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PRACTICE ACC PM Shelly 29/11/17
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Senate Committee Advances Top Trump Environmental Nominees for White House and EPA Roles
Nov 29, 2017 | The Washington Examiner
By Josh Siegel
The Senate Environment and Public Works Committee on Wednesday morning advanced the nominations of Kathleen Hartnett White for the top White House environmental post and Andrew Wheeler to be deputy administrator of the EPA. -
CEQ, EPA Picks Squeak Through Committee on Party-Line Votes
Nov 29, 2017 | E&E Greenwire
By Kevin Bogardus
Two of President Trump's top environmental nominees took a step closer to Senate confirmation today. -
Glick Sworn in at FERC; Chairman-to-be McIntyre Still on Sidelines
Nov 29, 2017 | Natural Gas Intelligence
By David Bradley
Richard Glick has been sworn in at FERC, bringing membership at the regulatory agency to four of its possible five positions, but Kevin McIntyre, who is set to become the next chairman, remains on the sidelines. -
Senate Panel Advances Controversial Environmental Nominee
Nov 29, 2017 | The Hill
By DEVIN HENRY
The Senate Environment and Public Works Committee on Wednesday advanced one of President Trump's environmental nominees who has been criticized for her disbelief in the science behind climate change and other issues. -
Toray Admits Subsidiary Faked Data
Nov 29, 2017 | Chemical and Engineering News
By Jean-François Tremblay
Toray Industries, one of Japan’s largest producer of chemicals and advanced materials, has admitted that a subsidiary falsified quality control measurements before shipping products to customers. -
Podcast: How Space Travel Affects Human Health
Nov 29, 2017 | EDF
By Ryan O'Connell
Have you ever wondered what it would be like to leave Earth? -
(ACC Mentioned) TSCA Framework Rules Litigation Update: Ninth Circuit Denies EPA’s Motion to Transfer to Fourth Circuit; Fourth Circuit Expected to Rule on Petitioners’ Transfer Motions Imminently
Nov 28, 2017 | Bergeson & Campbell PC (In Lexology
By Lynn L. Bergeson and Margaret R. Graham
On November 27, 2017, in the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) case on the petition for review of the Toxic Substances Control Act (TSCA) framework rule Procedures for Prioritization of Chemicals for Risk Evaluation (Safer Chemicals, Healthy Families v. EPA, Case Nos. 17-72260, 17-72501, and 17-72968 (consolidated)), the Ninth Circuit issued an order on several pending motions. -
Competing Cosmetic Safety Bills Would Each Expand FDA Regulatory Authority
Nov 28, 2017 | Beveridge & Diamond PC (In Lexology)
By Mark N. Duvall, Alan J. Sachs and Michael F. Vitris
On October 25, 2017, Senator Orin Hatch (R-UT) introduced S. 2003, the “FDA Cosmetic Safety and Modernization Act.” -
REACH Authorisation ‘Achieving Objectives’, Says Commission
Nov 29, 2017 | Chemical Watch
The REACH authorisation process "achieves its objectives in terms of substitution and improvements in the way SVHCs are used", the European Commission said at an Echa authorisation conference, earlier this month. -
Draft Guidance on EDC Criteria Out 'In Early December'
Nov 29, 2017 | Chemical Watch
Echa and the European Food Safety Authority intend to publish draft guidance on the implementation of the criteria for endocrine disrupting chemicals (EDCs) in early December, the two agencies have confirmed. -
Enviros Raise New Challenge to FERC Eminent Domain Process
Nov 29, 2017 | E&E Energywire
By Ellen M. Gilmer
New Jersey environmentalists are the latest pipeline critics to take aim at how natural gas projects are approved and developed. -
Keystone Pipeline Spill Blamed on Damage From Its Construction
Nov 29, 2017 | The Hill
By TIMOTHY CAMA
A preliminary investigation has found that the 210,000-gallon oil spill last week from the Keystone pipeline was caused by damage sustained when the line was constructed in 2008. -
EPA Finds Wisconsin Barrel Plants Violating Environmental Laws
Nov 29, 2017 | Milwaukee Journal Sentinel
By John Diedrich
The U.S. Environmental Protection Agency has determined a chain of industrial refurbishing plants in the Milwaukee area violated federal law, the agency announced Wednesday. -
U.S., Canada Fall Short of Protecting Great Lakes, Agency Says
Nov 29, 2017 | AP (In the Chicago Tribune)
By John Flesher
Despite recent improvements, the U.S. and Canada have a long way to go toward ridding the Great Lakes of pollution that endangers human health and the environment, an advisory agency said Tuesday. -
Stakeholders Spar Over Scope of Future CWA Jurisdiction Rule
Nov 29, 2017 | Inside EPA
Environmentalists, industry groups and others are sparring over the scope of the Trump administration's planned revised Clean Water Act (CWA) jurisdiction rule in comments filed ahead of a deadline for public input that closes midnight Nov. 28, likely previewing arguments the stakeholders will raise in future suits over the rule. -
This Obama Climate Pact Has Trump's Stamp of Approval
Nov 29, 2017 | E&E Climatewire
By Jean Chemnick and Ben Hulac
The Trump administration appears to be quietly accepting an Obama-era international climate change deal.
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Senate Committee Advances Top Trump Environmental Nominees for White House and EPA Roles
Nov 29, 2017 | The Washington Examiner
By Josh Siegel
The Senate Environment and Public Works Committee on Wednesday morning advanced the nominations of Kathleen Hartnett White for the top White House environmental post and Andrew Wheeler to be deputy administrator of the EPA.
The committee approved both nominees, who were both strongly opposed by Democrats, on party lines. They now go before the full Senate for a vote.Six scenarios for GOP disaster in the Roy Moore Senate raceWatch Full Screen
Democrats especially resent Hartnett White, who they say holds views contrary to established science on climate change that make her unfit to lead the Council on Environmental Quality (CEQ), which coordinates environmental policy at the White House. Hartnett White would be in charge of implementing President Trump’s executive orders on energy and the environment.
“A nominee who can’t follow the thread from carbon pollution, to ocean warming, to sea level rise, who imagines science that is not there, and ignores science that is there, is a preposterous nominee,” Sen. Sheldon Whitehouse, D-R.I., said before the vote.
Hartnett White is former chairwoman of the Texas Commission on Environmental Quality who last worked at the Texas Public Policy Foundation, a conservative think tank that has received funding from Koch Industries, Exxon Mobil, Chevron and other energy companies.
She has said "carbon dioxide is not a pollutant" and once referred to former President Obama's climate change policies as "deluded and illegitimate."
She also has said those who believe in climate change follow a "kind of paganism" for "secular elites.”
White reaffirmed her views to the committee, touting carbon dioxide as “necessary for life on Earth,” in her responses to questions from members released Tuesday.
“Under Hartnett White, CEQ would stand for crazy environment quackery,” Sen. Edward Markey, D-Mass., said Wednesday, to laughs from fellow Democrats.
Hartnett White also reiterated her support for the Renewable Fuel Standard, helping her win the votes of midwestern senators who were concerned about prior statements she made on the subject.
She said updated information had changed her mind about the RFS, which requires increasing amounts of ethanol and other biofuels be blended into the nation’s fuel supply.
“I support all forms of energy and that includes ethanol,” Hartnett White wrote. “Our country is blessed with diverse and abundant energy sources among which ethanols are making an increasingly significant contribution.”
Hartnett White once wanted to repeal the standard, referring to it as “counterproductive and ethically dubious.”
Wheeler, tabbed for EPA’s No. 2 spot, is an energy industry lobbyist whose ties to Murray Energy, a privately owned coal giant, have drawn scrutiny. He previously worked on the staff of Sen. Jim Inhofe, R-Okla., a committee member and former chairman known for his climate change skepticism.
Wheeler told the committee during his confirmation hearing he met with the Department of Energy on behalf of Murray a few months ago about Energy Secretary Rick Perry's proposal to subsidize coal and nuclear plants.
He said he also participated in a Capitol Hill meeting on the subject.
The Federal Energy Regulatory Commission, an independent agency, is considering the proposal to pay coal and nuclear plants to support the “resilience and reliability” they provide to the grid.
Bob Murray, the outspoken CEO of Murray Energy and ally of Trump, has been a leading proponent of Perry’s proposal, which is opposed by most of the energy industry because they say it would upset competitive power markets.
Wheeler de-registered himself as a Murray lobbyist in an Aug. 11 filing with Congress.
“[Wheeler] is the ultimate revolving door lobbyist,” said Sen. Jeff Merkley, D-Ore., before Wednesday’s vote. “Time and time again he has put the interests of his clients above the interests and well-being of the American people. He is so beholden to the fossil fuel industry.”
Inhofe, at Wednesday’s vote, criticized Democrats for harshly rebuking Hartnett White and Wheeler.
“I am sure name calling makes everyone on the Left feel better,” he said. “We have people out there singing [White’s] praises. You don’t need to get down in the mud and name calling on these things.”
http://www.washingtonexaminer.com/senate-committee-advances-top-trump-environmental-nominees-for-white-house-and-epa-roles/article/2641990
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CEQ, EPA Picks Squeak Through Committee on Party-Line Votes
Nov 29, 2017 | E&E Greenwire
By Kevin Bogardus
Two of President Trump's top environmental nominees took a step closer to Senate confirmation today.
This morning, the Environment and Public Works Committee moved through the nominations of Kathleen Hartnett White to be chairwoman of the White House Council on Environmental Quality and Andrew Wheeler to be deputy U.S. EPA administrator. Both passed on party-line votes of 11-10.
Panel Democrats spent much of their time at the EPW meeting protesting Hartnett White. The senior fellow at the Texas Public Policy Foundation and former chairwoman of the Texas Commission on Environmental Quality has questioned climate change science and also has touted fossil fuels and increased carbon dioxide emissions as beneficial for life.
Sen. Sheldon Whitehouse (D-R.I.) said the Senate needs to block the CEQ nominee, calling her a "preposterous nominee." He brought up the legend of Roman Emperor Caligula planning to appoint his horse to the Senate.
"Approving this nominee for CEQ would be so preposterous that it would be like appointing Caligula's horse, in that the real question becomes about the power of our fossil fuel emperors and the spine of the Senate," Whitehouse said.
That comment sparked a rebuke from Sen. John Barrasso (R-Wyo.), the EPW chairman. "Let me just say that comparing Ms. White to a horse, as one of our Democrat colleagues just did, to me is a new low. It's disturbing, it's demeaning and it's dehumanizing," Barrasso said.
Other Democrats blasted the CEQ nominee.
Sen. Tom Carper (D-Del.), the committee's ranking member, went through a list of Hartnett White's past remarks that criticized renewable energy, environmentalists and the Clean Air Act. He said her confirmation hearing testimony earlier this month pained him.
"It was painful to watch. It was painful to hear. And we should not inflict this pain on the people of this country," Carper said.
Leading up to today's vote, Hartnett White downplayed her past opposition to biofuels in response to questions from committee members, which seemingly helped win over GOP senators hailing from farm states (E&E Daily, Nov. 29).Wheeler
Wheeler also encountered some resistance from Democratic senators. The former longtime EPW aide became a lobbyist at Faegre Baker Daniels Consulting after leaving Capitol Hill in 2009 and worked on behalf of several energy interests, including coal giant Murray Energy Corp.
"Mr. Wheeler is the ultimate revolving-door lobbyist, no way qualified to serve as deputy administrator at the EPA," said Sen. Jeff Merkley (D-Ore.).
"As a lobbyist for the company, Wheeler personally helped Murray Energy formulate a plan for rolling back EPA's environmental regulations and undermining the agency's ability to carry out its mission of protecting the health of our planet and our people."
In response, Sen. Jim Inhofe (R-Okla.) praised Wheeler for his work on Capitol Hill. Wheeler also has served as a staffer in Inhofe's personal office.
"I know Andrew Wheeler probably better than anyone, except maybe his mother," Inhofe said.
Inhofe noted several of the EPW panel's legislative accomplishments while Wheeler was a top committee aide, including the 1998 and 2005 highway bills as well as the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007.
"I have to say that I totally relied on Andrew Wheeler for the background, the knowledge and the expertise that he has demonstrated year after year after year on a very bipartisan basis," Inhofe said.Other nominees
The EPW committee has approved several of Trump's nominees that still have not been confirmed by the full Senate. EPA has only two Senate-confirmed officials in place at the moment — Administrator Scott Pruitt and air chief Bill Wehrum.
Carper, however, said at today's markup that nominees could start moving on the floor if EPA picks up the pace in responding to inquiries from Democrats. He said he understands the agency plans to respond to more of their letters.
"If the responses that are being crafted by EPA now are completed in short order and are truly responsive, we'll make progress on a number of nominations. If the responses are further delayed or are unresponsive, that progress may not be realized," Carper said.
After the committee's business meeting concluded today, Barrasso told reporters he has been frustrated by Democrats' delays on nominees. He has pushed for an agreement to limit debate on the president's picks so they can be more quickly confirmed.
"I'm actually proposing or have proposed changing the rules in the Senate to make it easier and quicker to bring some of these nominations to a vote," Barrasso said.
"The votes are there. You just don't want to have to allow to block so many activities in the Senate because of the 30 hours that are required by the rules, and the Democrats tend to not use the time anyway."
While Carper expressed some optimism on moving some nominees, he was not as positive about Hartnett White. He told reporters after the markup about Russ Peterson, the former Republican governor of Delaware and CEQ chairman during the Nixon and Ford administrations, who served as a mentor to Carper during his career.
"He was a giant in Delaware, I think a giant for our country. I'll be damned if I'm going to stand aside and let someone be confirmed to defame his legacy. I'll be damned," Carper said.
https://www.eenews.net/greenwire/2017/11/29/stories/1060067587
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Glick Sworn in at FERC; Chairman-to-be McIntyre Still on Sidelines
Nov 29, 2017 | Natural Gas Intelligence
By David Bradley
Richard Glick has been sworn in at FERC, bringing membership at the regulatory agency to four of its possible five positions, but Kevin McIntyre, who is set to become the next chairman, remains on the sidelines.
Glick, a Democrat who has been general counsel for the Senate Energy and Natural Resources Committee, was sworn in Wednesday, according to the Federal Energy Regulatory Commission. He was nominated by President Trump in August to serve the remainder of a five-year term expiring June 30, 2022.
Prior to joining the committee staff in February 2016, Glick was vice president of government affairs for Iberdrola’s renewable energy, electric and gas utility, and natural gas storage businesses in the United States. He previously served as a director of government affairs for PPM Energy and before that was a director of government affairs for PacifiCorp, a multistate electric utility company.
Between 1998 and 2001 Glick served as a senior policy adviser to President Clinton’s Department of Energy Secretary Bill Richardson. Before that Glick was the legislative director and chief counsel to Sen. Dale Bumpers of Arkansas. From 1988 to1992 Glick was an associate with the law firm of Verner, Liipfert, Bernhard, McPherson and Hand.
Glick received a bachelor’s degree from George Washington University and a juris doctorate from the Georgetown University Law Center.
Glick joins two Republicans -- Acting Chairman Neil Chatterjee and Commissioner Robert Powelson -- and one Democrat, Cheryl LaFleur, at FERC.
The agency awaits the swearing in of McIntyre, a Republican, who would become chairman upon joining FERC. McIntyre, an attorney with Jones Day who currently serves as co-head of the global energy practice, was nominated by Trump to a term expiring June 30, 2018, and an additional term expiring June 30, 2023. His nomination was confirmed by the Senate Nov. 2.
Swearing in ceremonies at FERC customarily come within a few days of Senate confirmation votes. The official explanation of the delay has been a paperwork holdup, something that has never been known to happen at this juncture with past nominees who have been nominated and confirmed by the Senate.
Various theories have been floated as to whether the unprecedented delay in seating a full five-member panel has something to do with the upcoming vote on the Department of Energy’s proposed rule for FERC to prop up declining numbers of coal and nuclear-fired power plants.
http://www.naturalgasintel.com/articles/112574-glick-sworn-in-at-ferc-chairman-to-be-mcintyre-still-on-sidelines
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Senate Panel Advances Controversial Environmental Nominee
Nov 29, 2017 | The Hill
By DEVIN HENRY
The Senate Environment and Public Works Committee on Wednesday advanced one of President Trump's environmental nominees who has been criticized for her disbelief in the science behind climate change and other issues.
Senators voted 11-10 to send the nomination of Kathleen Hartnett White to serve on the Council of Environmental Quality (CEQ) to the Senate floor. Members also advanced Andrew Wheeler, Trump’s nominee to be deputy administrator of the Environmental Protection Agency (EPA), on another party-line vote.
Hartnett White is a think tank official and former Texas environmental regulator with a reputation as a climate change skeptic who dismisses the science behind the influence of carbon emissions and other pollutants on the Earth's warming trend.
At CEQ, Hartnett White would advise the president on environmental issues and coordinate federal environmental reviews.
Democrats slammed Hartnett White on Wednesday for her positions on environmental science and attacked Trump and Republicans for supporting both nominees.
Sen. Kamala Harris (D-Calif.) called the nomination process “morally bankrupt,” while Sen. Jeff Merkley (D-Ore.) said the Hartnett White nomination was a “disservice.”
Sen. Tom Carper (D-Del.) said Hartnett White is a nominee “whose views are extreme, whose words are staggeringly inappropriate, and who shows remarkable disrespect for science, the environmental laws on the books and the federal government.”
“A nominee who can’t follow the thread from carbon pollution to ocean warming to sea level rise, who imagines science that is not there and ignores science that is there, is a preposterous nominee,” Sen. Sheldon Whitehouse (D-R.I.) said.
At a free-for-all nomination hearing either this month, members of both parties lambasted Hartnett White. Democrats raised concerns about her past statements on science. She has called belief in climate change “paganism,” said renewable energy is “parasitic” and questioned the health risks of pollutants like ozone.
Republicans from agriculture-heavy states questioned her commitment to the Renewable Fuel Standard ethanol mandate.
No Republicans voted against Hartnett White on Wednesday, but few spoke in her favor.
Sen. John Barrasso (R-Wyo.), the chairman of the Environment and Public Works Committee, noted endorsements from the Chamber of Commerce and a former Obama administration Energy Department official.
He said that Hartnett White’s “experience with environmental matters is broad” and that she will “bring her extensive experience to her job at CEQ.”
“We’ve had a lot of name-calling here and I’m sure that makes everybody on the left feel better,” Sen. James Inhofe (R-Okla.) said. "We have people out there who are singing her praises, and you don’t need to get down to the mud and name-call on these things.”
Wheeler, a former EPA official, Environment and Public Works Committee Republican staffer and fossil fuel industry lobbyist, was also approved on an 11-10 vote. Democrats raised concerns about his work lobbying for Murray Energy, a major coal producer and supporter of the EPA’s deregulatory effort.
But Republicans broadly supported his nomination, with Inhofe, the committee’s former chairman, highlighting his work on legislative efforts.
“I totally relied on Andrew Wheeler for the background, the knowledge, the expertise that he has demonstrated year after year after year on a very bipartisan basis,” he said.
“We’ve had some successes in this committee, and a lot of the successes we’ve had are due to one employee in particular, and that was Andrew Wheeler.”
http://thehill.com/policy/energy-environment/362328-senate-panel-advances-controversial-environmental-nominee
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Toray Admits Subsidiary Faked Data
Nov 29, 2017 | Chemical and Engineering News
By Jean-François Tremblay
Toray Industries, one of Japan’s largest producer of chemicals and advanced materials, has admitted that a subsidiary falsified quality control measurements before shipping products to customers. The admission follows similar cases at other Japanese firms.
Between 2008 and 2016, Toray Hybrid Cord shipped out-of-spec industrial fiber to 13 customers producing tires, car parts, and felt used in paper making. Toray claims the materials missed promised quality specifications by only an “insignificant” amount. Still, the company apologized profusely for the lapses during a press conference following the disclosure.
Toray disclosed that it discovered the falsifications during an internal audit in the summer of 2016. Since then, the firm says, it has been notifying affected customers and reforming quality control procedures at the subsidiary to prevent any reoccurrence. The company tells C&EN it went public now because news of the falsifications appeared on internet bulletin boards and other customers started inquiring.
Toray’s disclosure follows similar ones from other prominent Japanese firms. Earlier this month, Mitsubishi Materials said two of its subsidiaries had tampered with production data for rubber and metal parts supplied to the auto and aerospace industries. In October, Kobe Steel fessed up to falsifying records on materials supplied to customers including Toyota and Boeing. In 2015, the housing subsidiary of chemical maker Asahi Kasei acknowledged misreporting the depth of foundations at several apartment buildings it constructed in Japan.
But Toray is probably the highest-profile company to admit to data falsification. The firm is a major supplier of carbon fiber to Boeing and Airbus. And the falsifications occurred while Sadayuki Sakakibara, the current head of Japan’s largest business lobby, was president of Toray.
Sakakibara recently expressed his disappointment with the spate of data falsification. “These incidents are serious matters that have the potential to adversely affect the trust held in Japan’s manufacturing industry,” he said in October.
https://cen.acs.org/articles/95/i48/Toray-admits-subsidiary-faked-data.html
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Podcast: How Space Travel Affects Human Health
Nov 29, 2017 | EDF
By Ryan O'Connell
Have you ever wondered what it would be like to leave Earth?
Floating around the International Space Station and exploring new worlds may sound exciting, but space travel also poses a unique set of pretty intense health effects. Changes in gravitational force and radiation can cause physical harm to the body, while being in a small, isolated environment can take a toll on mental wellbeing. And that’s just the start of it!
Since the inception of our national and international space programs, researchers have been studying the myriad effects of spaceflight on health in hopes of developing better countermeasures as we venture farther into space.
In this episode of our podcast, we talked with Dr. Allie Anderson at the University of Colorado Boulder. Dr. Anderson describes “puffy face bird leg” syndrome (yes, that’s a thing) among other health impacts of space travel and what hot topics are keeping folks in space medicine busy.
Want more? Subscribe and listen on iTunes or Google Play, or check out Podbean to listen via desktop!
http://blogs.edf.org/health/2017/11/29/podcast-how-space-travel-affects-human-health/
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Nov 28, 2017 | Bergeson & Campbell PC (In Lexology
By Lynn L. Bergeson and Margaret R. Graham
On November 27, 2017, in the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) case on the petition for review of the Toxic Substances Control Act (TSCA) framework rule Procedures for Prioritization of Chemicals for Risk Evaluation (Safer Chemicals, Healthy Families v. EPA, Case Nos. 17-72260, 17-72501, and 17-72968 (consolidated)), the Ninth Circuit issued an order on several pending motions. It granted the American Chemistry Council’s (ACC) (and other industry groups) motion to intervene on behalf of respondent U.S. Environmental Protection Agency (EPA); denied the respondents’ motions to transfer Case Nos. 17-72260 and 17-72501 to the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit); denied respondents’ requests to hold Case Nos. 17-72260 and 17-72501 in abeyance; granted the motions to consolidate Case Nos. 17-72260, 17-72501, and 17-72968; and set an amended briefing schedule. The consolidated opening brief is now due January 23, 2018; the consolidated answering brief and the intervenors’ brief are due February 22, 2018; and the optional reply brief is due within 21 days after service of the answering and intervenors’ briefs.
In the Fourth Circuit case on the petition for review of the TSCA framework rule Procedures for Chemical Risk Evaluation under TSCA (Alliance of Nurses for Healthy Environments v. EPA, Case Nos. 17-1926, 17-2040, and 17-2244 (consolidated)), the petitioners’ motions to transfer to the Ninth Circuit are still pending; on November 21, 2017, the Fourth Circuit deferred the ruling until the Ninth Circuit ruled on its own pending motions to transfer. As the Ninth Circuit has now denied the motions to transfer (per above), the Fourth Circuit will soon make a decision about whether this case should also be heard by the Ninth Circuit. A new briefing schedule has not been set.
In the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) case on the petition for review of the TSCA framework rule TSCA Inventory Notification (Active-Inactive) Requirements (EDF v. EPA, Case No. 17-1201), there are no current delays due to transfers or consolidations. Respondent EPA filed a motion to extend time to file its brief on November 7, 2017; petitioner Environmental Defense Fund (EDF) filed its statement of intent regarding appendix deferral on November 8, 2017, and filed its initial submissions including the statement of issues on November 8-9, 2017; and respondent EPA filed the certified index to the record on November 27, 2017. ACC and other industry groups were granted leave to intervene on behalf of respondent EPA on November 13, 2017. The briefing schedule has not been set.
https://www.lexology.com/library/detail.aspx?g=0b7e653a-c54d-4653-a35a-998f456333aa
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Competing Cosmetic Safety Bills Would Each Expand FDA Regulatory Authority
Nov 28, 2017 | Beveridge & Diamond PC (In Lexology)
By Mark N. Duvall, Alan J. Sachs and Michael F. Vitris
On October 25, 2017, Senator Orin Hatch (R-UT) introduced S. 2003, the “FDA Cosmetic Safety and Modernization Act.”[1] The proposed legislation would amend the Federal Food, Drug and Cosmetic Act of 1938 (“FFDCA”) and allow the Food and Drug Administration (“FDA”) to regulate finished cosmetic products based on their safety and the safety of their components. Senator Hatch’s legislation presents an alternative to the Personal Care Products Safety Act (S. 1113), a bill reintroduced in May 2017 by Senators Dianne Feinstein (D-California) and Susan Collins (R-Maine).[2] The Senate referred the bill to the Health, Education, Labor, and Pensions Committee on October 25, 2017.
Cosmetics regulatory reform negotiations will likely continue at least into next year. The Health, Education, Labor and Pensions Committee will consider each of the bills with input from industry and consumer groups. Any bill that passes the Senate will also need to pass the House and be signed by the President before becoming law. Interested stakeholders should closely monitor these legislative developments to evaluate how proposed changes will affect the cosmetics industry.
Congress has not substantively updated requirements for cosmetics under the FFDCA since its original adoption, and the multi-billion dollar cosmetics industry has largely been left to self-regulation. While FDA has some post-market regulatory authority over cosmetic products, the proposed legislation would for the first time require FDA to establish “good manufacturing practices” (GMPs) for the industry and allow the agency to assess the safety of cosmetics ingredients. FDA already has authority to impose GMPs for food, food additives, drugs, and medical devices.
Key Provisions
Senator Hatch’s legislation would bring significant changes to cosmetics regulation. Specifically, the bill would:Authorize FDA review of cosmetic ingredient safety. Individual states would be prohibited from regulating cosmetics the agency selects for review. FDA would be required to consult with industry and consumer groups to identify ingredients for review.Require cosmetics companies to register manufacturing facilities with the FDA (subject to certain exemptions for small businesses). FDA would also be authorized to suspend a registration (effectively stopping all sales) if it determines that a facility has a reasonable probability of causing a serious adverse health event.Broaden the FFDCA’s definition of “adulterated,” by adding that “a cosmetic may be adulterated regardless of whether it is known which particular substance or substances may render the cosmetic injurious to users under the conditions of use prescribed in the labeling thereof, or under such conditions of use as are customary or usual.”Require FDA to establish “good manufacturing practices” for cosmetics. The agency may not impose standards “for which there is no current and generally available analytical methodology.”Authorize FDA to accredit third-party organizations (such as the long-established Cosmetic Ingredient Review funded by the Personal Care Products Council) to assess the safety of cosmetic ingredients and make recommendations to the agency. The organizations may not be affiliated with a government entity or controlled or financed by a cosmetics company.Require companies to notify the FDA of any report received about a serious adverse event associated with their cosmetics.
Reception
Senator Hatch’s bill was met with support by the Personal Care Products Council, which praised the senator’s “leadership in introducing legislation to update the regulatory system for the cosmetics and personal care sector,” and described the bill as “an important step forward.”[3]
Independent Cosmetic Manufacturers and Distributors (“ICMAD”) trade association CEO Pam Busiek stated that the bill “makes important progress in updating federal regulations to give consumers the highest level of confidence in products that are an important part of their daily lives.” But, Ms. Busiek added that “the bill does not yet provide a clear and uniform national standard for ingredient safety review.”[4]
Scott Faber, Senior Vice President of the Environmental Working Group, criticized the legislation’s preemption provisions and allowance of third-parties to review chemicals in lieu of FDA. Mr. Faber further stated that the bill “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.”[5]
Competing Bills
While the newly introduced S. 2003 and the earlier Feinstein-Collins bill (S. 1113) would both fundamentally change the regulation of cosmetic products, the competing bills have important differences:Senator Hatch’s bill would authorize chemical safety reviews, but would not impose any associated requirements or timelines on FDA. The Feinstein-Collins bill would require FDA to review five cosmetic ingredients a year.The Hatch bill would not authorize cosmetic product recalls.Senator Hatch’s bill depends on congressional appropriations for funding. The Feinstein-Collins legislation allows FDA to collect user fees from industry.Feinstein-Collins requires FDA to conduct safety chemical reviews, while the Hatch bill would allow third parties to review the chemicals.
Stakeholders should closely monitor these competing bills’ progress through Congress. If either bill (or compromise legislation) becomes law, cosmetics manufacturers should prepare for FDA rulemaking and increased federal oversight of product ingredients and manufacturing processes.To view all formatting for this article (eg, tables, footnotes), please access the original here.
https://www.lexology.com/library/detail.aspx?g=075ee0d0-6dd2-49c6-9604-3b1be5d438f3
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REACH Authorisation ‘Achieving Objectives’, Says Commission
Nov 29, 2017 | Chemical Watch
The REACH authorisation process "achieves its objectives in terms of substitution and improvements in the way SVHCs are used", the European Commission said at an Echa authorisation conference, earlier this month.
The EU executive’s comments accompanied the presentation of preliminary findings of its study, which aimed to assess the costs and benefits of the process and whether it reaches it goals. These are to substitute SVHCs with less hazardous substances and control risks where suitable alternatives are not available.
However, Valentina Bertato from DG Grow told delegates at the event that, according to the study results, "it is not possible" to conclusively say that the benefits of the process are higher than the costs. And yet, two months ago, Echa’s analysis of the first 100 applications for authorisation showed the socio-economic benefits of continued use of SVHCs "outweigh" the risks to human health and the environment.
Eighty-three manufacturers took part in a survey for the study. Out of 83 respondents, 37 said they had substituted a SVHC use, Ms Bertato said. They identified 53 examples of switching to an alternative substance and eight examples of changing to an alternative technology. This relates to 27 SVHCs; the most substituted being:chromium trioxide;1,2 dichloroethane; andHBCDD.
Meanwhile, there were 71 examples of substitution-related activities concerning use of an SVHC identified in the study, as provided by 44 respondents. This relates to at least 33 such substances. The most frequently mentioned are:chromium trioxide;boric acid; and1-methyl-2- pyrrolidone (NMP).
Fifty-nine percent of respondents said REACH authorisation is a driver for substitution. And survey data shows that a third of substances are being substituted when they are added to the candidate list, while a quarter are being replaced when included on Annex XIV – the authorisation list.
Authorisation is also improving risk management measures and operating conditions, Ms Bertato said. Out of 63 companies using SVHCs, 23 reported enhancing both. And about 83% of respondents indicated that these risk management measures reduced worker exposure.
There is clearly "robust evidence" of substitution, Jack de Bruijn, Echa’s director of risk management, told delegates, and the authorisation system "as a whole has had a major impact".
Where companies have not started to replace hazardous substances, is generally related to a lack of technical feasible alternatives, the conference heard. "Whether that is always true or perceived is a big question, perhaps – but for the majority of cases, that was given as one of the reasons," Mr de Bruijn said.
Conference stakeholders discussed how alternatives providers can get more closely involved – "this is where the picture becomes less rosy", Mr de Bruijn said. Something to work on, he added, is how to get better information from these providers "preferably as early as possible, but also during the decision-making process".
There are, he said, "clearly advantages" to better collaboration between authorities and industry in finding sustainable alternatives.Questions remain
Dolores Romano from NGO the European Environmental Bureau (EEB) agreed the authorisation list is good for substituting SVHCs and that risk management measures and operating conditions have improved. However, she said she is "not optimistic" about the risk reduction scenario because as long as SVHCs are granted authorised uses, "thousands of workers, citizens and the environment will still be exposed".
She also questioned how authorisation conditions can be monitored and enforced because in many European countries "inspection capacity is not sufficient".
And Frida Hök, from NGO ChemSec, said the Opinions of Echa committees are "killing the incentive" to switch to safer alternatives. Alternatives providers find it "painful" to take part in the process, she added.
https://chemicalwatch.com/62097/reach-authorisation-achieving-objectives-says-commission
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Draft Guidance on EDC Criteria Out 'In Early December'
Nov 29, 2017 | Chemical Watch
Echa and the European Food Safety Authority intend to publish draft guidance on the implementation of the criteria for endocrine disrupting chemicals (EDCs) in early December, the two agencies have confirmed.
The team with responsibility for the guidance – the ad-hoc Echa-Efsa ED consultation group – submitted a status update, at the latest meeting of the Competent Authorities for REACH and CLP (Caracal) on 15-16 November.
It is currently processing over 1,800 comments it received during the second consultation on the matter, which involved member state competent authorities, industry and "public interest stakeholder organisations".
Submission of the draft will coincide with a third, and the first public, consultation, which will run for eight weeks.
The team says the guidance must be available when the criteria come into effect, "which will presumably be in late spring 2018".
The draft will provide a hazard assessment strategy for oestrogenic, androgenic, thyroid and steroidogenic (EATS) adverse effects. It will describe how to assess and follow up indications of these, as well as the kind of information that could be considered sufficient to conclude whether the EDC criteria are met.
In October, the European Parliament vetoed the Commission's proposal for EDC criteria in plant protection products, asking it to come up with a new proposal "without delay".
MEPs said the Commission exceeded its mandate by proposing to exempt from the criteria some substances designed to attack an organism's endocrine system, even when they cause harm to non-target organisms of the same group of species.
This, they said, was unlawful because it would change an essential element of the plant protection products (PPP) legislation. The regulation stipulates not approving substances that have endocrine disrupting properties on other species than those targeted.
https://chemicalwatch.com/62075/draft-guidance-on-edc-criteria-out-in-early-december
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Enviros Raise New Challenge to FERC Eminent Domain Process
Nov 29, 2017 | E&E Energywire
By Ellen M. Gilmer
New Jersey environmentalists are the latest pipeline critics to take aim at how natural gas projects are approved and developed.
The New Jersey Conservation Foundation last week sued the Federal Energy Regulatory Commission, arguing that the agency's practice of granting eminent domain power to pipeline developers is unconstitutional.
The group argues that FERC's process for approving pipelines and then granting developers the power to take private property falls short of constitutional standards that require such property takings to be for a public use. The lawsuit, filed in the U.S. District Court for the District of New Jersey, contends that the agency often approves pipelines that are not really needed.
"FERC's failure to ensure that the only pipelines built are those that are absolutely required to be built has burdened the parties FERC was meant to protect," the filing says. "While a constitutional public use analysis may be time-consuming or complex, that does not excuse FERC from doing its job."
The conservation group claims it is harmed by FERC's process because the proposed PennEast pipeline, under review by the agency, passes through land the group owns in western New Jersey. But the lawsuit does not focus on proceedings for that project; instead, it broadly challenges FERC's pipeline approval processes.
Landowners along pipeline routes have shown increasing concern about the use of eminent domain by developers. At least three similar challenges are pending: a lawsuit in Ohio focused on the Nexus pipeline, a lawsuit in Virginia focused on the Mountain Valley pipeline, and a lawsuit in Washington, D.C., focused on both the Mountain Valley and Atlantic Coast pipelines.
The latest lawsuit argues that the natural gas industry has changed dramatically since Congress approved Natural Gas Act amendments in 1947 that allowed developers to take land, with compensation, from holdout property owners along approved pipeline routes.
"There is no longer a tightly regulated market nor a wartime-induced fear of lack of gas for winter home heating," the filing says. "Now there is a deregulated market, and gas production, shipment, and consumption can be integrated into a single entity capable of passing higher rates onto consumers."
The lawsuit also points to FERC Commissioner Cheryl LaFleur's recent dissent to the approval of two natural gas pipelines as support for their contention that the agency's process for considering projects should be revisited (Energywire, Oct. 16).
Many property rights advocates and legal scholars have pounced on the eminent domain issue as an example of government intrusion on private property rights. But experts warn the issue may face an uphill battle in the courtroom Energywire, Sept. 13).
Columbia Law School Environmental Law Clinic attorney Susan Kraham noted that the New Jersey lawsuit is designed to spur reform within the agency.
"Our aim is to motivate FERC to amend its policies so the agency ceases its unconstitutional practice of granting Certificates for pipelines that are not in the public interest," she said in a statement. "This will end the unjust seizing of public and private land."
The law clinic and the Eastern Environmental Law Center are representing the New Jersey Conservation Foundation in the litigation.
FERC does not comment on pending litigation.
https://www.eenews.net/energywire/2017/11/29/stories/1060067487
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Keystone Pipeline Spill Blamed on Damage From Its Construction
Nov 29, 2017 | The Hill
By TIMOTHY CAMA
A preliminary investigation has found that the 210,000-gallon oil spill last week from the Keystone pipeline was caused by damage sustained when the line was constructed in 2008.
The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) outlined its initial conclusion in an order released late Tuesday that allowed TransCanada Corp. to return the line to operation nearly two weeks after the South Dakota leak was reported, but under lower pressure, among other conditions.
“The rupture has characteristics of mechanical damage from original construction. Preliminary information indicates the failure may have been caused by mechanical damage to the pipeline and coating associated with a weight installed on the pipeline in 2008,” Alan Mayberry, PHMSA’s associate administrator for pipeline safety, wrote in the order.
TransCanada, which is planning to build the controversial Keystone XL pipeline to expand oil capacity heading south from Alberta, Canada, removed the damaged portion of pipe and replaced it. It is being sent to a National Transportation Safety Board lab for metallurgical testing.
Crews are still working to clean the oil that spilled from the underground pipe.
In the meantime, however, PHMSA is allowing Keystone to restart operations. The agency approved TransCanada’s plan to restart with an initial pressure about 20 percent below its usual level at the affected area, reducing the line’s capacity.
PHMSA is also requiring TransCanada to prepare a more detailed remedial action plan from the incident and an analysis of the root causes of it.
http://thehill.com/policy/energy-environment/362311-keystone-pipeline-spill-blamed-on-damage-from-its-construction
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EPA Finds Wisconsin Barrel Plants Violating Environmental Laws
Nov 29, 2017 | Milwaukee Journal Sentinel
By John Diedrich
The U.S. Environmental Protection Agency has determined a chain of industrial refurbishing plants in the Milwaukee area violated federal law, the agency announced Wednesday.
The EPA found the plants in St. Francis, Oak Creek and Milwaukee were breaking the law by transporting, storing and treating hazardous waste without required licenses, among other violations.
EPA inspectors said plant officials blocked their entry into the St. Francis plant for nearly 30 minutes, even though they had a warrant issued by a federal magistrate judge. They also had issues gaining access to the Oak Creek plant.
The agency sought the warrant after suspecting the company has "staged" operations in its plants during an earlier inspection.
The inspections were initiated following a Milwaukee Journal Sentinel investigation, published in February, which uncovered a host of problems that endangered workers and residents living near the company's plants in the Milwaukee area and three other states — Tennessee, Indiana and Arkansas.
Workers at the plants told the Journal Sentinel that chemicals were routinely mixed together, triggering dangerous reactions that resulted in chemical and heat-related burns, injuries from exploding barrels, breathing difficulties and other health problems.
Residents living near the St. Francis plant say it is often miserable living there. Fumes result in burning eyes, sore throats and headaches, forcing them to stay in their homes at times. Three of the residents have filed a class-action lawsuit.
The three plants, known locally as Mid-America, are operated by Container Life Cycle Management, a joint venture majority owned by Greif Inc., a $3.3 billion Ohio-based firm.
The plants refurbish 55-gallon steel drums and large plastic chemical containers, cleaning them for reuse or recycling. Drums that cannot be refurbished are burned.
The EPA tested the air near the St. Francis facility in response to resident complaints and the "smelly emissions from the plant." During their investigation, two EPA inspectors who were interviewing residents themselves reported feeling ill.
Air testing by the EPA revealed the presence of volatile organic compounds associated with industrial activity. EPA is working to analyze the data to determine if there is a health risk to workers and residents. The agency plans more testing.
The agency issued notices against the St. Francis and Oak Creek plants, alleging 13 violations of the federal Clean Air Act. The Milwaukee plant does not have a burning operation.
Soil testing by the agency did not reveal levels of contamination that violated federal law.
In a statement, a Greif spokeswoman said the company learned of the EPA violations Monday and continues to cooperate with regulators. The statement also contended regulators have changed their past standards to find problems.Registration reaps rewardsRegister now and get special deals from Milwaukee Journal Sentinel & the USA TODAY NETWORK, invites to events and sweepstakes, and more.Sign Up
"We are not perfect and will always work to address issues in cooperation with regulators," said Debbie Crow, in the statement. "Company representatives have met — on a voluntary basis — with federal and state environmental regulators on multiple occasions to discuss perceived issues."
The EPA is the latest regulatory agency to allege the plants are breaking the law. The EPA is one of at least five government agencies investigating the plants following the Journal Sentinel's investigation and at the urging of several members of Congress.
The state Department of Natural Resources and U.S. Department of Transportation together have uncovered three dozen violations. DOT has expanded its investigation to 13 plants all tied to Greif in nine states.
The U.S. Occupational Safety and Health Administration found 15 violations at the Milwaukee facility and issued a $108,000 fine. OSHA continues to investigate the plants in Oak Creek and St. Francis but has not reported findings.
The Journal Sentinel findings were based on 16 hours of audio recordings by a whistle-blower; hundreds of pages of documents, including internal injury reports and safety audits; as well as public records and interviews with workers, regulators, and experts.
The whistleblower, Will Kramer, said Wednesday plant officials had plans for staging operations when government inspectors came and the most recent delay may have allowed them to prepare employees.
Kramer said the EPA "findings further demonstrate that Greif's management has not been honest with its employees, shareholders, and community members living near its CLCM facilities. All of these people deserve to know the full extent of the risks they face from this company's illegal actions."
This story is developing. Check back for updated information.
https://www.jsonline.com/story/news/investigations/2017/11/29/epa-finds-wisconsin-barrel-plants-violating-environmental-laws/904653001/
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U.S., Canada Fall Short of Protecting Great Lakes, Agency Says
Nov 29, 2017 | AP (In the Chicago Tribune)
By John Flesher
Despite recent improvements, the U.S. and Canada have a long way to go toward ridding the Great Lakes of pollution that endangers human health and the environment, an advisory agency said Tuesday.
Inadequately treated sewage, industrial chemicals and farm runoff are still flowing into the five lakes that provide drinking water for about 40 million people, the International Joint Commission said in its first checkup report since both nations last updated the Great Lakes Water Quality Agreement in 2012.
The report calls for improving drinking water and sewage treatment facilities, and strengthening clean-water regulations, particularly limits on phosphorus runoff that is largely responsible for explosive growth of harmful algae in Lake Erie. Agencies also should work faster to identify newer types of contamination, such as fire retardant chemicals, and develop strategies for limiting them, the report says.
"While significant progress has been made to restore and protect the lakes, the governments of Canada and the United States and Great Lakes civil society as a whole are living with the costly consequences of past failures to anticipate and prevent environmental problems," the report says. "By now, it should be clear that prevention makes environmental, economic and common sense."
The two countries negotiated the first version of the water quality agreement in 1972 following a century of abuse that left portions of the lakes in deplorable condition. It focuses primarily on toxic pollution, invasive species and nutrient runoff but has been revised several times to include other threats, including climate change.
In the 45 years since the initial pact was signed, a number of highly contaminated "hot spots" in harbors and tributary rivers have been cleaned up and steps have been taken to reduce chemical and phosphorus discharges from industry and city wastewater treatment plants.
Yet too little has been done to make the lakes safe for drinking, swimming and fishing — the uses that most directly affect human health, the report says. Even as the Trump administration and many state and local governments seek to cut spending, the report recommends big increases to improve water infrastructure. It notes that a number of cities have dealt with unsafe drinking water incidents and many native tribal communities have longstanding boil-water advisories.
"Our municipalities must not be permitted to dump sewage into our drinking water and we call for a 'zero discharge' objective, which will bring to an end the all-too-frequent beach closings," said Gordon Walker, the Canadian co-chairman of the international commission.
Lake Erie, which has the Great Lakes' largest fish population, draws special attention in the report because of a worsening toxic algae plague. While the U.S. and Canada have set targets for reducing nutrient runoff that feeds algae, they lack enforceable deadlines and standards for applying fertilizer and manure on croplands.
"Voluntary measures have failed to protect Lake Erie from extreme algae blooms," said Lana Pollack, the commission's U.S. co-chairwoman.
Steps toward dealing with flame retardants and other emerging toxins have been "disappointingly slow," the report said. Only eight such chemicals have been identified and no U.S.-Canadian plan has been devised for halting their release into the lakes.
http://www.chicagotribune.com/news/nationworld/midwest/ct-great-lakes-pollution-20171128-story.html
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Stakeholders Spar Over Scope of Future CWA Jurisdiction Rule
Nov 29, 2017 | Inside EPA
Environmentalists, industry groups and others are sparring over the scope of the Trump administration's planned revised Clean Water Act (CWA) jurisdiction rule in comments filed ahead of a deadline for public input that closes midnight Nov. 28, likely previewing arguments the stakeholders will raise in future suits over the rule.
EPA and the Army Corps of Engineers are still developing a proposed rule to define the “waters of the United States” subject to CWA permit mandates and other protections, but the agencies are taking written comments to inform that effort, and weighing input from a series of stakeholder calls held between Sept. 19 and Nov. 21.
Inside EPA will have full coverage of the comments filed by states, industry, environmentalists and other advocacy groups in the days ahead, but even the early comments submitted before the deadline show sharp polarization and the ongoing struggle with how to craft and justify a rule that complies with the wide range of Supreme Court CWA decisions -- most prominently the conflicting opinions authored by Justice Anthony Kennedy and the late Justice Antonin Scalia in the fragmented 2006 case Rapanos v. United States.
Some stakeholders want EPA and the Corps to craft a rule that goes beyond Scalia's test and encompasses the high court's other CWA rulings. But those efforts seem to nonetheless support limited jurisdiction, as they say the water law should only apply to waterbodies that satisfy all of the court's tests. That would be a sharp break with the Obama and George W. Bush administrations' approach of finding any water that satisfies either Rapanos test to be jurisdictional.
For instance, the The Western Coalition of Arid States (WESTCAS) says in its comments, “We believe when the views of the U.S. Supreme Court are used collectively, a new definition of waters of the United States should only include: Standing waters that are relatively permanent; Streams that have continuous flow; and Wetlands that have a continuous surface connection to an otherwise jurisdictional water.”
Those tests are the key factors in the Scalia standard, but WESTCAS adds that “A key qualifier for any stream or wetland to be jurisdictional includes meeting Justice Kennedy’s significant nexus test. In addition, we also recommend that in order to meet the test, it must present a meaningful effect on the chemical, physical AND biological integrity of the adjacent or downstream jurisdictional water. Meeting only one or two measures of integrity should not be sufficient for meeting the standard.”
By contrast, American Rivers in its comments says the administration must preserve the 2015 jurisdiction rule, known as the Clean Water Rule. “The Clean Water Rule is based on sound science, economics, and the law. Any Rule that replaces the Clean Water Rule will have to have the same sound basis and be at least as protective of our Nation’s waters as the Clean Water Rule is. If the purpose of the Agencies’ rulemaking to replace the Clean Water Rule is to limit the scope of the Clean Water Act, American Rivers strongly opposes such a rulemaking and respectfully requests that the Agencies maintain and uphold the existing Clean Water Rule,” the group says.
Other groups, such as the The Southwest Montana Stockman's Association (SWMSA), are continuing calls to exclude any non-navigable water, even tributaries of protected waters, from the CWA. That would be a significant break from past practices, since even proponents of a limited CWA jurisdiction generally agree that tributaries should be protected as a way to prevent pollutants from entering downstream navigable waters.
“The Agencies past two interpretations of 'waters of the United States' have dismissed the historical legal significance of 'navigable waters.' In reading 'navigable waters' out of the Act, the Agencies have forgotten that their Commerce Clause powers are limited by that term. No matter how broad the policy of the Clean Water Act, the Agencies cannot exceed their Commerce Clause powers to regulate waters that fall strictly within state jurisdiction,” SWMSA says in its comments.
https://insideepa.com/daily-feed/stakeholders-spar-over-scope-future-cwa-jurisdiction-rule
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This Obama Climate Pact Has Trump's Stamp of Approval
Nov 29, 2017 | E&E Climatewire
By Jean Chemnick and Ben Hulac
The Trump administration appears to be quietly accepting an Obama-era international climate change deal.
A career government official, State Department Principal Deputy Assistant Secretary Judy Garber, confirmed last week during a speech to diplomats at a Montreal Protocol gathering that the Trump administration won't run away from the deal finalized last year in the Rwandan capital known as the Kigali Amendment. Under that deal, the U.S. government would work globally to limit refrigerants and coolants that greatly contribute to climate change.
She signaled that the process might be a slow one. Rather than setting a timeline for the administration to ask the Senate for its approval — as would almost certainly be required for the legally binding amendment to the ozone treaty — Garber stated that her agency had "initiated the process to consider U.S. ratification."
Still, her approved remarks were viewed as a ringing endorsement of Kigali, a climate change issue that has seemed to fly under the radar in this administration. It's a notable contrast to the administration's public rebuke of the Paris emissions treaty, and the suggestion that the United States might ratify the deal was met with applause from industry groups and environmentalists — even though the administration isn't trumpeting its climate impacts.
Garber called the Kigali Amendment a "pragmatic and balanced approach" to limiting hydrofluorocarbons (HFCs), a class of climate superpollutants that could contribute a dangerous half-degree Celsius to warming. But she skirted the issue of climate change while touting President Reagan's role in the underlying treaty.
"When he signed the Montreal Protocol, President Reagan said, and I quote: 'The Montreal Protocol is a model of cooperation. It is a product of the recognition and international consensus that ozone depletion is a global problem, both in terms of its causes and its effects,'" she said. Reagan signed the agreement in 1987.
HFCs slightly contribute to the depletion of the ozone layer in Earth's stratosphere, but the amendment targets them mostly for their climate effects.
Industry and environmentalists, who have jointly pressed for ratification of the long-sought amendment, were delighted with Garber's words.
"They don't have to talk about climate," said Durwood Zaelke, founder and president of the Institute for Governance & Sustainable Development. The U.S. heating and cooling industries have backed the amendment to phase down HFCs, after years of preparing alternatives, and Zaelke said the State Department was right to focus on the trade and competitiveness benefits that track with Trump administration priorities. He called Garber's remarks an encouraging sign.
"They kept on the path started by Reagan and [British Prime Minister Margaret] Thatcher 30 years ago," he said. "They didn't step off. They could have stepped off."
"I was very heartened," said Francis Dietz of the Air Conditioning, Heating and Refrigeration Institute. Industry has been communicating its support for the Kigali deal to the administration for months, and Dietz took Garber's words as affirmation that the amendment wouldn't run afoul of the White House.
"It does seem to be, at least at this point in time, that people are singing from the same sheet of music," he said.
The Kigali Amendment commits the United States and other developed nations to begin cutting the production and use of HFCs in 2019, when the deal takes effect for countries that have ratified it. Dietz said U.S. industry would meet the relatively modest first reduction targets without any new regulation. But longer-term phase-downs could require domestic policy, and the U.S. Court of Appeals for the District of Columbia Circuit complicated that picture in August when it killed an Obama-era rule that the Trump administration defended.
Still, some question whether the ruling will withstand appeal, and there are other avenues to reduce HFCs under the Clean Air Act and the Toxic Substances Control Act if it does stand.
"We are confident as an industry that there's a path forward. Even if the D.C. Circuit opinion were to stand, we're still confident that a path forward can be found to implement Kigali, absolutely," said Dietz.
But domestic implementation is likely one of the issues the State Department is now addressing with agencies including U.S. EPA and the Commerce Department in interagency discussions that it says are now underway. If administration lawyers determined that current domestic law did not allow EPA to regulate HFCs, the administration might have to appeal to Congress to pass climate-related legislation — a heavy lift in the current political atmosphere.
The State Department also has to determine whether it must ask the Senate for its advice and consent or whether it can simply join Kigali as an executive agreement. But four previous amendments to the ozone treaty have received Senate votes, and skirting Senate consent now would be an unusual move, especially given the intense GOP criticism heaped on the Obama administration for joining the Paris climate agreement via executive authority.
"I think there are senators on both sides of the aisle who have been eager for the Senate to reassert its constitutional prerogative in a way that helps U.S. industry," said Paul Bledsoe, an energy and climate lecturer at American University.
But the amendment is unlikely to travel to the Senate anytime soon. The United States took two to four years to ratify previous amendments. And its proponents say that while they would welcome a speedy ratification, a moderate delay wouldn't matter much. The amendment has already been ratified by 20 countries — meaning it has met the necessary threshold of support to enter into force in January 2019, and U.S. manufacturers are poised to supply alternatives.
"Maybe they submit this in a year. It doesn't matter. Maybe they submit it in two years," said Zaelke.
Jennifer Haverkamp, the former assistant secretary of State for oceans and international environmental and scientific affairs under Obama who negotiated Kigali, said the extra time could help industry representatives and other advocates drum up the two-thirds support the amendment would need for a Senate ratification vote.
"There aren't reasons to rush it, which means it can be a thoughtful process that includes building the necessary understanding and support on [Capitol Hill] for it to go through smoothly," she said.
Sarah Hunt of the American Legislative Exchange Council said that the Kigali Amendment — unlike the Paris deal — is legally binding.
"This creates a strong argument that U.S. Senate ratification of Kigali is required by U.S. treaty ratification law," she said. "Because the most recent NASA research shows that the HFCs phased out by Kigali contribute to ozone depletion, U.S. policymakers should resist playing politics with ozone layer protection by turning a Kigali ratification vote into a referendum on climate policy."'The one that the Trump administration didn't notice'
For now, the Kigali Amendment seems to be skating under the radar in the Senate, where members are focused on tax legislation.
In a brief exchange on an elevator packed with reporters, Sen. Bob Corker (R-Tenn.), chairman of the Foreign Relations Committee, appeared distracted when asked about the amendment. "I'm sorry," he said, adding that he couldn't answer the question. "My mind's in another place."
Sen. Todd Young (R-Ind.), the Foreign Relations subcommittee chairman who would be responsible for ratification, said he was unaware of the amendment.
The panel's ranking member, Sen. Ben Cardin (D-Md.), who traveled to Bonn, Germany, earlier in the month to attend U.N. climate talks, said he wasn't aware of any strategy to bring the amendment to the floor of the Senate.
Sen. Chris Coons (D-Del.), a Foreign Relations Committee member, was surprised when asked about HFCs instead of tax policy. He said he would vote to ratify but wasn't sure of his colleagues.
"I don't have a good read on whether or not we can act in a responsible, bipartisan way to strengthen the Montreal Protocol," he said in an interview. "I do think it is something where we can and should move forward on scientifically based policy that actually advantages American manufacturers and helps fight global warming."
Coons added, "It's the sort of thing that should get bipartisan support."
In an interview, Sen. Sheldon Whitehouse (D-R.I.), perhaps the chamber's most vocal advocate for climate policy, said the White House seems to have let Kigali slip past. "It's the one that the Trump administration didn't notice," Whitehouse said. "What?" he said, laughing and playing the role of the administration. "We let something environmental go?"
One possible explanation: "They probably didn't notice it was happening," he said. "Too busy tweeting about tax cuts."
Sen. Jim Inhofe (R-Okla.), the Senate's most outspoken climate skeptic, said he thought the State Department shouldn't submit Kigali. "I don't see any reason for it," he said.Advocate in Trump White House
The White House has at least one prominent backer of the Montreal Protocol — White House energy adviser George David Banks, who was honored by the Obama administration in 2009 for work he did to broker an amendment phasing down HFCs under the treaty, which are both ozone-depleting and climate-forcing.
The White House has been in contact with the Alliance for Responsible Atmospheric Policy, an industry group that backs Kigali, for months, said Kevin Fay, the group's director.
"We've been discussing this with the administration since they got into office," Fay said by phone. "A big part of this is about educating people about the Montreal Protocol."
And John Hurst, vice president of government relations for Lennox International Inc., a Texas-based firm that makes heating and cooling systems for homes, said confusion in Washington sows doubt in the private sector. "Regulatory certainty is very important to us," Hurst said.
Avipsa Mahapatra, the climate campaign lead for the Environmental Investigation Agency, a nonprofit, said chemical companies and the companies that use those products — big-box stores that need refrigerants for cooling, for example — back the deal, too. "Even for this Senate, it's a no-brainer," Mahapatra said.
It's estimated that 500,000 U.S. jobs are tied to the HFC business, according to Zaelke of the Institute for Governance & Sustainable Development (Climatewire, Nov. 20). And firms have spent billions to come up with replacement chemicals that don't heat the planet.
"Global demand for our products continues to rise as countries begin to focus on adopting environmentally preferable and energy-efficient technologies to meet the goals of the Kigali Amendment," said a spokesperson for Honeywell International Inc., which wants to see the amendment ratified in the United States.
https://www.eenews.net/climatewire/2017/11/29/stories/1060067529
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