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ACC PM 12/10/17

Industry and Association News - There are no clips to report at this time.

LCSA News

(ACC Mentioned) US Electronics Trade Body Defends EPA and Final TSCA Rules
Oct 12, 2017 | Chemical Watch
By Leigh Stringer

US electronics industry association IPC has defended the US EPA, following lawsuits seeking a court review of the agency's final framework rules for prioritisation and risk evaluation under the Toxics Substances Control Act (TSCA).
Families & Senators Speak Out: EPA Toxics Nominee Michael Dourson Is All Wrong for the Job
Oct 12, 2017 | Safer Chemicals, Healthy Families
By Liz Hitchcock

Stop me if you’ve heard this one before. So-and-so builds a career undermining government efforts to protect the public from being harmed by an industry. Then the Trump administration nominates so-and-so to regulate that industry.

Chemical Management News

(ACC Mentioned) US CPSC Likely to Approve Phthalates Ban Despite Data Concerns
Oct 12, 2017 | Chemical Watch
By Julie A Miller

A legal settlement may bar the US Consumer Products Safety Commission (CPSC) from changing a proposed regulation banning the phthalate DINP in children's products before voting on it on 18 October, even though questions have been raised about the statistical data underpinning the proposals.
Canadian Centre for Alternatives to Animal Tests Opens
Oct 12, 2017 | Chemical Watch

Canada has a new centre set up to look into alternatives to animal testing. Based at the University of Windsor, Ontario, the Canadian Centre for Alternatives to Animal Methods (CCAAM) will focus solely on human-based test methods.
Canadian Government to Propose Chemical Management Revisions in 2018
Oct 12, 2017 | Chemical Watch
By Julie A Miller

Canada's environment minister has agreed that "changes are needed to modernise and improve" the country's Environmental Protection Act, 1999 (Cepa) and has committed to providing a complete proposal by June 2018.
EU Notifies WTO of Plans to Identify Two Substances as SVHC
Oct 12, 2017 | Chemical Watch

The European Commission has notified the WTO of plans to identify the following two substances as substances of very high concern:dicyclohexyl phthalate (DCHP); andbenzene-1,2,4-tricarboxylic acid 1,2 anhydride (trimellitic anhydride, TMA).
Lack of Data Prevents Anses From Concluding on Five Possible EDCs
Oct 12, 2017 | Chemical Watch

Studies on five suspected endocrine disruptors (EDCs) by the French Agency for Food, Environmental and Occupational Health and Safety (Anses) reveal a significant lack of data.
Regulating Chemicals in Recycled Materials a 'Key Challenge' for Echa
Oct 12, 2017 | Chemical Watch
By Clelia Oziel

The decision to have different regulations for chemicals in recycled materials than for chemicals in primary products is a key challenge for the circular economy, according to Echa's newly appointed head.
Legal Experts Expect Quick Action From Commission on EDC Criteria
Oct 12, 2017 | Chemical Watch
By Vanessa Zainzinger

The European Commission could move quickly on drawing up a new proposal for criteria to identify endocrine disrupting chemicals (EDCs) if it responds to one European Parliament objection, legal experts say.
Echa, Member States Submit Tattoo Chemicals Restriction Proposal
Oct 12, 2017 | Chemical Watch

Echa has submitted a proposal to restrict the marketing of certain chemicals in tattoo inks and permanent make-up.
Industry Baulks at Echa Proposal for Free SME Access to REACH Data
Oct 12, 2017 | Chemical Watch
By Clelia Oziel

Granting small- and medium-sized businesses free access to REACH data "is not the right tool" because it can affect fair competition and also raise legal issues, Cefic says.
EU Commission Consults on REACH Annex Revision for Nanomaterials
Oct 12, 2017 | Chemical Watch

The European Commission has launched a public consultation on a draft Regulation amending REACH annexes for the registration of nanomaterials.

Energy News

(ACC Mentioned) US Petrochemical Investment - the Long Wave
Oct 12, 2017 | ICIS

With the first wave of the new US crackers and downstream projects starting up, you might think capital spending (capex) in the US chemical sector has peaked and is headed down. Yet this investment wave could last longer than many think.
Paper Alleges Suppliers Withheld Fuel in New England
Oct 12, 2017 | E&E Energywire
By Saqib Rahim

Avangrid Inc. and Eversource Energy yesterday denied claims that they have artificially pumped up natural gas prices in New England, as alleged by a new study.
North Dakota Oil, NatGas Production Rises in August from July
Oct 12, 2017 | Natural Gas Intelligence
By Richard Nemec

North Dakota’s oil and natural gas production climbed month/month in August, with producing wells tentatively reaching an all-time high.
Industry Seeks Legal Cover With Replacement Rule
Oct 12, 2017 | E&E Climatewire
By Amanda Reilly and Ellen M. Gilmer

As the Trump administration mulls whether to replace the Obama-era Clean Power Plan, its legal foes are already plotting creative courtroom challenges against U.S. EPA and directly against utilities.

Chemical Security News - There are no clips to report at this time.

Transportation and Infrastructure News

(ACC Mentioned) Tensions Rise as CSX Defends New Model Before Frustrated Shippers
Oct 12, 2017 | Supply Chain Dive
By Edwin Lopez

If I don’t accomplish anything else today, I want to apologize to our valued shippers. Whatever problems we had, we had internally. We’ve made some mistakes. This is not a failure of precision scheduled railroading.”
(ACC Mentioned) Amid CSX Rail Problems, Resin Industry Urges Tougher Role for Washington
Oct 12, 2017 | Plastics News
By Steve Toloken

Plastics materials companies and their lobbyists urged federal regulators in an Oct. 11 hearing to take a tougher line with railroad CSX Corp., and said they continue to be plagued by severe problems at the rail carrier.

Environment News

The EPA Rips up the Clean Power Plan
Oct 12, 2017 | The Washington Post
By The Editorial Board

From a certain perspective, Environmental Protection Agency Administrator Scott Pruitt’s move to rip up the Clean Power Plan, President Barack Obama’s signature climate change policy, hardly seems radical.
Environmentalists Oppose EPA's Bid to Stay Brick MACT Suit
Oct 12, 2017 | Inside EPA

Environmental groups are pushing back against EPA's attempt to freeze litigation over the agency's rule setting maximum achievable control technology (MACT) to curb air toxics from brick and clay products manufacturing while it reconsiders the rule, arguing that more delay will hurt public health and is unwarranted.
Ewire: After CPP Repeal Plan, What About the NSPS?
Oct 12, 2017 | Inside EPA

All of the hoopla over the past few days has been over EPA's new proposal to rescind its Clean Power Plan, which sets greenhouse gas targets for existing power plants, also known as an existing source performance standard.

Industry and Association News - There are no clips to report at this time.

LCSA News

(ACC Mentioned) US Electronics Trade Body Defends EPA and Final TSCA Rules

Oct 12, 2017 | Chemical Watch

By Leigh Stringer

US electronics industry association IPC has defended the US EPA, following lawsuits seeking a court review of the agency's final framework rules for prioritisation and risk evaluation under the Toxics Substances Control Act (TSCA).
The trade group is one of 17 industry organisations that has intervened in defence of the EPA after the lawsuits were brought against the agency by NGOs and Democrat lawmakers in August.
They argue that the final rules deviate drastically from the proposals set out in the Obama administration's final days, and do not faithfully implement the 2016 TSCA amendments.
However, Fern Abrams, director of government relations and environmental policy at the IPC told Chemical Watch that the EPA followed the administrative procedures act, which is "the way the agency has been making rules for decades".
"A rule is publicly proposed, then there is a notice issued of the proposed rulemaking in the federal register, they open a docket, take public comments and then they have to respond to each and every comment. And based on that input, regulations often change," she said.
Lead senior scientist at one of the NGOs, the Environmental Defense Fund (EDF), said in a blog last month that the rules EPA proposed in January were heavily rewritten by a "Trump political appointee, Dr Nancy Beck", who prior to joining the EPA was a senior official at the American Chemistry Council (ACC).Better regulation
"I take issue with the tone of some of the commentary that the EPA is influenced by industry and that industry representatives are rewriting regulations and making them less protective. The best regulations are written when everyone comes together, when you have scientists, regulators and industry commenting on a proposed rule. The end regulation is better for it," Ms Abrams said.
EPA experts, she said, are environmental scientists toxicologists, they are not experts in manufacturing, supply chain management or electronics design.
"And so what might seem like the best thing to do from a toxicologist perspective, there may be better ways when on the ground in the factory and that’s why the proposal and commentary, and careful consideration of those comments by the regulators, is so important," she said.
"We think the rules are appropriate and the EPA should be given a chance to move forward with them. We think they give the EPA a good base to work from and to make smarter chemicals regulation using the best available science."Inventory reset
The IPC raised its concerns with the proposed inventory reset rule, mainly opposing the "burden" of reporting the rule required. These were submitted during the comment period after the original proposals were issued in January.
"[The] IPC urges the EPA to eliminate unnecessary burden on businesses and to limit requirements to what is germane and necessary to designate substances as active or inactive on the TSCA inventory," the comment says.
After receiving similar requests from industry groups, the EPA adopted a number of changes in its final inventory reset rule. These included increased reporting exemptions, less information on notifications, and delayed deadlines.
The EDF declined to respond to Chemical Watch’s request for comment.

https://chemicalwatch.com/60031/us-electronics-trade-body-defends-epa-and-final-tsca-rules

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Families & Senators Speak Out: EPA Toxics Nominee Michael Dourson Is All Wrong for the Job

Oct 12, 2017 | Safer Chemicals, Healthy Families

By Liz Hitchcock

Stop me if you’ve heard this one before. So-and-so builds a career undermining government efforts to protect the public from being harmed by an industry. Then the Trump administration nominates so-and-so to regulate that industry.
Donald Trump has chosen a chemical industry consultant to run EPA’s chemical safety office. At Michael Dourson’s Senate confirmation hearing last week, one senator suggested that he’s “never met a chemical he didn’t like.”
Most confirmation hearings for “undercard” positions at federal agencies don’t draw that much attention from the press or the public. This one was remarkable because of the crowd at the press table. It also drew people to Capitol Hill from communities across the country to sound the alarm about Dr. Dourson’s connections to the chemical industry. The job that Dr. Dourson has been nominated for is uniquely important – in 2016 Congress gave EPA new authorities and tools to protect us from toxic chemicals. The director of that program must be committed to putting public health ahead of the chemical industry.
Before the Senate Environment and Public Works Committee held its hearing to consider Dourson’s nomination, Safer Chemicals Healthy Families worked with our partners at the Center for Environmental Health to send a letter signed by more than 100 local, state and national groups urging the Senate to reject the nomination.
The day before the hearing, I had the privilege of joining a team of citizen “lobbyists” from Fairbanks AK and Boise ID in meetings with their senators where they talked about toxic contamination in their communities and the impact it’s had on their families’ health. Our five teams included residents of Hoosick Falls NY, whose water has been contaminated with carcinogenic PFOA, and two families from Johnson County, Indiana whose children were among forty-two local childhood cancer cases since 2010, and who are concerned about the environmental factors, including chemicals like TCE, that may be causing these cancers.
PFOA and TCE are two of the chemicals for which Michael Dourson has been involved with developing standards that have underplayed their health hazards.
One of our citizen lobbyists—Trevor Schaefer from Idaho—even has a federal law named after him. His brain cancer at the age of 13 inspired Idaho Senator Mike Crapo to work with Senator Barbara Boxer to sponsor a law to investigate cancer clusters in communities across the U.S. “Trevor’s Law” was adopted in June of 2016 as part the act reforming the Toxic Substances Control Act (TSCA).
The EPW committee members raised serious questions about the nomination:
Said Illinois Sen. Tammy Duckworth, “…manipulating science to achieve a predetermined outcome is not what the EPA’s Office of Chemical Safety and Pollution Prevention should be about.”
New York Sen. Kirsten Gillibrand noted the Hoosick Falls families who were in the crowded hearing room. “These families are so frightened,” she said. “I can’t imagine what it would be like to not know if the water your children are bathed in is safe.”
The Senate Environment and Public Works Committee will vote on the nomination in the next few weeks. Then the full Senate will then consider it. Please take a few minutes to let your senator know that Michael Dourson is the wrong person for this very important job.
http://saferchemicals.org/2017/10/12/families-senators-speak-out-epa-toxics-nominee-michael-dourson-is-all-wrong-for-the-job/

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Chemical Management News

(ACC Mentioned) US CPSC Likely to Approve Phthalates Ban Despite Data Concerns

Oct 12, 2017 | Chemical Watch

By Julie A Miller

A legal settlement may bar the US Consumer Products Safety Commission (CPSC) from changing a proposed regulation banning the phthalate DINP in children's products before voting on it on 18 October, even though questions have been raised about the statistical data underpinning the proposals.
The commission issued a proposed rule in late 2014 to ban five phthalates in toys and various other children's products at levels greater than 0.1%. These are:
·         diisobutyl phthalate (DIBP);
·         di-n-pentyl phthalate (DnPP or DPENP);
·         di-n-hexyl phthalate (DnHP or DHEXP);
·         dicyclohexyl phthalate (DCHP); and
·         diisononyl phthalate (DINP).
The rule would expand an interim ban on DINP, which currently applies only to toys that can be placed in the mouth, to all toys.
Four of the phthalates are not widely used in children's toys and childcare articles, and discussion at the commission's 11 October meeting focused on DINP.
The High Phthalates Panel of the American Chemistry Council (ACC) has criticised the decision on DINP as "arbitrary and capricious," arguing that the most current data "demonstrates that the cumulative exposure to the phthalates that are the subject of the rule is actually well below any level of concern".
The two Republican commissioners on the CPSC have questioned the adequacy of the data and the criteria for deciding what level of exposure meets the statutory mandate to ensure a "reasonable certainty of no harm".
But Republican Commissioner Joseph Mohorovic said they are "hamstrung" by a legal agreement. This is because the CPSC agreed to vote on a final rule by 18 October to settle a lawsuit brought by NGOs that complained about that the delay in finalising the proposal.
The settlement does not specify the content of the rule. But Commissioner Mohorovic noted that the commission's procedural rules require public comment, and so the commissioners are effectively barred from making substantial changes to the proposed rule before voting on it.
"If this final rule is not a logical outflow of the proposed rule, we would be prohibited by the court order of having a rule that would stand up in court by getting the additional notice and comment," he said.
The rule would lift interim bans on two phthalates, DNOP and DIDP, which the commission staff concluded have not been shown to have the antiandrogenic effects that the rule addresses.
DEHP, BBP and DBP are already banned above de minimis levels in children's products.

https://chemicalwatch.com/60034/us-cpsc-likely-to-approve-phthalates-ban-despite-data-concerns

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Canadian Centre for Alternatives to Animal Tests Opens

Oct 12, 2017 | Chemical Watch

Canada has a new centre set up to look into alternatives to animal testing. Based at the University of Windsor, Ontario, the Canadian Centre for Alternatives to Animal Methods (CCAAM) will focus solely on human-based test methods.
The university also houses CCAAM subsidiary, the Canadian Centre for the Validation of Alternative Methods (CCVAM).
"A paradigm shift is needed to transition from animal models to human-based frameworks," Charu Chandrasekera, founding executive director said. "We have to accept the limitations of animal models and try to overcome them." She envisages that the centre will be the Canadian hub that brings together regulators, academia, industry, and policy makers.
The centre will carry out multidisciplinary basic research using only human biomaterials and human-based methods, rather than in vivo or in vitro tests using animals or animal cells. It also intends to collaborate with Canadian regulators to develop, validate, and accept alternative toxicity testing methods. Health Canada will be heavily involved in regulatory aspects of the work.Academic programme
As well as working on new human-based test methods, the centre will also run an academic programme to train the next generation of scientists, ethicists, and policy makers, Dr Chandrasekera said. This will initially consist of a certificate programme and a one-year masters programme with long-term plans to establish a four year degree programme in animal replacement science.
Collaboration will be at the heart of the new centre, Dr Chandrasekera said. "I feel that for spurring scientific progress, an interconnected community is key. And I want everyone to be at the table." For example, an advisory council will have members from different areas, including animal welfare groups, industry, and policy makers.
As well as being involved in regulatory aspects, Health Canada will also help to develop CCAAM's national strategy and will be involved in setting up the academic programme, she said.
The centre's main funding currently comes from the University of Windsor, but Dr Chandrasekera said she hopes to gain Canadian government grants soon, as well as industry and philanthropic support.
"One of the things that I want to do is establish an animal replacement fund that Canadians from across the country will be able to apply for, she says. "These researchers will be able to work with CCAAM closely to advance human-centred science, innovation, and ethics in Canada."
CCAAM held its official launch and inaugural strategic visioning workshop on 2-3 October.
https://chemicalwatch.com/59967/canadian-centre-for-alternatives-to-animal-tests-opens

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Canadian Government to Propose Chemical Management Revisions in 2018

Oct 12, 2017 | Chemical Watch

By Julie A Miller

Canada's environment minister has agreed that "changes are needed to modernise and improve" the country's Environmental Protection Act, 1999 (Cepa) and has committed to providing a complete proposal by June 2018.
The House Standing Committee on Environment and Sustainable Development released a report on 15 June urging sweeping revisions to Cepa and the Chemicals Management Plan (CMP). Among its 87 recommendations is one reversing the burden of proof onto industry for demonstrating the safety of 'substances of very high concern' – a hazard-based approach borrowed from the EU's REACH regime.
Environment minister Catherine McKenna's response, made on 7 October, noted that some of the recommendations can be "realised through implementation". She said her agency plans to address issues related to public participation and information gathering in that way.
However, she said, the government "is considering regulatory, policy and programme changes that respond to some of the committee's recommendations".
Ms McKenna said the government is on track to meet the CMP's goal of completing assessments of 4,300 chemicals by 2020. The chemicals being assesed were identified by a categorisation process completed in 2006.
"In parallel with the review of Cepa, the government is consulting a broad range of stakeholders to determine what the focus of chemicals management should be in the post-2020 period," Ms McKenna said.'Something is coming'
Environmental advocates hope, and industry fears, that the Liberal government will alter Cepa and the CMP to move toward a hazard-based approach.
"It could be they didn't want to rock the boat during Nafta negotiations," J Gary LeRoux, president of the Canadian Paint and Coatings Association, told Chemical Watch.
A response proposing drastic changes could complicate those negotiations, he said, while rejecting the proposals would cause upheaval among the government's supporters in the environmental community.
"The easy way out is kick the ball down the field, which they did to next June," Mr LeRoux said. "Industry and NGOs will have to, and will, regroup".
"Rest assured something is coming," he said, and added that government officials consulted extensively with stakeholders and were working on "a more robust response that was shelved".
W Scott Thurlow, legal counsel and director of chemicals management at the Chemistry Industry Association of Canada (CIAC), told Chemical Watch: "The minister is taking the recommendations of the committee seriously and appropriately wants to do her own analysis of them."
He said the committee rushed to judgment on revising a system that took years of hearings and debate to devise.
"I would say we already have it right," he said. Canada's risk-based model has assessed chemicals much faster and more efficiently than European or American systems and "done a good job of targeting areas of greatest concern," he said.NGOs strongly disagree
"Reforming Cepa goes hand-in-hand with the federal government’s agenda to improve Canada’s environmental laws that were gutted in the past few years," Annie Bérubé, director of government relations with Équiterre, said in a joint statement issued by five NGOs. "Cepa is almost two decades old and has largely failed to protect us from the effects of toxics".
And Muhannad Malas, toxics programme manager at Environmental Defence, told Chemical Watch: "I think it is a promising first step that the minister acknowledged and agreed that Cepa is outdated and needs to be modernised. And her commitment to examining potential amendments is also encouraging.
"So this is a step closer to a meaningful update of Cepa," he said, "but we would like to see is a bill introduced in the House of Commons in early 2018".

https://chemicalwatch.com/60007/canadian-government-to-propose-chemical-management-revisions-in-2018

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EU Notifies WTO of Plans to Identify Two Substances as SVHC

Oct 12, 2017 | Chemical Watch

The European Commission has notified the WTO of plans to identify the following two substances as substances of very high concern:dicyclohexyl phthalate (DCHP); andbenzene-1,2,4-tricarboxylic acid 1,2 anhydride (trimellitic anhydride, TMA).
In June 2016, Echa's Member State Committee backed a proposal by Sweden and Denmark to classify DCHP as an SVHC, and add it to the REACH candidate list on the grounds that it is a category 1B substance toxic for reproduction and an endocrine disruptor for human health.
And in December, Echa agreed that TMA should also be added to the candidate list.
https://chemicalwatch.com/60008/eu-notifies-wto-of-plans-to-identify-two-substances-as-svhc

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Lack of Data Prevents Anses From Concluding on Five Possible EDCs

Oct 12, 2017 | Chemical Watch

Studies on five suspected endocrine disruptors (EDCs) by the French Agency for Food, Environmental and Occupational Health and Safety (Anses) reveal a significant lack of data.
Under its National Endocrine Disruptor Strategy (SNPE), Anses evaluates at least five substances a year. It has published the results of substances evaluated in 2016. These are:
·         tetramethyl bisphenol F (TMBPF), used to make resins and polycarbonate flame retardants;
·         triclocarbon, an antimicrobial;
·         resorcinol bis(diphenylphosphate) or RDP, a flame retardant;
·         dicyclopentadiene, a chemical intermediate; and
·         tin sulfate, used to make cement
Anses was unable to rule out TMBPF as an EDC. It may have an anti-androgenic effect, or affect signalling via oestrogen receptors, it suggests. The agency recommends that Echa requests data on genotoxicity and reprotoxicity.
Although in vitro results suggest that triclocarbon could act as an EDC – acting on steroid and thyroid pathways – it is not possible to conclude that on existing data, the agency found.
The agency recommends that RDP be evaluated under the community rolling action plan (Corap). Based on limited data, the chemical may have neurotoxic and developmental effects, it says.
Finally, the agency was unable to conclude on dicyclopentadiene and tin sulfate.
Anses has adopted a risk management option analysis (RMOA) for three of the substances. It assessed dicylopentadiene for suspected reprotoxicity and tin sulfate for suspected carcinogenic, mutagenic and reprotoxic properties.
This year, Anses is focusing on:
·         homosalate;
·         methyl trifluorosulfon;
·         trisulfuron-methyl;
·         bisphenol B; and
·         BDE-47.

https://chemicalwatch.com/59991/lack-of-data-prevents-anses-from-concluding-on-five-possible-edcs

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Regulating Chemicals in Recycled Materials a 'Key Challenge' for Echa

Oct 12, 2017 | Chemical Watch

By Clelia Oziel

The decision to have different regulations for chemicals in recycled materials than for chemicals in primary products is a key challenge for the circular economy, according to Echa's newly appointed head.
In his inaugural address to the European Parliament's Committee on Environment, Public Health and Food Safety (Envi) on Wednesday, Bjorn Hansen said: "do we want exactly the same standards for recycled materials, or do we want higher levels of exemption in order for recycling to occur?"
Mr Hansen was appointed last month as Echa's new executive director. He will replace Geert Dancet who has held the position since the agency's inception in 2007. Mr Hansen will serve a standard five-year term, beginning in January 2018.
A smooth transition to a circular economy involves "finding the balance" between materials that have a value and need to be recycled, and the hazardous substances in them that should be eliminated, Hansen said.
Echa has a dual role to play, he added, by "supporting the understanding of the hazardous properties of chemicals and also the uses of materials" across the supply chain "in order to enable the development of products and chemicals for a circular economy".
Current EU legislation does not apply the same level of scrutiny to recycled materials as that on virgin materials. One case in point is cadmium, which is exempted under REACH in certain applications of recycled PVC.
Referring to the case of cadmium, Hansen said, "is this the kind of thing we want or not? This is the policy question."
In its response to a recent European Commission consultation on chemicals, products and waste legislation, Cefic said it favours a case-by-case risk-based approach to recycled chemicals that focuses on applications. This would mean that the use of secondary raw materials could be for different applications with different exposure profiles.Efficiency and transparency
Another main goal for Echa is to improve its efficiency, Hansen said. The agency has faced criticism from industry and NGOs that its processes are too slow, and this jeopardises the aim to protect human health and the environment.
Hansen admitted there were general efficiencies to be gained and that every time one makes a decision, one learns from it.
"After 10 years it's a good time to sit down and reflect on that," he said. Echa could conduct its own review on a technical and scientific level, similar to the Commission's 10-year review of REACH currently underway, to increase efficiencies and make decision-making faster, he said.
Transparency is also "essential", he added. Industry is doing a good job on the whole, he said, "but it's important to follow the discussion to see if there are any mistakes", and to react to them appropriately.
https://chemicalwatch.com/60033/regulating-chemicals-in-recycled-materials-a-key-challenge-for-echa

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Legal Experts Expect Quick Action From Commission on EDC Criteria

Oct 12, 2017 | Chemical Watch

By Vanessa Zainzinger

The European Commission could move quickly on drawing up a new proposal for criteria to identify endocrine disrupting chemicals (EDCs) if it responds to one European Parliament objection, legal experts say.
Last week the European Parliament rejected the Commission's first draft proposal for the criteria because it included an "unlawful" exemption for some substances with endocrine disrupting properties.
A new version of the text could simply remove the paragraph introducing the exemption, according to the Centre for International Environmental Law (Ciel).
"If the Commission was willing to respect the 7th Environment Action Programme, the Better Regulation, and the high level of protection mandated by the plant protection products (PPP) Regulation, it would change the criteria without delay," said Giulia Carlini, a staff attorney at Ciel.
After it removes the exemption, the Commission could re-submit the draft criteria for adoption through the full comitology procedure. Darren Abrahams, a partner at law firm Steptoe & Johnson said this "seems the most likely route".
Parliament has made clear why it objected and this "could conceivably be fixed" if the Commission and member states agree to those changes, Mr Abrahams said.
"However, the resulting criteria would provide even less of what many industry stakeholders have considered to be essential."
The European Consumer Organisation, Beuc, says it would welcome this approach as the quickest way to move the criteria forward. It says there can be "no excuses for delaying action as MEPs have clearly outlined how the Commission should improve its definition [of an EDC]. We urge the Commission to swiftly make a new proposal that is in line with what the Parliament has called for."Other options
The Commission has, however, two other options for proceeding with the criteria, Mr Abrahams said. It could withdraw the old proposal completely and submit a new legislative one to the European Parliament and Council, using a different and lengthy legal procedure. But it is unlikely that this would make it easier to reach consensus on the proposal, Mr Abrahams said.
Its other option is to take no further action on proposing EDC criteria for pesticides. The plant protection products (PPP) Regulation only required the Commission to present a draft measure for scientific EDC criteria to be adopted by comitology, Mr Abrahams said. The biocidal products Regulation (BPR), on the other hand, asks it to "adopt" such criteria. The delegated Act for EDC criteria proposed for biocides, which mirrors the one for PPPs, is still under scrutiny.
The Commission could separate the two proposals and stop work on PPPs. But Mr Abrahams said this scenario is unlikely. "In any event, failure by the Commission to take action could lead to litigation by the Parliament before the General Court of the EU. If the two proposals were separated, some of the issues relating to the biocides proposal might get more focused attention from decision makers but this seems a remote possibility," he said.
"The bottom line is that the genie appears to be out of the bottle. The mindset and general approach of the draft criteria is probably here to stay for biocides, PPPs and also other chemicals to which these criteria will not formally apply, but I expect will be relied upon in practice."
https://chemicalwatch.com/60026/legal-experts-expect-quick-action-from-commission-on-edc-criteria

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Echa, Member States Submit Tattoo Chemicals Restriction Proposal

Oct 12, 2017 | Chemical Watch

Echa has submitted a proposal to restrict the marketing of certain chemicals in tattoo inks and permanent make-up.
According to the proposal, the primary concern is human health risks for the general population. Hygiene concerns, as well as notifications, warnings and labelling of tattoo inks, will continue to be regulated by each respective member state.
Echa is working with Denmark, Germany, Italy and Norway to analyse the risks to human health. Denmark initiated the groundwork for the proposal in November last year, when it joined with industry representatives to launch its tattoo inks strategy. The aim is to protect Danish consumers until EU rules are in place.
Under their assessment, Echa and the European states will reference the list of substances restricted by the cosmetic products Regulation, as well as those with harmonised classification as carcinogenic, mutagenic or reprotoxic (CMR) category 1A, 1B or 2 or as a skin sensitiser.
The restriction report and annexes, which cover thousands of substances, will be published on Echa’s registry of intentions, once the necessary technical checks have taken place, the agency says.
https://chemicalwatch.com/60024/echa-member-states-submit-tattoo-chemicals-restriction-proposal

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Industry Baulks at Echa Proposal for Free SME Access to REACH Data

Oct 12, 2017 | Chemical Watch

By Clelia Oziel

Granting small- and medium-sized businesses free access to REACH data "is not the right tool" because it can affect fair competition and also raise legal issues, Cefic says.
Its comments come after Echa proposed conditional free access to SMEs, to reduce the burden of data-sharing negotiations for the 2018 registration deadline. The REACH Directors’ Contact Group, which includes the European Commission, Echa and industry associations, is expected to discuss the issue at a meeting later this month.
But Cefic says while free data sharing could be a solution in some cases, it "should be assessed on a case-by-case basis rather than become the default approach". The proposal is also likely to hit legal snags in some European countries, it adds.
"With all the companies working hard at the moment to meet the 2018 registration deadline, discussions around this proposal will only generate more confusion for the industry," Cefic tells Chemical Watch.Legal concerns
Jouni Honkavaara, partner and CEO at consultancy REACHLaw, also points to "serious legal concerns", once the perspective is shifted from the SME to the lead registrant.
They have invested money and effort to create the lead registrant dossiers, for which they have rights, Mr Honkavaara says. These rights are costly to protect, especially in negotiations with letter of access (LoA) buyers who "could file a dispute without cost, whereas the lead registrant would need to follow a costly legal route".
The lead registrant is also required, under the 2016 implementing Regulation on data sharing, to itemise and justify costs and show "every effort" in a negotiation process with LoA buyers, he adds. While free sharing of data would eliminate such costs, some of these requirements can be considered to be retroactive, Mr Honkavaara says.
And the conditions set on the SME "do not really have anything to do with the lead registrant – he is expected to give his rights for free or else face more and more "negotiations", Mr Honkavaara says.
There may also be concerns over "fair treatment of all parties" for SMEs that have already bought LoAs for the 2018 registration.Proposal ‘well-timed’
Echa has timed its proposal well. Mr Honkavaara says as an estimated 25,000 to 50,000 substances are still to be registered before 31 May next year.
The number of data-sharing disputes is expected to rise sharply in the run up to May 2018, threatening to jeopardise the whole REACH deadline, he adds.
The European SME trade body, Ueapme, welcomed Echa's proposal, describing it as a "win-win".
With the new data sharing Regulation imposing higher transparency costs on lead registrants, "it makes sense" for them to try to save on administrative costs, especially where the LoA purchase price is €5,000 or less, says Marko Susnik at the Austrian Federal Economic Chambers, a member of the Ueapme network.
"If we don't support our SMEs, then we will lose them and imports from non-EU countries like China will fill those gaps," Mr Susnik adds.
The downstream users of chemicals coordination group (Ducc) also welcomed "any solution that would help to mitigate the impacts on SMEs and avoid disruption of supply chains". But Ducc chair Janice Robinson says free access to data "may be a step too far".
https://chemicalwatch.com/59978/industry-baulks-at-echa-proposal-for-free-sme-access-to-reach-data

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EU Commission Consults on REACH Annex Revision for Nanomaterials

Oct 12, 2017 | Chemical Watch

The European Commission has launched a public consultation on a draft Regulation amending REACH annexes for the registration of nanomaterials.
NGOs criticised the Commission's handling of discussions on the revision of the annexes at the March meeting of the the Competent Authorities Sub-Group on Nanomaterials (CASG-Nano).
It failed to incorporate into a non-paper – which is a discussion document rather than a formal draft proposal for revising the annexes – comments made at the last CASG-Nano meeting a year before, David Azoulay of the Center for International Environmental Law (Ciel) said at the time.
The consultation comes in advance of the next CASG-Nano meeting, which is expected to be in November.
The deadline for comments is 6 November.
It is the second Commission consultation on nanomaterials in less than a month. In September, it opened its long-awaited consultation on the revision of its Recommendation on the definition of a nanomaterial.
In June, Echa launched its EU observatory for nanomaterials (EUON), a public website aimed at increasing transparency of information on nanomaterials on the EU market.

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Energy News

(ACC Mentioned) US Petrochemical Investment - the Long Wave

Oct 12, 2017 | ICIS

With the first wave of the new US crackers and downstream projects starting up, you might think capital spending (capex) in the US chemical sector has peaked and is headed down. Yet this investment wave could last longer than many think.
Laurence Alexander, chemical equity analyst at Jefferies, makes the case in his latest research note titled: “The Long Wave of Petrochemical Capex”.
He expects this long wave of US investment to “continue through the middle of the next decade, and most likely accelerate”.
Planned investment in the US chemical sector arising from shale gas has hit around $185bn, with only about $35bn completed, according to the American Chemistry Council (ACC).
The headline number has continued to rise, from $164bn a year ago, $100bn in 2014 and $70bn in 2013, noted Alexander.
The analyst expects the capex figure to catapult to $240-250bn by 2020 with over $20bn coming from new ethylene projects.
The US commodity chemicals sector had largely been a mature market, with long-term growth prospects of 0.3-1.0x US GDP. However, this is changing, according to ACC chief economist Kevin Swift.
“Renewed competitiveness from shale gas is making the US the region in which to invest, and resulting in a higher growth premium,” said Swift at a meeting of the Chemical Marketing & Economics Group (CME) in New York.
The economist expects US production volumes of basic chemicals and synthetic materials to rocket upwards by around 6.25% in 2018, followed by another 7.75% jump in 2019 and another 7.25% gain in 2020.
These are multiples of US GDP growth and stunning numbers for a supposedly mature market. The magnitude is also surprising given the not insignificant size of the US basic chemical market at a hefty $271bn.
US specialty chemicals production is also expected to grow, but at more modest rates of 2.75%/year for both 2018 and 2019 and 1.75% in 2020, noted Swift. He estimates the size of the US specialty chemicals sector at $156bn.
SYNCHRONIZED ECONOMIC UPSWING
So far, the demand side is cooperating with a synchronized global economic upswing which is also expected to continue in the coming years, said Swift. This should be a tailwind for the US chemical sector and exports in particular.
The economist expects steady global GDP growth of 3.0% in 2018, and 2.8% each for 2019 and 2020, basically on par with the expected 2.9% growth in 2017.
And importantly, all major countries and regions are expected to be in the green through 2020, with India showing the highest annual growth in the mid-7% range, and Japan the lowest at 1.0% and below, Swift pointed out.
GLOBAL SUPPLY ADDITIONS
While the demand side appears accommodating, the supply side outlook is not expected to be as sanguine, as the US is not the only country with ambitious petrochemical expansions plans.
“Capacity additions in the Middle East and Asia look likely to come in faster than we had expected, and by 2019 China should have both ethane/LPG crackers running and, most likely, a more extensive pipeline of ethane-based projects,” said Alexander of Jefferies. The analyst points out that earlier in 2017, SP Chemicals and Wanhua started construction on crackers in China that can run on ethane, which should start up in 2019-2020.
Engineering firm Technip (now TechnipFMC) in February 2016 announced it would supply proprietary technology and equipment to SP Chemicals for its new 650,000 tonne/year gas cracker in Taixing, Jiangsu province, which would use ethane and propane feedstock from North America. “We expect China to incentivize ethane-based or flexible crackers to reduce the risk of a rapid expansion in the arbitrage window between US-based and Chinese production in future cycles,” said Alexander. Plus, there are as many as 15 new cracker projects – mostly naphtha-based – being discussed for China, he added.
https://www.icis.com/resources/news/2017/10/12/10152996/us-petrochemical-investment-the-long-wave/

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Paper Alleges Suppliers Withheld Fuel in New England

Oct 12, 2017 | E&E Energywire

By Saqib Rahim

Avangrid Inc. and Eversource Energy yesterday denied claims that they have artificially pumped up natural gas prices in New England, as alleged by a new study.
The white paper, authored jointly by economists at the Environmental Defense Fund and three U.S. universities, aims to answer a question: Why, on some of the coldest days of the year, do some New England gas pipelines seem to be part-empty?
The authors' explanation is that over three years, affiliates of Avangrid and Eversource throttled back the amount of gas they drew from the pipelines. The authors alleged this caused artificial gas shortages, jacking up power prices and forcing New England ratepayers to pay $3.6 billion more than they had to. They also said this may have benefitted the two companies' power plants.
The companies said they've done no wrong and that regulations prevent them from using such a scheme.
The paper's explosive claims will intensify, at least temporarily, scrutiny of the companies that bring gas to New England and burn it.
As nuclear, coal and oil power have declined in the region, natural gas has surged in to become the dominant fuel for power. According to ISO New England, in 2000, 15 percent of power came from gas; last year, 49 percent did.
This growing dependence, ISO-NE has said, bolsters the case for building more gas pipelines into the region. But the EDF white paper pushed back against that argument, saying existing pipelines are being underused.
The two energy companies, which have gas and power segments in New England, flatly rejected the claims, saying the authors misconstrued how gas markets work and how the companies are allowed to make money in the business.
"Our gas supply portfolios and our gas pipeline contracts are consistent with industry standards nationwide," Avangrid said in an emailed statement. "AVANGRID has not benefited financially by any movement in the wholesale electricity pricing market in New England."
"The underlying concept is not only false and misleading, but concerningly irresponsible as it lacks any understanding of how gas procurement actually works," Eversource said in an emailed statement. "The pipeline capacity we reserve is done so to meet the needs of our customers, no other purpose. We do not engage in any behavior to 'artificially constrain capacity.'"
The paper sprung from a strange pattern the authors saw in pipeline data.
On cold days in New England, when demand for gas rises, natural gas prices also rise. At those times, one would expect the region's gas pipelines to be fully subscribed, said Matthew Zaragoza-Watkins, an assistant economics professor at Vanderbilt University.
But when the researchers looked at traffic on one major network, Algonquin Gas Transmission, they saw that buyers weren't using their full subscriptions. Two of the major subscribers of that line were subsidiaries of Avangrid and Eversource, they found.
"Over the course of the entire day, they were only using about half of the capacity that they had set aside," Zaragoza-Watkins said.
The economists said that reduced gas supply to the region, keeping gas prices higher than they had to be. And because so much power in the region uses gas, it meant power prices rose more than they had to.
From summer 2013 to summer 2016, the authors said, this cost New England ratepayers billions. "Electricity purchasers spent $3.6 billion more than they would have over the three-year study period," Zaragoza-Watkins said.
Whether they intended it or not, the report said, Avangrid and Eversource were in a position to benefit. The purported reason is that holding back gas would raise fuel and power prices, benefiting some generators while harming others. Both companies have generators in New England.
The paper doesn't claim that those companies generators' benefitted, nor did it allege any legal violations or intentional abuses.
But it said the finding undermines the argument that New England definitely needs more gas pipelines.
The paper hasn't been submitted for peer-review yet, said Zaragoza-Watkins.
Both companies responded that they are in closely regulated businesses and don't even have the ability to profit from holding gas back.
Eversource said the strategy wouldn't work in either its gas or power segments.
"Our gas distribution business is carefully regulated and the gas supply we purchase for our customers is a strict pass through cost — meaning we don't benefit from higher prices derived from withholding," it said.
Its New Hampshire power plants "would not produce more revenue for Eversource as a result of gas capacity issues, as the report falsely alleges."
Avangrid said it's still reviewing the EDF study. But it said its pipeline practices are designed to guarantee gas for certain customers and that this requires some flexibility.
"There are always going to be weather changes, but our job is to ensure our customers have reliable service, no matter the weather or operating conditions. This is a regulatory requirement," it said.
The finding may yet draw attention from regulators, as they face pressure to rethink market rules for the age of gas.
Historically, markets like New England have chiefly relied on gas for heating. But the rise of gas as a fuel for power means "we're in a different world now, where these two sectors are suddenly more related than they've ever been," said David Littell, a former commissioner on the Maine Public Utilities Commission and principal at the Regulatory Assistance Project.
But they're not always regulated in a unified way. The issue raised by EDF, for instance, touches on gas distribution, wholesale power markets and interstate gas transmission. All three have different levels of involvement by state and federal regulators.
EDF's paper recommended regulators look at a handful of ways to discourage companies from leaving pipelines part empty. That might mean reforming the way natural gas contracts are regulated, for example.
To Littell's mind, the paper is the first convincing explanation for why gas pipelines aren't completely full on the coldest days.
"This is the first time I've seen an answer to that question that seems credible. And it is troubling," he said. "Whether it's exactly right or not is not the point. It underlines that there are some real problems there with big utility holding company structures where they can be in three different businesses at once."
https://www.eenews.net/energywire/2017/10/12/stories/1060063417

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North Dakota Oil, NatGas Production Rises in August from July

Oct 12, 2017 | Natural Gas Intelligence

By Richard Nemec

North Dakota’s oil and natural gas production climbed month/month in August, with producing wells tentatively reaching an all-time high.
August oil production rose 3.5% month/month, while gas production was 2.5% higher, said Department of Mineral Resources Director Lynn Helms.
Oil production was 33.6 million bbl (1.08 million b/d), compared to 32.4 million bbls (1.04 million b/d). Gas production was 60.2 Bcf (1.94 Bcf/d) from 58.7 Bcf (1.89 Bcf/d) in July.
There were 10 rigs working on the edge or outside the Bakken Shale core area, which is a gassier part of the play, Helms said.
Overall, the rig count dropped by two to 56 in August and remained there in September while producing wells increased to more than 14,000, a preliminary all-time high, from 13,992 in July.
Another trend in recent months has been an increase in merger and acquisition activity, with portfolios of wells changing ownership, said Helms. The state has 681 wells being transferred to new owners.
Slightly more than 400 wells were transferred from HRC Operating LLC to Bruin Operating, while Whiting Petroleum Corp. is selling more than 100 wells to Rim Rock Oil & Gas.
Helms also discussed the Trump administration’s attempts to revise hydraulic fracturing (fracking), venting/flaring, sage grouse habitat and rights-of-way rules on Native American lands.
"I'm a fan of simple solutions, and in the case of the federal rules that would involve applying the Congressional Review Act, in which Congress can change and rollback regulations, but the U.S. Senate lacked the votes to do this," said Helms. "It costs a lot of money, takes a lot of time, and creates a great deal of uncertainty.
“For example, the fracking rule was overturned in Wyoming courts, so they put the rule back in place and there is an injunction, but it is going back to trial in the federal district court."
He said, "it becomes really complicated in the administrative rule of law and court process, so the Congressional Review Act is something that really should be dusted off, and cleaned up and looked at by Congress."
http://www.naturalgasintel.com/articles/112063-north-dakota-oil-natgas-production-rises-in-august-from-july

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Industry Seeks Legal Cover With Replacement Rule

Oct 12, 2017 | E&E Climatewire

By Amanda Reilly and Ellen M. Gilmer

As the Trump administration mulls whether to replace the Obama-era Clean Power Plan, its legal foes are already plotting creative courtroom challenges against U.S. EPA and directly against utilities.
If the agency drags its heels on replacing the rule, declares that it won't replace it at all or issues a narrower rule, lawsuits are certain. Among the tactics environmental lawyers are eyeing: bringing climate change "nuisance" claims under common law — where those suing would argue that they're harmed by emissions — and filing direct citizen lawsuits against EPA. Those prospects have industry worried and are part of the reason some are pushing for a replacement.
"If EPA is not acting like it is taking this issue in hand and moving forward aggressively against this singularly serious threat ... there will be more pressure for innovative remedies, innovative approaches," said Sean Donahue, an attorney representing environmentalists in the ongoing Clean Power Plan litigation. "A picture of abdication is going to inject a lot of energy into efforts to find other ways to get at these emissions," he said.
The Obama administration's Clean Power Plan required states to craft strategies to reduce carbon dioxide emissions from existing power plants. On Tuesday, EPA Administrator Scott Pruitt formally began the process to repeal the rule. EPA also said it's considering whether to issue a replacement rule. A replacement from the Trump administration is expected to forgo the broad approach that the Obama administration took and focus more narrowly on efficiency limits at specific power plants.
The prospect of being vulnerable to widespread common law and citizen lawsuits is extremely unattractive to industry, which could face steep legal costs and settlement fees. Having a replacement rule for the Clean Power Plan could help take some of the legal uncertainty off the table.
"I think that for several reasons, the vast majority of people in the business community believe that there should be a reasonable regulation instead of no regulation at all," said Jeff Holmstead, an attorney at Bracewell LLP. "Part of that is they think that that protects them against these nuisance suits, I think that's certainly part of it. They would also just like to have some regulatory certainty."
Looming over the legal debate is a 2011 Supreme Court decision.
In the 2011 case American Electric Power Co. v. Connecticut, a state-led coalition sued six power companies, arguing it was hurt by the companies' emissions contributing to climate change. But the justices ruled that the Clean Air Act pre-empted such federal common law claims. Because the court had previously ruled that EPA had the authority to regulate greenhouse gas emissions, the ruling was seen to preclude common law claims brought under federal law.
The question being pondered now: What if EPA doesn't actually act to limit greenhouse gas emissions?
"At the time AEP was decided, it looked like EPA was actually going to move forward with fulfilling its statutory duty," Donahue said. "And so it is certainly a significant change in the game to see EPA pulling back from fulfilling its statutory duty, and I think we'll have to see what happens."
Multiple legal experts, though, said they see an uphill battle for climate change claims brought under common law, even in the absence of any EPA limits on greenhouse gas emissions.
That's because, in the 2011 opinion, Justice Ruth Bader Ginsburg wrote that displacement occurred when Congress passed the Clean Air Act. "The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue," the opinion says.
"It's the legislation that displaces or pre-empts, not regulation," said Michael Burger, executive director of Columbia University's Sabin Center for Climate Change Law.
Eric Glitzenstein, partner at Meyer Glitzenstein & Eubanks LLP, a D.C. law firm that was involved in AEP, was not optimistic about using federal nuisance cases either, citing the Supreme Court's broad ruling in the 2011 decision. "I have a hard time seeing how one would get around that," said Glitzenstein, who represented Defenders of Wildlife, the Center for Biological Diversity and the National Wildlife Federation in an amicus brief in AEP.
According to Tom Lorenzen, an attorney at Crowell & Moring LLP who's represented utilities in the litigation opposing the Clean Power Plan, "displacement continues to hold whether there's a replacement rule or not because EPA has the authority to regulate under [the Clean Air Act]."
However, he added, "I think there's less incentive for environmental groups and others to try to bring these suits if the federal government is regulating."Judges 'may take it into their own hands'
But experts note that the "displacement" in AEP extends only to federal common law and not to claims brought under state law.
"There's nothing the Trump administration can do to shield power companies and coal companies from liability under state law, so they can't get that kind of shield," said David Doniger, director of the Climate & Clean Air Program at the Natural Resources Defense Council.
As the Trump administration works to kill the Clean Power Plan, cities and counties in California are already turning to state common law.
Since July, three California cities and two counties have sued companies for damages related to climate change under state public nuisance law. The lawsuits claim that the companies — which include BP PLC, Chevron Corp., ConocoPhillips Co., Exxon Mobil Corp. and Royal Dutch Shell PLC — have intensified climate change and exacerbated costly sea-level rise.
"We're going to ensure that those responsible for the problem are held to account," Dennis Herrera, San Francisco's city attorney, said last month (Climatewire, Sept. 21).
David Bookbinder, counsel at the libertarian Niskanen Center and former climate attorney at the Sierra Club, said that judges have dealt with claims of injuries to people and property for centuries. While climate change cases are more complex, they may be more likely to succeed the longer Congress and EPA punt on regulating industrial emissions.
"The longer the delay, the more likely it is that judges, be they state or federal judges, will be receptive to the idea that they are the only ones who can do anything," he said.
He added: "The judges don't want to do this. They would far prefer that either Congress dealt with it or EPA dealt with it. But they may take it into their own hands."
Still, state common law claims on climate change are a relatively untested legal area. Up to now, courts have expressly declined to address such claims, Burger said.
If the state lawsuits fail, it could increase the impetus for filing federal common law claims as a "tool of last resort," Burger predicted.
"It seems perfectly plausible that a city, a state, an environmental organization would say, well, what are we going to do?" he said. "The courts are blocking state common law avenues, the federal government is not doing anything, courts aren't forcing them to do anything — we have to go back to the idea that there's a right that's being infringed on here."
Some conservatives are dismissing concerns about both federal and state nuisance cases.
The Texas Public Policy Foundation, a conservative nonprofit, pointed to the decision in AEPwhen representatives met with White House officials last month.
In a handout given to administration officials, the foundation noted it was difficult at both the state and federal level to prove injury from greenhouse gases from specific sources or categories of sources since they are emitted worldwide, from "virtually every nook and cranny of the developed and developing world."
"Even in the event that a legally defensible scientific case could be made that total global anthropogenic emissions are significantly contributing to climate change, allocating responsibility among emitters everywhere will be an impracticable task for federal courts to undertake," the group wrote.Citizen suits
If EPA declines to replace the Clean Power Plan or slow-walks a new rule, the agency will also likely face direct legal challenges from supporters of climate action, lawsuits known as citizen suits. States, environmentalists and health groups could file citizen suits that challenge the Trump administration's unreasonable delay or failure to act.
It wouldn't be the first time on this issue. In fact, the Clean Power Plan came about after a yearslong legal tug of war ultimately won by states that wanted EPA to crack down on climate-warming emissions.
After the 2007 Supreme Court decision finding EPA has the authority to regulate greenhouse gases, the Sierra Club and Our Children's Earth Foundation then filed a citizen suit pushing EPA to craft power plant emissions standards. EPA responded by issuing a rule that set new performance standards for power plants but did not address carbon dioxide.
New York then filed a separate lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit that prompted a 2007 settlement allowing EPA to take another stab at power plant standards, this time incorporating greenhouse gases. After years of additional legal wrangling and another Supreme Court decision affirming EPA's authority, the Obama administration issued the Clean Power Plan.
"It's almost certain that if EPA moves forward with the repeal and doesn't do anything on the replacement or moves so slowly on the replacement that in effect nothing will happen, I would expect that there would be a lawsuit filed against EPA of the same sort arguing that EPA is thereby violating a nondiscretionary duty," said Richard Revesz, director of New York University's Institute for Policy Integrity.
Some conservative lawyers have pushed back on just how firm that duty is. They have argued that the Clean Air Act simply does not give EPA the tools to regulate carbon dioxide emissions from power plants, or that the agency's determination that such emissions endanger public health is not specific enough to compel regulation for the power sector.
Environmental lawyers largely shrug off those arguments, pointing to EPA's 2009 endangerment finding for greenhouse gases and Supreme Court cases that have affirmed the agency's authority.
"If he does nothing at all, we can bring various kinds of litigation to force him to act," NRDC's Doniger said. "The D.C. Circuit itself has indicated that he has an obligation to act, and at least some of the judges there are looking at their wristwatches."
Doniger was referring to a recent concurrence from two D.C. Circuit judges who agreed that litigation over the Obama rule should be put on hold but cautioned that EPA has a legal duty to act on climate change.
"Combined with this court's abeyance, the stay has the effect of relieving EPA of its obligation to comply with that statutory duty for the indefinite future," Judges David Tatel and Patricia Millett wrote in August. "Questions regarding the continuing scope and effect of the Supreme Court's stay, however, must be addressed to that Court."
Revesz said that the uncertainty provides a good reason for the D.C. Circuit to decide whether the Obama rule is legal. The court has put litigation over the rule on hold as the Trump administration decides what to do with the rule.
"The fact that this litigation is likely to be coming up down the road actually provides a pretty strong argument for the D.C. Circuit to decide the pending challenge to the Clean Power Plan now as opposed to waiting for this whole process to unfold," Revesz said.
He added: "If the D.C. Circuit, for example, upheld the Clean Power Plan, a lot of these things would get resolved. There'd be no federal common law actions. We would know that the repeal is illegal, and there would be a fair amount of certainty and less litigation."

https://www.eenews.net/climatewire/2017/10/12/stories/1060063383

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Transportation and Infrastructure News

(ACC Mentioned) Tensions Rise as CSX Defends New Model Before Frustrated Shippers

Oct 12, 2017 | Supply Chain Dive

By Edwin Lopez

If I don’t accomplish anything else today, I want to apologize to our valued shippers. Whatever problems we had, we had internally. We’ve made some mistakes. This is not a failure of precision scheduled railroading.”
Those were the words of CSX CEO E Hunter Harrison, apologizing to a room full of shippers, trade associations and regulators present for a Surface Transportation Board (STB) listening session held Wednesday.
The conversation was meant to focus on the service delays caused by CSX's transition to precision scheduled railroading — Harrison's trademark operating model. Yet, as the day went by, more and more guests took to the floor to address what they saw as the larger problem in the industry: a disregard for customer service due to a lack of competition.
CSX's issues were viewed as a symptom of this structural imbalance. How else could a company serving two-thirdsof the country's population make such drastic changes overnight? Where else but the railroad industry could customer service disruptions persist, yet have minimal negative impact on a business?
Harrison apologized to shippers and regulators on Wednesday, but that may not have been enough. After all, CSX customers have been suffering through hundreds of thousands of dollars in alternative transportation costs — or outright losses — due to the railroad’s deteriorated service.
“In the past several months, (Mr. Harrison) and his investors have provided the strongest reason to date” for reforming the railroad industry, said Herman Haksteen of the Rail Customer Coalition, which represents 75% of CSX customers. “It shows how one powerful industry using monopoly power created by outdated regulatory protection can lead to the destruction of commerce in this country.”
Here's the story of how that happened:Harrison’s precision scheduled railroading
E. Hunter Harrison is a railroading legend. In his 50-year career, he has served as chief executive officer of three different railroads, implementing the precision scheduled railroading (PSR) business model at each company, to wide success.
“That operating plan kept Illinois Central from the third major bankruptcy in the mid-70s,” Harrison recounted at the listening session. “It literally turned around Canadian National, and now it's the gold standard, and it had a huge impact on Canadian Pacific. So it's a tried and true system."
Harrison describes PSR as a different way of thinking about efficiency in railroading. While most models measure efficiency in terms of volume, PSR puts the emphasis on asset utilization, seeking to build predictability into customer service. Rather than designing train routes according to capacity, a PSR-enabled railroad gives “each individual car a plan — door to door in hours.”
The result, Harrison explains, is increased customer service through predictability. In addition, by focusing on cars rather than trains, PSR allows railroads to cut train length, locomotives and even hump yards to ensure each asset is being utilized as best as possible.
In other words, PSR is like a just-in-time model for railroads: lowering costs by using only the assets needed to perform a service, thereby reducing operating ratios and increasing case flow. Investors love it. So much so, that they hired Harrison away from Canadian Pacific in January, with the mission of implementing PSR in the U.S.
But something went wrong. Just like lean manufacturing, PSR increases a company’s risk as small, unmitigated disruptions have a greater potential to derail the entire supply chain. And in the case of CSX, the small disruptions piled up.
At first, everything went according to plan, Harrison recounts. “When it really kicked in: April to May, we were producing some record numbers.” But then, the problems began to arise: there was some internal resistance, “push back,” some “bad luck” and a few mistakes. “We got a little ahead of ourselves with the plan.”
“We did close one (hump yard), and made a mistake. That’s one thing about this model that I hadn't been able to program in — is no mistakes,” he said.How shippers suffered from CSX’s transition to PSR
Those mistakes have been costly, and not just for CSX.
In fact, the STB’s public listening session was designed as an opportunity for shippers to dialogue with CSX about the various side effects of its transition to PSR, and the subsequent deterioration of service.
Harrison remained steadfast in his defense of PSR during the session, arguing everyone benefits from the new model, while promising “the worst is over, and the best is right around the corner.” Shippers, however, were skeptical.
“In a nutshell, PSR means having to do less with less,” said Brad Hildebrand, Vice President of Cargill.
CSX has laid off more than 3,000 employees, changed 1,300 train plans, and eliminated 300 crew starts and 850 locomotives, according to a recent presentation. Perhaps the company’s assets are being utilized better to benefit the bottom line, but local crews are overworked and unable to provide the service shippers expect from a common carrier.
The deterioration of service, however, extends beyond efficiency at local yards. During the session, shippers also complained of missed switches, longer dwell and transit times — one shipper said a car took 31 days to arrive, from the average 12 to 15 days before Harrison’s tenure — and delayed, lost or ping-ponging cars (where a car travels to one or two out-of-the-way yards before arriving at its destination). Above all, shippers complained of poor customer service.
“Where in business today would a company put their customers through this type of pain in order to operate a new model,” asked Hildebrand.A structural problem?
Not all shippers are unhappy with CSX’s service.
Prior to the listening session, CSX pointed Supply Chain Dive to 10 letters filed with the STB from shippers — at least some of which were solicited by CSX — acknowledging the problems but still “encouraged” by recent improvements in the railroad’s performance and metrics. The letters and reported metrics back CSX’s claims dwell times and transit times have been decreasing, and improved service lies ahead.
Yet after 24 testimonies at the listening session from shippers, trade associations and some rail representatives, it became clear the problem with CSX’s service issues have more to do with the lack of a competitive solution than individual complaints.
Many of the more passionate speakers in attendance were, or represented, “captive shippers”— or companies that have no choice but to ship goods with a specific rail company, due to issues of product type, distance or access.
“Our Pringles plant is also entirely dependent on CSX for inbound and outbound east of the Mississippi River,” said Sharon Moss-Higham, senior vice president of operations and distribution for Kellogg’s Snacks division. “Kellogg does not have the option to use a different rail carrier to mitigate the impact of any rail service disruptions.”
“While CSX may have improved service for some customers, it appears they are doing so at the expense of captive customers like Kellogg,” she added. “Our costs have risen by nearly 20% over the past few months. This cost increase does not include bulk trucking of the most important ingredient for Pringles: potato flakes.”
Moss-Higham was not the only speaker to bring up the high costs associated with PSR for captive shippers. Speakers from The Chemours Company, Dow Chemical Company the American Chemistry Council and the Alliance of Automobile Manufacturers reiterated the issue.
In fact, even non-captive shippers are facing non-sustainable solutions. After all, trucks are significantly more expensive than rail transportation, particularly for long distances and in a tight transportation market.
“How do we go out and find the trucks to (service us)? You can’t just pick up the phone and say 'I need 20 trucks at my facility,'” said Mary Pileggi, chairman of the board of directors for The National Industrial Transportation League.
The speakers noted that the inability to find a solution was harming not just individual companies, but the U.S. economy at large. After all, the industrial clients served by rail have customers too, which use their inputs to provide consumers energy and food, among other products.
The resounding issue is that this is not the first time this has happened, nor will it be the last.
“In 2013-2014, rail customers suffered extensive failures in the upper Midwest,” Eddie Johnston, federal government affairs manager of The Chemours Company reminded the board, noting those delays forced losses on farmers who were unable to respond to the season’s harvest. CSX’s troubles, he said, are strikingly similar. “Once again, rail customers are paying the price.”
“In competitive markets, shippers could vote with their business,” said Jeffrey Moreno, director of government affairs for The Fertilizer Institute. So, what are shippers to do in a non-competitive market?
For now, many companies appear resigned to shoulder the costs and expend greater human capital to ensure CSX is meeting its obligations. CSX, meanwhile, is actively working to resolve its issues. However, the outcry at the listening session indicated shippers were hopeful this crisis would yield a more permanent solution, pushed on the industry by the STB.
After all, as Mr. Harrison himself said, “You can’t be successful in business and not have a good product.”

http://www.supplychaindive.com/news/CSX-STB-listening-session-captive-shipper-rail-reform/507125/

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(ACC Mentioned) Amid CSX Rail Problems, Resin Industry Urges Tougher Role for Washington

Oct 12, 2017 | Plastics News

By Steve Toloken

Plastics materials companies and their lobbyists urged federal regulators in an Oct. 11 hearing to take a tougher line with railroad CSX Corp., and said they continue to be plagued by severe problems at the rail carrier.
Executives with Chemours Co., DowDuPont Inc., Occidental Chemical Corp. and the American Chemistry Council paraded before an unusual hearing at the Surface Transportation Board, called to look at service problems since E. Hunter Harrison was named CEO by CSX in March after a boardroom fight.
STB is an independent federal agency charged with regulating rail rate and service disputes, and reviewing rail mergers.
They were joined by representatives from many industries, including carmakers, mining companies, paper and fertilizer makers and farming and agriculture firms.
"The events over the last five months have cost Chemours dearly," said Kevin Akers, category manager for rail at Chemours.
He said, for example, that 53 percent of the rail shipments to the company's factory in New Johnsonville, Tenn. — its largest rail service point — were delayed between May 1 and Aug. 31.
STB officials seemed familiar with the complaints. Acting Chairwoman Ann Begeman told the hearing she had been at the New Johnsonville plant the previous week.
Akers said Chemours has spent more than $1.3 million on rerouting and shipping by truck alone, in addition to other workaround strategies.
"We altered production schedules to compensate for lack of delivery," Akers said. "We reduced run rates and changed formulations to keep our plant running."
PVC maker Occidental Chemical Corp. said its problems with CSX shipments increased dramatically in the last few months, with service issue reports tripling to more than 30 a month.
"Over the past several months OxyChem has experienced significant CSX service disruptions at multiple locations," said Robin Burns, vice president of supply chain at the Houston-based company.
A major problem for the resin companies is that, in many cases, their factories are captive to only one railroad, drastically limiting shipping options, the executives said. Chemours, for example, said 96 percent of its facilities are served by one rail carrier.
The industry seeks other choices when it can. Having access to two rail carriers was a factor for Shell Chemical LP's decision about where to build a massive new $5 billion petrochemical and plastics complex, near Pittsburgh, according to Cal Dooley, CEO of the Washington-based American Chemistry Council.
"One of their determinations on where to locate... [was] it had to be served by more than one rail line and had to have access to barge traffic in order to try to overcome some of the vulnerabilities to being captive to one rail line, which has had a significant adverse impact on the bottom line of our companies," Dooley said.
Several resin company officials said problems began when CSX pushed too fast on implementing a new operating system, or what CSX CEO Harrison described as "precision scheduled railroading."
Harrison, a 72-year-old industry veteran who engineered financial turnarounds at other large railroads before joining CSX, told the board that precision scheduling will, over time, help turn the railroad around and lead to greater efficiency and better service.
But he also told STB that this year's boardroom fight at Jacksonville, Fla.-based CSX, which saw Harrison installed as CEO by activist investors, created difficult conditions. The company had laid off 1,000 employees shortly before his arrival, he said.
"Just to be bluntly honest about it, I didn't walk into CSX with a red carpet waiting," he said. "I was there clearly, I think it was one reason, that was shareholders. Right or wrong, it was shareholders.
"A week before I got there 1,000 people were taken out," he said. "So it wasn't the best place to start from."
Harrison apologized several times during the hearing for the service problems, and said the railroad was working very hard to improve service and communication.
Harrison and CSX maintained that conditions have improved in the last 30 days, a point that some chemical industry executives acknowledged. But the resin executives generally said they were small improvements and service was not back to 2016 or pre-crisis levels.
An executive with DowDuPont told STB that "the company remains very concerned with the effectiveness and the resiliency of the CSX precision service model."
The chemical industry also said it believed similar problems could happen again in the rail industry unless STB takes a tougher line, including formally investigating the problems at CSX, the country's third-largest railroad.
Dooley said the shale-gas-fueled boom in chemical industry investment will put more strain on the transportation system.
Dooley and others urged STB to change how it regulates railroads, including putting in place rules that allow companies like ACC members easier access to other rail carriers. He said Congress gave STB those instructions in its last reauthorization of the agency, in 2015.
"The reality is most ACC members that ship or receive materials on CSX have no competitive transportation options available to them," he said. "One of the best ways for the STB to head off future service problems would be for STB to enact overdue reforms and promote greater rail to rail competition."
http://www.plasticsnews.com/article/20171012/NEWS/171019952/amid-csx-rail-problems-resin-industry-urges-tougher-role-for

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Environment News

The EPA Rips up the Clean Power Plan

Oct 12, 2017 | The Washington Post

By The Editorial Board

From a certain perspective, Environmental Protection Agency Administrator Scott Pruitt’s move to rip up the Clean Power Plan, President Barack Obama’s signature climate change policy, hardly seems radical. The EPA chief repealed a rule he claims was illegal. Indeed, it was something of a stretch for the EPA to regulate planet-warming carbon dioxide under the Clean Air Act, a law originally written to handle more traditional pollutants. The Obama administration took an expansive approach, pushing the law as far as it could so that Mr. Obama’s climate negotiators could credibly promise that the United States would cut its carbon emissions if other nations would, too.
Yet the Obama EPA’s Clean Power Plan did not, in our view and that of many experts, break the law. The Supreme Court has already ruled that the EPA must regulate carbon dioxide under the Clean Air Act. There is a strong chance that the court would have upheld the Obama administration’s now-defunct strategy to do so, or at least much of it. But now the country may never know, because its chief environmental officer wants not to do as much as he can to protect the atmosphere, but to do as little as the law demands, threatening the painstaking progress the Obama administration made in coordinating an international response to climate change.
Mr. Pruitt has not yet proposed a replacement plan; he began a public comment process that may lead to a new set of regulations on carbon emissions. It is technically possible that his EPA will decide to instate new rules that are serious, if less aggressive than Mr. Obama’s. But everything about Mr. Pruitt’s history — relentlessly suing the Obama administration, denying climate science, shutting environmentalist voices out of the EPA — suggests he will aim to do the minimum the courts will allow.
As if to confirm that reading, Mr. Pruitt announced his Clean Power Plan rollback in coal country, declaring that “the war against coal is over.” Economist Paul Krugman has pointed out that 18 times more jobs have been lost at department stores than in the coal business since the turn of the century. Nevertheless, it is on behalf of a dirty, dying and relatively small industry that Mr. Pruitt will go down as one of the nation’s worst environmental stewards. He may believe that the Obama administration’s climate plan was radical. But his approach — anti-scientific, ideological, a betrayal of his office — is far more so.
There is another notable villain: Congress. For decades, lawmakers have dawdled while the greatest environmental challenge of our time has worsened, each wasted year making it harder to address. Once the science became clear — and it has been for years now — it became legislators’ responsibility to craft a law specifically designed to address the carbon issue. Instead, they punted to the executive branch, leading to the chaotic regulatory seesaw now on display. The right response to Mr. Pruitt’s radical action is a reassertion of congressional responsibility.
https://www.washingtonpost.com/opinions/the-epa-rips-up-the-clean-power-plan/2017/10/11/3e08f38e-adf5-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.af9c21af7e86

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Environmentalists Oppose EPA's Bid to Stay Brick MACT Suit

Oct 12, 2017 | Inside EPA

Environmental groups are pushing back against EPA's attempt to freeze litigation over the agency's rule setting maximum achievable control technology (MACT) to curb air toxics from brick and clay products manufacturing while it reconsiders the rule, arguing that more delay will hurt public health and is unwarranted.
In an Oct. 10 filing in Sierra Club, et al. v. EPA, et al., Sierra Club and Natural Resources Defense Council urge the U.S. Court of Appeals for the District of Columbia Circuit to reject an Oct. 3 motion from EPA to postpone oral argument now scheduled for Nov. 9.
EPA wants to place proceedings in abeyance while it decides whether to reconsider the Obama-era rule. The consolidated case combines industry challenges to the MACT rule's stringency with environmentalists' arguments that it is unlawfully weak and sets a dangerous precedent. Environmentalists oppose the rule's first-time use of “health-based” emissions limits, also known as “risk-based” limits, as an alternative to tougher MACT “floors,” or minimum emissions standards. The Clean Air Act allows such alternatives where a safe threshold for a pollutant can be identified -- but environmental groups say the agency has failed to do so here.
“Thanks to years of delay and evasion by EPA, these limits are already almost 17 years overdue,” environmentalists say in their filing. The D.C. Circuit vacated an earlier version of the rule in 2007, and EPA was then slow to replace it, they note. Under the rule now being litigated, existing brick kilns will not have to comply with modest emissions limits until December 2018.
They further note that a bill introduced in Congress, H.R. 1917, would if it became law delay application of the current rule until all litigation over the rule is complete, which would take an undetermined period of time while EPA considers a possible replacement rule -- further delaying any public health benefits.
“EPA does not and cannot claim that holding argument and reaching a merits decision will prevent the agency from reconsidering the Brick Rule or proposing revisions to it. To the contrary, EPA asserts 'inherent authority' to revise its rules at any time,” environmentalists say.
“Nowhere in its motion does EPA explain why its desire to review the Brick Rule is now pressing or why it now constitutes the 'extraordinary cause' required for a continuance of oral argument,” the say. Further, “judicial economy” is best served by resolving issues now because “the statutory issues presented by Environmental Groups will almost certainly be litigated no matter what decision EPA makes on review.”
https://insideepa.com/daily-feed/environmentalists-oppose-epas-bid-stay-brick-mact-suit

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Ewire: After CPP Repeal Plan, What About the NSPS?

Oct 12, 2017 | Inside EPA

All of the hoopla over the past few days has been over EPA's new proposal to rescind its Clean Power Plan, which sets greenhouse gas targets for existing power plants, also known as an existing source performance standard.
But Climatewire has a good piece up about its companion rule, the new source performance standards (NSPS), which sets GHG limits on new and modified plants.
That rule is key because it creates a legal prerequisite for setting existing source limits. Also, critics charge that its coal standard -- based on the use of partial carbon capture technology -- essentially bars the construction of new coal plants.
The Trump EPA has persuaded an appellate court to pause litigation over the NSPS, though there has been little public indication of its plans for that rule.
Here's more from the Climatewire piece:
An EPA spokesman stated that a team at the agency is "looking into the program and opportunities for reform" but did not offer a timeline for when that might happen. Currently, litigation over the new source rule is in indefinite abeyance, though EPA will have to provide progress reports every 90 days.
"This will be fun to watch how EPA dances around this question of what you are going to do with this new source rule," said Pat Parenteau, a professor at the Vermont Law School.
Some Clean Power Plan supporters are also worried about the fate of the new source rule.
"It doesn't appear that [EPA Administrator Scott] Pruitt has seen a significant clean air regulation that he likes, and massive rollbacks are what's there to do," said environmental attorney Sean Donahue. "I'm concerned they will go after the new source rule, as well."
But others think the rule is on firmer footing.
"They may do something with the new source rule, but they are not going to repeal it. I think they have accepted the reality that they have to do something with new and existing sources," said Parenteau.
https://insideepa.com/daily-feed/ewire-after-cpp-repeal-plan-what-about-nsps

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