Preview Newsletter
ACC AM 10/27/17
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(ACC Mentioned) Chemical Safety and the E.P.A.
Oct 27, 2017 | The New York Times
By Cal Dooley
“Chemical Industry Insider Now Shapes E.P.A. Policy” (“Trump Rules” series, front page, Oct. 22), about the development of chemical safety rules, follows a well-worn path of reducing a complex policy debate to a garden-variety turf battle between two officials of the Environmental Protection Agency. -
(ACC Mentioned) New York Times' Eric Lipton Smears EPA Chemical Office Nominee Nancy Beck
Oct 27, 2017 | Competitive Enterprise Institute
By Angela Logomasini
Recently, Project Veritas released a series of undercover videos that reveal how New York Times journalists are more interested in smearing the Trump administration than in reporting objective news. -
(ACC Mentioned) NYT's Eric Lipton Is A Science Birther
Oct 26, 2017 | American Council on Science and Health
By Alex Berezow
The New York Times has some of the worst science coverage in the nation, its Tuesday section notwithstanding. The Times shamelessly promotes alternative medicine and organic food while scaremongering over "chemikillz" and trashing scientists who work in biotechnology. -
(ACC Mentioned) EPA: Enviromental Pollution Agency
Oct 26, 2017 | The New Paltz Oracle
President Donald Trump drew a sizable amount of criticism last December when he nominated Scott Pruitt for the position of Administrator of the Environmental Protection Agency (EPA). -
Internal Memos Show EPA Offices' Fears Over Narrowed Trump TSCA Rule
Oct 26, 2017 | Inside EPA
By Maria Hegstad
A series of recently released internal EPA memos underscore significant environmental and legal concerns officials in the agency's water and enforcement offices have with the toxics office's controversial changes to narrow the range of chemical uses the agency will consider when assessing and regulating substances under the new toxics law. -
Environmentalists Cite TSCA Rule Changes In Bid To Maintain Fluoride Suit
Oct 26, 2017 | Inside EPA
By Maria Hegstad
Environmentalists are urging a federal court to allow their suit against EPA over its denial of their petition to ban drinking water fluoridation to continue, arguing among other things that the agency's changes to the final framework rules implementing the 2016 statutory reform of the Toxic Substances Control Act (TSCA) bolster their case. -
(ACC Mentioned) City of South Lake Tahoe Considers Styrofoam Ban
Oct 26, 2017 | AP (In The San Francisco Chronicle)
The South Lake Tahoe City Council is once again considering a variety of bans or restrictions on polystyrene — the synthetic material most commonly known by the brand name Styrofoam used in packaging at restaurants for takeout orders and at other retail stores. -
(ACC Mentioned) U.S. to Restrict 5 Phthalates In Children’s Products
Oct 26, 2017 | Chemical & Engineering News
By Cheryl Hogue
Five phthalates will be banned from toys and items such as teething rings and pacifiers, the U.S. Consumer Product Safety Commission (CPSC) decided earlier this month. -
Move for Global Ban on ‘Teflon’ Compound Hits Sticking Point
Oct 27, 2017 | BNA Daily Environment Report
By Adam Allington
PFOA, short for perfluorooctanoic acid, became famous in the 1950s when DuPont started using the stuff in its process for making non-stick frying pans. Since then, PFOA found its way into everything from GoreTex clothing to Stainmaster carpets. -
Utility Sues Chemical Makers
Oct 26, 2017 | Chemical & Engineering News
By Marc S. Reisch
A Maryland water utility is suing an alleged cartel of chemical makers for supposedly conspiring to fix prices of the water treatment chemical aluminum sulfate, costing it millions of dollars. -
Costco Develops New Safer Chemicals Policy
Oct 26, 2017 | Safer Chemicals, Healthy Families
By Laurie Valeriano and Mike Schade
We’re pleased to report that Costco has announced that it is committing to reducing harmful chemicals in the products it sells by adopting a new Chemicals Management Policy! Fewer hazardous chemicals on Costco’s shelves mean fewer hazardous chemicals in our homes, our bodies, and our environment. -
Hatch Cosmetics Legislation Fails to Protect Consumers From Toxic Ingredients
Oct 26, 2017 | Environmental Working Group
Yesterday, Sen. Orrin Hatch, R-Utah, introduced legislation that fails to protect families from dangerous chemical ingredients in personal care products. -
(ACC Mentioned) Company To Spend $150M On Ethane Storage Facility
Oct 27, 2017 | The Times Leader
By Casey Junkins
Mountaineer NGL Storage officials announced Thursday plans to spend $150 million — and potentially as much as $500 million — on its proposed natural gas liquids storage facility along the Ohio River near Clarington. -
Small-Scale Louisiana LNG Project Seeking FERC OK
Oct 27, 2017 | Natural Gas Intelligence
By Richard Nemec
In a growing sector of smaller-scale liquefied natural gas (LNG) export projects, Louisiana-based Fourchon LNG LLC has launched a formal pre-filing request at FERC for a two-phase project that initially could export 2 million metric tons/year (mmty) and eventually up to 5 million mmty, reserving small quantities for domestic use. -
States Cite Hurricane Harvey In Opposing RMP Delay
Oct 26, 2017 | Inside EPA
A coalition of Democratic state attorneys general (AGs) are citing injuries to firefighters who responded to a chemical fire sparked by Hurricane Harvey flood waters to challenge the Trump EPA's nearly two-year delay of an Obama-era facility accident prevention rule, arguing that the delay puts such first responders at risk and is unlawful. -
Lawmakers Look To Quantum Leap To Protect Grid
Oct 27, 2017 | E&E Daily
By Blake Sobczak
A one-two punch pairing "dark fiber" networks and quantum technology could put power grid hackers on the ropes, cybersecurity experts told lawmakers yesterday. -
D.C. Circuit Rejects EPA Bid To Delay Brick MACT Argument
Oct 27, 2017 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has rejected EPA's request to delay Nov. 9 oral argument in litigation over the Obama-era brick manufacturing sector air toxics rule, after the agency sought to postpone the case while it reconsiders various aspects of the rule for possible modification. -
Senate Democrats to Attend Bonn Climate Talks to Counter Trump
Oct 27, 2017 | BNA Daily Environment Report
By Dean Scott
Several Senate Democrats will attend global climate talks in Germany next month to assure the nearly 200 nations in the Paris Agreement that many Americans still support it, despite President Donald Trump's decision to pull the U.S. out of the accord. -
Democrats Seek Documents Backing EPA Cost Analysis Of CPP Repeal
Oct 27, 2017 | Inside EPA
Nearly two dozen Senate Democrats are asking EPA to provide documents related to its cost-benefit analysis supporting its proposed repeal of the Clean Power Plan (CPP), ramping up critiques that the agency is relying on skewed assumptions to justify the policy shift, including by overstating the CPP's cost while underestimating the repeal's environmental consequences. -
N.Y. Threatens To Sue EPA Over Out-Of-State Emissions
Oct 27, 2017 | E&E News PM
By Sean Reilly
New York is warning U.S. EPA of a lawsuit for allegedly failing to tackle ozone-forming pollution across the state's borders. -
New York's Lawsuit Threat Asks EPA To Issue Ozone FIPs For Five States
Oct 26, 2017 | Inside EPA
By Stuart Parker
New York is threatening to sue EPA unless the agency swiftly develops federal implementation plans (FIPs) imposing ozone-reduction mandates on five upwind states to curb interstate emissions transport, but the Trump EPA's focus on boosting states' role in environmental protection suggests it is unlikely to grant such a request.
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(ACC Mentioned) Chemical Safety and the E.P.A.
Oct 27, 2017 | The New York Times
By Cal Dooley
“Chemical Industry Insider Now Shapes E.P.A. Policy” (“Trump Rules” series, front page, Oct. 22), about the development of chemical safety rules, follows a well-worn path of reducing a complex policy debate to a garden-variety turf battle between two officials of the Environmental Protection Agency.
The decision to define the concepts of “best available science” and “weight of the scientific evidence” in chemical safety rules will support the use of credible studies and transparent decision-making. This clarity is in the public interest.
The chemical safety law, passed in 2016, prioritizes transparency, flexibility and safety. There are ample opportunities for public comment. All methods, policies and procedures must be reviewed every five years so new developments can be applied. And the E.P.A. can prioritize chemicals it judges to be in most need of review.
The article’s misleading depictions and personal attacks distract from the ways that the well-written final chemical safety rules will enhance public safety, the scientific credibility of E.P.A. decisions and transparency throughout the regulatory process.
CAL DOOLEY, WASHINGTON
The writer is president of the American Chemistry Council.
https://www.nytimes.com/2017/10/26/opinion/chemical-safety-epa.html
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(ACC Mentioned) New York Times' Eric Lipton Smears EPA Chemical Office Nominee Nancy Beck
Oct 27, 2017 | Competitive Enterprise Institute
By Angela Logomasini
Recently, Project Veritas released a series of undercover videos that reveal how New York Times journalists are more interested in smearing the Trump administration than in reporting objective news. But you don’t need to go undercover to see examples of such unfair and biased New York Times reporting. A recent example is Eric Lipton’s article related to Nancy Beck, whom Trump selected to head up the chemical office at the U.S. Environmental Protection Agency (EPA).
According to Lipton’s article, Beck’s appointment is a threat to public health and safety because she worked for the chemical industry’s trade association, the American Chemistry Council. The headline subtitle says it all:
A scientist who worked for the chemical industry now shapes policy on hazardous chemicals. Within the E.P.A., there is fear that public health is at risk.
The entire article hinges on an anti-business narrative that suggests anyone who has worked for the chemical industry is willing to push policies that poison people so industry executives can get rich. It’s ridiculous. Still, Lipton casts her as part of a “camp” of people who are “firmly backed by the chemical industry,” suggesting that her viewpoints are driven by industry support. There’s no reason to believe that’s the case simply because she worked a few years at the American Chemistry Council.
Lipton never bothers to consider the possibility that people just might choose to work in businesses—including inside the chemical industry—because they believe the products firms produce improve human life. And it’s the chemical “industry” that we can thank for such things as sanitary water supplies, crop protection products that expand the food supply, and chemicals used to make life-saving medicines.
Fortunately, President Trump seems to understand that being successful in business is a good qualification. It is business—not government bureaucracy—that creates jobs, produces valuable consumer products, and generates the economic growth we all enjoy.
I am acquainted with Beck, since we both work on chemical policy issues. She has always come across to me as smart, hardworking, and someone who cares about promoting sound science. She certainly is highly qualified for her post at EPA.
According to her Linked-In profile, Beck has a Bachelor of Science from Cornell University and a Ph.D. in Environmental Health from the University of Washington. Most of her career she has worked in government posts: as a Toxicologist for the Washington State Department of Health, at the EPA as an American Association for the Advancement of Science Fellow, and an analyst in the Office of Management and Budget for nine years, a timeframe that spanned both George W. Bush and Barack Obama administrations.
Lipton is right about one thing: Beck is making efforts to reevaluate and reform the way we regulate chemicals, but that’s a good thing. Chemical policy is too often driven by junk science and alarmism, which is why a shift toward a more measured, science-based approach is positive. Yet Lipton suggests that Beck’s efforts to prioritize risks under the newly revised Toxic Substances Control Act could undermine public health. He cites an internal EPA memo written by an Obama administration holdover (originally appointed by George W. Bush in 2002) that alleges the changes could lead the EPA to underestimate human exposure to a chemical known as perfluorooctanoic acid (PFOA).
Yet historically, the EPA has vastly overestimated exposure; Beck’s efforts would likely make exposure scenarios more reasonable. Because EPA risk estimates apply numerous safety factors, actual exposure will likely remain multitudes lower than EPA estimates. In any case, the risks associated with PFOA do not warrant the alarmism that Lipton provides. He exclaims:
The chemical, perfluorooctanoic acid, or PFOA, has been linked to kidney cancer, birth defects, immune system disorders and other serious health problems.
The key here is Lipton’s use of the phrase “linked to,” which basically means there’s no solid evidence of a risk, but some studies may have found some statistical association—which does not prove causation. Such associations happen by chance; unless there is a compelling body of research showing consistent findings, they are not useful for drawing conclusions.
PFOA’s link to cancer is largely based on rodent studies that involve injecting highly concentrated levels of substances into rodents’ stomachs. Under this poisonous, massive exposure scenario, the rodents form tumors. Keep in mind that rodents in general are highly prone to tumor formation, and the rodents selected for such tests are often bred to be even more tumor-prone. So all these tests show is that massive exposures can cause tumors in highly sensitive rodents. But a lot of things—including chemicals that naturally form in carrots, lettuce, Brussels sprouts, coffee, you name it—produce tumors in rodents in such tests. Such tests are not particularly helpful in determining risks to humans exposed to trace amounts of these chemicals.
There isn’t much of any evidence to show that human exposures in the environment pose any significant risk. A 2005 American Council on Science and Health study on the topic concluded:
Research has shown that very high doses of PFOA can cause harm in animals, but the amount of PFOA to which the general population is exposed is hundreds to thousands of times lower, and biological differences may make concerns about some of the observed effects irrelevant to humans. Additionally, studies of workers (who are exposed to much higher doses of PFOA than the general population) have not shown the same effects in humans that occur in animals.
To even suggest that Beck’s effort to set policies to prioritize chemical risk might place anyone at risk from PFOA is ridiculous. But it does help Lipton peddle his absurd narrative.
Lipton also whines about the Trump administration decision to reject an activist petition to ban a pesticide known as chlorpyrifos. As I’ve detailed before, that was not only good policy, it was good science. The EPA proposed using junk science to ban the chemical before completing its scientific assessment and its Science Advisory Panel criticized the agency’s approach. EPA Administrator Scott Pruitt did the right thing by allowing the scientific review to continue rather than cave to activist pressures.
Lipton then rambles on about a host of “environmental catastrophes”—including those caused by government—from decades gone by as if those situations are somehow relevant to Beck’s appointment. They are not. Beck oversees programs that largely address trace exposures to various chemicals that pose risks that are too low to even measure if they exist at all. It’s reasonable to examine whether regulations undermine access to valuable products and whether we can find a smarter, science-based way of managing them.
Lipton’s story notes that Beck refused to comment when the Times contacted her for this piece, but who could blame her? Lipton notes:
“No matter how much information we give you, you would never write a fair piece,” Liz Bowman, a spokeswoman for the E.P.A., said in an email. “The only thing inappropriate and biased is your continued fixation on writing elitist clickbait trying to attack qualified professionals committed to serving their country.”
Bowman is right. Lipton did include some positive comments others communicated to him about Beck, but you must wade past his alarmist hyperbole in the first two-thirds of the article to find them. These comments underscore commendable attributes about Beck: her high qualifications, her independent and critical approach to science, and her refusal to be swayed by intimidation and politics.
https://cei.org/blog/new-york-times-eric-lipton-smears-epa-chemical-office-nominee-nancy-beck
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(ACC Mentioned) NYT's Eric Lipton Is A Science Birther
Oct 26, 2017 | American Council on Science and Health
By Alex Berezow
The New York Times has some of the worst science coverage in the nation, its Tuesday section notwithstanding. The Times shamelessly promotes alternative medicine and organic food while scaremongering over "chemikillz" and trashing scientists who work in biotechnology.
There's a reason for that. Not only is the paper trying to appeal to its elite, Upper West Side clientele, but the New York Times's publisher, Arthur Sulzberger Jr., is married to Gabrielle Greene, who is on the board of Whole Foods. In May 2017, she was made chairwoman of the board. It shouldn't be a surprise, therefore, that the Times uses its influence to spread organic food industry propaganda about the supposed dangers of pesticides and GMOs. It helps keep the boss rich.
In any rational universe, that would be considered a gigantic conflict of interest. But the NYT exists in one of its own creation. That's why it is unable to see its own conflicts of interest while it fabricates others when they don't actually exist. And the paper hires smear merchants to do its dirty work.
Eric Lipton: The 'Birther' of Science Journalism
The Times allows Eric Lipton -- who has worked his entire professional life as a journalist and has no knowledge of either business or science -- to write about the biotech and chemical industries. His academic background is in history and philosophy, which means that the New York Times is happy to have its journalists cover subjects they don't understand, as long as they have a political agenda of which the newspaper approves.
The results have been entirely predictable. When given the opportunity to advance the NYT's long-standing anti-GMO agenda, Lipton intentionally distorted a story about biotech scientist Kevin Folta. Dr. Folta responded by suing both Lipton and the New York Times for defamation.
That doesn't appear to have slowed Lipton down. His latest dreck targets Nancy Beck, who was tapped by President Trump to be the Deputy Assistant Administrator of the Office of Chemical Safety and Pollution Prevention at the U.S. EPA.
A deputy assistant in the little-known Office of Chemical Safety and Pollution Prevention? This is a rather obscure bureaucratic post in a gigantic EPA bureaucracy. It defies belief to assume that one person is capable of poisoning the planet. Apparently any scientist is worth smearing, as long as it advances the New York Times's agenda to sell more organic food for its boss. But it gets even more bizarre.
According to her LinkedIn profile, Dr. Beck has expertise in microbiology, toxicology, and a PhD in environmental health. Additionally, she has worked in the Washington State Department of Health and has extensive policy experience in DC. In other words, Dr. Beck has forgotten more about science and health policy than Lipton ever knew, so she's precisely the sort of person who should be working at a high level in the EPA.
But not according to philosophy major Eric Lipton. In his opinion piece, which masquerades as objective reporting, Dr. Beck is contaminated because she spent five years at the American Chemistry Council, a trade association founded in 1872 that lobbies on behalf of chemical companies. To hammer the point home, Lipton uses the term "chemical industry" 17 times in the article. As is typical, the article doesn't discuss science to any appreciable extent; instead, it just assumes that any chemical with a scary-sounding name is evil, and therefore so is anybody who favors using it.
This is obscene. It's the journalistic equivalent of "guilty until proven innocent." It would be like writing an article about how a Middle Eastern scientist shouldn't work for the U.S. government because that's where terrorists come from. It's an absolutely outrageous smear, yet that's what passes for journalism at the New York Times.
The notion that working for industry makes a person dishonest is one of the biggest lies circulating in America today. (Angela Logomasini has more on this.) About 2/3 of all research and development funding in America comes from industry. If industry vanished, America's leading role in science would vanish with it. That doesn't mean that industry should be allowed to do whatever it wants without regulatory oversight; but it does mean that an objective journalist should approach industry scientists with an open mind. If a philosophy major can't even do that, then what exactly are they good for?
Given Lipton's track record, there is little reason to assume he'll ever do his job properly. Instead, like an Obama birther, he'll continue spouting conspiracy theories about scientists despite the evidence, ensuring that his boss stays wealthy.
https://www.acsh.org/news/2017/10/26/nyts-eric-lipton-science-birther-12039
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(ACC Mentioned) EPA: Enviromental Pollution Agency
Oct 26, 2017 | The New Paltz Oracle
President Donald Trump drew a sizable amount of criticism last December when he nominated Scott Pruitt for the position of Administrator of the Environmental Protection Agency (EPA). Critics cited Pruitt’s 14 separate lawsuits against the EPA, all of which sought to undermine the agency’s environmental regulatory power, as evidence of Pruitt’s incompatibility with the office. Others recalled Pruitt’s tenure as Attorney General of Oklahoma, during which he dissolved the state’s Environmental Protection Unit and “established what he called a federalism unit, a special team that would fight federal rules imposed on Oklahoma,” according to PBS’s “Frontline.” In 2012, he became the chairman of the Republican Attorneys General Association (RAGA) and used his position to fund lawsuits challenging a wide range of federal regulations under the Obama administration, including environmental laws. Pruitt’s baggage, however, did not seem to deter the Trump administration or the Senate, the latter of which confirmed his nomination in February.
We at The New Paltz Oracle believe the EPA has since failed in its obligations. During this week alone, the EPA has made news for its role in the decimation of two Obama-era environmental regulations. On Oct. 20, the Office of Management and Budget received from the EPA a proposal to greatly loosen emissions standards for certain truck components. The Washington Post wrote that, without these standards, trucking companies are able to “install an outdated engine into a new truck body and avoid regulations that would apply to an entirely new truck.” A day later, The New York Times published a batch of “email correspondence[s] related to the March 2017 decision by the EPA to reject a decade-old petition to ban chlorpyrifos” in the agriculture industry. Chlorpyrifos (CPS) is a pesticide—banned for home use in the U.S. in 2001 and classified as hazardous by the World Health Organization—that has been linked to autoimmune diseases and developmental disorders following overexposure. Among these published emails was correspondence with Dow Chemical Company (now DowDuPont Inc.), the corporation that first introduced CPS onto the market. The same day, The New York Times also published “confidential internal memo[s]” from the EPA’s Office of Water, revealing the interventions of one Nancy Beck, a top deputy in the EPA’s toxic chemical unit; prior to her appointment to the EPA, she served as an executive with the American Chemistry Council, a trade association representing some of the nation’s largest chemical manufacturers. Both the interference by Dow Chemical Company and the interference by the American Chemistry Council illustrate just how severe these conflicts of interest are.
The extent of the EPA’s unscrupulous influences is matched by the agency’s gross incompetence in the field of climate change. On Monday, USA Today reported that the EPA had withdrawn “two scientists as well as an agency consultant” from a panel discussion “spotlighting the effects of climate change on the Narragansett Bay” in Rhode Island. According to a study by the Narragansett Bay Estuary, man-made climate change “is affecting air and water temperatures, precipitation, sea level, and fish in the Narragansett Bay region.” Unfortunately, this would not be the first time the EPA has promoted a policy of censorship within its ranks. In a March 2017 interview with CNBC, Pruitt said that he “would not agree that [carbon dioxide is] a primary contributor to the global warming that we see.” He also questioned a 2009 EPA study state that climate change posed a detriment to human health, with TIME reporting that Pruitt suggested to them that “he plans to limit the scope of the EPA’s climate rules through legal arguments that sidestep the need to question mainstream climate science.”
The EPA was trusted to a man who made no secret of his intent to actively undermine it. This alone should have disqualified him from obtaining the position, especially since he only recused himself from the aforementioned lawsuits this past May. Pruitt’s background isn’t even in science, but rather constitutional law. By contrast, the EPA’s previous two administrators were Gina McCarthy, who had worked in environmental agencies nearly her entire career, and Lisa Jackson, a chemical engineer. Even the interim administrator between Trump’s inauguration and Pruitt’s appointment, Catherine McCabe, is an environmental lawyer.
In 1997, Bill Clinton signed an executive order banning the smoking of cigarettes in Executive Branch buildings. In 1998, the U.S. Department of Transportation banned smoking on commercial flights by American air carriers. Half of the states in the U.S. have banned smoking in indoor places of business, as have Puerto Rico, American Samoa, Washington, D.C. and the U.S. Virgin Islands. This is all to say that, given the scientific proof of the health risks of inhaling cigarette smoke, individual governments took it upon themselves to minimize the exposure of non-smokers to the toxicity of cigarette smoke—all of this, knowing it would be at the expense of the tobacco industry.
Why do toxic chemicals in our drinking water and our atmosphere not fall under the same logic, and at what point will public health finally supersede private profits? We at The New Paltz Oracle cannot begin to stress the importance of an effective Environmental Protection Agency and remained disheartened at the current lack of one. The Trump administration plans to cut the EPA’s budget by 30 percent, yet Pruitt’s security will cost the agency approximately $2 million annually, according to CNN. Clearly the EPA cannot properly allocate resources, nor does it meet even the lowest standard for environmental advocacy. Under this new leadership, the EPA has lost all credibility, and now stands transformed from an environmental protection agency to an industrial one.
http://oracle.newpaltz.edu/epa-enviromental-pollution-agency/
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Internal Memos Show EPA Offices' Fears Over Narrowed Trump TSCA Rule
Oct 26, 2017 | Inside EPA
By Maria Hegstad
A series of recently released internal EPA memos underscore significant environmental and legal concerns officials in the agency's water and enforcement offices have with the toxics office's controversial changes to narrow the range of chemical uses the agency will consider when assessing and regulating substances under the new toxics law.
For example, EPA's acting water chief raised concerns in a memo last May that the toxics office's approach -- codified in the agency's framework rules to implement the new Toxics Substances Control Act (TSCA) -- would make it harder to manage risks posed by perfluoralkyl substances (PFAS) in water, a growing concern nationwide.
Similarly, the agency's enforcement office raised concerns that precluding consideration of chemicals' “legacy” uses was at odds with statutory requirements and would open the door to state action, creating uncertainty for industry.
In addition, the agency's general counsel's office warned that some provisions in the final versions of the agency's framework rules changed so significantly from the proposed versions that they could be vulnerable to legal challenges.
The memos and other documents were released alongside a recent New York Times story about Trump appointee Nancy Beck, the deputy associate administrator in the Office of Chemical Safety and Pollution Prevention (OCSPP).
For now she is the top Trump toxics appointee at EPA and is leading the administration's efforts to implement the reformed TSCA, but she is facing fresh criticisms after the Times reported that she rewrote the Obama administration proposed versions of the framework rules based on comments she helped write while serving as a chemical industry lobbyist.
In particular, her reworking of the proposed rules led EPA to determine it has greater discretion to narrow the range of chemical “uses” that the agency will consider when assessing and regulating industrial chemicals than the draft rules did.
The issue is already at the center of litigation over the framework rules, which includes a rule governing EPA risk evaluations and another governing how EPA prioritizes chemicals for review. Environmentalists and their supporters say the revised law, enacted in 2016, requires EPA to assess all uses but the agency and its industry supporters say it has discretion to preclude uses, such as legacy uses or those already regulated by the Occupational Safety and Health Administration (OSHA) or other agencies.
But the internal agency memos released alongside the Times report highlights internal agency fears over some of the changes Beck made in the final version of the rule.
'Particular Concern'
For example, Michael Shapiro, the career EPA staffer who is now the acting chief of the water office (OW), warned in a May 30 memo that narrowing consideration of substances' uses would make it difficult to address risks posed by some substances
“If only a portion of conditions of use of a chemical are included in the scope, it is not clear how a risk-based prioritization approach will be conducted and how aggregate risk (under all conditions of use) to human health or the environment will be assessed. OW's concern is whether a chemical may occur in drinking water or ambient water above a level of concern for human health or the environment regardless of the condition(s) of use that led to its occurrence.”
Further, the memo raises “particular concern” over language in the final rule that exclude certain chemical uses from the definition of conditions of use, such as legacy uses or disposal. The OW memo notes that these excluded uses are “important chemical exposure pathways [but they] may not be included as part of the chemical prioritization or risk evaluation process, which would result in underestimation of the potential risks to human health and the environment.”
He suggested that rather than taking this approach, the agency instead adopt a “chemical substance-based approach,” considering all conditions of use. Shapiro explains that “OW's concern is whether a chemical may occur in drinking water or ambient water above a level of concern for human health or the environment regardless of the condition(s) of use that led to its occurrence.”
As an example, Shapiro described how the approach would undermine the agency's ability to address PFOA, perhaps the best known chemical in the PFAS class. He pointed to PFOA as a chemical that “[u]nder the revised prioritization and risk evaluation processes, some important conditions of use, legacy use, disposal, groundwater contamination) may not be considered, as determined by the Administrator.”Shapiro described PFOA as an “industrial chemical that has drawn attention recently,” noting that it has “contaminated surface water and groundwater from manufacturing sites, industrial use, crash training areas, and industrial or municipal waste sites where products are disposed of or applied."
He acknowledged the success of EPA's voluntary phaseout agreement with PFOA manufacturers, known as the 2010/2015 PFOA Stewardship Program. But Shapiro said that while the voluntary approach “has worked toward eliminating PFOA emissions and product content, there are still some ongoing uses of this highly persistent and bioaccumulative chemical. There is also potential PFOA exposure from use on products that are recycled (carpets)."
Legacy Uses
EPA's Office of Enforcement and Compliance Assurance (OECA) also raised concerns over the narrower uses approach and urged OCSPP to continue to consider legacy uses when assessing chemicals.
“OECA recommends that OCSPP revise the rule to avoid any suggestion that the Agency will not evaluate 'legacy' chemical substances, including their continued use and disposal. … The preamble's exclusionary approach creates uncertainty in the regulated community regarding compliance with TSCA section 6(a) rules promulgated after risk determinations.”
The differentiation between legacy uses, disposal and other uses would “potentially creat[e] an unequal playing field,” OECA worries, adding that another concern is that “companies engaged in processing, distributing, or using a chemical for a non-legacy use would have an incentive to mischaracterize the use so as to evade section 6(a) restrictions, particularly with regard to disposal.”
OECA also suggests that such differences in approaching risk management could lead to “federal-state conflict,” a major issue in TSCA reform where Congress gave EPA greater responsibilities for regulating chemicals while pre-empting much state regulatory action -- a major ask from the chemical industry. But OECA says that the final rules' approach to conditions of use will exacerbate this long-standing issue.
“The Risk Evaluation rule's use-based approach conflicts with section 6(i) of the statute and may result in a patchwork of overlapping federal and state regulations that Congress sought to avoid in amending TSCA. Federal preemption only applies to those conditions of use included within the scope of risk evaluation. States may regulate conditions of use not considered and thereby increase the compliance burden on regulated entities seeking to determine the applicability of federal and/or state requirements.”
The Office of General Counsel also raised concern that some of the late changes would invite litigation. “As we have discussed, we have concerns that several provisions of the final rule - most significantly, the definition of 'best available science' -- are vulnerable to challenge on the ground that they differ so greatly from the proposal that they cannot be considered to be the 'logical outgrowth' of the proposal and the comments,” says a May 30 memo from OGC's Celeste Laurel.
ACC and other industry comments urged EPA to define scientific terms that appear in the reformed TSCA, specifically “best available science” and the “weight of scientific evidence,” requests that EPA had in past demurred over concerns that definitions would prove constricting to new technologies or would invite litigation. The final rules, however, contain definitions for both terms.
https://insideepa.com/daily-news/internal-memos-show-epa-offices-fears-over-narrowed-trump-tsca-rule
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Environmentalists Cite TSCA Rule Changes In Bid To Maintain Fluoride Suit
Oct 26, 2017 | Inside EPA
By Maria Hegstad
Environmentalists are urging a federal court to allow their suit against EPA over its denial of their petition to ban drinking water fluoridation to continue, arguing among other things that the agency's changes to the final framework rules implementing the 2016 statutory reform of the Toxic Substances Control Act (TSCA) bolster their case.
In an Oct. 25 reply motion, the groups argued, among other things, that the agency's requirement that the petitioners identify all conditions of use before it would accept a petition is at odds with the statute as well as EPA's recent interpretation in the framework rules that the agency has discretion to narrow the conditions of use it will consider when assessing chemicals' risks.
And, they added, since EPA's stance has not been subject to administrative proceedings, the agency should not be granted deference.
“EPA’s contention that citizen petitioners must identify all conditions of use is not only at odds with the plain meaning and legislative intent of TSCA, but EPA’s own recent interpretation of the Act. At bottom, EPA’s untenable statutory interpretation, which has never been subject to notice and comment rulemaking, is little more than a litigating position which warrants no deference from this Court,” the reply motion says.
The environmentalists' brief responds to EPA's motion to dismiss the suit, Food & Water Watch Inc., et al, v. EPA, where the agency defended its views on the key issue of which chemical uses must be considered in TSCA assessments and possible future regulation.
The issue is complicated because the agency's final TSCA framework rules gave EPA greater discretion to narrow risk assessments by specific uses, but also to act on individual uses of chemicals.
By contrast, EPA last summer denied the groups' 2016 TSCA section 21 petition seeking a ban on fluoridation -- a single use of a class of chemicals -- saying the petitioners needed to evaluate all of the chemical's uses.
And in its motion to dismiss, EPA reiterated its view that the petition -- filed by Food and Water Watch (FWW), the Fluoride Action Network (FAN), and others -- was at odds with TSCA's mandate to review chemicals and address risks from all their uses.
EPA's critics and plaintiffs in the case have argued that EPA's rejection of the petition on the grounds that it did not address all uses was at odds with the position the agency took last summer when it issued the final risk evaluation, prioritization and other framework rules for implementing the new law to address existing chemicals.
“Insofar as EPA is now arguing that only an unreasonable risk determination for the chemical as a whole is sufficient to trigger rulemaking under Section 6(a), its position is contrary to the approach EPA itself has taken in its July 20 rule establishing chemical risk evaluation procedures under the amended Act,” the reply motion states.
The motion notes that other sections of the rules allow EPA to make an unreasonable risk determination for specific conditions of use and conclude that “contrary to its position in this case, EPA recognizes that its rulemaking obligation under Section 6(a) may be triggered by a determination that a single condition of use presents an unreasonable risk, irrespective of how it ultimately evaluates other conditions of use. Nothing in Section 21 suggests that petitioners who seek to compel EPA to conduct a rulemaking based on an equivalent showing of unreasonable risk for a particular use must meet a higher standard.”
Chevron Deference
FWW also seeks to rebut EPA's argument that its interpretation of TSCA is due deference by the court under the 1984 Chevron v. Natural Resources Defense Council ruling, arguing among other reasons that “although EPA claims reliance on EPA’s risk evaluation rule to support its interpretation, the rule was promulgated . . . several months after the petition denial.”
“The rule changed in important respects between what was proposed in January and what was promulgated in July; in fact, as promulgated, the rule actually conflicts with the basis EPA has cited for denying the petition.”
FWW notes that the final version of the rule, which granted EPA discretion to narrow conditions of use, “actually conflicts” with the EPA's petition denial, while the proposed version of the rule, which required EPA to consider all uses, was consistent with the denial.
FWW's attorney, Michael Connett, argues that with the changes in the final rule, “EPA has reserved for itself discretion, allowed industry to” petition the agency to conduct risk evaluations of chemicals' selected uses “and yet it asks citizens without exception to” identify and evaluate risks from all of a chemical's uses. “It's certainly selective and there's no reason for that selectivity.”
The Natural Resources Defense Council (NRDC) and the Safer Chemicals Health Families coalition have also sought to file an amici brief with the court in support of FWW's argument that reformed TSCA Section 21 does not require petitioners to address all conditions of a use of a chemical that they are asking EPA to address.
Both environmental groups are among the petitioners in separate suits against EPA regarding changes to the final framework rules, but the amici brief does not appear to address the issue of EPA's change in position on conditions of chemicals' use, only mentioning the suits in a footnote.
“Nothing in this statutory scheme requires a [TSCA] section 21 petition to evaluate every potential risk posed by every use of a chemical. Congress could easily have written such a requirement into section 21. It did not do so,” NRDC and the coalition argue in their amici brief.
In a footnote, NRDC and the coalition note EPA's change in uses interpretation in its rules during the course of the fluoride case. “Shortly before EPA denied the citizen petition at issue in this case, EPA asserted [in the draft rules] that a TSCA section 6(b) risk evaluation 'must encompass all known, intended, and reasonably foreseen activities associated with the subject chemical substance.' . . . EPA has since reversed course, announcing its belief that it 'may . . . exclude [from a section 6(b) risk evaluation] certain activities that EPA has determined to be conditions of use in order to focus . . . on those exposures that are likely to present the greatest concerns' [in the final rules]. . . . Amici do not believe that limiting interpretation is permissible, and have challenged it.”
Connett acknowledges that the environmental groups' position that EPA must consider all conditions of use in prioritizing and assessing chemicals' risks could be seen as conflicting with FWW's position that section 21 petitions must not address all uses. But he argues that the positions are compatible.
“EPA is being challenged by environmental health groups on this final rule,” Connett notes. “We're arguing now that citizens don't need to consider all conditions of use. The reason the [positions] are compatible is that we want EPA to consider all uses … we don't want them to overlook” a use that presents unreasonable risk. “All a citizens' petition is saying is, 'Here's a use [that presents unreasonable risk] -- do something about it.'”
A hearing on EPA's motion to dismiss is scheduled for Nov. 30.
https://insideepa.com/daily-news/environmentalists-cite-tsca-rule-changes-bid-maintain-fluoride-suit
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(ACC Mentioned) City of South Lake Tahoe Considers Styrofoam Ban
Oct 26, 2017 | AP (In The San Francisco Chronicle)
SOUTH LAKE TAHOE, Calif. (AP) — The South Lake Tahoe City Council is once again considering a variety of bans or restrictions on polystyrene — the synthetic material most commonly known by the brand name Styrofoam used in packaging at restaurants for takeout orders and at other retail stores.
City staff presented possible tiers of a polystyrene ban for discussion at a council meeting last week. These tiers range from a ban only eliminating polystyrene takeout food containers to one that prohibits the sale of products packaged with polystyrene, like egg cartons and meat at grocery stores.
In 2013, the City Council discussed banning single-use plastic bags and polystyrene at retail establishments. Though the city moved forward with a ban on plastic single-use carryout bags — later bolstered by a statewide ban on plastic bags — no action was taken to prohibit polystyrene.
Environmentalists have long criticized polystyrene for its lengthy lifetime in landfills and impact on the environment and wildlife, the Tahoe Daily Tribune reported .
The Council requested staff bring back more information on how the various tiers might impact local businesses.
"I just want to make sure we look hard at unintended consequences," said Tom Davis, a councilmember.
The League to Save Lake Tahoe spoke out in support of a ban.
"This year alone we hosted 17 organized cleanup efforts and just with polystyrene, which is expanded foam, we found 2,000 pieces," said Marilee Movius, community engagement manager for the League. "This does not include other plastics that we also found, which is over 16,000 pieces."
Movius also noted that polystyrene is considered the fifth-largest source of hazardous waste in the United States by the Environmental Protection Agency.
American Chemistry Council, an industry trade company for chemical companies, wrote to the council, objecting any sort of ban.
"This ordinance falsely assumes that banning one type of food packaging material will result in a reduction in litter; overlooks many environmental benefits associated with polystyrene food service containers; (and) incorrectly assumes biodegradable or compostable alternatives have a lower footprint on the environment," wrote Tim Shestek, senior director of State Affairs for American Chemistry Council.
Shestek also asserted that any ban would impose higher operating costs on restaurants, especially smaller businesses — an opinion shared by the California Restaurant Association.
More than 100 cities have enacted polystyrene bans around the country, including Seattle, Portland and New York City.
South Lake Tahoe City Council will revisit the polystyrene ban topic at a future meeting.
http://www.sfchronicle.com/news/article/City-of-South-Lake-Tahoe-considers-Styrofoam-ban-12308445.php
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(ACC Mentioned) U.S. to Restrict 5 Phthalates In Children’s Products
Oct 26, 2017 | Chemical & Engineering News
By Cheryl Hogue
Five phthalates will be banned from toys and items such as teething rings and pacifiers, the U.S. Consumer Product Safety Commission (CPSC) decided earlier this month.
In a 3-2 vote, CPSC determined that the chemicals are harmful for male reproductive development and agreed to restrict the five plasticizers in toys and some child care products to no more than 0.1%. The substances are di-n-hexyl phthalate, di-n-pentyl phthalate, dicyclohexyl phthalate, diisobutyl phthalate, and diisononyl phthalate (DINP).
Consumer groups applauded the restriction, which is expected to take effect in about six months.
The American Chemistry Council (ACC), an association of chemical manufacturers, lashed out at CPSC’s action on one of the substances. “This vote to ban DINP is arbitrary and capricious and proves CPSC isn’t interested in acting based on valid scientific standards,” the group said.
Calling DINP one of the most thoroughly studied compounds in the world, ACC said reviews by international scientific panels have repeatedly concluded that “DINP, as currently used in commercial and consumer products, does not pose a risk to human health at typical exposure levels.”
https://cen.acs.org/articles/95/i43/US-restrict-5-phthalates-childrens.html
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Move for Global Ban on ‘Teflon’ Compound Hits Sticking Point
Oct 27, 2017 | BNA Daily Environment Report
By Adam Allington
Global efforts to ban the “Teflon chemical” have hit a sticking point.
PFOA, short for perfluorooctanoic acid, became famous in the 1950s when DuPont started using the stuff in its process for making non-stick frying pans. Since then, PFOA found its way into everything from GoreTex clothing to Stainmaster carpets.
PFOA also has turned up in dangerously high levels in drinking water near current and former factories, raising concerns about contamination in other parts of the country and around the world.
Now, efforts to ban the chemical through the Stockholm Convention may have taken a setback after a scientific panel to the convention delayed for another year issuing a recommendation.
The Stockholm Convention is a global treaty banning the production, use, and trade of certain persistent organic pollutants (POPs). The convention's POPs Review Committee (POPRC) met on Oct. 17-20 and said it needs more time to gather information before making recommendations on PFOA.
The decision was viewed as good news for chemical companies and manufacturers, especially large electronics companies such as Intel, Micron, and Samsung, who use perfluorinated chemicals (PFCs) in the manufacturing process for semiconductors.
Environmentalists say postponing the PFOA decision for another year is a clear signal that pressure from manufacturing interests may be influencing the committee's thinking.
“The EU has been trying to phase out PFOA, but what the committee recommended was not a phase out,” said Mariann Lloyd-Smith, a senior adviser to the International POPS Elimination Network (IPEN), a group of nongovernmental organizations.
Delays of Enforcement
The European Union nominated PFOA in 2015 for listing in the Stockholm Convention and agreed to lead the evaluation process.
The question before the review committee is whether to list PFOA for a total ban (Annex A) or a partial ban with exemptions (Annex B).
The committee meets once per year and still has until 2018 to make suggestions to the full Conference of Parties to the Stockholm Convention, which does not meet until spring 2019. However, it did make recommendations to delay enforcement for certain uses of PFOA.Under the current EU REACH chemical regulations, semiconductor manufacturers have been granted an unlimited exemption to use PFOA in the process chemistry for making microchips.
The Stockholm Convention however, is a treaty of over 160 countries and recommended a phase-out window of five years for semiconductors and photographic coatings. Likewise, the committee suggested a 10-year phase-out period for the use of PFOA in refurbished auto parts while pharmaceutical products would have 19 years to cease use of the compound.
Environmental groups and NGOs are concerned that opening the door to exemptions and enforcement delays undermines the purpose of a global ban, which is to force companies to stop using toxic chemicals.
“There are hundreds of representatives from industry lobbying on this issue,” IPEN's Lloyd-Smith said. “The exemptions the committee agreed to last week, we won't be able to pull those back, and we're really worried there could be even more coming.”
Smaller, Faster Electronics
For decades, the chemicals industry manufactured hundreds of products using PFOA—also known as C8, or the “Teflon chemical.” But one of the biggest uses today is in the electronics industry, where companies claim the loss of fluorinated compounds would drastically reduce options for chipmakers.
“In banning PFOA, you're taking a very important tool out of the toolbox for the chemists,” said Mark Thirsk, an electronic materials consultant with Linx Consulting, where he is managing partner.
PFOA, he said, is a key ingredient in a coating sprayed on silicon wafers, which allows machines to etch minuscule light-sensitive (photolithographic) pathways on semiconductors—a key factor in the development of smaller, faster electronic devices.
“If there is a regulation that really does remove this stuff globally, it will be a big handicap for the electronics industry,” Thirsk said.
The current proposal to the Stockholm Convention suggests a five-year phase out for use in semiconductors, which chip makers including Intel, Micron, and Samsung claim would lead to a significant market disruption.
“At this point, they haven't found a good drop-in replacement for PFOA molecules,” said Sanjay Baliga, director of sustainable manufacturing at SEMI, a trade association serving the micro and nano-electronics industries.
Baliga says some companies have been able to switch to alternative perfluorinated molecules, but, unlike PFOA, these substitutes are not appropriate for all applications.
“Removal of PFOA from all photolithography applications would require innovation or invention, of which the timing and likelihood of success cannot be predicted,” Baliga said.
“Without an appropriate PFOA exemption under the Stockholm Convention for photolithography, there may be disruptions to some semiconductor manufacturers and to the larger semiconductor industry,” he said.
A Closed Loop
PFOA has been linked to a variety of health concerns, including thyroid disease, testicular cancer, kidney cancer, and pregnancy-induced hypertension, and is presumed to be an immune hazard to humans.
However, unlike years past when manufacturers dumped PFOA directly into landfills, chemical companies claim the process now operates in highly sophisticated and contained facilities that do not pose a threat to the environment or workers.
“We believe that PFOS and PFOA do not present health risks at levels they are typically found in the environment or in human blood,” said Carol Ley, a vice president and corporate medical director for 3M.
“This view is informed by decades of testing our production workers who were exposed to these chemicals at levels that were many times greater than the general population—often over an extended period of time. Those workers show no adverse health effects from perfluorocarbon exposure,” Ley told Bloomberg Environment.
Likewise, if one region regulates perfluorinated chemicals more aggressively, it would come at a steep economic cost.
“If you are an Intel or a Samsung, you don't want to move these very expensive factories around the world because of regulatory barriers,” Thirsk said. “With tens of billions invested into factories and thousands of highly trained engineers, you can't just pick up and move.”
The trade group SEMI states that, while PFOA is used in a process chemistry in semiconductor manufacturing, it is not contained in the final semiconductor device.
Long Versus Short Chain
Even with talk of carve-outs and exemptions, some say the writing is on the wall for PFOA. Former large manufacturers of the chemical, including 3M Co. and DuPont Co., agreed in 2006 to phase out its production and use by December 2015.
3M now uses alternative “short-chain” perfluorinated chemicals (PFCs), which the companies say are safe substitutes to PFOA.
“To our knowledge, there is no peer-reviewed scientific evidence that indicates environmental exposure to these alternative compounds causes any harm to the environment or human health,” according to a statement provided to Bloomberg Environment.
On the topic of reformulated chemistries, the Organization for Economic Cooperation and Development (OECD) defines “long-chain” as molecules with six or more perfluorinated carbons. Short-chain have five or fewer.
PFOA is a long-chain molecule with eight carbon chains.
This difference in molecular structure makes these next-generation PFCs less likely to build up in the bodies of people and animals, producers say.
But, like the chemicals they are replacing, environmental groups say these compounds are still persistent in the environment and point to studies that suggest short-chain PFCs actually are more likely to end up in tap water because it's easier to remove long-chain chemicals during water treatment.
In its risk management evaluation, the Stockholm Convention expert committee itself said, “Often, these short-chain alternatives are less effective and higher quantities are required.”
“This data suggests that the replacement of PFOA, its salts and related compounds by short-chain fluorinated substances may be identified as a regrettable substitution.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=123047120&vname=dennotallissues&fn=123047120&jd=123047120
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Oct 26, 2017 | Chemical & Engineering News
By Marc S. Reisch
A Maryland water utility is suing an alleged cartel of chemical makers for supposedly conspiring to fix prices of the water treatment chemical aluminum sulfate, costing it millions of dollars.
Aluminum sulfate, also known as alum, is a flocculant, meaning it is added to drinking water and wastewater to make minute particles stick together so they can be filtered out.
Washington Suburban Sanitary Commission (WSSC), which serves 475,000 Maryland customers just outside of Washington, D.C., filed suit on Oct. 19 in U.S. District Court for the District of Maryland, charging that seven alum makers—including General Chemical, Chemtrade Chemicals, Geo Specialty Chemicals, and Kemira—rigged bids and allocated customers among themselves between 1997 and 2011.
WSSC says the scheme raised prices it and other U.S. utilities paid for alum through 2016. At least 68 other civil suits based on alum price-rigging allegations have been filed in federal court to recoup costs, WSSC says. Others suing alum makers include the Illinois-American Water Co., which filed its suit in April. In June, the cities of Baltimore and Richmond, Va., which supply water to their residents, also filed suits.
WSSC is asking the firms named in its suit for $5 million in compensatory damages and additional damage to be determined in a trial.
The WSSC and other suits follow the U.S. Department of Justice revelation in late 2015 of the price-fixing scheme. At that time, DOJ announced that Frank A. Reichl, a General Chemical sales executive, had pleaded guilty for his role in the scheme. As part of a deal with the government, he agreed to cooperate with prosecutors investigating the conspiracy.
In early 2016, federal prosecutors indicted another General Chemical sales executive, Vincent Opalewski, and a high-ranking Geo Specialty Chemicals executive, Brian C. Steppig, for their alleged roles in the scheme. In June 2016, Geo pleaded guilty and was ordered to pay a $5 million fine for fixing prices of alum.
By violating the competitive process, “Geo and others defrauded municipalities as well as pulp and paper companies out of millions of dollars,” said Timothy Gallagher, the FBI agent in charge of the Geo investigation at the time.
https://cen.acs.org/articles/95/i43/Utility-sues-chemical-makers.html
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Costco Develops New Safer Chemicals Policy
Oct 26, 2017 | Safer Chemicals, Healthy Families
By Laurie Valeriano and Mike Schade
We have some exciting news on Costco!
We’re pleased to report that Costco has announced that it is committing to reducing harmful chemicals in the products it sells by adopting a new Chemicals Management Policy! Fewer hazardous chemicals on Costco’s shelves mean fewer hazardous chemicals in our homes, our bodies, and our environment.
Costco made its announcement on its website stating:
“Costco’s Chemical Management Policy goes beyond the boundaries of regulatory compliance in an effort to reduce potential chemical harm to humans and to the environment from the product manufacturing process and from consumer use and disposal.”
The policy outlines the steps the company is taking with suppliers including:
1) Identifying chemicals of concern (utilizing comprehensive testing programs);
2) Removing or applying the process of informed substitution for any identified chemicals of concern;
3) Identifying ways suppliers can change their manufacturing processes to reduce hazardous chemical use; and
4) Reviewing qualified third-party green certifications.
Additionally, the company is partnering with the Berkeley Center for Green Chemistry to help develop implementation of this Chemical Management Policy, beginning by focusing on three product areas: furniture, textiles, personal care and household products. This builds on Costco’s Smart Screening Program the company announced earlier in the year.
Costco also revealed more of the chemicals and products it is testing through its Smart Screening Program, such as flame retardants, phthalates, PFAS chemicals, and organotins in various products. We hope over time Costco will disclose the full list of chemicals it is restricting and testing for, as other major retailers have done.
Costco’s announcement is really good news for its members who will benefit from safer chemicals in their shopping carts and homes. But it’s also a signal to the market that harmful chemicals need to go. Costco’s suppliers will have to examine their products and reduce their use of toxic chemicals.
Costco is finally starting to catch up with other big retailers, like Walmart and Target, that have adopted safer chemicals policies and are actively identifying and reducing toxic chemicals in consumer products. Last year the Who’s Minding the Store report card gave Costco an “F”. It’s safe to say the company is no longer failing, and its grade will surely improve in the forthcoming 2017 report card.
We can’t downplay the role consumer demand plays in these decisions. In January at its annual shareholder meeting, Costco received over 35,000 signed petitions asking the company to adopt a safer chemicals policy. Combined with thousands of emails and customer comments asking the company to reduce the chemicals on its shelves, Costco heard its members loud and clear, and the company answered. Thank you, Costco!
Costco’s actions are positive and something to be excited about. Of course, the company needs to follow through and implement the new policy with clear goals, timelines, and progress reports on its implementation of this initiative. We’ll look for future announcements from Costco on the specific chemicals and products the company is targeting for elimination, as well as specific goals for reductions.
Costco has finally responded with meaningful actions demonstrating the company cares what its members want and their health. Now it’s up to Costco to follow through. We look forward to seeing how Costco moves forward in implementing this policy in the year to come.
http://saferchemicals.org/2017/10/26/costco-develops-new-safer-chemicals-policy/
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Hatch Cosmetics Legislation Fails to Protect Consumers From Toxic Ingredients
Oct 26, 2017 | Environmental Working Group
WASHINGTON – Yesterday, Sen. Orrin Hatch, R-Utah, introduced legislation that fails to protect families from dangerous chemical ingredients in personal care products.
EWG instead urged senators to support bipartisan cosmetics reform legislation introduced by Sens. Dianne Feinstein, D-Calif., and Susan Collins, R-Maine.
The following is the statement of Scott Faber, EWG’s senior vice president for government affairs:
While we agree with Senator Hatch that the time to reform cosmetics law is long overdue, we are strongly opposed to the bill he introduced yesterday. In particular, the Hatch bill would not require FDA reviews of cosmetics chemicals, instead allowing third parties to review chemicals. It would not require the industry to substantiate the safety of its own chemicals, would create a weak and untested safety standard, and would fail to provide the FDA with any resources to oversee a $60 billion industry that impacts the health of every American.
Most troubling is a provision to block state action on dangerous chemicals if they simply appear on a Trump administration list.
By contrast, bipartisan legislation introduced by Senator Feinstein and Senator Collins would require five chemical reviews a year, would require cosmetics companies to demonstrate their products are safe, would include the same safety standard long applied to food and pesticides, would provide the FDA $20 million in annual funding, and would preserve a role for the states.
The Feinstein-Collins bill is broadly supported by cosmetics companies, large and small, and by public health groups. For legislators hoping to finally modernize cosmetics law after 80 years of failure, the choice between the two bills is very clear.”
https://www.ewg.org/testimony-official-correspondence/hatch-cosmetics-legislation-fails-protect-consumers-toxic#.WfMFr1uCwdU
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(ACC Mentioned) Company To Spend $150M On Ethane Storage Facility
Oct 27, 2017 | The Times Leader
By Casey Junkins
CLARINGTON — Mountaineer NGL Storage officials announced Thursday plans to spend $150 million — and potentially as much as $500 million — on its proposed natural gas liquids storage facility along the Ohio River near Clarington.
By 2019, company Managing Director David Hooker hopes to store up to 420 million gallons of ethane, propane and butane in caverns along the river, with the goal of allowing the potential PTT Global Chemical cracker plant to access the product via pipelines that would only need to stretch about 10 miles. Also, the Mountaineer NGL Storage project could be the first part of the Appalachian Storage Hub, or “ethane hub,” which American Chemistry Council officials said could eventually lead to $36 billion worth of investment and about 100,000 permanent jobs.
“We are pretty excited about this project,” Hooker said Thursday. “It is a nice means for industrial growth in the area. It will be nice to keep the product local.”
Hooker said he already has a permit from the Ohio Department of Transportation, but is still waiting for authorization from the Ohio Environmental Protection Agency and the Ohio Department of Natural Resources.
“We feel like we have a pretty good rapport with the Ohio EPA. They are pretty clear about what they want from us. We need permits from Ohio EPA, ODNR and ODOT, and we have secured all permitting with ODOT already,” Hooker said. “We are working on some issues with ODNR, but they have been very accommodating.”
Hooker said he expects all environmental permits for the project to be obtained within the first six months of 2018, after which construction could begin.
“We’re pleased to see that the support of this regional effort is as strong as it is, and we believe that the Mountaineer NGL Storage project highlights how the private sector can take steps to address critical storage solutions for the burgeoning petrochemical industry,” Hooker added. “We think that our investment will encourage significant additional NGL infrastructure support in the region, as well.”
Since discussion of a Marcellus and Utica shale ethane cracker began, industry leaders have maintained a major obstacle is the lack of underground storage capacity for the natural gas liquid. This is needed, they say, to ensure a constant source of ethane to the cracker plant in the event of supply disruptions.
“It would certainly help solve the lack of storage problem,” Hooker said Thursday.
Hooker continues work on his underground storage cavern endeavor, which he hopes to open on former coal mine property along the Ohio River. He has said the plan is to operate three pipelines that will run beneath the river, in addition to those that may run toward the PTT site. Preliminary plans called for these lines to run under the river — one carrying ethane from the Marshall County Blue Race Natrium natural gas processing plant to the Monroe County caverns; one transporting a combination of propane and butane from the Natrium plant to the caverns; and one sending salt brine waste from salt brine from Clarington to a West Virginia chlorine plant.
“It will be more than a mile underground. We’ve drilled 48 bore-holes into the ground to make sure it is stable,” Hooker said.
Monroe County Commissioner Mick Schumacher said the permitting process for the facility has been relatively slow because the Ohio EPA has had to write new regulations for natural gas liquids storage facilities.
“Belmont County Commissioner Mark Thomas and I are going to contact the Ohio EPA together. We think that if we form a two-county partnership we can help move the process along,” Schumacher said.
During the summer, Hooker joined a panel discussion in Canonsburg, Pa. organized by West Virginia University to discuss storage capacity for the Appalachian Storage Hub, which American Chemistry Council officials said could eventually lead to $36 billion worth of total investment in the region. Hooker’s Monroe County operation would fall into one of the “top-rated” zones, as the salt walls in the area are estimated at 100 feet thick.
U.S. Reps. David McKinley, R-W.Va., and Bill Johnson, R-Ohio, said the project is promising because of the caverns’ proximity not only to the possible PTT project, but also the confirmed Royal Dutch Shell ethane cracker under construction in Beaver County, Pa.
“With a new ethane cracker plant coming to the area and our abundant supply of natural gas, investments like this will create thousands of good-paying jobs, spark new private investment, and bring billions of dollars in new revenue to the region,” McKinley said.
“With one ethane cracker construction underway in our region and the potential for another just around the corner, new requirements are emerging for ethane storage and pipeline infrastructure projects,” Johnson added. “These are positive, opportunity-creating developments for the hard-working people of eastern and southeastern Ohio, and I will continue to ensure Congress does not limit this new and growing economic potential, but instead helps to grow it.”
http://www.timesleaderonline.com/news/local-news/2017/10/company-to-spend-150m-on-ethane-storage-facility/
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Small-Scale Louisiana LNG Project Seeking FERC OK
Oct 27, 2017 | Natural Gas Intelligence
By Richard Nemec
In a growing sector of smaller-scale liquefied natural gas (LNG) export projects, Louisiana-based Fourchon LNG LLC has launched a formal pre-filing request at FERC for a two-phase project that initially could export 2 million metric tons/year (mmty) and eventually up to 5 million mmty, reserving small quantities for domestic use.
The first phase is expected to cost $888 million.
The pre-filing was made to the U.S. Department of Energy by Fourchon, an entity by the Greater Lafourche Port Commission (GLPC) and Energy World USA, which announced their plans early this year.
The partners are seeking authority to export up to 260 Bcf of LNG annually from Port Fourchon, Louisiana's southernmost port and destination for nearly all of the Gulf of Mexico's deepwater oil production.
Following the pre-filing process, Fourchon intends to file for authorization from the Federal Energy Regulatory Commission to build the facility at Port Fourchon, west of Belle Pass on a 150-acre site.
GLPC has been working with Energy World on preliminary water assessments to meet U.S. Coast Guard requirements to support the FERC application. GLPC also is working with the Louisiana Department of Economic Development to identify potential business and tax incentives to help ensure that the project is built within Louisiana's Bayou Region.
GLPC President Perry Gisclair cited the importance of the port continuing to grow through developments like Fourchon's and through other future expansion plans the port is pursuing. "We take our role as advocate for our existing tenants and the offshore service industry seriously," Gisclair said.
GLPC Executive Director Chett Chiasson said the LNG export project has the potential to "keep Port Fourchon at the forefront of the oil and gas service industry."
Fourchon is part of a growing trend that the Mizuho Securities LLC's energy research group surmised is part of an expansion that includes small-scale and mega projects. Smaller facilities are looking to drive down costs significantly, according to analyst Tim Rezvan. He projected that U.S. LNG exports will hit 53 Bcf/d in 2024.
http://www.naturalgasintel.com/articles/112230-small-scale-louisiana-lng-project-seeking-ferc-ok
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States Cite Hurricane Harvey In Opposing RMP Delay
Oct 26, 2017 | Inside EPA
A coalition of Democratic state attorneys general (AGs) are citing injuries to firefighters who responded to a chemical fire sparked by Hurricane Harvey flood waters to challenge the Trump EPA's nearly two-year delay of an Obama-era facility accident prevention rule, arguing that the delay puts such first responders at risk and is unlawful.
In separate opening briefs filed Oct. 25 in the consolidated case, Air Alliance Houston, et al v. EPA, et al, environmentalists and unions, as well as 11 Democratic state attorneys general argue that the Trump EPA's June 14 rule delaying the Obama-era regulation updating the agency's Risk Management Plan (RMP) program violates the Clean Air Act and is arbitrary and capricious.
Led by New York's Eric Schneiderman (D), the states call the Obama-era RMP rule a “critically important regulation” that seeks to reduce injuries from chemical accidents, “such as the one that injured numerous first responders in Houston following Hurricane Harvey."
Environmentalists and some Democratic senators have argued that the Aug. 31 chemical fire at an Arkema Inc. facility sparked by Hurricane Harvey floodwaters cast doubt on the Trump EPA's delay and plan to revise the Obama-era final rule updating the RMP rule.
The state AGs, along with environmental groups and labor unions are challenging EPA's June 14 final rule that delays by 20 months from June 19 to Feb. 19, 2019 the Obama-era RMP rule to allow time for Trump administration revisions.
The Obama EPA's Jan. 12 final RMP update rule brings new requirements for independent audits, hazard analysis, as well as provisions for streamlining release of facility data to first responders and the public.
In opening briefs, state and environmentalist petitioners along with union intervenors, argue that Clean Air Act sections 307(d) and 112(r) precludes EPA from delaying a rule longer than three months, and requires the agency to set effective dates that assure compliance as “expeditiously as practicable."
Petitioners also argue that the Trump EPA's delay of the final rule is arbitrary and capricious for reasons, including that it reverses the agency's prior conclusion that new protections are necessary without explanation.
“The Delay Rule effectively rescinds these critical protections for twenty months but provides no adequate justification for doing so,” the states say. “Indeed, EPA made no attempt to justify the Delay Rule on public health and safety grounds, and has failed to discuss -- let alone dispute -- the findings and policies underlying the Amendments."
The litigation is one of a series of cases where state officials and environmentalists are challenging efforts by EPA Administrator Scott Pruitt to delay Obama-era rules so they can be reviewed and revised.
So far their efforts have been successful, as the U.S. Court of Appeals for the District of Columbia Circuit in the case, Clean Air Council v. EPA, blocked the agency from delaying rules governing methane emissions from oil and gas sources using its administrative authority. That ruling could set a precedent that may make it difficult for EPA to delay other rules, including the RMP rule, as the agency relied on the same authority in each case.
States cite the prior litigation in their opening brief. “EPA’s reliance on section 307(d) to issue the Delay Rule is no different from the agency’s unsuccessful attempts to rely on its general rulemaking authority in Clean Air Council” to suspend final rules, the states say.
https://insideepa.com/daily-feed/states-cite-hurricane-harvey-opposing-rmp-delay
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Lawmakers Look To Quantum Leap To Protect Grid
Oct 27, 2017 | E&E Daily
By Blake Sobczak
A one-two punch pairing "dark fiber" networks and quantum technology could put power grid hackers on the ropes, cybersecurity experts told lawmakers yesterday.
But these emerging cyberdefense technologies need time and money to see real-world adoption among major utilities, according to witnesses at a Senate Energy and Natural Resources Committee hearing.
Locking down grid communications with quantum mechanics "can sound like science fiction, [but] its application to grid security is real and near term," said Duncan Earl, president and chief technology officer of Qubitekk Inc., which is testing such technology with funding from the Department of Energy.
"The grid has never faced a threat of the type and severity that it does today," Earl said, noting that tens of thousands of internet-connected devices are now linked up to key substations across North America. "Effective coordination between these devices is only possible when they share data that is accurate and uncompromised."
Technologies rooted in quantum physics and unused "dark fiber" communications links could stop all but the most determined hackers in their tracks, Earl said, testifying alongside officials from U.S. national labs.
A series of recent cyber intrusions at U.S. energy companies posed an ominous backdrop for yesterday's oversight hearing, which reviewed federally funded efforts to stay ahead of attackers.
"It seems like every day now we hear about an attempted hack or actual breach that has taken place, and the list is long and getting longer," said Sen. Lisa Murkowski (R-Alaska), chairwoman of the ENR Committee.
She pointed to last month's breach of credit services provider Equifax Inc., which affected nearly half of all Americans, and to cyberattacks on Ukraine's power grid that cut the lights to several hundred thousand people in December 2015 and in 2016.
Murkowski also cited an Oct. 20 alert from the U.S. Department of Homeland Security detailing a "sophisticated" hacking campaign directed at multiple sectors, including electric utilities and nuclear power plant operators (Energywire, Oct. 23).
"In the midst of all this, we have to continually look for ways to eliminate, diminish or mitigate our vulnerabilities," Murkowski said in her opening statement.
Sen. Maria Cantwell (D-Wash.), ranking member of the committee, has consistently blasted President Trump's plans to slash funding to several DOE offices responsible for grid cybersecurity assistance and research next year (E&E Daily, March 15).
She urged Energy Secretary Rick Perry to focus on cybersecurity "as one of the key issues of [grid] resiliency," rather than seeking resilience through boosting coal-fired power generation.
"I hope that he understands the pressing need here and will restore the DOE's crippling cybersecurity budget that was proposed by the administration," Cantwell said. "It's very important that we continue to have the resources as a nation to fight [hackers] and to protect key energy infrastructure."The weakest link
Daniel Riedel, CEO of New Context Services Inc. and another cybersecurity grant recipient at yesterday's hearing, called steady funding "critical."
His firm is working with Southern California Edison Co., Pacific Gas & Electric Co., San Diego Gas & Electric and two national labs on ways to quickly spread cyberthreat information among utilities. Grid operators can use such threat data to blunt the effectiveness of new attacks, making it harder for hackers to recycle the same techniques at multiple energy companies.
Richard Raines, director of the electrical and electronics systems research division at Oak Ridge National Laboratory, explained the potential value of another research project aimed at taking advantage of unused or "dark" portions of the fiber optic cables connecting major utilities and their service territory.
His lab's "DarkNet" program is aimed at using that spare capacity to pull electric grid control systems off the public internet and onto more isolated, easily defended networks.
Earl of Qubitekk said his own firm's research "dovetails well" with Raines' work. The ultimate goal, he told lawmakers, is to use "dark" fiber optic cables for critical grid communications that have been encrypted using strings of entangled subatomic particles.
The keys to such quantum signals physically cannot be cracked or altered, unlike conventional cryptographic methods.
"It's near term, and it has a lot of value to the utilities," Earl said after the hearing. "If we can seed that market and demonstrate it, the utilities will put dollars into it."
Still, the technology is not a silver bullet for grid systems, experts say, and there are technical barriers to using quantum key distribution over long distances (Energywire, Sept. 13).
"Quantum technology is a very powerful technology," Earl said. "But the grid is going to require many solutions: It's just a piece of that puzzle."
He suggested lawmakers should also consider backing quantum research to stay ahead of competitors in China and the European Union.
Murkowski appeared to be receptive on that point, pointing to "significant research" underway around the world, including in China, where researchers recently used quantum technology to communicate with a distant satellite from the ground.
But Murkowski also said that grid operators can't just count on technological breakthroughs to protect their systems.
"We can still see intrusions through human error, whether it's transferring data via a flash drive from a public network to a secure one, or vice versa," she said. "Technology's great; [but] sometimes it's the human factor that is our weakest link."
Reporter Peter Behr contributed.
This story also appears in Energywire.
https://www.eenews.net/eedaily/2017/10/27/stories/1060064857
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D.C. Circuit Rejects EPA Bid To Delay Brick MACT Argument
Oct 27, 2017 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has rejected EPA's request to delay Nov. 9 oral argument in litigation over the Obama-era brick manufacturing sector air toxics rule, after the agency sought to postpone the case while it reconsiders various aspects of the rule for possible modification.
In an Oct. 26 order, a three-judge panel of Judges Judith Rogers, Patricia Millet and David Sentelle without explanation rejects EPA's Oct. 3 motion in Sierra Club, et al. v. EPA, et al. to postpone oral argument and place the case in abeyance pending the outcome of the Trump administration's possible reconsideration of the MACT.
But the order says that “on the court’s own motion, that the parties be prepared to address with specificity at oral argument whether an additional period of abeyance is appropriate for this matter.”
EPA's request had the support of industry groups the Brick Industry Association (BIA), Kohler, Co., and the Tile Council Of North America, which are suing the agency because they believe the regulation is too tough.
But environmentalists involved in the suit oppose any litigation delay, arguing that public health protections are at stake as they aim to use the suit to win a stricter rule. Environmentalists are suing EPA because they view the MACT as too weak -- particular, they object to its first-time use of “health-based” emissions limits, also known as “risk-based” standards, as a weaker alternative to traditional MACT limits.
The Clean Air Act allows such alternative limits where EPA can demonstrate a safe threshold of exposure for a pollutant, but environmentalists say no such threshold exists for the pollutants at issue in the MACT, and that the health-based standards set a dangerous precedent for other air rules.
Environmentalists further note that a bill introduced in the House, 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. Hence environmentalists wish to proceed with resolution of their lawsuit.
https://insideepa.com/daily-feed/dc-circuit-rejects-epa-bid-delay-brick-mact-argument
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Senate Democrats to Attend Bonn Climate Talks to Counter Trump
Oct 27, 2017 | BNA Daily Environment Report
By Dean Scott
Several Senate Democrats will attend global climate talks in Germany next month to assure the nearly 200 nations in the Paris Agreement that many Americans still support it, despite President Donald Trump's decision to pull the U.S. out of the accord.
Sen. Ben Cardin (D-Md.), the top Democrat on the Senate Foreign Relations Committee, told Bloomberg Environment Oct. 26 that he will lead a delegation that includes Sens. Brian Schatz (D-Hawaii), Ed Markey (D-Mass.), and other vocal critics of Trump's June decision to withdraw from the Paris pact. Schatz, Markey, and Cardin also were among 10 Democrats who flew to the Paris summit in 2015 to back President Barack Obama in his quest to get the international climate deal finalized there.
“We're anticipating at least five” Democratic senators traveling to Bonn, Cardin said.
Two other Democrats who also made the Paris trip in 2015—Sens. Jeff Merkley (Ore.) and Sheldon Whitehouse (R.I.)—hope to join the others in Bonn but aides for the senators said a final decision has yet to be made.
Negotiators at the upcoming Nov. 6–17 United Nations summit are supposed to focus on the nuts and bolts of implementing the Paris accord, but are likely to be keeping a wary eye on U.S. negotiators who technically still have a seat at the table for the four years it will take to formally withdraw.
The State Department has said the U.S. will remain active in global climate negotiations, including the annual United Nations summit to implement the Paris deal, “to protect U.S. interests and ensure all future policy options remain open to the administration.”
Republican senators are a rarity at climate summits, and this year will be no exception. Sen. Jim Inhofe (R-Okla.)—who in 2009 at the Copenhagen talks made international headlines by undercutting Obama's pledge that the U.S. supported a global climate deal—told Bloomberg Environment this week that he's staying home.
With the U.S. pulling out of the deal, an action Inhofe supports, “I don't see any reason to go this year,” he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=123047119&vname=dennotallissues&fn=123047119&jd=123047119
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Democrats Seek Documents Backing EPA Cost Analysis Of CPP Repeal
Oct 27, 2017 | Inside EPA
Nearly two dozen Senate Democrats are asking EPA to provide documents related to its cost-benefit analysis supporting its proposed repeal of the Clean Power Plan (CPP), ramping up critiques that the agency is relying on skewed assumptions to justify the policy shift, including by overstating the CPP's cost while underestimating the repeal's environmental consequences.
“At seemingly every turn, [EPA] uses mathematical sleights of hand to overstate the costs of industry compliance with the [CPP] and under-state the benefits that will be lost” from repeal, write Senate Environment and Public Works Committee ranking member Tom Carper (D-DE) and 18 fellow Democrats in an Oct. 26 letter to EPA Administrator Scott Pruitt.
The senators' letter asks EPA to provide by Dec. 1 “all documents, including but not limited to emails, memos, meeting notes and correspondence, sent to or received by EPA” relating to the cost-benefit analysis.
In addition to Carper, senators signing the letter are: Sens. Sheldon Whitehouse (D-RI), Chris Coons (D-DE), Cory Booker (D-NJ), Al Franken (D-MN), Jeanne Shaheen (D-NH), Richard Blumenthal (D-CT), Richard Durbin (D-IL), Ben Cardin (D-MD), Michael Bennet (D-CO), Brian Schatz (D-HI), Maggie Hassan (D-NH), Kamala Harris (D-CA), Jeff Merkley (D-OR), Chris Van Hollen (D-MD), Ron Wyden (D-OR), Elizabeth Warren (D-MA), Maria Cantwell (D-WA) and Patty Murray (D-WA).
The Democrats also voice an array of criticisms of EPA's cost-benefit analysis that other experts have raised. They include: a “dramatic departure” from the best available peer-reviewed science on particulate pollution in ways that slash the assumed benefits of the CPP; use of accounting that “artificially inflates” estimated CPP costs by removing CPP-related energy efficiency gains from estimated cost savings; departure from prior methods that results in low-balling estimated damages from GHG emissions; and failing to account for “available studies and data” showing that CPP compliance costs have declined considerably since the 2015 issuance of the rule.
“Denying the science and fabricating the math may satisfy the agency's paperwork requirements, but doing so will not satisfy the requirements of the law,” the lawmakers write.
“[N]or will it slow the increase in frequency and intensity of extreme weather events, the inexorable rise in sea levels, or the other dire effects of global warming that our planet is already experiencing. It will also not improve our standing in the international community or bring certainty to power markets as states plan for their future energy needs,” they add.
https://insideepa.com/daily-feed/democrats-seek-documents-backing-epa-cost-analysis-cpp-repeal
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N.Y. Threatens To Sue EPA Over Out-Of-State Emissions
Oct 27, 2017 | E&E News PM
By Sean Reilly
New York is warning U.S. EPA of a lawsuit for allegedly failing to tackle ozone-forming pollution across the state's borders.
"For the sake of public health, we are calling on EPA to act," Basil Seggos, head of the New York State Department of Environmental Conservation, said in a press release today accompanying a five-page "notice of intent to sue" letter to EPA chief Scott Pruitt.
The letter charges that EPA missed an August deadline to create final "good neighbor" plans to address pollution sources from Virginia and four other states that are undermining New York's efforts to comply with the 2008 ozone standard of 75 parts per billion.
EPA modeling shows that emissions from those five states — which include Illinois, Michigan, Pennsylvania and West Virginia — "contribute significantly" to violations of the ozone standard in the New York City metro area, the letter said. "Thus, without an effective solution to the ozone transport issue, public health and welfare in New York remains at risk."
With today's letter, New York Attorney General Eric Schneiderman (D) can now file suit under the Clean Air Act if EPA doesn't address the state's complaints in 60 days. An EPA spokeswoman declined to comment on potential litigation.
Ground-level zone, the main ingredient in smog, is spawned by the reaction of volatile organic compounds and nitrogen oxides (NOx) in sunshine. Health-wise, it's been linked to asthma attacks in children and added breathing problems for people with cystic fibrosis and other chronic respiratory diseases.
Although implementation of the 2008 standard isn't complete, EPA regulators consider ozone dangerous enough that they again tightened the standard two years ago to 70 ppb.
East Coast states still struggling to meet the 2008 threshold are increasingly blaming pollution from beyond their borders and faulting EPA for failing to crack down. After agency officials failed to act on an administrative petition brought under a different section of the Clean Air Act, for example, Connecticut filed suit in May to force them to address pollution from a Pennsylvania coal-fired power plant (E&E News PM, May 16).
In a similar suit brought last month, Maryland blamed NOx emissions from 19 power plants in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia for its compliance problems (E&E News PM, Sept. 27). Both those suits are pending.
Earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on Delaware's challenge to EPA's decision to give the Philadelphia area a one-year grace period to comply with the 2008 standard. That area, which reaches into Delaware, New Jersey, Pennsylvania and Maryland, is currently deemed in marginal nonattainment for the standard; Delaware alleges that the extension is letting its three neighbors off the hook (Greenwire, Oct. 5). The court has not yet ruled.
https://www.eenews.net/eenewspm/2017/10/26/stories/1060064801
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New York's Lawsuit Threat Asks EPA To Issue Ozone FIPs For Five States
Oct 26, 2017 | Inside EPA
By Stuart Parker
New York is threatening to sue EPA unless the agency swiftly develops federal implementation plans (FIPs) imposing ozone-reduction mandates on five upwind states to curb interstate emissions transport, but the Trump EPA's focus on boosting states' role in environmental protection suggests it is unlikely to grant such a request.
In an Oct. 26 notice of intent (NOI) to sue, New York Gov. Andrew Cuomo (D) and Attorney General Eric Schneiderman (D) say they will sue the agency if it does not issue the FIPs within 60 days. The plans are necessary to implement EPA's 2008 ozone national ambient air quality standard (NAAQS) of 75 parts per billion (ppb), after EPA in 2015 found the states had failed to submit interstate ozone plans of their own, as required by the Clean Air Act.
“With this action, New York makes it clear that we will not stand idly by as other states shun their responsibility to keep our nation's air quality safe,” said Cuomo in a statement on the NOI, which seeks FIPs for Illinois, Michigan, Pennsylvania, Virginia, and West Virginia.
The move marks an escalation of action East Coast states are already taking to try to force reductions in interstate ozone pollution, such as petitioning EPA to directly regulate individual power plants in upwind states.
For example, Maryland is suing the agency over its failure to respond to a petition asking for direct federal regulation of 36 electric generating units in five upwind states: Indiana, Kentucky, Ohio, Pennsylvania and West Virginia.
It is unclear whether EPA has any interest in issuing the FIPs within the next 60 days, particularly given EPA Administrator Scott Pruitt's focus on “cooperative federalism” and increasing states' role in environmental regulation. Environmentalists have recently suggested that the agency is approving more state implementation plans (SIPs) -- air law compliance plans -- that fall short of legal requirements due to the administration's deregulatory agenda.
EPA can impose a FIP through which it directly writes the emissions controls for states in which it finds SIPs inadequate, but observers say the agency has signaled a shift away from this approach.
Association of Air Pollution Control Agencies Executive Director Clint Woods said in a recent interview that EPA in recent years has “shifted toward a FIP presumption” for some programs, but he expressed hope that states will be able to “get the right information and EPA guidance to develop an approvable SIP” for its various air programs, including planning for compliance with the NAAQS.
The NOI appears to also be subject to Pruitt's Oct. 16 directive aimed at prohibiting “sue-and-settle” agreements through which groups sue the agency to secure settlement agreements committing the agency to take regulatory actions by legally binding deadlines. The directive includes a commitment to post NOIs to sue the agency within 15 days of EPA receiving them; contact any states or regulated entities affected by potential settlements and consent decrees; and publish consent decrees and settlement agreements within 30 days, among other measures.
Legal Challenges
The interstate air pollution legal challenges from New York and Maryland also underscore that Eastern states believe the 2011 Obama-era Cross-State Air Pollution Rule (CSAPR) interstate emissions reduction trading program -- and a 2016 update to the program -- is inadequate to help states attain EPA's ozone standards, including the 2008 limit. CSAPR aimed to satisfy the air law's “good neighbor” requirement that states mitigate their air emissions that significantly contribute to problems attaining or maintaining the ozone NAAQS in other states downwind.
Originally conceived to help states attain the 1997 ozone standard, expressed as 84 ppb, the Obama EPA updated CSAPR in 2016 to help states meet the tougher 2008 NAAQS of 75 ppb. The program imposed FIPs on states giving them emissions caps, or “budgets,” for nitrogen oxides (NOx), the primary ozone precursor emitted by power plants. EPA in 2015 adopted a tougher-still NAAQS of 70 ppb, but the Trump administration has not indicated it will issue any further trading rule to enable states to meet the good neighbor clause.
However, East Coast states with persistently high ozone levels have long noted that CSAPR was only a partial solution to the ozone transport problem, by EPA's own admission. Those same states defended the rule in court against attacks by upwind states opposed to its emissions caps, but always with a view to preserving the rule's legal framework for the future as much as for actual NOx cuts it achieves.
Litigation over the 2016 CSAPR update rule is currently proceeding in the U.S. Court of Appeals for the District of Columbia Circuit case State of Wisconsin, et al. v. EPA, et al., where New York is one of several states intervening on EPA's behalf to defend the CSAPR update from other states that oppose the rule.
The state in its NOI is now seeking to compel EPA to go further than the updated CSAPR. In his notice letter to the agency, Schneiderman says that CSAPR update “did not completely fulfill EPA's outstanding obligation under the Act to prohibit interstate transport of air pollution,” a duty that had an August deadline under the air law.
Schneiderman says that EPA's own air quality modeling shows that even after implementation of emissions reduction measures required by the CSAPR update, several New York counties “will continue to have problems attaining the 2008 ozone NAAQS in 2017.” He identifies Illinois, Michigan, Pennsylvania, Virginia and West Virginia, among other, unnamed states, as “significant” contributors to New York's attainment problem.
New York is also one of several states threatening the Trump EPA with a lawsuit over the agency's failure to issue final designations of which areas of the country are attaining or in nonattainment with the 2015 ozone NAAQS of 70 ppb, after EPA missed an Oct. 1 air law deadline to issue designations. The designations are necessary to enable states to craft SIPs to meet the new standard, including “good neighbor” SIPs to meet that standard.
https://insideepa.com/daily-news/new-yorks-lawsuit-threat-asks-epa-issue-ozone-fips-five-states
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