is unclear how the US could treat blowing agents.
These materials are critical for foam polyurethanes, since they provide the materials with their impressive insulating properties.
Because polyurethanes are so complex, companies cannot simply swap out blowing agents whenever it pleases judges or regulators. Polyurethane systems are made of several components, and when one component is changed, formulators often have to change others.
Until the US court system resolves the decision on blowing agents, companies may put their plans on hold. One delegate said as much during a question-and-answer session with Sheppard.
AHEAD OF THE CURVE
But so far, some of world’s biggest polyurethanes companies expect the industry will continue adopting the new blowing agents.
BASF successfully switched its flexible-foam customers over to the new blowing agents as of November 2016, ahead of the January 2017 deadline, said Mike Krupa, technical manager of Consumer Products Performance Materials, BASF. He made his comments on the sidelines of the conference.
In addition, BASF has already developed and partially implemented new formulations ahead of the upcoming 2020 deadlines, he said. BASF worked ahead of schedule to minimise disruptions.
Krupa said that BASF is moving ahead with its plans to shift to the new blowing agents in all systems, adding that he expects hydrofluorocarbons (HFCs) to be eventually phased out across the industry.
HFOs THE NEXT GENERATION
HFCs are third-generation blowing agents that damaged the ozone layer. They are powerful greenhouse gases, and are being replaced by hydrofluoroolefins (HFOs).
Dow Chemical has mostly completed the process of changing over to new formulations, said Caio Sedeno, commercial vice president, North America Dow Polyurethanes. He made his comments on the sidelines of the conference. Several Dow customers have already converted, and they are unlikely to switch back, he said.
There are several reasons to stick with HFOs. Many companies have already made substantial investments to adopt the new blowing agents. The polyurethanes industry has worked long and hard to prepare itself for the phase out.
Honeywell and Chemours have both developed their own HFOs. These blowing agents have good insulating properties and are much weaker greenhouse gases than HFCs.
For three years in a row, the Center for the Polyurethanes Industry has awarded its Polyurethanes Innovation Award to companies developing products that will help with the changeover.
Honeywell won in 2015 for its HFO, Soltice Liquid Blowing Agent. Sheppard Chemical won the following year for its catalysts, which are compatible with the new blowing agents. Chemours recently won the award this year for its HFO, Opteon 1100.
These awards illustrate the commitment that the industry has already made in adopting the new blowing agents. But even if the US lets companies keep the older blowing agents, they may still opt for the new products.
Other parts of the world are moving ahead with phasing out the older blowing agents, and formulators need to comply with these regulations.
WORLDWIDE SHIFT
In addition, individual states in the US could pass their own regulations that will phase out the older blowing agents.
Formulators may choose to comply with most stringent state regulations throughout their product lines. By doing so, they would avoid the inconvenience and expense of complying with a patchwork of state regulations.
This is not such a far-fetched scenario. The administration of US President Donald Trump has shown a reluctance to impose environmental constraints on US companies.
Tellingly, it was Chemours and Honeywell that appealed the court decision – not the EPA.
The decision was issued by the US Court of Appeals for the District of Columbia Circuit. The case number is 15-1328.
https://www.icis.com/resources/news/2017/10/11/10150815/us-polyurethanes-firms-stick-with-new-blowing-agents-despite-court-ruling/
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Chemical Industry Attorneys Call For EPA Rule Clarifying TSCA CBI Policy
Oct 11, 2017 | Inside EPA
By Dave Reynolds
Chemical industry attorneys are urging EPA to issue a rule clarifying its policy for substantiating companies' claims of confidential business information (CBI) under the revised Toxic Substances Control Act (TSCA) law, arguing the agency has provided limited guidance on potential exemptions and should seek industry's input.
During an Oct. 11 webinar on “Substantiating Confidential Business Information,” attorneys with the law firm Keller and Heckman LLP argued there is significant uncertainty in how EPA will apply certain exemptions under the June 2016 revised toxics law and whether the agency will adequately consider the complexities of companies' claims.
“We think it's important for EPA to issue regulations on this topic so there are clear and unambiguous guidelines on the issue and to allow the regulated community to provide EPA with information on CBI issues that the agency would not normally encounter,” David Sarvadi told the webinar, part of the firm's “TSCA 30/30” series.
Sarvadi and attorney Adrienne M. Timmel argued that EPA's processes and forms for asserting CBI claims under the revised TSCA are not sufficiently clear and do not adequately address the complex business arrangements that underlie some CBI submissions.
Sarvadi said a rule also could address how EPA will implement a provision in the revised law that allows companies to claim as exempt from substantiation sales and marketing information on a chemical substance, as well as how the agency vets requests under the Freedom of Information Act to release data that companies have claimed as CBI.
“Those kinds of questions of policy are uniquely appropriate for the rulemaking process,” Sarvadi said. “We do think there should be practical input from the regulated community and proceeding under the Administrative Procedure Act would be a good idea for EPA.”
Timmel told the webinar that the TSCA update law signed by President Barack Obama in June 2016 completely overhauled section 14, the law's provision related to claims of CBI on information submitted to the agency. All CBI claims now must be substantiated at the time of submission except for data exempt under section 14(c)(2).
Additional Information
The attorneys said that EPA has issued through its website templates and guidance for substantiating CBI claims but that additional information is needed. While noting that past submissions have followed a basic “boiler plate” approach, the attorneys said that companies claiming CBI under the revised law should ensure that EPA is aware of the nature of their business and the potential impact of release of the data.
The push for an EPA rule clarifying CBI policies under the revised TSCA and allowing for industry input comes as environmentalists are pushing for significant data disclosure under the new law both in arguments to the agency and a federal lawsuit challenging one of the agency's rules establishing a framework for reviewing existing chemicals.
In a May 24 meeting at EPA headquarters in Washington, D.C., an Environmental Defense Fund (EDF) official argued that the updated TSCA section 14 clearly favors disclosure over secrecy.
EPA held the meeting to seek input on how to balance public disclosure with section 14's specifications on how to handle and protect CBI that is submitted to comply with the law's various mandates.
On Sept. 5, EDF challenged EPA's inventory reset rule that the agency will use for determining the universe of existing chemicals subject to the new law, arguing that the rule fails to ensure CBI claims will be appropriately reviewed and will allow companies to assert and maintain claims that do not meet the law's requirements.
This summer a coalition of environmental groups, including the Natural Resources Defense Council and Earthjustice, sent a letter urging EPA to accelerate reviews of CBI claims under its Chemical Data Reporting rule, arguing that increasing transparency in chemical manufacturing, use and regulation was a “top priority” of Congress in the 2016 TSCA reform law.
https://insideepa.com/daily-news/chemical-industry-attorneys-call-epa-rule-clarifying-tsca-cbi-policy
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EPA Eyes Major Toxics Office Reorganization To Implement TSCA Reform
Oct 11, 2017 | Inside EPA
By Maria Hegstad
EPA is considering a major re-organization of its Office of Pollution Prevention and Toxics (OPPT) to bolster its implementation of the reformed Toxic Substances Control Act (TSCA), weighing plans that include collapsing the office's current divisions, expanding the risk assessment division, and downgrading the Toxic Release Inventory (TRI), according to documents obtained by Inside EPA.
It is unclear what EPA's time line is for making decisions on the reorganization. OPPT Director Jeff Morris did not respond to a request for comment.
But from the documents obtained by Inside EPA, the agency is considering major changes to the existing organizational structure of OPPT, likely due to the vast number of new authorities and changes to existing responsibilities placed upon the office by the new TSCA, which former President Barack Obama enacted in June 2016.
Key among the changes is a plan to consolidate OPPT's seven current divisions into five, with only the Risk Assessment Division (RAD) remaining with little obvious change.
The documents indicate the agency is considering adding a new, sixth branch to RAD, presumably to address the increased need for risk assessment heralded by TSCA reform.
The law has extensive new risk assessment requirements for EPA, particularly regarding the assessment and management of “existing” chemicals -- those that were on the market when the original TSCA took effect in 1976.
For example, EPA is required to have a minimum of 20 existing chemicals undergoing assessment each year after the first three years. EPA must prioritize chemicals for assessment and can only select those deemed high priority for assessment.
According to the proposals, the RAD would perform “Existing chemicals prioritization and evaluation,” new responsibilities placed on EPA in reformed TSCA.
The proposal indicates RAD will also perform the risk evaluations of new chemicals and provide “scientific support for other office activities.”
EPA last undertook a major reorganization in 2014, with the stated goals of positioning “OPPT to better address current and future challenges; Address[ing] the increased importance of producing risk assessments by consolidating risk assessment components; and Promot[ing] better coordination of pollution prevention efforts, including promoting the use of safer chemicals.”
The 2014 reorganization did not eliminate any functions or staff. But the agency appears poised to grow OPPT significantly, as one of the few funding increases in the Trump administration's proposed fiscal year 2018 budget was an extra $14.4 million for OPPT to implement TSCA, as well as noted interest in the new authority in TSCA for EPA to charge fees to support OPPT.
New & Existing Chemicals
According to the documents, OPPT's existing Chemical Control Division, which currently has separate branches for existing and new chemicals as well as chemical information and testing, are proposed to be split between two new divisions: New Chemicals Management and Existing Chemicals Management.
The testing branch's authorities, which were expanded by TSCA reform, appear to be shifted into the proposed Existing Chemicals Division.
The Existing Chemicals Division also appears poised to subsume an existing division, the National Program Chemicals Division, which included programs on the handful of existing chemicals that the original TSCA specifically directed EPA to address, such as lead, mercury and polychlorinated biphenyls (PCBs).
The Existing Chemicals Division is proposed to contain a half-dozen “risk management” and support branches, with responsibilities for the program chemicals, new TSCA section 4 test orders that require companies to provide EPA with data on their chemicals, new TSCA section 6 risk management actions, and regulatory tracking divvied among them.
The proposal indicates the division would have responsibility for managing existing chemicals using TSCA section 6 and other authorities, and chemical testing strategies using both TSCA section 4 and the law's other authorities.
The proposal is not surprising, given the new authorities that TSCA reform provides EPA to order industry to provide testing data for existing chemicals in particular. Reforms are also expected to make it easier for EPA to manage chemicals or uses of chemicals, using section 6 and other authorities, that do not meet the statute's “unreasonable risk” standard -- explaining new branches that would be tasked with such duties.
Similarly, the planned New Chemicals Management division is proposed to contain a half-dozen branches responsible for the various steps within the pre-manufacture notice (PMN) process, which new chemicals must undergo before they can enter the market.
The immediate changes brought by TSCA reform and the ongoing nature of the PMN process resulted in a backlog of new chemicals awaiting review over the first year after TSCA reform.
This backlog was of great concern to industry, who view the slowdown in PMN approvals as a barrier to innovation. EPA officials promised and announced an end to the backlog over the past summer. They brought in additional staff from other parts of the agency to try to quickly reduce the backlog, and Morris indicated last summer that management has been considering and implementing changes intended to make the new process more efficient and prevent backlog situations in the future.
For example, the agency's proposed plan includes a “Pre-Notice Consultation Branch,” which could address calls from Morris and other agency officials. In public discussions about the backlog over the past year, agency officials encouraged industry to consult with EPA staff before submitting PMN proposals to try to make the process smoother. Such discussions could help industry can better prepare for the questions and data requests they can expect to get from EPA during the PMN process, they said.
EPA also appears to be considering whether to add a sixth “Exemptions Branch” to the New Chemicals Division -- one difference between reorganization proposals. Such a branch would presumably deal with new chemicals that have traditionally enjoyed a limited PMN process because they have been considered lower-risk, such as new polymers or new chemicals that would only be produced at low volumes.
TRI Overhaul
One of the chief differences between the proposals EPA is considering appears to be how to downgrade the TRI Program Division into one or more branches.
The division currently collects data regarding releases of listed chemicals into the environment that is required by the Emergency Planning & Community Right to Know Act. EPA collates and analyzes this data, and releases it to the public, providing a significant resource for regulators and the public about facilities' releases.
One EPA proposal indicates the TRI program would become a branch within the new Existing Chemicals Division, while another option suggests splitting TRI between two branches within another new division, the Data, Analytics & Strategic Engagement Division. This branch appears to be an enlarged version of the existing Chemistry, Economics & Sustainable Strategies Division.
The new division as proposed would retain existing branches including Economic Analysis & Policy, Safer Chemicals & Innovation and Sustainability Analysis, while adding three new branches for Regulatory Development & Data Collection, Data Analysis and Outreach.
The data branches would be focused on EPA's Chemical Data Reporting program, unless TRI is added to their mandate.
The fifth proposed division would be called Mission Support, and appears to be a consolidation of responsibilities currently held by the Information Management and Environmental Assistance Divisions.
https://insideepa.com/daily-news/epa-eyes-major-toxics-office-reorganization-implement-tsca-reform
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(ACC Mentioned) EPA's Waste Office Rejects Industry Push To Suspend TCE Cleanup Policy
Oct 11, 2017 | Inside EPA
By Suzanne Yohannan
EPA's waste office is rejecting an appeal from chemical manufacturers to suspend an Obama-era guidance for assessing sites contaminated with trichloroethylene (TCE) for risks of cardiac birth defects, while also finding no foundation for industry's claims that it has incurred higher cleanup costs as a result of the guidance.
Office of Land & Emergency Management (OLEM) Deputy Assistant Administrator Patrick Davis, who was named to the position several months ago by the Trump administration, says in a July 26 letter to the American Chemistry Council (ACC) that OLEM will maintain its 2014 guidance as well as related regional office memoranda, declining ACC's request to suspend those policies.
The letter, obtained by Inside EPA, responds to criticisms from ACC over scientific data EPA relies on in an Aug. 27, 2014, memo on early and interim actions to address indoor air exposure to TCE at Superfund sites and the TCE Integrated Risk Information System (IRIS) assessment as well as costs associated with implementing the memo. The letter was addressed to ACC Senior Director Stephen P. Risotto. The letter is available on InsideEPA.com. (Doc. ID: 205794)
Industry groups have long faulted the TCE IRIS assessment, as well as implementation efforts of some EPA regions, which have required increased sampling for and mitigation of TCE in contaminated soil or groundwater that migrates into indoor air.
Earlier this year in comments to the Commerce Department on desired deregulatory efforts, ACC highlighted the EPA policy as problematic and urged the "Department to consider the 2014 guidance memo in its review of regulations that adversely impact domestic manufacturers."
Industry argues the policy's focus on the risk of cardiac birth defects is based on studies from a single laboratory that are flawed and irreproducible -- though one industry group is seeking to replicate the study. They say the emphasis on short-term risk has driven costly and unnecessary cleanup costs and slowed development.
In addition to ACC's March 31 deregulatory comments, the group reiterated its concerns in a June 22 meeting with OLEM staff and a June 28 follow-up letter from the group, which asked EPA to suspend implementation of the 2014 memo and related regional memos until it completes and considers an ongoing TCE hazard assessment being conducted by the agency's Office of Chemical Safety and Pollution Prevention (OCSPP).
But Davis defends continued use of the agency's TCE policy, developed during the Obama administration, and says EPA has been unable to document any cost increases due to its implementation.
"OLEM's use of the TCE [IRIS] assessment, first issued in 2011 and reaffirmed in 2016, is consistent with longstanding OLEM policy as reflected in the [2014] memo," Davis writes. He explains that IRIS assessments are OLEM's preferred source of human health toxicity values.
Further, he notes, "Consistent with OLEM policy, the 2014 memorandum did not direct regions to utilize a chronic reference concentration for short-term exposure. Rather, the 2014 . . . memorandum restated the findings of the 2011 IRIS evaluation and cited existing guidance about the use of early or interim actions and consideration of non-cancer health effects."
He says the memo merely compiles existing information and guidance, and adds that "[s]ince it is consistent with longstanding OLEM guidance and provides information useful to EPA regions, we currently plan to keep the 2014 memorandum and related regional memoranda in place."
Davis acknowledges that the OCSPP hazard assessment may provide additional data that was not considered by the IRIS program. He says when that assessment is complete, OLEM will consider whether to update its TCE assessments to reflect the new findings.
The 2014 memo, from OLEM's Office of Superfund Remediation and Technology Innovation to regional Superfund directors, backed "early or interim" action "to eliminate, reduce, or control the [TCE] hazards posed by a site." The memo backs EPA regions' mitigation efforts, but also acknowledges the question of what contamination level causes a health risk in the short-term remains unanswered.
The memo was EPA headquarters' response to long-running industry concerns over how to implement the agency's 2011 IRIS assessment of TCE. The IRIS assessment set a limit of 2 micrograms per cubic meter of air to protect against lifetime exposures to TCE. But the limit was based in part on a risk of cardiac birth defects, implying a danger from short-term exposures, and raising significant implementation questions.
In the July letter, Davis also rejects ACC's arguments about increased costs caused by the agency's 2014 memo.
"After canvassing EPA's regional offices, we have been unable to confirm that there has been a significant increase in remediation costs at TCE-contaminated Superfund sites as a result of the 2014 policy," Davis writes. He said EPA reviewed its Superfund Enterprise Management System database and found no difference in the number of removals preceding the memo versus the three years since the memo was issued.
Further, the agency has not identified a rise in the costs of employing engineered exposure controls such as subslab depressurization systems, used as an interim response to address vapor intrusion, the letter says.
ACC in its appeal to the Commerce Department argued, for example, that the 2014 memo would increase costs of remediating non-residential buildings in California's South Bay region by as much as $48 million over 30 years. -
https://insideepa.com/inside-epa/epas-waste-office-rejects-industry-push-suspend-tce-cleanup-policy
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Proposition 65 'Clarification' Could Expand Multilingual Warning Requirements
Oct 12, 2017 | Chemical Watch
By Julie A Miller
Calafornia's Chamber of Commerce says manufacturers could face litigation over retail signs
A proposed clarification to Proposition 65 rules could expose manufacturers to litigation if retailers post consumer information in a language other than English, the state of California Chamber of Commerce said in a recent consultation.
Proposition 65 requires regulated parties to provide "clear and reasonable" warning to employees and consumers, using labelling or signs, about products that contain a substance the state lists as a carcinogen or reproductive toxin.
And in July, the Office of Environmental Health Hazard Assessment (Oehha) proposed amendments aimed at clarifying regulatory amendments that go into effect on 30 August 2018. The consultation on this finished on 7 September and Oehha is now considering the comments it received before publishing a final rule.
One area of contention is the use of language. Prop 65 currently requires a warning to be delivered in a second language where a sign or label "used to provide a warning includes consumer information in a language other than English". However, Oehha proposed requiring a second-language warning when "a sign or label used to provide consumer information about a product is provided in a language other than English".
But the California Chamber of Commerce says in its comments that if the mandate is triggered by providing any consumer information about a product in a second language, rather than applying only when that information is on the Proposition 65 label, Oehha "creates a much broader obligation".
"If a retailer adds a multilingual sign in its store related to the product, or posts something on its internet retail site, even without the manufacturer's knowledge, the manufacturer would be subject to litigation because its warning was only provided in English," it says.
The Sporting Arms and Ammunition Manufacturers Institute made a similar point. If a European manufacturer ships to California a product that includes warnings in 27 languages – as required in the EU – the Proposition 65 warning can currently be supplied only in relevant languages because it is a separate label, it says. "We believe it would be unnecessarily burdensome to provide warnings in 27 languages," they say.Private enforcement transparency
Two other changes to the Proposition 65 regime were recently finalised.
Jerry Brown, the Governor of California, signed into law on 5 October an amendment that adds transparency to private actions under Proposition 65. AB 1583 got final approval in the legislature on 14 September.
Under it a 'private enforcer' must give 60 days notice before taking legal action alleging a violation of Proposition 65. The notice, sent to the alleged violator and the state attorney general, must contain a 'certificate of merit' stating that an expert has been consulted. The attorney general is also sent information on the basis of the claim, and can opt to pursue an action on behalf of the public.
When the attorney general decides that a claim "has no merit," the new amendment requires him to say so in a letter that is sent to the claimant and made public. The law also makes the information behind claims obtainable for use in a legal proceeding, so that the alleged violator – who often has been unable to learn the details of the charge against him – can obtain it.
"Publicly posting these formal communications will be helpful for members of the regulated community to detect trends in how specific private enforcers execute their obligations for substantiating their claims," attorney Ann Grimaldi wrote on her website in June.
"The new requirement may even encourage private enforcers to be extra careful in factually justifying their claim, to avoid being identified on what may end up being the attorney general's 'webpage of shame'," she said. Ms Grimaldi, who works in private practice in San Francisco, regularly writes and speaks on chemical and product regulation topics.
In a separate action, Oehha has published final amendments clarifying what must be included in certain notices of violation that concern workplace exposure, and more accurately cross-referencing occupational safety regulations. Those changes went into effect on 1 October.
https://chemicalwatch.com/59911/proposition-65-clarification-could-expand-multilingual-warning-requirements
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Canada Finds 13 of 14 Phthalates Under Assessment Pose No Risk
Oct 12, 2017 | Chemical Watch
By Julie A Miller
The Canadian government has concluded that 13 of 14 phthalates it is assessing are not sufficiently harmful to human health or the environment to merit action under the Canadian Environmental Protection Act (Cepa).
The draft assessment document, published on 7 October, assessed 14 substances individually and, in order to consider the effects of their cumulative exposure, it also looked at 14 additional phthalates, three of which had already been assessed under Cepa.
Of those being checked only B79P was found to pose a danger to the environment. As a result, the assessment proposes adding it to Schedule 1 of the Domestic Substances List.
Separately, the draft also found that di(2-ethylhexyl) phthalate (DEHP) presents an environmental risk. It had been assessed in 1994 and, though it was found to pose a health risk then, there had been insufficient data to properly evaluate environmental risk.
The assessment concluded that no action should be taken on the other 13 phthalates under active consideration.
"Although the combined exposure of phthalates is not considered to be harmful to the environment or human health at current levels of exposure based on available toxicity data, some of these substances are associated with ecological and health effects of concern," the document says.
"Therefore, there may be concern for human health or the environment if use patterns of certain phthalates were to increase in Canada. Follow-up activities to track changes in exposure and/or commercial use patterns for certain phthalates are being considered".
Canada originally published its approach to assessing phthalates in 2015 and had anticipated publishing the draft screening assessment by 2016. Differing views
For Muhannad Malas, toxics programme manager with NGO Environmental Defence, the draft assessment is evidence that Canada's chemical management system – which is under review – is "broken".
"The government’s decision to not designate some of these chemicals as toxic under Canadian law, nor restrict their use in products Canadians use daily, is not consistent with the overwhelming scientific evidence that these chemicals harm children’s health," he said in a statement published by several environmental groups.
However, W Scott Thurlow, legal counsel and director of chemicals management at the Chemistry Industry Association of Canada (CIAC), said it demonstrates the superiority of Canada's risk-based system, which considers actual exposure.
"Just because the Europeans have taken risk management action does not mean the risk they are trying to guard against is applicable to Canada," Mr Thurlow told Chemical Watch.
"The most important thing about the phthalate assessment is the incredibly strong scientific backing they have for their approach. That is going to resonate worldwide," he said.
"The reason it took so long is they took the time to get it right".
The government is accepting comment on the assessment, and on what action should be taken to regulate DEHP and B79P, until 6 November. It anticipates publishing a final assessment in July 2018.
Separate regulations under Canada's Consumer Product Safety Act (CCPSA) stipulate that vinyl in childcare articles and toys should not contain more than 1,000mg/kg of DEHP or two other phthalates, DBP and BBP. Products that "in a reasonably foreseeable manner" could be placed in the mouth of a child under the age of four must not contain more than 1,000mg/kg of DINP, DIDP or DNOP.Chloral hydrate
In the same issue of the Canada Gazette, the environment minister published a final assessment of chloral hydrate, concluding that it does not pose a danger meriting action under Cepa.
Another notice removed a substance from the Non-Domestic Substances List (NDSL) and added it to the Domestic Substances List (DSL). The change indicates that someone has reported the intent to import, manufacture or use the substance in Canada.
https://chemicalwatch.com/59952/canada-finds-13-of-14-phthalates-under-assessment-pose-no-risk
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Did Monsanto Ignore Evidence Linking Its Weed Killer to Cancer?
Oct 11, 2017 | The Nation
By Rene Ebersole
In 1970, John E. Franz, a 40-year-old chemist from Springfield, Illinois, hit upon a discovery that would profoundly change agriculture: a chemical that works its way into the leaves of weeds and down to their roots, eventually killing them. Franz sold the patent for the breakthrough to his employer, Monsanto, for $5. Four years later, Monsanto released Roundup.
“Weeds? No problem. Nothing kills weeds better,” announced the actors in the commercials for Roundup as they attacked dandelions with spray bottles. The product was an instant success, and in 1987 Franz won the National Medal of Technology for his discovery. Today, Roundup is the most popular herbicide in the world, generating more than $4 billion in annual revenue for Monsanto.
Roundup’s active ingredient, glyphosate, is widely perceived to be innocuous in the environment because it targets an enzyme not found in animals or humans. When it comes to plants, however, the chemical kills indiscriminately—except for those plants genetically designed to withstand it. In the 1990s, Monsanto began to sell its patented “Roundup Ready” seeds, allowing farmers to spray for weeds without damaging their crops. The combination of herbicide and resistant seeds helped Monsanto become one of the world’s most powerful agriculture corporations. Today, over 90 percent of domestic soy, corn, and cotton crops are genetically engineered to be glyphosate–resistant, accounting for more than 168 million acres.
But the future of the ubiquitous herbicide is in question. Monsanto is currently fighting allegations that glyphosate might not be as safe as advertised, particularly when combined with other chemicals in Roundup. In 2015, an international science committee ruled that glyphosate is a probable human carcinogen, countering previous determinations by regulatory agencies in the United States and other countries. Soon after, more than 200 people sued Monsanto in a federal case now centralized in California, claiming that Roundup caused them to develop non-Hodgkin’s lymphoma, a common blood cancer. Over 1,000 people have filed similar suits against the company in state courts in Arizona, Delaware, Missouri, Nebraska, and elsewhere.
Attorneys and activists have accused Monsanto of manipulating the science around glyphosate’s health impacts—in essence, of following the playbook written by Big Tobacco. Documents revealed in the federal case also suggest a cozy relationship between the company and regulators at the Environmental Protection Agency, which is currently reviewing glyphosate’s safety. For its part, Monsanto maintains that Roundup is harmless. “Our lawyers have produced over 10 million pages of documents, and the plaintiffs’ lawyers managed to cherry–pick a handful that reflect the use of some inappropriate language by some Monsanto folks,” said Scott Partridge, Monsanto’s vice president for global strategy. “There’s not a single document that reflects that glyphosate, the active ingredient in Roundup, causes cancer.”
The public brawl couldn’t come at a more pivotal moment. Monsanto is currently pursuing a mega–merger with the German chemical giant Bayer AG, a $66 billion deal that still has to be approved by American and German antitrust regulators. The EPA’s latest safety assessment of glyphosate is expected soon, and the European Union is also deliberating whether to relicense its use. (French officials have said they will vote against relicensing.) Meanwhile, the chemical at the center of the safety debate has lost some of its power to increasing weed resistance. Glyphosate–resistant “super-weeds” like pigweed, which can grow three inches a day, reaching heights of up to seven feet, have already invaded some 90 million acres of American cropland, forcing farmers to use more powerful chemicals in larger doses.
Since Franz’s discovery in 1970, Americans have sprayed 1.8 million tons of glyphosate on their crops, lawns, and gardens; globally, the figure stands at 9.4 million tons. Glyphosate residue has been reported in many popular foods, from cherries to Cheerios, and early research has found it in 86 percent of a sampling of people in regions across the United States. Another preliminary study reported glyphosate residue in 90 percent of a sample of pregnant women in the Midwest, with higher levels correlated to premature births and low birth weights. (Both studies were limited by small sample sizes, underscoring the need for further research.) Paul Winchester, the medical director of the neonatal intensive–care unit at the Franciscan St. Francis Health system in Indianapolis and lead author of the Midwestern study, said such findings should alarm anyone who cares about health and safety.
“We should be concerned,” Winchester said. “This is mass exposure.”
One warm day in July, Teri McCall drove a four–wheeler down a winding track through groves of citrus, avocado, and persimmon trees. McCall’s husband, Jack, always joked that she would never work on their 20–acre farm on the Central California coast, four hours south of San Francisco, because she “might break a nail.” But since Jack’s death in 2015, Teri has been doing most of the work. “The first year, the lemons just fell to the ground,” she said. “I wasn’t able to do anything, I was so distraught. Now I’m in constant battle with the gophers.”
McCall remembers her reaction when a doctor said the rash on Jack’s neck was cancer: “I just laughed and thought, ‘How could that be true?’” Jack was 65 at the time, working on the farm full-time and surfing on the weekends. The doctor diagnosed the condition as primary cutaneous B-cell lymphoma, usually benign and confined to the skin. But the rash persisted. Four years later, Jack felt swelling in his lymph nodes. That time, the diagnosis was grim: non-Hodgkin’s lymphoma.
Undergoing chemotherapy and radiation, Jack grew thin and weak. On Christmas Eve, Teri found Jack with his eyes rolled back and his mouth twisted up; he’d had a stroke. Teri and the children spent the night by Jack’s bedside in the hospital, and the next morning—six months after the diagnosis—she decided to have him taken off life support. “It was the worst moment of my life,” Teri said.
Jack preferred not to use chemicals, but he believed Roundup was safe and used it regularly for more than 30 years. According to Teri, it was the only herbicide he ever used. As the family sat around Jack’s bed on his last days, his son read on the Internet about potential links between Roundup and non–Hodgkin’s lymphoma. After Jack’s death, Teri could barely get out of bed, but eventually she began reading the reports herself. She now believes Roundup was responsible for his death—and maybe their dog’s, too. Duke, a black Lab, spent every minute with Jack until the day he died of lymphoma in 2009.
In early 2016, McCall joined other farmers, gardeners, migrant workers, and landscapers, represented by multiple law firms, to sue Monsanto in federal court. One plaintiff, John Barton, 68, has lived and worked on California farms for most of his life. “We’ve used Roundup since it came out for weed control on our reservoirs and the ditches of cotton fields,” he said. Barton’s cancer has spread to both sides of his body; he’s retired from farming and no longer uses Roundup. But he’s continually exposed to the chemical because he lives in the heart of the San Joaquin Valley, one of the most productive agricultural regions in the world. “Right across the road from me is GMO alfalfa; the dairies do GMO corn,” he said, speaking of the fields planted with crops that have been modified to resist repeated dousing with Roundup.
McCall and Barton’s case hinges on a determination made by the World Health Organization’s International Agency for Research on Cancer (IARC) in March 2015. The IARC, which has been developing reports on expected and known carcinogens since the 1970s, classifies materials into categories, from carcinogenic to humans (Group 1) to “probably not carcinogenic” (Group 4). The agency’s evaluation of glyphosate was conducted by a group of 17 experts from 11 countries and led by Aaron Blair, an epidemiologist with the National Cancer Institute. In the months prior to and then during a weeklong meeting in Lyon, France, the committee pored over the publicly available scientific literature—hundreds of pages of published journal articles and reports.
The IARC concluded that glyphosate should be categorized in Group 2A, meaning “probably carcinogenic to humans,” alongside DDT, the insecticide malathion, and strains of human papillomavirus. The IARC experts considered studies of disease patterns in human populations and experiments on human tissues and cells as well as on lab animals. They reported convincing evidence that glyphosate causes cancer in animal models. They also concluded that studies clearly show DNA and chromosomal damage in human cells—damage that can lead to the emergence of cancer.
They did not, however, go so far as to report that the chemical definitely causes cancer in humans. “There wasn’t enough evidence to say that we know this stuff causes cancer as we say with smoking, alcohol, and benzene—for those, there’s no quibbling,” Blair explained. “‘Probable’ means there’s quite a lot of evidence that it does cause cancer, but there’s still some doubt.”
Monsanto immediately released a statement denouncing the IARC verdict: “Regulatory agencies have reviewed all the key studies examined by IARC—and many more—and arrived at the overwhelming consensus that glyphosate poses no unreasonable risks to humans or the environment when used according to label instructions.”
But the company couldn’t contain the firestorm ignited by the IARC ruling, which had immediate regulatory and legal implications. Within months, nearly 600 scientists in 72 countries signed a manifesto calling for a ban on the spraying of glyphosate–based herbicides. (Even before the release of the IARC report, some countries—El Salvador, Colombia, Brazil, Bermuda, Germany, France, the Netherlands, and Sri Lanka—had already instituted a ban or were considering some form of one.) California uses IARC classifications as the basis for registering chemicals under Proposition 65, which mandates the labeling of all chemicals known to cause cancer, birth defects, or other reproductive harm; Roundup sold in the state must soon be labeled. Then there are the lawsuits: By the fall of 2015, Monsanto faced the first of what would become a cascade of suits connecting Roundup to cancer.
Monsanto had long been preparing to challenge the IARC report, according to a six-page confidential strategy document unearthed in the federal suit. In its defense of glyphosate, the company claims that the IARC overlooked important research and selectively interpreted data to arrive at its “probable carcinogen” classification. Monsanto also frequently points out that the EPA—as well as regulatory agencies in Canada and Europe—lists glyphosate as noncarcinogenic.
The discrepancy between the IARC and other regulatory agencies is in part due to the fact that they have different goals. “IARC looks at the literature and makes a determination of whether, in some circumstances, under some conditions, under some types of exposure, this stuff might or might not present a cancer hazard,” Blair explained. “What IARC does not do is to say which circumstances those are, and how much exposure you have to have to really be worried—that’s risk assessment, and that’s what EPA does.”
But there are also serious questions about the EPA’s own processes for evaluating chemicals—questions amplified by a trove of e-mails, text messages, letters, and memos between Monsanto and high–ranking EPA officials that were unsealed in the court proceedings and obtained via Freedom of Information Act requests by the consumer group US Right to Know.
Since 1970, Americans have sprayed 1.8 million tons of glyphosate on crops, lawns, and gardens.
Marion Copley was an EPA toxicologist who worked for 30 years researching the effects of chemicals on mice. In March of 2013, as she was dying of breast cancer, Copley wrote a striking letter to Jess Rowland, deputy director of the EPA’s pesticide division. Rowland led the Cancer Assessment Review Committee, which was evaluating glyphosate; Copley also served on the committee. In her letter, Copley described how the property that makes glyphosate such a potent pesticide—its ability to target an enzyme that plants need to grow—also plays a role in the formation of tumors in humans. She named 14 specific methods by which it could do the job. “Any one of these mechanisms alone…can cause tumors, but glyphosate causes all of them simultaneously,” she wrote. “It is essentially certain that glyphosate causes cancer.”
Then she got personal. “Jess: For once in your life, listen to me and don’t play your political conniving games with the science to favor the registrants.” She closed the letter: “I have cancer and I don’t want these serious issues to go unaddressed before I go to my grave. I have done my duty.” Copley died the next year.
Rowland’s job required him to work closely with registrants, but the documents suggest a strikingly friendly relationship with Monsanto employees. One April 2015 e-mail indicates that Rowland told the company he would try to kill a planned review of glyphosate by the Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (ATSDR). That agency, along with the Centers for Disease Control and Prevention (CDC), is charged with evaluating potential adverse health effects from exposure to manmade chemicals. “If I can kill this I should get a medal,” Rowland said of the review, according to an e-mail written by Dan Jenkins, Monsanto’s lead liaison to government agencies. “I doubt EPA and Jess can kill this; but it’s good to know they are actually going to make the effort,” Jenkins wrote to his colleagues in the same e-mail.
Other EPA officials weighed in against the ATSDR’s proposed review, claiming it was unnecessary since the EPA was conducting its own evaluation. “I am looking at it from the standpoint of it being a duplicative government effort given that we are currently in the midst of our review now,” Jack Housenger, director of the EPA’s Office of Pesticide Programs, wrote to a colleague at the CDC on May 22.
Monsanto got what it wanted: By October 2015, the ATSDR review was officially on hold, and Monsanto was anticipating good news from the EPA. Jenkins updated his colleagues: “Spoke to EPA: is going to conclude that IARC is wrong.” Six months later, on a Friday in April 2016, the EPA’s long–anticipated report on glyphosate, signed by Rowland and stamped “final,” was released on the Internet. But it lasted only the weekend; EPA retracted the report first thing Monday morning, calling its release premature. Still, Monsanto had just enough time to dispatch a press release with the headline “Once Again, EPA Concludes That Glyphosate Does Not Cause Cancer.”
Rowland retired within weeks of the release. That came as no surprise to Monsanto: The previous September, Jenkins had told his co-workers, “Jess will be retiring from EPA in 5–6 months and could be useful as we move forward with ongoing glyphosate defense.”
In March, Congressman Ted Lieu (D-CA) called for the Justice Department to launch a special investigation into reports suggesting collusion between Monsanto and EPA employees reviewing glyphosate. The EPA’s Office of the Inspector General has said that it’s looking into it. Rowland’s attorney and the EPA did not respond to repeated requests for comment about Rowland’s relationship with Monsanto. The company denies that it tried to improperly influence the agency. “The [regulatory] process requires a tremendous amount of contact and interaction with the government,” said Monsanto’s Partridge in an interview. Partridge maintained that Rowland’s comment about getting a medal referred only to his desire to avoid duplicative studies at the taxpayers’ expense.
The EPA has often been criticized for its chemical–screening processes, in large part because it relies on research funded or conducted by the chemical companies themselves. In 2015, the agency determined that there was “no convincing evidence” that glyphosate disrupts the human endocrine system—a determination based almost entirely on studies funded by Monsanto, other chemical companies, and industry groups. None of the industry studies, which were obtained by The Intercept’s Sharon Lerner, concluded that there were any health risks, despite the fact that some of their data suggested otherwise—and in contrast to a few of the small number of independent studies considered by the EPA, which did find evidence that glyphosate harms the endocrine system. Unlike the EPA, the IARC considers only published, peer-reviewed science, and does not consider—or, in most cases, even have access to—a corporation’s studies.
An additional limitation in the EPA approval process is that it examines only the main active ingredient in a product—glyphosate, in the case of Roundup—and not the complete formula, which includes inert ingredients. (The IARC’s assessment considered studies of both the full Roundup formula and glyphosate alone.) These additional chemicals are often withheld as trade secrets, making it more difficult for independent researchers to study their risks. But scientists have recently begun to identify many of the other components in Roundup, and have found some to be more toxic to human cells than glyphosate itself.
Plaintiffs claim that Monsanto “knew or should have known that Roundup is more toxic than glyphosate alone” but continued to advertise the product as safe. In a 2002 e-mail, Monsanto product–safety strategist William Heydens wrote to Donna Farmer, one of the company’s leading toxicologists: “What I’ve been hearing from you is that this continues to be the case with these studies—glyphosate is OK but the formulated product (and thus the surfactant) does the damage.” (Surfactants reduce the surface tension of water, helping the herbicide cling to leaves instead of flowing into the soil.)
In a November 2003 e-mail to Monsanto CEO Sekhar Natarajan, Farmer wrote that the company “cannot say that Roundup is not a carcinogen” because “we have not done the necessary testing on the formulation to make that statement.” She added, “We can make that statement about glyphosate and infer that there is no reason to believe that Roundup would cause cancer.”
Other documents released in the legal case raise questions about Monsanto’s influence on glyphosate research. One tactic outlined in Monsanto’s plan for responding to the IARC was to “support the development of three new papers on glyphosate focused on epidemiology and toxicology.” Heydens proposed in a February 2015 e-mail to colleagues that Monsanto “ghost-write” part of a paper by outside scientists: “We would be keeping the cost down by us doing the writing and they would just edit and sign their names so to speak,” he said, explaining that this was how Monsanto “handled” an earlier paper on glyphosate’s safety. That earlier paper, published in 2000, acknowledged Monsanto’s help in data collection, but it did not list any company employees as co-authors, contrary to the transparency standards upheld by most journals. In response to questions about the apparent ghostwriting, Partridge objected to the term—even though Heydens used it himself—adding that the activities described “were entirely professional and aboveboard.”
Monsanto also hired an outside consulting firm, -the Intertek Group, to orchestrate a so-called “independent” review of glyphosate’s health effects to refute the IARC’s cancer assessment. A disclosure accompanying the review, which was published in Critical Reviews in Toxicology, reported that Intertek was paid by Monsanto but claimed that “neither any Monsanto company employees nor any attorneys reviewed any of the Expert Panel’s manuscripts prior to submission to the journal.” In fact, internal e-mails indicate that Heydens and other Monsanto employees reviewed and edited drafts before the report was published. “I have gone through the entire document and indicated what I think should stay, what can go, and in a couple spots I did a little editing,” wrote Heydens in a February 2016 e-mail to Ashley Roberts, senior vice president in Intertek’s food and nutrition division. Partridge defended the review’s independence: “It did not amount to substantial contributions, editing [or] commenting—nothing substantive to alter the scientists’ conclusions.”
“Doubt is our product,” a cigarette-company executive once wrote, “since it is the best means of competing with the ‘body of fact’ that exists in the mind of the general public. It is also a means of establishing a controversy.” For 50 years, Big Tobacco manufactured uncertainties about the health impacts of cigarettes, with ads featuring smoking physicians and a media campaign claiming that there was “no proof” of any health concerns caused by smoking. In defending glyphosate, plaintiffs say, Monsanto is following a familiar playbook: hire scientists to produce friendly results, fund front groups—Monsanto has contributed to the American Council on Science and Health, which defends glyphosate and other chemicals from “junk science”—and use the media to sway public opinion.
“I doubt EPA and Jess can kill this; but it’s good to know they are actually going to make the effort.” —Dan Jenkins, Monsanto’s lead liaison to government agencies
“It appears as though we are seeing the unraveling of a very carefully crafted corporate narrative about the safety of a well-known product used around the world, just as we saw when the dark and dirty secrets of the tobacco industry came to light,” said Carey Gillam, research director for US Right to Know and the author of a new book, Whitewash: The Story of a Weed Killer, Cancer, and the Corruption of Science. “Monsanto’s own internal communications indicate that it has worked long and hard to suppress scientific research showing dangers with its herbicide while at the same time setting up secret networks of straw men to push product propaganda.”
Monsanto has also tried to undermine the credibility of scientists on the IARC committee. “The basic strategy is: Attack people who’ve done the research you don’t like—mercilessly,” said epidemiologist Devra Davis, a former appointee to the US Chemical Safety and Hazard Investigation Board and president of the nonprofit Environmental Health Trust. “They go after the researcher, they go after their funding…. Even the scientists who reported the formation of the ozone hole were vilified before they got their Nobel Prize” in chemistry.
Specifically, Monsanto argues that Blair, the IARC committee chair, was aware of but discounted data that showed no cancer link. The data came from the Agricultural Health Study, an epidemiological survey of cancer and other health problems in a cohort of nearly 90,000 farmers, licensed pesticide applicators, and their families in Iowa and North Carolina. (Blair was a senior researcher for the survey.) Monsanto asserts it is “the most comprehensive study on farmer exposure to pesticides and cancer” undertaken and says that if data from the study had been considered, the IARC would have categorized glyphosate as noncarcinogenic.
Some researchers familiar with that study say there’s a good reason that it wasn’t included—namely, that it hadn’t been published yet. “If you evaluated everything unpublished, you’re going to get a bunch of garbage,” said Peter Infante, an epidemiologist who has evaluated carcinogens for the Occupational Safety and Health Administration and has participated in other IARC reviews. Infante believes that there are other major problems with the survey: The control group—which had not been exposed to glyphosate—was exposed to another pesticide suspected of causing non-Hodgkin’s lymphoma. That’s a problematic comparison, Infante said, akin to asking “whether high testosterone levels elevate the risk of heart attacks in men and then comparing those men with a group that already has heart disease. Obviously, you’re going to underestimate the risk.”
The current task for the attorneys representing Teri McCall and other plaintiffs is to convince presiding Judge Vince Chhabria that there’s enough evidence to indicate that glyphosate “generally” causes cancer. If that effort succeeds, Chhabria will begin to hear individual plaintiffs’ testimony next year and decide whether Monsanto must pay compensatory damages, which could run into the tens or hundreds of millions.
Cancer victims have won a few recent cases against chemical companies. In August, Johnson & Johnson was ordered to pay $417 million in damages to a woman who developed ovarian cancer after decades of using the company’s talcum powder. In February, DuPont and another chemical company agreed to pay more than $900 million to settle some 3,500 lawsuits, after a federal court ruled that Teflon production at a plant on the Ohio River in Parkersburg, West Virginia, caused cancer in workers and residents.
“The law requires these companies to be truthful about what’s in their product, but they frequently don’t submit the information; they suppress it,” said Robin Greenwald, an attorney with the New York City–based firm of Weitz & Luxenberg, who won multimillion–dollar settlements for victims of the 2010 BP oil spill and represents dozens of plaintiffs in the Roundup case. “Fifteen, 20 years later, all these people have certain cancers and certain illnesses, and we ask why. Then scientists connect the dots, and then litigation happens. And in litigation, you get documents from the defendant, and then lo and behold: They knew.”
The stakes in these cases are high—for Monsanto, for cancer victims, for consumers, and for farmers. For better or worse, today’s agricultural system relies on pesticides, “all of which come with inherent dangers,” said William Curran, a plant-science expert at Pennsylvania State University who works with farmers combating glyphosate–resistant weeds. “If Roundup is removed, we might be left with herbicides that are far worse—if you can’t use glyphosate, what are you going to use?”
Many agronomists are optimistic about new practices and technologies to control weeds with fewer chemicals. One promising invention involves a piece of machinery that attaches to a combine at harvest time and pulverizes weed seeds so they won’t sprout up in spring. Certain farming methods can reduce the need for pesticides, including “integrated weed management,” which uses a combination of herbicides with plowing and crop rotation. Some farmers reduce the use of chemicals by planting winter cover crops, such as legumes and grasses, which add nutrients to the soil, reduce erosion, and prevent weeds from gaining a foothold. “It’s not like we need to go back to our old agrarian ways,” Curran said, though he acknowledged that it can be tough to persuade farmers to change their practices.
The federal lawsuit itself may not resolve the dispute about glyphosate’s safety: The research is still evolving. “Every time a product gets looked at for the first time, this scientific debate goes on,” said Blair. “This is not unusual. In fact, that’s what science is. Studies are carried out, findings occur, people evaluate them, not everybody agrees.” Eventually, enough information is gathered to reach some consensus—but that can take decades. Meanwhile, with every year that passes, another 300 million pounds of glyphosate is sprayed upon the land.
https://www.thenation.com/article/did-monsanto-ignore-evidence-linking-its-weed-killer-to-cancer/
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Echa To Set Up Supply Chain Network To Promote Substitution
Oct 12, 2017 | Chemical Watch
By Leigh Stringer
Echa plans to set up a European multi-stakeholder network that focuses on promoting the substitution of hazardous chemicals.
The agency will invite the European Commission, member state authorities, businesses, NGOs and academic institutions to join the network.
The aim is to share experiences and to take Echa’s substitution strategy forward. A final version of this is expected by the end of the year.
Speaking at Chemical Watch’s Nordic Chemicals Summit in Copenhagen this week, Matti Vainio (pictured), head of the agency’s risk and implementation unit, said that Echa will set up some supply chain workshops in 2018. The first of these will be held in Bulgaria in February.
The workshops will bring together users of hazardous substances, along with their suppliers and downstream customers, providers of alternatives and those helping in their development and implementation, such as technological support or funding organisations. The workshops will identify obstacles in substituting a substance, as well as the solutions available.Strategy feedback
The idea, says Mr Vainio, is one of the outcomes of the agency's first workshop on substitution , which was held over two days this week in Finland and attended by 50 participants. It was organised to get feedback on Echa's substitution strategy, which lists a number of objectives including the need to increase capacity building.
Workshop participants, he told Chemical Watch, were in favour of stronger European action on substitution, along the lines of the strategy.
In his presentation, Mr Vainio said that while Echa is encouraging substitution – through the implementation of REACH classification, restriction and authorisation – it "could do something more".
He said there are three other areas – in addition to facilitating a multi-stakeholder network - where the agency could encourage substitution:capacity building in member states and businesses, to carry out the analysis of alternatives;facilitate access to funding and technological support through EU wide and national research and development institutions; andfacilitate use of Echa's data on substitution – the aim here would be to make registration and other data more accessible to companies to help them identify uses linked to hazardous substances, for example.
Mr Vainio said that having seen the success of similar networks in the US, such as the Green Chemistry and Commerce Council (GC3) facilitated by the University of Massachusetts Toxic Use Reduction Institute (Turi), it was important for Europe to organise its own network, "naturally based on its own needs".
A report commissioned by Echa in 2015 – carried out by the Lowell Centre for Sustainable Production – recommends that the agency create or expand mechanisms for greater supply chain collaboration and engagement. The report sets out ten recommendations to Echa, which were considered when the agency developed its strategy.
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EU Member States Approve Restrictions To CMR Substances
Oct 12, 2017 | Chemical Watch
EU member state officials have backed the addition of 18 carcinogenic, mutagenic or reprotoxic (CMR) substances to REACH Annex XVII – the restricted substances list.
Members of the REACH committee approved the draft Regulation setting out the changes at their meeting on 27 September.
The additions include:cadmium nitrate;cadmium hydroxide; andcadmium carbonate.
All three substances are subject to a current Echa consultation to identify new SVHCs, which ends on 20 October.
They received new harmonised classifications as CMR category 1A or 1B, based on human and animal evidence respectively. The marketing or use for supply to the general public of the substances, as well as in mixtures containing them, will be prohibited above specified concentrations.
The Regulation will apply from 1 December 2018 with the exception of formaldehyde . . . %, which will apply from February 2018.
In April, the committee voted in favour of the addition of 25 CMR substances to REACH Annex XVII.
https://chemicalwatch.com/59968/eu-member-states-approve-restrictions-to-cmr-substances
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NAFTA Negotiators to Tackle Energy Issues During Friday Meeting
Oct 12, 2017 | BNA Daily Environment Report
By Catherine Traywick and Eric Martin
NAFTA negotiators are gathering in Washington for their fourth round of talks to update the trade deal, and energy is on the agenda -- if only for two hours.
U.S., Mexican and Canadian representatives will hold just one energy session late Friday during seven days of talks ranging from gender to the environment. Details haven't been released, but oil and gas companies are pushing for a rule on diluents, a light crude product typically sourced from the U.S. and added to heavy Canadian oil to help it flow through pipelines. Oil companies want a rule that allows up to 40 percent of diluent in cross-border oil shipments, according to a paper by the American Petroleum Institute, the Asociacion Mexicana de Empresas de Hidrocarburos and Canada's Oil and Natural Gas Producers.
The trade groups want to loosen NAFTA rules so that producers can more easily transport oil, gas and infrastructure across both borders. That includes simplifying the process for certifying hydrocarbons’ country of origin and allowing companies to move drilling rigs, vessels and personnel across borders.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122036976&vname=dennotallissues&fn=122036976&jd=122036976
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Energy Transfer Beats Bid to Turn Off Dakota Access Pipeline
Oct 12, 2017 | BNA Daily Environment Report
By Andrew Harris
Energy Transfer Partners LP's controversial $3.8 billion Dakota Access Pipeline can keep pumping crude oil for now while its environmental impact is reviewed, a federal judge ruled, sparing the company tens of millions of dollars in costs.
Lawyers for the Dallas-based pipeline company had argued it would be expensive to purge the 1,172-mile conduit or plug it while the U.S. Army Corps of Engineers conducted a supplemental review of the project's impact on Native American hunting and fishing rights and other aspects. The pipeline, which went into service on June 1, had been the subject of months-long protests by tribes and environmental activists.
There's a “serious possibility” that the Corps will be able to back its prior conclusions for approving the pipeline's route, U.S. District Judge James E. Boasberg ruled Oct. 11, denying tribal bids for an order lifting final permissions granted earlier this year. But he urged the Corps not to treat his decision “as an exercise in filing out the proper paperwork” but to give serious considerations to errors that were made and identified (Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, D.D.C., No. 16-cv-1534, 10/11/17).
In so doing, Boasberg rejected a request from the Standing Rock and Cheyenne River Sioux bands that he order a shutdown of the pipeline, which runs under Lake Oahe, a man-made reservoir straddling the North Dakota and South Dakota borders near their lands.
The tribes fought for a year to prevent the pipeline's completion and its operation, failing at least twice before persuading Boasberg to issue a June ruling directing the Corps to review the permits process. The Sioux will almost certainly ask a U.S. appeals court to reverse the judge's latest ruling.
The Army Corps opposed the prospective turn-off order, contending the likelihood of a spill was remote and that the court-ordered review may draw the same conclusions.
Dakota Access, which carries crude oil from the Bakken shale formation in northwestern North Dakota to a terminal in Patoka, Illinois, has become a symbol of President Donald Trump's support for pipelines blocked by the Obama administration. The Army Corps canceled its planned review of the pipeline's path under Lake Oahe just days after Trump took office and soon after issued final permits for its completion. The tribes petitioned Boasberg to review that decision.
The Sioux sued in July 2016, arguing that the project violated their religious freedom and was the embodiment of a prophecy that would bring destruction to their homeland. Opposition to the project became a flash point for sometimes violent protests between the government and environmentalists waging war against shale oil and gas projects.
In August, Energy Transfer filed a separate lawsuit against Greenpeace International and other groups it claimed incited vandalism and terrorist acts to generate publicity and money for their causes.
U.S. Justice Department spokesman Mark Abueg declined to comment on the court's decision. Vicki Granado, a spokeswoman for Energy Transfer, didn't immediately respond to request for comment.
The ruling is a win “for all major interstate infrastructure projects currently under construction or consideration,” said Craig Stevens, a spokesman for the GAIN Coalition, a group that promotes more infrastructure development.
Jan Hasselman, lead lawyer for the Standing Rock Sioux, declined to immediately comment. Nicole Ducheneaux, his counterpart representing the Cheyenne River Sioux, didn't immediately reply to an emailed request for comment.
Boasberg has scheduled a follow-up court conference for Oct. 18.
Review Completion
The Army Corps originally estimated the court-ordered supplemental review could be completed by the end of this year. Now, it says it won't be complete until April.
Boasberg, in his ruling, left the door open for further litigation, acknowledging the parties “may well disagree over the sufficiency” of the Corps’ conclusions. “If and when such a dispute arises, they will again have the opportunity to address whether defendants have in fact fulfilled their statutory obligations,” he said.
—With assistance from Meenal Vamburkar.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122036973&vname=dennotallissues&fn=122036973&jd=122036973
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Pipelines Might Face New Burdens From Easement Rule Proposal
Oct 12, 2017 | BNA Daily Environment Report
By Denise Lugo
Pipeline companies might have major paperwork headaches if proposed changes to accounting for land easements go through.
The changes, recently proposed by the Financial Accounting Standards Board, will require all new or modified land easements to be assessed under new leases rules, ASC 842, upon their adoption to see if they are or contain a lease.
Energy, utility, oil & gas, railroad, and telecommunications companies—or any entity with land easements—would face significant burdens to identify, independently account for and value their right of way easements upon adoption of the leases rules, practitioners told Bloomberg BNA.
The leasing rules take effect 2019 for public companies, but it can also be early adopted this year or in 2018. If approved, the easement changes would take effect on the same dates as the leasing rules.
“What we typically see with pipeline companies, as well as electric utilities, is they use a series of contiguous easements—there could be thousands of land owners that give you the right to cross over their land,” James Barker, partner at Deloitte & Touche LLP, said. “Going forward, every one of those individual arrangements technically has to be assessed under this new standard. It's pretty major.”
Land easements are transactions whereby a company gets the right to access, cross, or use someone else's land for a specified purpose. Terms of easements can vary, and they drive the accounting differences that exist today—some require prepayment, some payments over time. Others have stated terms, or are perpetual.
Many of the land easements are identical to one another so the new accounting exercise mightn't be as frightening, Barker said. Still, the proposed changes have the potential to require more easements to be accounted for as leases going forward.
Ballooning Balance Sheets
Companies that pay for their easements over time could therefore see their balance sheet figures balloon from additional debt and additional assets that weren't previously reflected on their financial statements. The debts and assets have to be recorded if the companies’ easements qualify as leases going forward, practitioners said.
Under this rule, “worse case, it could affect their debt covenant compliance if they have additional liabilities going on their balance sheet,” Barker, said. “Companies need to make sure when they put new lease liabilities on their books—not just for easements but all leases—so they don't have a problem with their existing debt covenants.”
Companies currently embroiled in trying to pin down easements likely would be affected if those contracts aren't completed before they adopt the new leasing rules. The guidance is effective in 2019 but can be early-adopted this year.
PennEast Pipeline Company LLC, which was put together by a consortium of six energy companies; Dominion Energy Inc.’s Atlantic Coast Pipeline; EQT Midstream Partners LLP, Consolidated Edison Inc. and other group's joint venture named Mountain Valley Pipeline; or, any company with land easements, but are still negotiating them, would all find the rules highly relevant.
PennEast, for example would run a 36-inch pipeline from Dallas, Luzerne County, to Pennington, Mercer County, New Jersey—a distance of approximately 115 miles. But most of the homeowners along its proposed route have put up significant resistance.
“More than 60 percent of homeowners along the route have told PennEast that ‘we will not give you an easement on our farm, we don't need this harmful pipeline, and we're not going to voluntarily give up our land,’” Jennifer Danis, a senior staff attorney at Eastern Environmental Law Center, told Bloomberg BNA. “Homeowners along the troubled Atlantic Coast Pipeline and Mountain Valley Pipeline could also potentially face condemnations.”
The accounting changes would affect each company differently, depending on the accounting they follow today. Some have reported land easements as an intangible asset, some as leases. Others either capitalize the cost as part of property, plant and equipment (PP&E), or expense them as executory contracts.
TransCanada Weighing Rules
Already one major pipeline operator has taken note of the proposal. Energy infrastructure company TransCanada, which operates the Keystone Pipeline, told Bloomberg BNA it's weighing the rules for impacts.
“TransCanada is aware of the proposed update regarding land easements, however, we have not completed our analysis of what, if any, impact this would have to TransCanada's business,” TransCanada's vice president and controller Glenn Menuz told Bloomberg BNA in an email. “We will review this proposal, as well as a final standard if implemented, for impacts on TransCanada's business as we complete our analysis on the Lease standard effective 2019.”
Earlier this year TransCanada received approval for a U.S. presidential permit, the company said, to build The Keystone XL, a proposed 36-inch-diameter crude oil pipeline that runs from Hardisty, Alberta, to Steele City in Nebraska.
“Ninety percent of its agreements with landowners are signed,” a company spokesman told Bloomberg BNA. “There are approximately 90 or so remaining easements in Nebraska that we have yet to come to agreements on,” he said.
Existing Arrangements Unaffected
The rule changes don't apply to current or old land easements, and therefore much of its impact would be muted, practitioners said. Still, it could be a significant change in a company's accounting practice to have to define and value those easements on an individual basis.
“Even though pipeline companies may not have to go back and redo their accounting on existing right of way easements, under this new [leases] definition we're talking about any and all easements that are secured from landowners from 2019 forward,” James Bradbury, a natural resources and business lawyer in Fort Worth, Texas, told Bloomberg BNA.
“We have built a lot of pipeline infrastructure throughout the nation in the past few years but we have many more pipelines that have yet to be built, so going forward those rules would be applicable to a lot of individual landowner easements,” he said.
The issue was brought to FASB when accountants began evaluating the new leases rules, ASC 842. As companies started evaluating their contracts, questions arose about whether land easements must be evaluated under the new leases model.
What makes the rules palatable is the practical expedient—type of exception—FASB included in the proposed changes, practitioners said. If a company has been accounting for its easements as something other than leases, then it can continue to do so for those that currently exist.
This exception would ease adoption issues. Moreover, much of the easements won't meet the definition of a lease because companies wouldn't get to lease accounting if the landowner continues to use the land.
An example would be a case where an electric utility runs lines across a farmer's field and the farmer still uses the field to plant crops or graze cattle. “The utility doesn't control that land but they're using it to run their wires over, so that's an example of what we call shared use,” Barker said. “In those shared use scenarios you would not expect to have a lease because the customer does not have exclusive use of the property.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122036972&vname=dennotallissues&fn=122036972&jd=122036972
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Federal Court Keeps Pipeline In Service
Oct 11, 2017 | E&E News PM
By Ellen M. Gilmer
The Dakota Access pipeline will not shut down while the Trump administration takes a closer look at its potential impacts on tribes, a federal court ruled today.
In a long-awaited decision, the U.S. District Court for the District of Columbia ruled that the embattled oil pipeline can remain in service while the Army Corps of Engineers sharpens an environmental review for the project.
"In light of the 'serious possibility' that the Corps will be able to substantiate its prior conclusions, the Court finds that vacatur is not the appropriate remedy in this case," the ruling said.
Judge James Boasberg wants a new round of "abbreviated" briefing for the Army Corps and Dakota Access to respond to the tribes' request for new conditions on the continued operation of the pipeline beneath Lake Oahe, a section of the Missouri River just north of the Standing Rock Indian Reservation. A hearing to discuss next steps is set for next Wednesday.
Boasberg in June ruled that three aspects of the agency's environmental assessment violated the National Environmental Policy Act.
He ordered the Army Corps to more closely analyze Dakota Access' potential oil spill risk, environmental justice impacts, and effects on tribal fishing and hunting rights (Energywire, June 15).
But Boasberg, an Obama appointee, declined to make a decision at the time about whether to scrap the underlying permits that allow the pipeline to operate. Instead, he asked both sides to submit briefs making arguments on that question.
Lawyers for Dakota Access and the government urged Boasberg to allow the pipeline to continue operating. They argued that shutting it down would be economically disruptive and potentially dangerous.
Plus, they said, the Army Corps is likely to ultimately reach the same conclusion about approving the project after its additional review.
The Standing Rock and Cheyenne River Sioux tribes and their supporters, meanwhile, argued that allowing Dakota Access to stay in service would undermine the purpose of NEPA, which requires agencies to take a hard look at potential impacts of major projects before approving them.
Boasberg relied on legal precedent known as Allied-Signal that allows the court to weigh two factors when deciding whether to vacate underlying permits in a NEPA case: the seriousness of violations and potential disruptive consequences.
"As to the first, the Court ultimately concludes that the three errors identified in the prior Opinion are not fundamental or incurable flaws in the Corps' original analysis; rather, the agency has a significant possibility of justifying its prior determinations on remand," he wrote.
Boasberg wrote that the analysis for "disruptive consequences" was a closer call, weighing just slightly in Dakota Access' favor, and concluded that the pipeline should remain in service based on the first factor.
"Correcting this flaw does not require that Defendants begin anew, but only that they better articulate their reasoning below. Courts have declined to grant vacatur in similar circumstances, finding that agencies should instead be 'afford[ed] a reasonable opportunity to ... provide a reasoned explanation' of their choices," he wrote, referring to one of the NEPA violations.
Today's decision will allow the continued transport of thousands of barrels of oil per day from North Dakota's Bakken Shale to a hub in Patoka, Ill.
"Today's decision is a disappointing continuation of a historic pattern: other people get all the profits, and the Tribes get all the risk and harm," Earthjustice attorney Jan Hasselman, representing Standing Rock, said in an email. "The court already found that the Corps violated the law when it issued the permits without thoroughly considering the impact on the people of Standing Rock. The company should not be allowed to continue operating while the Corps studies that threat."
While Dakota Access did not immediately comment on the victory, other pipeline supporters celebrated the news.
"Judge Boasberg's thoughtful decision to allow the Dakota Access pipeline to remain open as the Army Corps of Engineers completes its work reaffirms the rule of law in this case," said Craig Stevens, spokesman for the pro-pipeline Grow America's Infrastructure Now coalition.
"He, again, meticulously reviewed the relevant facts and case law and found, again, that the Army Corps' process has — and continues to be — sufficiently thorough," Stevens said.
The Trump administration has said the process for revising its environmental assessment will last until next spring (E&E News PM, Oct. 6).
https://www.eenews.net/eenewspm/2017/10/11/stories/1060063367
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Strange Bedfellows Prep For 'Big Fight' With Perry On Hill
Oct 12, 2017 | E&E Daily
By Hannah Northey and Geof Koss,
A growing list of powerful lobbying groups — from big oil and gas to wind and solar — appears to be headed for a "big fight" on Capitol Hill as Energy Secretary Rick Perry arrives today to defend his proposal to boost coal and nuclear.
Almost a dozen large groups huddled last week, an alliance of strange bedfellows usually at opposite ends of the energy spectrum, to share notes and talk future action as Perry's request moves quickly to the Federal Energy Regulatory Commission for action.
Everyone aside from the coal and nuclear sector, that is.
While attempting to remain neutral, Republican Rep. John Shimkus of the nuclear-heavy state of Illinois said there's a "big fight" looming over Perry's request for a FERC rule, just as there has been debate on the state level to shore up struggling reactors in his home state and New York.
"I've seen this play out in Illinois when Illinois did it for the nuclear power plants recently," Shimkus said during an interview yesterday.
"But [Illinois] didn't do it a couple years ago for a new coal gasification plant because the manufacturers weighed in and said, 'No, low-cost energy is what we need.' So the jury's out," he said. "I'm kind of interested in seeing how that plays out."
Lobbyists agree the battle lines are being drawn as Perry heads to the Hill, a day after FERC rejected pleas for more time to digest the Department of Energy proposal.
A number of groups concerned with the DOE request gathered last week at the Electric Power Supply Association's Washington, D.C., headquarters. In attendance, according to a source who attended but asked to remain anonymous, were members of trade groups representing the solar and wind lobby; interstate natural gas pipelines; energy storage; and the American Petroleum Institute, the largest U.S. oil and gas lobbying group.
Noticeably absent were representatives of the coal and nuclear industry that stand to benefit under Perry's rulemaking request to FERC.
The loose coalition — which could become more formal and even prepare legal challenges in the future — is also coordinating with a lobbying group representing operators of the nation's factories and industrial plants — the Industrial Energy Consumers of America, which recently called on Congress to intervene, the source said (E&E Daily, Oct. 11).
While other entities like the Edison Electric Institute are staying neutral, the meeting attendee said participants expressed frustration about DOE "upsetting the apple cart for narrow interests" with little notice and discussion.
"It would be a powerful coalition to bring suit in the D.C. Circuit if this [notice of proposed rulemaking] ever gets that far, which we all hope and pray doesn't happen," the source said.
At least one former member of President Trump's own transition team is working solo for now. Tom Pyle, president of the Institute for Energy Research, pointed to a blog post his group published yesterday critical of the DOE proposal, calling it "excessive and unnecessary" and "government favoritism for Secretary Perry's preferred generation sources."
When asked about the forming battle lines, Pyle replied, "Of course camps are forming, that's what happens when you tee up a regulation where in the end somebody wins and somebody loses."
Exactly how persuasive these groups will be at FERC and on Capitol Hill remains to be seen.
Shimkus, a member of the House Energy and Commerce Subcommittee on Energy and Power, as well as the chairman of the Subcommittee on Environment and Economy, said there are fundamental questions about what constitutes a "baseload" power plant, something Perry in his request laid out as having 90 days' worth of fuel on-site.
"In the old days under monopolies baseload was the generation facility to meet a base of demand," Shimkus told E&E News. "People can't even define it anymore, it's defined differently by all these different folks, and if you're in an RTO [regional transmission organization] system, is there still baseload needs that should get a premium? That's the whole debate. Perry says yes."
Also appearing noncommittal on Perry's proposal was Energy Subcommittee Chairman Fred Upton (R-Mich.). Asked about criticism the plan tilts the scales toward nuclear and coal facilities, Upton yesterday signaled it will be a topic of discussion.
"I don't know what he's going to say, but those are going to be some of the questions I ask him tomorrow," Upton told E&E News.
https://www.eenews.net/eedaily/2017/10/12/stories/1060063407
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CSX, Shippers Clash Over Service Problems
Oct 12, 2017 | The Wall Street Journal
By Paul Ziobro
WASHINGTON— CSX Corp. CSX 1.32% Chief Executive Hunter Harrison says his railway has never run more smoothly. Some of his largest customers disagree.
Mr. Harrison and shippers clashed over CSX service issues during a hearing on Wednesday that was called by the Surface Transportation Board, a federal regulator, amid complaints about widespread CSX delays and congestion over the summer. While Mr. Harrison says the company has ironed out the problems, some customers say they are still suffering.
Agricultural giant Cargill Inc. said that as recently as Monday, it had to shut down a Lafayette, Ind., plant during the morning because local train crew members, having exceeded the number of hours they were allowed to work, couldn’t take its railcars. About a week earlier, a Sidney, Ohio, plant shut down for two days because it hadn’t received empty cars from CSX to load.
Brad Hildebrand, a Cargill vice president, said service levels haven’t improved from last year and warned federal regulators from drawing conclusions based on recent CSX reports showing improvement. “One month does not make a trend,” he said.
Mr. Hildebrand laid the blame on Mr. Harrison’s “precision scheduled railroading” strategy, saying it has resulted in worse service. “In a nutshell, PSR means having to do with less,” Mr. Hildebrand said.
Mr. Harrison defended the strategy, saying that trains are running faster, cars are spending less time in yards and complaints from shippers are down.
The problems during the summer were due to bungled execution, he said. He apologized to shippers and acknowledged that it was a mistake to close as many hump yards, key facilities that sort railcars along the network, as CSX did earlier this year.
“This is not a failure of precision scheduled railroading,” Mr. Harrison said.
Other shippers on Wednesday were eager to share their experiences. Chemical companyChemours Co. said CSX failed to provide scheduled service more than half the time during the summer, and it has spent more than $1.3 million in excess costs to ship product to customers.
“The last five months have been a costly disappointment for us,” said Kevin Acker, Chemours strategic relationship and category manager for rail.
“If anything, it has gotten worse in September and October,” said Lisa Powers, distribution manager at chemical company Cristal. “It’s a very miserable time trying to deal with them.”
Kellogg Co. also detailed problems at its Pringles factory in Jackson, Tenn., which at times has waited on CSX cars being shipped from Illinois that instead wound up in Idaho.
Sharron Moss-Higham, a distribution executive for Kellogg’s snacking business, said the company has been able to avoid shutdowns at the Pringles plant by trucking some ingredients, a delivery method that is triple the price of rail, and increasing its stockpile of potato flakes to make sure it doesn’t run out of the key ingredient. But the company had to shut down parts of a production line at a North Carolina plant.
Shippers called on the Surface Transportation Board to require CSX to provide notifications when it changes train schedules or routes, among other changes.
Mr. Harrison said that CSX is seeking to develop the most efficient rail network, using data and conversations with customers, rather than bow to each shipper’s demands.
“We cannot have, with due respect, each individual customer designing their own schedule,” he said.
The Surface Transportation Board has been meeting weekly with CSX executives to assess the status of the railway and pace of improvements. It has also mediated service problems between some shippers and the CSX.
https://www.wsj.com/articles/csx-shippers-clash-over-service-problems-1507743220
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Rail Safety Targeted in Fuel Transport Study on Shale Boom
Oct 12, 2017 | BNA Daily Environment Report
By Meenal Vamburkar
Routes used to ship crude oil, natural gas, and ethanol by rail need better and more frequent inspections, according to a report by a national science group that also urged added training for local first responders.
From 2005 to 2015, there were 58 rail incidents involving ethanol shipments and 21 involving crude, according to the study by the National Academies of Sciences, Engineering and Medicine, a Washington-based nonprofit research organization. A July 2016 derailment in Oregon spilled about 40,000 gallons of oil, which ignited and led to the evacuation of about 100 people, the report said. The cause appeared to be track failure.
Pipelines and marine shipping remain the safest form of transportation, according to the study, which was initiated in 2015 and released Oct. 11. It was designed to assess whether the U.S. energy boom was putting strain on the transportation industry and sacrificing safety.
Barges have an “exemplary safety record,” even as the total volume of oil they handle has risen, according to the report. That's the result of a federal revamping of industry safety rules following a series of spills nearly 30 years ago, the group wrote. Now, regulators should determine if improved incident- and traffic-reporting systems can help train safety.
“Preventing derailments of this traffic is imperative,” the report said, particularly since some of the tank cars in use are designed to older specifications. At the same time, emergency preparedness remains a challenge in rural communities, the report said, where local responders may not have sufficient training to deal with accidents.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122036971&vname=dennotallissues&fn=122036971&jd=122036971
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Experts Urge Railroads To Improve Tracks, Tank Cars For Hazardous Fuel Shipments
Oct 11, 2017 | USA Today
By Bart Jansen,
WASHINGTON — Railroads need to repair tracks better and continue to upgrade tank cars as they haul more hazardous cargo such as crude oil and natural gas, says a report Wednesday from the National Academies of Sciences, Engineering and Medicine.
Rural communities along the rail routes also need to improve their emergency preparedness, according to the report titled “Safely Transporting Hazardous Liquids and Gases in a Changing U.S. Energy Landscape.”
“Railroad tank cars and tank barges were hauling oil and fuel ethanol in increasingly larger quantities and over longer distances, often on routes passing through communities that had little, if any, experience with regular and large quantities of flammable liquids traffic,” the report said.
The report studied concerns about transporting crude oil and ethanol by rail, rather than barge or pipeline, because of a sharp and unexpected increase in rail service from 2005 to 2015.
But rail hasn’t proved as safe as the “exemplary” record for either pipelines or tank barges, which improved their safety after catastrophes 30 years ago, according to the report. It found no reports of ethanol or natural-gas releases when moved by waterways in the last decade, and only rare reports of crude-oil releases.
Rail accidents unintentionally released 2.6 million gallons of ethanol in 58 incidents from 2005 to 2015, according to the report. Accidents also spilled nearly 1.7 million gallons of crude oil during that period, mostly in the final three years.
Rail remains vulnerable to track wear and defects and single-walled tank cars that can be punctured in a crash. The Transportation Department has required railroads to phase in double-lined tank cars by 2025 to better prevent spills after collisions or derailments.
The report also urged the railroad industry and regulators to create and offer incentives for more automation and technological innovations to monitor equipment and infrastructure. And it said the industry should share information with emergency responders about new and unfamiliar risks.
The disaster that spurred the U.S. rail-car regulation occurred in July 2013 when a runaway freight train crashed in a rural town in Quebec, Canada. The resulting fire and explosions from 1.5 million gallons of Bakken crude oil killed 47 people and destroyed 30 buildings.
A member of the National Transportation Safety Board called a fiery collision of two BNSF Railway trains in North Dakota in December 2013 a domestic wake-up call for the industry.
Crash investigators said an axle beneath the car of one train broke because of a manufacturing defect. While the crash didn't kill anyone, it caused an estimated $7.2 million in damage and the thick smoke forced the evacuation of 1,560 people from Casselton about a mile away.
The Federal Railroad Administration urged better track inspections after a February 2015 derailment in Mount Carbon, W.Va. A CSX train hauling crude oil from North Dakota to Virginia derailed 27 cars on broken track, and the fire burned for days
https://www.usatoday.com/story/news/2017/10/11/railroad-safety-tracks-tank-cars-hazardous-fuel-shipments/751430001/
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STB 3Q Report To Congress: We’re Working On It
Oct 11, 2017 | Railway Age
By William C. Vantuono
In its Third-Quarter 2017 report to the Senate Committee on Commerce, Science and Transportation-Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security, the Surface Transportation Board provided an update on no fewer than nine pending STB regulatory proceedings, “matters that may be of interest”:
• Review of the General Purpose Costing System: “The Board proposes certain changes to the Uniform Railroad Costing System (URCS), specifically, in a Supplemental Notice of Proposed Rulemaking, to modify certain inputs into Phase II of URCS and to modify certain cost calculations in Phase III of URCS in order to eliminate the ‘make-whole adjustment’ in Phase III. The Board proposes certain other related changes to URCS, including proposals for locomotive unit-miles and train-miles allocations, that would result in more appropriate rail movement costs.”
• Rail Fuel Surcharges (Safe Harbor): “The Board is giving shippers, rail carriers and other interested parties the opportunity to comment on the Board’s ‘safe harbor’ standard, which allows carriers to rely on a Board-approved fuel index to measure changes in fuel prices for purposes of their fuel surcharge programs.”
• Expanding Access to Rate Relief: “The Board is considering procedures that could comprise a new rate reasonableness methodology for use in very small disputes, which would be available to shippers of agricultural products and all other commodities.”
• Review of Commodity, Boxcar, and TOFC/COFC Exemptions: “The Board proposes to revoke the existing class exemptions under 49 C.F.R. Part 1039 for (1) crushed or broken stone or rip rap; (2) hydraulic cement; and (3) coke produced from coal, primary iron or steel products, and iron or steel scrap, wastes or tailings.”
• Reciprocal Switching (“Competitive Switching Rules”): “The Board proposes regulations that would allow a party to seek a reciprocal switching prescription that is either practicable and in the public interest or necessary to provide competitive rail service, in accordance with 49 U.S.C. § 11102(c)(1).”
• Railroad Revenue Adequacy: “The Board is exploring its methodology for determining railroad revenue adequacy, as well as the revenue adequacy component used in judging the reasonableness of rail freight rates.”
• Expediting Rate Cases: “As mandated by the Surface Transportation Board Reauthorization Act of 2015, Pub. L. No 114-110, the Board is assessing procedures that are available to parties in litigation before courts to expedite rate litigation and consider the potential application of any such procedures to rate cases. The Board is also assessing whether there are additional changes to the SAC case process that could help the Board meet the expedited timeline for a final decision established under the STB Reauthorization Act.”
• Revisions to the Cost-of-Capital Composite Railroad Criteria: “To better reflect the current marketplace, the Board is proposing to update one of the screening criteria used to create the ‘composite railroad’ for the Board’s annual cost-of-capital determination. Specifically, the Board proposes that one of its screening criteria now require a company’s stock to be listed on either the New York Stock Exchange (NYSE) or the Nasdaq Stock Market (NASDAQ), rather than be listed on either the NYSE or American Stock Exchange (AMEX), as the AMEX is no longer in existence.”
• Ex Parte Communications in Informal Rulemaking Proceedings: “The Board is proposing to modify its regulations to permit, subject to disclosure requirements, ex parte communications in informal rulemaking proceedings. The Board is also proposing other changes to its ex parte rules that would clarify and update when and how interested persons may communicate informally with the Board regarding pending proceedings other than rulemakings. The intent of the proposed regulations is to enhance the Board’s ability to make informed decisions through increased stakeholder communications while ensuring that the Board’s record-building process in rulemaking proceedings remains transparent and fair.”
http://www.railwayage.com/index.php/regulatory/stb-3q-report-to-congress-were-working-on-it.html
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(ACC Mentioned) U.S. EPA Moves To Kill Power Plant CO2 Rules
Oct 11, 2017 | Chemical & Engineering News
By Jeff Johnson
Decline in nation’s coal use likely to continue despite Trump Administration effort
The Trump Administration’s recent steps to kill the Obama Administration’s regulations to curb power plant emissions are unlikely to stop a U.S. and international movement away from coal use. That’s the view of the American Chemistry Council (ACC), a chemical industry trade association, and the Union of Concerned Scientists (UCS), a scientific advocacy group.
In a report, UCS finds that the share of U.S. electricity coming from coal fell from 51% in 2008 to 31% in 2016, and of the coal units that remain, roughly one in four plan to retire or convert to natural gas. Another 17% are uneconomic and may soon face retirement.
ACC says with or without action by the Environmental Protection Agency, reductions in U.S. greenhouse gas releases are likely to continue, driven largely by market forces and state and regional emission control policies. Like UCS, the chemical makers’ group points to data showing sharp carbon dioxide declines from the electric power sector.
Similarly, an International Energy Agency study released earlier this month, finds that in 2016 for the first time worldwide new coal-fired plant installations were topped by photovoltaic solar panel capacity installations.
“We expect this trend to continue for many years to come,” ACC says.
ACC adds that chemical manufacturers have an essential role to play in future energy savings and CO2 emissions reductions, singling out the growing use and development of advanced plastic packaging, solar cells, and the many products that rely on chemistry.
But on Oct. 10, EPA Administrator Scott Pruitt announced he intends to withdraw and possibly replace two Obama regulations, together called the Clean Power Plan. This initiates a complex effort to fulfill President Donald J. Trump’s campaign promise to revitalize the U.S. coal industry
The Clean Power Plan calls for reduction of CO2 from fossil fuel energy generation facilities, leading to significant carbon reductions from coal-fired power plants.
It would cut U.S. CO2 emissions to 32% of 2005 levels by 2030, the level needed for the U.S. to comply with the 2015 international Paris climate change agreement. The regulation has yet to be implemented and is tied up in court with some 25 states opposing it and 18 in support.
President Trump announced in June his intention to withdraw from the Paris accord. Trump and Pruitt are skeptical about the relationship between human activities and climate change.
To withdraw the regulation, EPA will have to hold many public hearings, receive and assess millions of comments, and respond to likely litigation if the action is finalized.
https://cen.acs.org/content/cen/articles/95/i41/US-EPA-moves-kill-power.html
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Clean Power Plan's Legal Fight Continues Amid Repeal Efforts
Oct 12, 2017 | BNA Daily Environment Report
By Abby Smith
The EPA's proposal to ax the Obama administration's plan to cut carbon emissions from the power sector hasn't silenced the legal back-and-forth over the regulation's merits.
The litigation over the Clean Power Plan has been on ice for months, but supporters and foes of the climate rule are disputing how the U.S. Court of Appeals for the District of Columbia Circuit should proceed with the case. The full court heard oral arguments in the case in September 2016.
The Environmental Protection Agency, in an Oct. 10 status report required by the court, cited its newly signed proposal to repeal the Clean Power Plan, arguing the court should continue to keep the case on hold until the agency's repeal of the regulation is final. The report also noted the EPA is considering “the scope of any potential replacement rule” to cover carbon emissions from existing power plants.
The D.C. Circuit so far has not completely satisfied either side of the litigation. The EPA and other opponents of the Clean Power Plan have urged the court to indefinitely delay the case. Environmental groups and other supporters of the Obama regulation want judges to issue their ruling on its legality. Any ruling from the D.C. Circuit could affect the options EPA Administrator Scott Pruitt has available to replace the Clean Power Plan.
It becomes less likely, though, that the court would rule in the case now that the EPA has moved definitively forward on a repeal plan, one legal expert said.
“To step back and take a broad view, the more I think about it, the more it makes sense for the court not to rule on the existing Clean Power Plan,” Nathan Richardson, a law professor at the University of South Carolina and a visiting fellow at Resources for the Future, told Bloomberg BNA. He noted the Trump administration has been clear it doesn't intend to implement the Obama-era regulation, which has never gone into effect due to a February 2016 hold by the Supreme Court.
“It seems like it's not worth the effort, and in some ways counterproductive, for the court to go ahead,” Richardson added.
Lawsuit's Future
Critics of the Clean Power Plan say they expect the EPA will ask the court to dismiss the case after it finalizes the repeal.
“I think it would be a futile gesture for the court to adjudicate the regulation that's both stayed [by the Supreme Court] and slated to be repealed,” Sam Kazman, general counsel for the Competitive Enterprise Institute, told Bloomberg BNA. “I don't see what that gets anyone except billable hours.”
Thomas Lorenzen, an attorney with Crowell & Moring LLP, a firm that represents several utilities in the Clean Power Plan litigation, said it is typical for the court to dismiss lawsuits over regulations that agencies are repealing or rewriting.
But it is also possible the court could simply keep the lawsuit on hold, he said. Lorenzen did not comment on what might prompt the court to do so, but he said he “could foresee parties asking them to do that. This is an unusual case.”
One attorney involved in the case, who spoke to Bloomberg BNA on condition of anonymity, suggested petitioners against the rule may want the D.C. Circuit to continue holding the lawsuit to maintain their ability to challenge the Clean Power Plan in the event repeal efforts fail in court and the Obama rule resurfaces.
Environmentalists Still Seek Ruling
Environmental groups say now, more than ever, is the time for the D.C. Circuit to weigh in on the legality of the regulation.
“As of now, the Clean Power Plan is still on the books,” Andres Restrepo, an attorney with the Sierra Club, told Bloomberg BNA.
He said many of the issues litigated in this case will come up in the forthcoming legal fight over the repeal and any potential replacement that the agency offers. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, founder of Bloomberg L.P. Bloomberg BNA is an affiliate of Bloomberg L.P.
“It makes sense for the court to go forward with a decision on the merits of the Clean Power Plan,” he said. “It will save resources in the long run, clarify” the legal bounds of the EPA's authority under the air act, and “form the basis of the EPA's current action.”
Restrepo noted the EPA is proposing to repeal the Obama climate rule on the grounds that the agency unlawfully set standards based on actions beyond the fenceline of individual power facilities—one of the key legal critiques of the Clean Power Plan.
Courts Address Issues in Context
But Crowell & Moring's Lorenzen said if the EPA ultimately issues a narrow replacement rule, the court should address the scope of the agency's authority in that instance.
“The courts generally are most comfortable considering issues in the specific context of the rule that is before them for challenge,” he said. “If the Clean Power Plan is rescinded, it is no longer before the court for review.”
And while Richardson, the law professor, said “it would be nice” for environmental groups if the D.C. Circuit ruled the EPA has authority to regulate beyond a power plant's fenceline, he predicted it wouldn't change the Trump administration's approach.
“It's not like Pruitt would turn around and say, ‘Put the Clean Power Plan back in place,’” Richardson said. “He'll come up with some other argument” to invalidate the Obama administration's rule.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122036960&vname=dennotallissues&fn=122036960&jd=122036960
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EPA Floats ANPR For Replacing Clean Power Plan But Schedule Uncertain
Oct 11, 2017 | Inside EPA
EPA has submitted to the White House Office of Management & Budget (OMB) its draft advance notice of proposed rulemaking (ANPR) seeking comment on options for replacing the Obama administration's Clean Power Plan (CPP), a measure that will launch a lengthy and uncertain process for how -- or whether -- the agency will regulate power sector greenhouse gases.
EPA submitted the draft ANPR to OMB for review Oct. 10, according to OMB's website. Such reviews generally take 90 days, though they can take much longer or much shorter depending on a range of factors.
The interagency and stakeholder review process that OMB will oversee began the same day that EPA Administrator Scott Pruitt signed a separate proposed rule to repeal the CPP, claiming that the rule is based on an unlawful interpretation of the agency's Clean Air Act authority.
Many observers and administration critics, including former EPA chief Gina McCarthy, have questioned the timing of the administration's actions, noting that repealing the CPP without replacing it could open EPA, utilities and other emitters to tort and other litigation because of legal mandates to curb emissions.
As Inside EPA reported yesterday, CPP supporters are warning that they will file common law and citizen suits against parties if the rule is repealed without an “adequate” replacement.
If Pruitt “does nothing at all, we can bring various kinds of litigation to force him to act,” said David Doniger, a senior attorney with the Natural Resources Defense Council (NRDC).
And Joe Goffman, one of the chief architects of the CPP, told Inside EPA that the Trump EPA appears to be “courting . . . a certain degree of legal chaos and a fair degree of uncertainty for the power sector” with its “clearly bifurcated” approach to repeal and replace the rule.
As a result, many utility and labor groups have urged the administration to develop a narrow replacement for the CPP that sets new, scaled-back targets based on actions taken “inside the fence” of regulated power plants -- an approach that Pruitt supports.
Late last night, EPA, in a status report filed in litigation over the CPP, legally committed to the U.S. Court of Appeals for the District of Columbia Circuit that “in the near future” it will sign an ANPR “that will solicit information on systems of emission reduction that are in accord with the legal interpretation that has been proposed by EPA.”
But even if the agency signs an ANPR “in the near future,” it will still likely be years before any replacement rule is finalized -- and even longer until litigation over the merits of such a rule is resolved.
As suggested by EPA's legal filing, the ANPR likely will seek comment on Trump administration efforts to reverse the Obama administration's determination that a “best system of emission reduction” -- the rule's formula for setting GHG targets -- could be based on steps taken beyond a regulated plant's fenceline, such as fuel switching to gas or renewables.
That likely means a focus on steps that coal-fired power plants can take at their facility that would increase their units' efficiency.
'Hedged' Stance
But environmentalists are already threatening to sue the agency over its approach. EPA's repeal proposal is “filled with arguments about all the things EPA can't do. There is very, very little indication that EPA has any inclination of doing anything meaningful about this serious problem,” said Sean Donahue, who is representing the Environmental Defense Fund in litigation over the CPP, on an Oct. 10 press call.
He noted that while the agency may be preparing to issue an ANPR to take input on whether and how to issue a replacement, EPA's description of that “couldn't be written in a more hedged way,” noting EPA has not determined if it will issue a rule, when it would do so, or the scope of any replacement.
“This picture of an agency fundamentally disregarding and spurning its obligation to reduce pollution that is harming the public is going to color this rulemaking proceeding and any judicial review that follows,” he said.
https://insideepa.com/daily-news/epa-floats-anpr-replacing-clean-power-plan-schedule-uncertain
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Environmentalists Detail Legal Arguments Over EPA CPP Repeal Proposal
Oct 11, 2017 | Inside EPA
By Lee Logan
Environmentalists are outlining early legal arguments they will make over EPA's just-released proposal to repeal the Clean Power Plan (CPP) greenhouse gas rule for power plants, including a major question of whether EPA must take a narrow view of its Clean Air Act authority to set GHG targets for power plants and other stationary sources.
Additionally, supporters of the Obama-era regulation are floating a host of criticisms of EPA's draft cost-benefit review for its proposal, and claiming that a narrow replacement rule would likely fall short of an air law requirement to develop the “best” system to reduce GHGs.
Those arguments, environmentalists say, will play out against the broader backdrop of an administration that appears to be extremely reluctant to address GHGs from the power sector, which is the country's largest source of emissions that cause climate change.
A key decision, according to Sean Donahue, who is representing the Environmental Defense Fund (EDF) in litigation over the CPP, is that EPA's proposal does not say, “We think it's better to interpret the act differently” than the Obama EPA did in issuing the rule. Rather, it argues that the CPP was based on an “unlawful interpretation” of the air law, with EPA now proposing to find it can never issue standards based on actions taken “beyond the fence” of regulated power plants.
The first argument, he told an Oct. 10 press call, might get a better reception from courts because it would likely be viewed through courts' traditional framework that gives agencies significant deference to “reasonable” interpretations of statutes when there is no explicit direction from Congress.
But the latter argument presents a hurdle that is “higher than it might otherwise have been. You have to show you can't do the kind of thing the CPP does. It's not just, 'We're exercising discretion in a different way,' but that 'The existing rule is beyond our range of discretion.' That's a difficult” problem, he said.
The claim that EPA can never go beyond the fenceline is questionable because EPA in about half a dozen prior rules assumed that regulated facilities could take “beyond the fence” actions to comply, according to Richard Revesz, a New York University law professor and director of the school's Institute for Policy Integrity (IPI).
Existing rules that go beyond a facility's fenceline include one regulation that based standards on the fact that coal companies could enter into contracts with third parties to wash their coal to remove some pollutants before it is used.
Revesz also noted that the Supreme Court in 2014 upheld EPA's cross-state air pollution rule -- which set emission budgets for upwind states and allowed for credit trading, rather than mandating specific cuts from each individual facility.
Revesz cited a December 2015 report IPI authored that discussed prior “beyond the fence” precedents, including three rules issued under section 111(d) of the Clean Air Act, which is the same section used to develop the CPP and any likely replacement. Two of those rules were issued by the Clinton administration and another was issued by the George W. Bush administration, though it was vacated on unrelated grounds.
Supporters of the Trump EPA's repeal plan, however, say that the agency's new interpretation of “beyond the fence” limits is in line with past agency practice.
“EPA is not breaking any new legal ground,” said power sector attorney Jeff Holmstead, a former EPA air chief for President George W. Bush. “It is simply returning to the position that EPA had taken under all prior administrations except the Obama administration, regarding the way in which industrial facilities can be regulated under a particular provision of the Clean Air Act.”
'Cooking the Books'
Another claim that will likely arise in forthcoming litigation over the repeal regulation is that EPA's revised cost-benefit analysis of the rule is unlawfully flawed.
The Trump EPA boosted the projected costs of the rule by counting energy efficiency savings as a benefit rather than an avoided cost, as the Obama administration did. Also, it significantly reduced the health benefits of reducing conventional pollutants, while also slashing its estimate of climate change benefits by looking at avoided damages that would occur in the United States, rather than globally.
However, environmentalists are blasting these changes to the draft regulatory impact analysis as math tricks designed to raise the CPP's estimated costs and devalue its benefits in order to justify its repeal.
David Doniger, director of the Natural Resources Defense Council's climate program, told reporters in a separate Oct. 10 press call that the Trump EPA is “cooking the books” on the science and the economics, including by “changing the numbers to make it appear the plan is costly and doesn't provide benefits when in fact the science is extremely strong that the climate benefits [and the benefits of reducing emissions that lead to] soot and smog drastically outweigh the shrinking costs” of compliance.
Further, EDF attorney Martha Roberts told the first press call that EPA must not only defend its new legal conclusions in the repeal rule, but that it must also “justify why they are rejecting the really extraordinary record underlying the CPP.”
That record, she argued, includes reams of technical information showing how the rule is in line with power sector trends and is cost effective. EPA “will have to justify that departure. Given the incredible strength of the existing record, that is a difficult case they will have to make.”
Donahue also said that the broader narrative that the Trump EPA is loath to enforce any GHG limits for power plants will influence litigation over the repeal regulation.
“If it looks to the courts as if this administration is not taking the pollution mitigation part of the [Clean Air Act] seriously, there is a serious risk” that courts will reject the repeal, he said. The repeal proposal and other public statements from agency officials do not offer “any sense that they take this obligation seriously.”
If courts believe EPA is trying to “re-litigate” Massachusetts v. EPA or “ignore climate pollution, I think they're going to have a really difficult time. EPA's technical and statutory arguments will be viewed in that light.”
He added that EPA's repeal proposal is “filled with arguments about all the things EPA can't do. There is very, very little indication that EPA has any inclination of doing anything meaningful about this serious problem.”
While the agency does say it plans to issue an advance notice of proposed rulemaking to take input on whether and how to issue a replacement, EPA's description of that “couldn't be written in a more hedged way,” Donahue said, noting EPA has not determined if it will issue a rule, when it would do so, or the scope of a replacement.
'Best' GHG Reduction System
CPP backers also cast doubt on the legality of one scenario in which EPA develops a narrow replacement based only on boosting coal plants' efficiency. Observers say such an approach would likely require the power sector to reduce GHGs by only a few percentage points, at most.
Major industry and labor groups that oppose the CPP have pushed EPA to adopt this strategy, arguing that a narrow regulation would provide them and EPA insulation against a range of citizen suits and tort litigation that would be filed if EPA simply were to repeal the CPP without a replacement.
Key challenges to any replacement would focus on the section 111(d) requirement to set targets based on the “best system of emission reduction” (BSER), an issue that also was the centerpiece of earlier litigation over the CPP.
“EPA is required to set standards based on the 'best system of emission reduction,' not on a mediocre or crummy system of emission reduction,” Revesz told the press call.
If EPA develops a narrow rule based on coal plant efficiency, challengers are likely to argue there are “much better systems available,” Revesz said, adding “it's very unlikely that would be deemed to be the best system.”
Similarly, Megan Ceronsky, a former Obama White House climate adviser who helped craft the CPP, said the Trump administration must grapple with the fact that power companies are “currently doing what EPA designated as BSER” to reduce GHGs.
They have been fuel switching to lower-carbon generation “as a pollution-reduction, environmental standard compliance technique for many, many years under many different rules,” she said.
Regarding a rule based only on boosting coal plant efficiency, she said: “It's hard to argue a system is best if it doesn't match the real world.”
https://insideepa.com/daily-news/environmentalists-detail-legal-arguments-over-epa-cpp-repeal-proposal
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Environmentalists Fault Iowa's SO2 Reduction Plan As Too Weak
Oct 11, 2017 | Inside EPA
Environmentalists are faulting EPA's proposed approval of Iowa's state implementation plan (SIP) to comply with federal sulfur dioxide air pollution reduction mandates, echoing broad concerns among environmental groups that the agency is increasingly approving SIPs that they allege fall short of Clean Air Act requirements.
In Sept. 25 comments submitted on EPA's Aug. 24 proposed approval of Iowa's SIP for attainment of EPA's 2010 one-hour SO2 national ambient air quality standard (NAAQS) of 75 parts per billion (ppb), Sierra Club says the agency should not issue final approval because of numerous deficiencies in the plan.
Iowa has not taken steps to remove from its SIP regulatory exemptions for periods of plant startup, shutdown or malfunction (SSM), necessary under the Obama EPA's contested 'SIP Call' rule requiring that such exemptions be removed from state plans, Sierra Club says. EPA's policy on the issue under Administrator Scott Pruitt is uncertain, however, with litigation on the SIP Call on hold while the agency decides whether to revise its policy.
Further, the Iowa SIP allows power plants to determine compliance with the 21-day averaging times, which are inappropriate for a one-hour standard designed to combat short-lived spikes in pollution, and fail to follow EPA's guidance on the issue, Sierra Club says.
The criticisms of the Iowa SO2 plan highlight what some environmentalists say is a trend toward EPA approval of air plans they claim are too weak, and a strong aversion by the Trump EPA to disapproving state measures that fail to meet air law requirements.
Supporters of the administration, however, say that EPA is returning to a policy of “cooperative federalism” that is rightly more deferential to states than the approach taken by the Obama EPA, which frequently disapproved SIP measures it said were problematic.
In addition to Sierra Club, the Iowa Environmental Council in Sept. 25 comments says that the SIP fails to properly inventory air emissions as required to establish NAAQS compliance, and imposes emissions limits too weak to ensure NAAQS attainment.
https://insideepa.com/daily-feed/environmentalists-fault-iowas-so2-reduction-plan-too-weak
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