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ACC PM 12/11
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(ACC Mentioned) OPPT Director Defends US Agency Plans for New Chemical Evaluation
Dec 11, 2017 | Chemical Watch
By Julie A Miller
US EPA officials have defended the agency’s plan to move away from consent orders, rely on significant new use rules (Snurs) to regulate potential future uses of new chemicals and essentially defer risk assessment on at least some of those future uses. -
Chemical 'Categories' May Be Added to TSCA Review Process
Dec 11, 2017 | Chemical Watch
By Julie A Miller
The US EPA is developing four additional "chemical categories" that may be added to a list last updated in 2010. -
PBTs Consultation Deadline Extended by US EPA
Dec 11, 2017 | Chemical Watch
By Julie A Miller
The US EPA has extended until 12 January its comment period for five persistent, bioaccumulative and toxic (PBT) substances that are to be subject to rapid risk management action under the new TSCA. -
Both TSCA Rule Challenges to Be Heard in 9th Circuit
Dec 11, 2017 | PoliticoPro - Whiteboard
By Alex Guillen
The 9th Circuit Court of Appeals will hear both lawsuits over EPA’s two major implementation rules for the 2016 update to the Toxic Substances Control Act, a small victory for environmentalists and public health advocates who had pushed for the Western court to handle the litigation. -
Litigation Over EPA Rule Transferred to 9th Circuit
Dec 11, 2017 | E&E Greenwire
By Amanda Reilly
In a win for environmentalists, a Richmond, Va.-based federal court has agreed to transfer litigation over a U.S. EPA chemicals rule to the California-based 9th U.S. Circuit Court of Appeals. -
Changes in US Formaldehyde Emissions Testing Delayed
Dec 11, 2017 | Chemical Watch
By Julie A Miller
The US EPA announced it will have to complete a formal rulemaking process to implement administrative changes to regulations on formaldehyde emissions from composite wood products. -
Shale Drillers Fret Over Panama Canal
Dec 11, 2017 | Bloomberg (In E&E Energywire)
U.S. shale drillers are rethinking their initial optimism about the Panama Canal. -
EPA Defends Lengthy Delay of Obama-Era Facility Safety Rule
Dec 11, 2017 | Inside EPA
EPA is asking the U.S. Court of Appeals for the District of Columbia Circuit to dismiss environmentalists' and labor groups' challenge to its nearly two-year delay for some provisions of the Obama-era revised facility safety rule, arguing that since the delay mainly affects “non-substantive” elements of the policy it poses no harm to the petitioners. -
Sources: Trump Supports Pruitt's Plan to Question Science
Dec 11, 2017 | E&E Climatewire
By Robin Bravender
President Trump has privately said he supports a public debate to challenge mainstream climate science, according to administration officials. But there's infighting about how it should occur — if at all. -
Inside the Battle for the Right's Climate Conscience
Dec 11, 2017 | E&E Climatewire
By Zack Colman
A closed-door meeting offered a snapshot of the conservative movement's struggle over its handling of climate change. -
First Step to Replace Climate Rule Coming This Month — EPA
Dec 11, 2017 | E&E Climatewire
By Robin Bravender
The Trump administration plans to take its first formal step toward replacing the Clean Power Plan by the end of December. -
Under Trump, E.P.A. Has Slowed Actions Against Polluters, and Put Limits on Enforcement Officers
Dec 10, 2017 | The New York Times
By Eric Lipton and Danielle Ivory
The highway billboard at the entrance to town still displays a giant campaign photograph of President Trump, who handily won the election across industrial Ohio. -
Senior Officials Ordered Removal of 'Climate Change' — Emails
Dec 11, 2017 | E&E Greenwire
By Christa Marshall
A DOE official's controversial request this summer for scientists to remove "climate change" from research abstracts was ordered by senior national lab managers and was intended to satisfy President Trump's budget request, according to emails obtained by E&E News and confirmed by a lab aide.
Industry and Association News - There are no clips to report at this time.
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(ACC Mentioned) OPPT Director Defends US Agency Plans for New Chemical Evaluation
Dec 11, 2017 | Chemical Watch
By Julie A Miller
US EPA officials have defended the agency’s plan to move away from consent orders, rely on significant new use rules (Snurs) to regulate potential future uses of new chemicals and essentially defer risk assessment on at least some of those future uses.
The issues emerged as the primary areas of concern for environmental advocates at a 6 December stakeholder meeting. And they come as the agency solidifies policies and procedures for implementing the new Toxic Substances Control Act.
A similar public meeting on 11 December will focus on prioritisation of existing chemicals for risk assessment.
When the situation described in a pre-manufacture notice (PMN) is not concerning, but there is a potential use of the new chemical that would raise risk concerns, the EPA has issued consent orders restricting how it can be used. They have followed with a Snur requiring additional review when someone proposes a different use.
Just issuing the Snur "we believe would accomplish the same objective [and] be equally protective," while eliminating a step, said Jeff Morris, director of the Office of Pollution Prevention and Toxics.
This also does not stop the EPA from requiring testing before approving future uses, Dr Morris said. "We believe that, using the non–order SNUR approach, if someone came in with a significant new use notice and wanted to change the conditions then we would look at whether that type of testing might be needed," he said.
"So in our view there is no actual impact on the testing done."
But some NGOs vehemently disagree, arguing that a consent order is legally binding and gives the EPA more leverage over current and future submitters.
Joseph Manuppello, senior research associate at People for the Ethical Treatment of Animals (Peta), said his organisation supports the EPA's plan specifically because they believe it will lead to less animal testing.
"Based on the agency's initial implementation we were very concerned that calls for animal testing were actually increasing," Mr Manuppello said. "At last year's new chemical meetings we heard from industry that they felt that the reason for this was that the agency had shifted from Snurs to consent orders."
Environmental advocates are especially concerned that the EPA will issue "not likely to present an unreasonable risk" findings for new chemicals when there are concerning potential uses not being proposed in the PMN.
"Once EPA has declared a new chemical 'not likely to present an unreasonable risk' and allowed commencement, its only option for addressing risks is through the far slower and more constrained section 6 process," said Richard Denison, lead senior scientist at the Environmental Defense Fund (EDF).
NGOs argue this policy violates the amended TSCA, which requires the EPA to make an overall affirmative determination on the safety of new chemicals.
"If a chemical substance may present a risk or if EPA has insufficient information on the substance, the plain text of TSCA requires that EPA issue" an order, said Robert Stockman, senior attorney at the EDF.
"Nothing in the language governing new chemicals allows EPA to analyse only some uses of the chemical," Mr Stockman said. The law does not allow a manufacturer to submit a notice limited to certain intended uses and do not allow the EPA to "limit its review or determination to intended uses."Probable or possible
Environmental advocates are also concerned about how the EPA defines the potential uses it will assess. Dr Morris said the agency will assess "probable" uses of new chemicals, not all that could be theoretically possible.
"When you look at a chemical substance, if you could envision that over time, should the proper conditions warrant, then you could see that chemical substance used in a way different from that described in the PMN, a way that makes a difference [that] would warrant evaluation on its own," Dr Morris said.
"There is no particular algorithm you can follow to get there," he said, "but there is somewhere between 'possible' and 'certain' where you've got to make that cut."
Dr Morris was more receptive to NGOs' arguments that the EPA needs to ensure that Snurs are in place before manufacturing of a chemical starts. "This is still an active area for discussion [and] an important set of considerations," he said.
The EPA has to balance its protective obligations with the need to meet statutory deadlines for reviewing chemicals, he said.
"Those are both important attributes of this programme and nobody is suggesting here that one be sacrificed at the expense of the other."Industry concerns
Industry representatives tacitly acknowledged their support for the EPA's plans by not addressing the issues concerning NGOs.
Karyn Schmidt, director of chemical regulation at the American Chemistry Council, said industry's concerns "are really in three big buckets":that the EPA is taking too long to complete reviews, and demanding that PMN submitters waive deadlines;"uncertainty" as to what criteria are being applied; andthe agency’s taking an "overly conservative approach with respect to making a risk determination."
"Has EPA made any ‘not likely to present’ findings for a new chemical for which EPA has identified a hazard?" asked Rich Engler, a senior chemist at Bergeson & Campbell.
Ms Schmidt said uncertainty has caused some manufacturers to delay submitting PMNs, keeping substances "that may have fewer impacts" from coming to market.
"Some submitters have taken the extreme step of bringing chemistries to market in other jurisdictions outside the US," she said.
Ms Schmidt urged the EPA to "present the PMN submitter with a complete request for data" as early in the process as possible.
Her ACC colleague, Richard Starr, said the EPA should make public its track record on meeting review deadlines and on the number of deadline extensions it has requested. "Tracking this metric will provide a better view whether EPA is making progress to eliminate some friction in the system," he said.
https://chemicalwatch.com/62450/oppt-director-defends-us-agency-plans-for-new-chemical-evaluation
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Chemical 'Categories' May Be Added to TSCA Review Process
Dec 11, 2017 | Chemical Watch
By Julie A Miller
The US EPA is developing four additional "chemical categories" that may be added to a list last updated in 2010.
The categories of chemicals with similar properties are used to streamline the review process for new chemicals. When a new substance is identified as being a member of a category, the chemical is evaluated in the context of the potential health or environmental concerns associated with that category, potentially reducing the need for testing.
Tala R Henry, director of the Risk Assessment Division in the Office of Pollution Prevention and Toxics, discussed the potential additional categories at a 6 December meeting on new chemicals policy under the amended Toxic Substances Control Act. They include:photo-acid generators;tracer chemicals;perfluorinated chemicals; andfour groups of chemicals whose potential lung effects have raised concern: polycationic substances, surfactants, waterproofing agents and polymers with the potential to cause 'lung overload'.
Consideration of a category for perfluorinated chemicals predates the 2016 TSCA amendments, and is furthest along, Dr Henry said. The ongoing work will have to be integrated with a cross-agency effort announced on 7 December. This aims to "address per and polyfluoroalkyl substances (PFAS)," including perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), as well as GenX, a substance developed as a replacement for the older chemicals.
The EPA began looking at photo–acid generators after it received more than 100 submissions for such chemicals "in a very short window of time", Dr Henry said. And in the preceding two years, she added: "We received some ecotoxic data that showed us that some of our past assumptions around the way these chemicals behave in the environment might not be true." The agency is working with submitters to develop a testing programme.
Similarly, the EPA has received submissions for more than 100 structurally similar chemicals used as "tracers," and has agreed with submitters on a testing plan.
The "lung effects" chemicals are a different case, in which the agency identified groups of chemicals where there is insufficient data to make the affirmative risk determination required by the new TSCA.
"We previously did not have quantitative benchmarks to use to evaluate these largely port of entry and surface type of effects on the lungs," Dr Henry said. "We thank the submitters for the chemicals that fell into this arena for allowing us to do the research."
Dr Henry said the EPA welcomes input on both these specific substances and generally how the agency should go about revising its category list.
The agency is also interested in comments on whether to continue or "reinvent" the Sustainable Futures programme. This trains chemical developers to use the same risk-screening models that the EPA uses to evaluate new chemicals.
https://chemicalwatch.com/62447/us-epa-may-add-chemical-categories-to-tsca-review-process
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PBTs Consultation Deadline Extended by US EPA
Dec 11, 2017 | Chemical Watch
By Julie A Miller
The US EPA has extended until 12 January its comment period for five persistent, bioaccumulative and toxic (PBT) substances that are to be subject to rapid risk management action under the new TSCA.
The Lautenberg Chemical Safety Act required the agency to take "expedited" action on certain PBTs by skipping their risk evaluation and proceeding directly to imposing rules to reduce their exposure. This was to be done "to the extent practicable".
Proposed risk management rules are due by 22 June 2019, with final rules to follow within 18 months.
The agency announced in October 2016 that it would take action on the following five substances:decaBDE, a brominated flame retardant used in textiles, plastics, wiring insulation, and building and construction materials;hexachlorobutadiene (HCBD), used as a solvent in the manufacture of rubber compounds and as a hydraulic, heat transfer or transformer fluid;pentachlorothiophenol (PCTP), used as a sulfur cross-linking agent to make rubber more pliable in industrial uses;tris(4-isopropylphenyl) phosphate (IPTPP), used as a flame retardant in consumer products and as a lubricant, hydraulic fluid, and in other industrial uses; and2,4,6-tris(tert-butyl) phenol, an antioxidant that can be used as a fuel, oil, gasoline or lubricant additive.
The EPA published preliminary information on exposure and use for each of the five, as well as what it expects to consider in the development of the proposed rules, and originally set a 9 December deadline for stakeholder input. This was extended on 2 December.
https://chemicalwatch.com/62378/pbts-consultation-deadline-extended-by-us-epa
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Both TSCA Rule Challenges to Be Heard in 9th Circuit
Dec 11, 2017 | PoliticoPro - Whiteboard
By Alex Guillen
The 9th Circuit Court of Appeals will hear both lawsuits over EPA’s two major implementation rules for the 2016 update to the Toxic Substances Control Act, a small victory for environmentalists and public health advocates who had pushed for the Western court to handle the litigation.
The Richmond, Va.,-based 4th Circuit Court of Appeals had been assigned all three lawsuits over EPA’s evaluation rule, which determines how the agency will review chemicals under the law. The San Francisco-based 9th Circuit, meanwhile, was assigned the litigation over EPA’s prioritization rule, which determined how EPA will pick which chemicals to review.
Both EPA and the environmentalists suing over the rules sought to have the cases moved to the same court — the 9th Circuit for green groups, the 4th Circuit for EPA. The 9th Circuit last month declined to release the suits over the prioritization rule. Last week EPA said that it would prefer to have both cases in the same jurisdiction, paving the way for today’s order from the 4th Circuit to move the evaluation rule lawsuits to the 9th Circuit.
WHAT’S NEXT: The 9th Circuit will take briefs in both cases and hear arguments over the rules, likely sometime next year. The cases could be assigned to the same panel of judges given the similar legal issues.
https://www.politicopro.com/energy/whiteboard
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Litigation Over EPA Rule Transferred to 9th Circuit
Dec 11, 2017 | E&E Greenwire
By Amanda Reilly
In a win for environmentalists, a Richmond, Va.-based federal court has agreed to transfer litigation over a U.S. EPA chemicals rule to the California-based 9th U.S. Circuit Court of Appeals.
At issue is a regulation that established a system for determining whether chemicals present an unreasonable risk to health or the environment.
The 4th U.S. Circuit Court of Appeals today sent the case to the 9th Circuit, which is hearing a lawsuit over a related rule that established the process and criteria for identifying high-priority chemicals for risk evaluations.
EPA issued both rules in June under the nation's new toxics law. Several environmental groups swiftly filed suit over both, arguing they were too weak (E&E News PM, Aug. 14).
In September, a special judicial panel on multidistrict litigation randomly assigned the cases over the prioritizations rule to the 9th Circuit and the litigation about the evaluations rule to the 4th Circuit.
Since then, environmentalists and the Trump administration have been fighting over which court should hear the suits. The administration filed motions to transfer the prioritizations dispute to the 4th Circuit, while environmentalists argued the 9th Circuit should hear both suits.
Late last month, the 9th Circuit denied the Trump administration's motion, likely contributing to the 4th Circuit's decision today to transfer its case (Greenwire, Nov. 28).
It's yet unclear, though, whether the same panel of judges on the 9th Circuit, which is generally thought of as the nation's most liberal circuit, will hear both cases.
https://www.eenews.net/greenwire/2017/12/11/stories/1060068657
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Changes in US Formaldehyde Emissions Testing Delayed
Dec 11, 2017 | Chemical Watch
By Julie A Miller
The US EPA announced it will have to complete a formal rulemaking process to implement administrative changes to regulations on formaldehyde emissions from composite wood products.
The proposal, published on 25 October, updates references to voluntary consensus standards on emission testing methods and product construction characteristics incorporated into the formaldehyde regulations. These begin going into effect in 2018.
The proposal would allow the use of two testing methods approved by the California Air Resources Board (CARB), rather than one. CARB's formaldehyde standards were made national by the federal regulations.
If the testing requirements are not updated, "there is real danger of major disruption in the worldwide supply of composite wood panels and finished goods made with these panels," the Composite Panel Association said in its comments.
The proposed rule was to go into effect on 11 December, but the EPA received comments it construed as "adverse". As a result it must withdraw the direct final rule and proceed through a formal rulemaking process. The comment period ended on 9 November. The agency will answer comments in publishing a final rule.
https://chemicalwatch.com/62452/changes-in-us-formaldehyde-emissions-testing-delayed
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Shale Drillers Fret Over Panama Canal
Dec 11, 2017 | Bloomberg (In E&E Energywire)
U.S. shale drillers are rethinking their initial optimism about the Panama Canal.
About 17 months ago, shale drillers were celebrating the news that the Panama Canal's locks would be widened.
The move meant their wide-bodied tankers carrying liquefied natural gas exports could squeeze through.
But since then, the Panama Canal Authority has granted passage to only one LNG tanker per day, leading to holdups and delays for clients in Asia.
"The canal surely has had some issues getting the new set of locks up and running smoothly," said Peter Sand, an analyst with the shipping association BIMCO. "It has taken longer than the canal and the industry expected" (McDonald/Malik, Bloomberg, Dec. 8). — MJ
https://www.eenews.net/energywire/2017/12/11/stories/1060068551
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EPA Defends Lengthy Delay of Obama-Era Facility Safety Rule
Dec 11, 2017 | Inside EPA
EPA is asking the U.S. Court of Appeals for the District of Columbia Circuit to dismiss environmentalists' and labor groups' challenge to its nearly two-year delay for some provisions of the Obama-era revised facility safety rule, arguing that since the delay mainly affects “non-substantive” elements of the policy it poses no harm to the petitioners.
The agency's Dec. 8 response brief in Air Alliance Houston, et al., v. EPA and E. Scott Pruitt both defends its rationale for postponing implementation of the Obama-era risk management plan (RMP) rule and raises the argument that since the updated “substantive provisions” are still scheduled to take effect in 2021 and 2022 as originally designed, the citizen groups have suffered no injury that would satisfy the requirement that petitioners have standing to bring a lawsuit.
“[T]o the extent Petitioners and Petitioner-Intervenor argue that they are harmed by delayed compliance with the other substantive provisions of the Amendments, that argument is premature,” the brief says.
The delay rule extended the effective date of the updated RMP from June 19, 2017, to Feb. 19, 2019, in order to allow EPA time to revise the RMP update rule after it accepted an industry petition for reconsideration. However, that delay only affects some provisions in the rule, including updated mandates for facilities to coordinate with emergency first responders among other requirements that EPA categorizes as “non-substantive.”
“There is no factual support that more or worse accidents will occur during the eleven-month delay of emergency response coordination provisions than would have occurred otherwise. In the Amendments, EPA concluded that the Risk Management Program in effect before the Amendments has been effective in preventing and mitigating accidents,” EPA says in the Dec. 8 brief.
As a result, the agency argues that the groups lack legal standing to sue over the delay because they cannot prove any direct harm from it. If the D.C. Circuit sides with the administration on this argument, it could dismiss the suit without ruling on the merits of the delay.
Beyond its standing claims, EPA defends its decision to delay the RMP update on the merits, seeking to counter the petitioners' argument that it acted arbitrarily.
“It was entirely reasonable for EPA to delay for a specified time certain requirements of the Amendments -- amendments whose monetized benefits EPA had previously recognized may not outweigh their costs -- after hearing further information 'that the final Risk Management Program Amendments’ new provisions that were not included in the proposed rule may actually increase the risks and burdens to states, local communities, emergency responders, and regulated entities rather than fixing the problems identified in the proposed rule,'” the brief says.
And it reiterates a claim that the Bureau of Alcohol, Tobacco and Firearms' finding that arson, rather than accidental fire, caused the West, TX, chemical plant explosion that helped prompt the RMP update could undermine the Obama administration's rulemaking process.
“It was thus observed that the Amendments had been based, at least in part, on an important mistaken assumption (i.e., that the West Fertilizer event was an accident),” EPA says.
https://insideepa.com/daily-feed/epa-defends-lengthy-delay-obama-era-facility-safety-rule
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Sources: Trump Supports Pruitt's Plan to Question Science
Dec 11, 2017 | E&E Climatewire
By Robin Bravender
President Trump has privately said he supports a public debate to challenge mainstream climate science, according to administration officials. But there's infighting about how it should occur — if at all.
The president has told U.S. EPA Administrator Scott Pruitt during several conversations that he supports Pruitt's plan for a "red-team, blue-team" debate aimed at challenging the prevailing scientific consensus about humans' impact on climate change, a senior administration official told E&E News. Another administration official said that "there is support for the initiative at the highest levels."
Pruitt has been pushing the idea of a climate science critique for months, suggesting at one point that it could be a debate that's aired on television. Conservative groups and some Republicans have been eager for the EPA boss to get started; they see the exercise as an avenue to torpedo the so-called endangerment finding that underpins EPA's climate rules.
Pressed by a House Republican last week to offer a timeline for the red team, Pruitt said work on the initiative is "ongoing" but that details could be unveiled as early as next month. "We may be able to get there as early as January next year," he testified.
But the administration isn't unified behind the idea. "Pruitt has not been given authorization to go ahead with red team, blue team; there are still many issues to be ironed out," another administration official said.
It's the latest example of infighting within the Trump administration over high-profile energy and environmental policies. It follows internal clashing earlier this year over whether to exit the Paris climate accord. In that case, Pruitt's camp — the one pushing for withdrawal — came out on top, and Pruitt became the administration's spokesman for the Paris exit.
Trump's public statements — dismissing global warming as a "hoax" invented by the Chinese — indicate that he hasn't bought into the consensus views about climate science and suggest he may welcome such a debate.
A White House spokeswoman did not respond to requests for comment.
EPA spokeswoman Liz Bowman said, "We have nothing to share at this time, and we will share additional details if and when they're available."Middle ground?
Conservative think tanks and influential Republican donors are anxious to get the process underway.
They contend that critics of mainstream climate science have been marginalized for years, and they see it as a way to undermine EPA's endangerment finding, which is a scientific determination that greenhouse gases threaten public health and welfare.
Some conservatives have been pressuring Pruitt to overturn that finding, but many acknowledge that he'll face a tough court battle if he takes on the finding directly (Climatewire, July 18). He's already been criticized by some who fear he won't challenge the endangerment finding. Leaving it intact would make it easier for the next administration to roll out new versions of the climate rules the Trump team is working hard to dismantle.
The red team forum may present Pruitt with a middle ground — a way to appease conservatives who want to discredit the endangerment finding while avoiding legal fights for now.
Bob Murray, the CEO of Murray Energy Corp. who's a key Trump ally on energy issues, said Pruitt told him recently that the red team debate is the first step toward a possible challenge to the endangerment finding.
"They're laying groundwork for it; they want to do this red, blue study, debate on science before we get there," Murray said of the endangerment finding. "I said, 'You need to get it done; if you don't get it repealed, you're going to have this climate agenda forever. It needs to be repealed'" (Climatewire, Dec. 1).
Myron Ebell, who led the EPA transition team for the Trump administration, sees the red team as a way to help unravel the endangerment finding.
"What we've been pushing is that the EPA should grant our petition to reopen the endangerment finding, and they should then put out an advance notice of proposed rulemaking," said Ebell, who's the director of the Center for Energy and Environment at the Competitive Enterprise Institute.
EPA should then begin its climate science critique as part of its plan to re-examine the finding, he added. "That would put the exercise in a legal framework that could then be used consequentially."
H. Sterling Burnett, a research fellow on environmental policy for the conservative Heartland Institute, said a red team will allow the administration to "make decisions based upon a fuller, more accurate understanding of the state of climate science."
Once that's done, he said, "there will be little justification for the endangerment finding, then they can safely withdraw it and defend it in court."
The Heartland Institute has been holding closed-door meetings for months to strategize how to push the administration to move ahead with the red team.
Heartland also sent lists of recommendations to EPA for potential members of the red team, according to documents obtained by the Climate Investigations Center and shared with E&E News (Climatewire, Oct. 26).'Self-inflicted wound'
Despite the support from conservative circles, the exercise presents some political perils, and some say the administration and Pruitt would be wise to steer clear.
"I think that there are people in the White House who think we've got a lot of stuff we've got to do, and in the regulatory reform initiatives that we are advancing, we in the White House take incoming fire all the time," said an energy industry lawyer.
"In the case of red team, blue team, we'll be taking incoming fire all right, but it'll be completely voluntary. It'll be like a self-inflicted wound."
One line of attack the administration is already facing is that the operation aims to treat the two sides of the debate as equal. That would give the minority of researchers who question mainstream science a bigger platform.
There are also outstanding questions of who participates and how it would be run.
Pruitt was rumored to be considering Steven Koonin, a former Obama administration energy official, to lead the red team effort. Koonin said in an August interview that he'd consider it if certain conditions were met. His participation would allow Republicans to claim bipartisan support.
Koonin said in August that he's driven by science, not politics.
"I've got no dog in the fight about whether [climate change] is the greatest catastrophe that's facing the planet or this is a nothing burger," he said. "This is something that is a national issue, and I feel the scientific community has an obligation to see that this is accurately portrayed" (Climatewire, Aug. 7).
Some critics of mainstream climate science have said they'll only participate if they see it as a serious effort with researchers they deem credible.
"The big question in my mind is to what extent the Heartland Institute has the ear of Scott Pruitt," said Judith Curry, a former professor at the School of Earth and Atmospheric Sciences at Georgia Tech whose name has been circulated as a possible red team member. She has said that having Heartland's name affiliated with the effort detracts from its credibility.
"I hope this is set up with sensible high-level people who are outside the everyday fray of the debate," she said.
There's also uncertainty about a possible "blue team" that would defend the mainstream science. Scientists may refuse to participate, arguing that it's an insincere effort or a waste of time. And the Trump administration may not want those optics.
The administration could also risk unflattering media coverage from the debate itself. Inflammatory assertions from either side of the debate would undoubtedly generate a flurry of news coverage, which could exacerbate criticisms that the administration isn't doing enough about climate change or generate intense scrutiny of the researchers picked for the red team.
Even some who welcome the debate say it comes with pitfalls.
"It's a very complicated thing, and it has to be gotten right or it won't have credibility and it won't produce a good product," said Ebell.
He doesn't think EPA is the correct agency to lead the charge, he said, suggesting instead that it be situated within the White House Office of Science and Technology Policy, where the president's top science adviser typically works.
But Trump hasn't nominated a leader for his science shop yet. Pruitt, meanwhile, appears eager to get started.
"It's something we hope to do," he told lawmakers last week. "That would be a process where we would focus on objective, transparent, real-time review of questions and answers around the issue of CO2."
https://www.eenews.net/climatewire/2017/12/11/stories/1060068567
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Inside the Battle for the Right's Climate Conscience
Dec 11, 2017 | E&E Climatewire
By Zack Colman
A closed-door meeting offered a snapshot of the conservative movement's struggle over its handling of climate change.
The discussion at the American Legislative Exchange Council (ALEC) state policy summit here last week was a microcosm of U.S. climate politics on the right flank. Interviews revealed an internal conflict between corporations that want to embrace climate science and lawmakers who are largely skeptical of mainstream research and how it's been used to justify regulations (Climatewire, Dec. 8).
The question before lawmakers, businesses and think tanks at ALEC was whether to support a resolution encouraging a review of the endangerment finding, a vast body of scientific evidence that says greenhouse gases harm human health. It provides the legal underpinning for climate regulation and is reviled by hard-right conservatives who don't believe that man-made climate change is occurring or is significant.
For businesses, "it was a general discomfort to go back into the fray" on debating climate science, said Steve DelBianco, executive director of NetChoice, an association of e-commerce businesses, and a member of ALEC's private-sector board.
Lawmakers approached the topic differently. Many who were interviewed by E&E News — even those who signaled they'd vote against the resolution, which was withdrawn due to lack of support — expressed a desire to challenge the science at some point. It's possible the resolution could re-emerge when ALEC meets again in the spring.
"I think the whole premise that carbon dioxide is a pollutant is flawed," said Tennessee state Sen. Frank Niceley (R). "It's not a pollutant, it's just as natural as oxygen. The trees and plants depend on CO2 just the same way we depend on oxygen."
If the endangerment finding — and potentially challenging it — was a weighty question for ALEC, it's also a weighty question for conservatives writ large.
The meeting last week illuminated a hardening narrative on climate change: Big corporations, long viewed as laggards, are increasingly embracing greenhouse-gas-reduction policies, deploying clean energy and reducing energy consumption. Meanwhile, a deepening conservative streak within GOP politics is making lawmakers resistant to climate action, which has become firmly rooted in broader culture wars. Caught in between is a newer class of "eco-right" policy wonks fighting to be heard who, for at least a day, tasted victory.
The resolution backed by the Heartland Institute never made it to a full vote, with the private sector strongly opposed and lawmakers seemingly split down the middle. The meeting was well-attended, with more than 100 people in the room. That highlighted the gravity of the matter before ALEC.
"The organization itself has matured," said North Carolina state Rep. Jason Saine (R), who was installed as ALEC's national chairman at the conference. "We don't just think in the moment what the tugging-at-your-heartstrings issues may be, but what's the long-term goal of the organization?"
The forum for the discussion carried significance. ALEC is an influential organization that designs model policies and resolutions that lawmakers then introduce in state capitols. Similar organizations without a partisan bent exist — the National Council of State Legislatures is one — but ALEC is viewed as a conservative policy laboratory with a wide reach, especially in red states.
A growing presence of free-market energy groups within and outside ALEC, such as the R Street Institute and ClearPath, have attempted to move the conversation beyond whether people accept climate change as fact. Instead, they're advocating for libertarian climate action.
"I'm always one who's open to debating things, that's what ALEC is about. We even had a guy that was debating how we should have a carbon tax," said Arizona state Sen. Debbie Lesko (R). "And I was like, 'Hm, I don't know if I like that.'"
Some who wanted to challenge the endangerment finding thought the corporate members of the board were prioritizing their public image. They also saw the vote as ALEC leadership selling out to corporate donors out of fear they would leave ALEC, for being linked to a position characterized as climate denial.
"An aye vote would be interpreted by folks out there as deniers, and it's just not the case," said Texas state Rep. Doc Anderson (R), who supported reviewing the endangerment finding. "It's a shame."
Larger corporations and trade groups opposed the resolution, issuing public statements about not wanting to relitigate climate science. Chevron Corp., United Parcel Service Inc. and Exxon Mobil Corp., along with trade organizations such as the Edison Electric Institute, railed against the resolution. Sources inside the room said virtually all private-sector members forcefully opposed the measure (E&E News PM, Dec. 6).
Perhaps that's not surprising. Big American companies, like Exxon Mobil, Apple Inc., Starbucks Corp. and Walmart, have previously backed climate change agreements that the average Republican abhorred.
Those corporations lobbied to stay in the Paris climate agreement, and many said the goals of the Clean Power Plan were achievable.
That differs from smaller businesses and manufacturers that have decried environmental regulations. They're the type of business owners who often accompany lawmakers at policy stump speeches when opposing new rules.
"Big corporations like ExxonMobil and trade groups like EEI have long been members of the discredited and anti-energy global warming movement," Tim Huelskamp, president of Heartland Institute, said in a statement after the resolution failed at ALEC. "They've put their profits and 'green' virtue signaling above sound science and the interests of their customers."
The position of smaller firms reflects a lack of familiarity with climate policy, said Eliot Metzger, a senior associate with the World Resources Institute. They rely on trade organizations and groups with political agendas for policy information that often are "trying to confuse" small businesses, he said.
Many smaller businesses, though, actually support clean energy and other measures that would reduce emissions, Metzger said. He pointed to a January 2016 survey by the Council of State Chambers showing that 52 percent of businesses cared about shifting away from fossil fuels and toward renewable energy. By comparison, 14 percent said reducing the size and scope of government and 17 percent said reducing the regulatory burden on businesses were the most important.
"There's political ideology, but if you're trying to keep your business running, there's a market reality that will supersede that ideology," said Metzger, who wasn't at the ALEC summit. "Regardless of whether you like Al Gore or not, you've got market realities that are affecting your business."
The question for the political right is whether market realities will occupy more airtime than former Vice President Gore.
"The whole concept that there's something wrong with CO2 is flawed, and the whole thing has been brought about by people who have no scientific background," Niceley said. "Al Gore has not a single college class or anything in science."
https://www.eenews.net/climatewire/2017/12/11/stories/1060068569
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First Step to Replace Climate Rule Coming This Month — EPA
Dec 11, 2017 | E&E Climatewire
By Robin Bravender
The Trump administration plans to take its first formal step toward replacing the Clean Power Plan by the end of December.
U.S. EPA is expected to announce that it's drafting a replacement rule even as it continues the process of repealing the Obama administration's signature climate change rule, which aimed to slash greenhouse gas emissions at power plants.
"The plan is before the end of the year," EPA spokeswoman Liz Bowman said of the anticipated release of the advance notice of proposed rulemaking.
The notice will reiterate the administration's arguments against the Clean Power Plan and solicit comments for what a replacement rule could look like.
"The Clean Power Plan was flawed. It attempted to regulate and dictate the nation's energy mix, to make decisions for state officials about what their energy mixes should be. It was clearly outside the scope of Section 111(d) [of the Clean Air Act], so we want to move forward, but we want to take comment on a range of legal options," said a senior administration official.
The notice also suggests "that Congress intended 111(d) to mean that the technologies to reduce emissions must be applied to individual facilities," that official said.
The Trump administration is widely believed to be seeking an "inside the fence line" rule targeting specific plants, a move that's supported by many business groups that argued against scrapping the rule entirely. The Obama-era rule took a broader "beyond the fence line" approach by allowing emissions reductions by adding more natural gas or renewable sources to the grid.
The notice is expected to be followed sometime next year by an official proposed rule laying out the Trump administration's plans to replace the Clean Power Plan.
"We are going to be introducing a replacement rule," EPA Administrator Scott Pruitt told members of the House Energy and Commerce Committee last week on Capitol Hill.
https://www.eenews.net/climatewire/2017/12/11/stories/1060068617
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Under Trump, E.P.A. Has Slowed Actions Against Polluters, and Put Limits on Enforcement Officers
Dec 10, 2017 | The New York Times
By Eric Lipton and Danielle Ivory
The highway billboard at the entrance to town still displays a giant campaign photograph of President Trump, who handily won the election across industrial Ohio. But a revolt is brewing here in East Liverpool over Mr. Trump’s move to slow down the federal government’s policing of air and water pollution.
The City Council moved unanimously last month to send a protest letter to the Environmental Protection Agency about a hazardous waste incineratornear downtown. Since Mr. Trump took office, the E.P.A. has not moved to punish the plant’s owner, even after extensive evidence was assembled during the Obama administration that the plant had repeatedly, and illegally, released harmful pollutants into the air.
“I don’t know where we go,” Councilman William Hogue, a retired social studies teacher, said in frustration to his fellow council members. “They haven’t resolved anything.”
Scott Pruitt, the E.P.A. administrator, has said the Trump administration’s high-profile regulatory rollback does not mean a free pass for violators of environmental laws. But as the Trump administration moves from one attention-grabbing headline to the next, it has taken a significant but less-noticed turn in the enforcement of federal pollution laws.
An analysis of enforcement data by The New York Times shows that the administration has adopted a more lenient approach than the previous two administrations — Democratic and Republican — toward polluters like those in East Liverpool.
The Times built a database of civil cases filed at the E.P.A. during the Trump, Obama and Bush administrations. During the first nine months under Mr. Pruitt’s leadership, the E.P.A. started about 1,900 cases, about one-third fewer than the number under President Barack Obama’s first E.P.A. director and about one-quarter fewer than under President George W. Bush’s over the same time period.
In addition, the agency sought civil penalties of about $50.4 million from polluters for cases initiated under Mr. Trump. Adjusted for inflation, that is about 39 percent of what the Obama administration sought and about 70 percent of what the Bush administration sought over the same time period.
The E.P.A., turning to one of its most powerful enforcement tools, also can force companies to retrofit their factories to cut pollution. Under Mr. Trump, those demands have dropped sharply. The agency has demanded about $1.2 billion worth of such fixes, known as injunctive relief, in cases initiated during the nine-month period, which, adjusted for inflation, is about 12 percent of what was sought under Mr. Obama and 48 percent under Mr. Bush.
Resolving complicated pollution cases can take time, and the E.P.A. said it remained committed to ensuring companies obeyed environmental laws.
“E.P.A. and states work together to find violators and bring them back into compliance, and to punish intentional polluters,” the agency said in a statement. Officials said Mr. Pruitt was less fixated on seeking large penalties than some of his predecessors were.
“We focus more on bringing people back into compliance than bean counting,” the statement said.
After this article was posted, the E.P.A. issued a statement criticizing the report, and saying that “Administrator Scott Pruitt is committed to enforcement,” and that “there is no reduction in E.P.A.’s commitment to ensure compliance with our nation’s environmental laws.” (The full statement is here.)
Confidential internal E.P.A. documents show that the enforcement slowdown coincides with major policy changes ordered by Mr. Pruitt’s team after pleas from oil and gas industry executives.
The documents, which were reviewed by The Times, indicate that E.P.A. enforcement officers across the country no longer have the authority to order certain air and water pollution tests, known as requests for information, without receiving permission from Washington. The tests are essential to building a case against polluters, the equivalent of the radar gun for state highway troopers.
At at least two of the agency’s most aggressive regional offices, requests for information involving companies suspected of polluting have fallen significantly under Mr. Trump, according to internal E.P.A. data.
In the last two complete fiscal years of the Obama administration, the E.P.A.’s office in Chicago sent requests for testing that covered an average of 50 facilities per year, or about 4.2 each month. By comparison, after the policy changes, one such request for a single facility was made in the subsequent four-month period. There was a similar decline in the Denver regional office, according to the data.
The enforcement slowdown has been compounded by the departure of more than 700 employees at the E.P.A. since Mr. Trump’s election, many of them via buyouts intended to reduce the agency’s size, and high-level political vacancies at the E.P.A. and the Justice Department. The agency’s top enforcement officer — Susan Bodine — was confirmed only late last week.
Separately, Mr. Pruitt’s team has told officials and industry representatives in Missouri, North Dakota and other states that E.P.A. enforcement officers will stand down on some pollution cases, according to agency documents. The retrenchment is said to be part of a nationwide handoff of many enforcement duties to state authorities, an effort Mr. Pruitt calls cooperative federalism but critics say is an industry-friendly way to ease up on polluters.
Current and recently departed E.P.A. staff members said the new direction has left many employees feeling frozen in place, and demoralized, particularly in the regional offices, which have investigators who are especially knowledgeable of local pollution threats.
“Certain people who are polluting are doing it with impunity right now and I think it is horrible,” said Nicole Cantello, an E.P.A. lawyer in the Chicago office, who has worked at the agency for 26 years.
Ms. Cantello agreed to speak to The Times because she is protected by her status as a union official. The E.P.A. did not authorize agency employees to speak.
The Times asked top E.P.A. enforcement officials from the Obama and Bush administrations to review The Times’s data, analysis and methodology. (Read more about The Times’s methodology here.) They said the slowdown signaled a sea change in enforcement under Mr. Trump.
“Those kinds of numbers are stark,” said Granta Nakayama, a lawyer who served in the Bush administration as assistant administrator for the E.P.A.’s enforcement office and who now represents companies facing E.P.A. enforcement actions for the law firm King & Spalding, where he oversees the environmental practice.
“If you’re not filing cases, the cop’s not on the beat,” he said. “Or has the cop been taken off the beat?”
Cynthia Giles, the former assistant administrator for the E.P.A.’s enforcement office during the Obama administration, also prepared a separate version of the data. She described as a “stunning decline” the reduced efforts under Mr. Trump to require companies to bring their facilities into compliance with pollution laws.
“The Pruitt E.P.A. is cratering on the enforcement work that matters most: holding the biggest polluters accountable,” said Ms. Giles, now a director at the Energy & Environment Lab at the University of Chicago.
Some enforcement experts suggested that the E.P.A. under Mr. Pruitt might have filed fewer cases because it was going after larger penalties. But according to the Times analysis, most of the top penalties were smaller than those in the previous two administrations. And the nine-month window included the single largest civil case filed by the E.P.A., against Exxon Mobil.
‘It Really Just Scares Me’
On a midsummer afternoon in 2013, boiler ash and steam blasted through a breach at the Heritage Thermal Services hazardous waste incinerator, spewing hundreds of pounds of ash into a nearby neighborhood in East Liverpool and setting off a series of small fires at the plant.
Tests later showed that the ash, which looked like dirty clumps of cotton candy scattered across rooftops and lawns, contained toxic chemicals. In some samples, lead and arsenic were found at concentrations that “could pose a hazard to small children,” according to an Ohio Department of Health report. Heritage Thermal went door to door offering to wash people’s houses and replace vegetables in their gardens.
Sandra Estell, 64, who lives on a river bluff overlooking the plant, said the ash covered her brother’s Chevy Blazer and blanketed the street where she grew up. Even when the plant operates normally, she said, she smells the incinerator from her home — with the odor changing from rotten eggs to an electrical fire to something difficult to place.
Truckloads of hazardous waste often sit in the parking lot outside the plant, awaiting disposal. On the day of the accident in 2013, the plant was burning through a load of waste sent from an oil refinery in Toledo.
“It really just scares me,” Ms. Estell said of the incinerator.
The plant falls under the jurisdiction of the E.P.A. regional office in Chicago, which moved quickly to investigate the episode as a possible violation of the Clean Air Act, federal records show.
Investigators sent Heritage Thermal’s general manager what is known as a Section 114(a) request for detailed information on the explosion. Failing to answer the questions, warned George T. Czerniak, who was then the E.P.A.’s Chicago-based director of the air and radiation division, could result in punishment.
Heritage Thermal complied within weeks, and also disclosed that the plant had faced a series of related problems when pressure inside the incinerator had climbed to dangerous levels. Mr. Czerniak asked for more information about those episodes, and by March 2015 he had signed a formal letter of complaint, alleging a series of Clean Air Act violations that would very likely result in fines, as well as possible civil or criminal action.
“We are offering you an opportunity to confer with us about the violations,” Mr. Czerniak wrote in the letter. “You may have an attorney represent you at this conference.”
More than two and a half years later, the matter remains unresolved, leading to the letter of complaint to the E.P.A. last month from the East Liverpool City Council. The body is dominated by Democrats, but it says its motivation in criticizing the E.P.A. is based on concerns about public safety and not partisan politics.
John Mercer, a City Council member, said taking on air pollution issues at Heritage Thermal has been a delicate matter because the area has lost thousands of jobs as steel and pottery manufacturing plants closed. “Heritage Thermal is one of the city’s largest employers,” he said. “We are all friends and neighbors with those that work there.”
Still, he said, residents want the matter resolved. “Our constituents deserve answers that no one seems to want to provide,” he said.
A spokesman for the E.P.A. declined to comment on the case’s status, as did Christopher T. Pherson, president of Heritage Thermal. The company said in a statement that it “is committed to continuously enhancing its performance and environmental compliance.”
Ms. Estell, who was critical of the plant even before it opened in the 1990s for being built near homes, blames the change in administrations in Washington for the inaction. “Something made them slam on the brakes,” she said.
Every administration runs into delays when investigating and enforcing environmental laws, and it is hard to pinpoint why any particular case might stall without access to confidential E.P.A. files. But the lack of action in East Liverpool mirrors a pattern of sluggish new enforcement activity under the Trump administration, as represented in data analyzed by The Times.
The Times identified more than a dozen companies or plants like Heritage Thermal that received notices of violation toward the end of the Obama administration, but as of late November had not faced E.P.A. penalties. The findings were based on agency files released through a Freedom of Information Act request to the Environmental Integrity Project, a nonprofit group run by a former E.P.A. enforcement chief.
Indiana Harbor Coke in East Chicago, Ind., has received at least three warning notices since 2015 for pollution violations, including hundreds of illegal emissions of lead, which can cause serious health problems, especially for children.
Other cases include TimkenSteel Corporation of Canton, Ohio, which was served with a notice in November 2015 for illegally emitting hazardous toxins, including mercury, which, when inhaled in large quantities, can cause pulmonary edema, respiratory failure and death.
In Waterford, Ohio, Globe Metallurgical was cited in June 2015 and December 2016 for air pollution violations. The E.P.A. collected evidence that it was emitting illegal amounts of sulfur dioxide, which can irritate the nose and throat and, at very high concentrations, cause life-threatening accumulation of fluid in the lungs.
And in East Liverpool, just down the street from the Heritage Thermal incinerator, S.H. Bell was cited for allowing toxic levels of dust with heavy metal chemical additives such as manganese to drift beyond its property line.
Tests conducted near S.H. Bell found “the highest levels of ambient manganese concentrations in the United States,” a complaint issued during the Obama administration said. Health officials warned that the situation represented “a public health hazard and should be mitigated as soon as possible to reduce harmful exposures.”
Research led by the University of Cincinnati found in September that levels of manganese in the blood and hair of children in East Liverpool appeared to be related to lower I.Q. scores, a conclusion executives from S.H. Bell have disputed.
The E.P.A. moved in the final days of the Obama administration to resolve the S.H. Bell matter, proposing a consent decree in January that would require changes to reduce manganese dust levels and to improve monitoring.
Generally, a proposed consent decree is resolved within several months, but in March, the Trump administration asked a federal judge to delay the case so the E.P.A. could “brief incoming administration officials with decision-making responsibility” given that “many subordinate political positions at the agency remain unfilled.” The Justice Department has since asked the court to move ahead, but the case remains open.
A spokeswoman for S.H. Bell said that the company had moved to comply with the requirements and that its operations had not harmed residents. The E.P.A. said in a statement that it was waiting for the court to act. “It would not be appropriate to discuss the open enforcement matters,” the statement said.
Roberta Pratt, 49, a bartender who lives with her family on a block situated between Heritage Thermal and S.H. Bell, said she worries constantly about the delays in enforcement at the facilities. The side of her house, she said, is stained with a rusty color from heavy metals that float through the air.
“It makes me feel like less of a mother,” said Ms. Pratt of the pollution problems. “You can’t protect your children.”
Fighting back tears, she added, “People say to me, ‘Why don’t you just pick up and move out of here?’ Well, I just don’t have the money to do that.”Industry Gets a Sympathetic Ear
The memo was marked “Privileged/Confidential/Do Not Release” and was signed by Susan Shinkman, the director of civil enforcement at the E.P.A. and one of Mr. Pruitt’s top deputies in Washington at the time.
It arrived by email to agency employees across the country on May 31.
With four pages of detailed instructions, it directed E.P.A. investigators to seek authorization before asking companies to track their emissions with instruments that determine the type and amount of pollutants being released at their plants.
It also said investigators needed special authorization if they did not already have evidence that the company had quite likely violated the law, or if state authorities objected to the tests.
The scope was far-reaching, applying to possible violations of the Clean Air Act, the Clean Water Act and federal laws regulating hazardous waste plants.
The goal of these changes, the memo said, was to “ensure a more nationally consistent and complete accounting of federal compliance monitoring and enforcement activities.” But the directive arrived like a thunderbolt, upending one of the agency’s most effective methods in catching polluters, E.P.A. regional officials said, and one that was extremely unpopular with the oil and gas industry.
In the prior two years, investigators in the Chicago office had sent requests for information — which includes requests for testing — that covered 267 facilities in the six Midwest states it oversees, including in cases involving giant mountains of petcoke stored near residential neighborhoods in Chicago. A carbon and sulfur byproduct of refining oil, petcoke particles can become airborne and enter the lungs, causing serious health effects.
Investigators in the regional office in Denver, which handles many oil and gas cases, also sent out a series of requests during the Obama administration based on hints that energy producers were letting vast quantities of hazardous air pollutants escape into the atmosphere. The pollutants included benzene, which is a carcinogen, and methane, which is a major contributor to climate change. The investigations escalated after fourworkers at energy facilities in North Dakota were overcome by fumes and died.
As the Obama administration came to a close, companies had grown increasingly unhappy with the tests and began to fight them by turning to allies in Washington.
Koch Carbon, a subsidiary of Koch Industries, which operated two petcoke storage facilities in Chicago, challenged the E.P.A.’s authority to require the tests in a formal filing with the agency, E.P.A. documents show, although it still provided the information the agency had requested. The test results showed that its petcoke piles were, in fact, threatening neighbors and led to their removal.
Republicans in Congress, including Senator James M. Inhofe of Oklahoma, took up the cause for the oil and gas industry. In public hearings, Mr. Inhofe interrogated E.P.A. officials about the tests and called them “a backdoor effort for the E.P.A. to cut greenhouse gas emissions.”
When Mr. Trump was elected and named Mr. Pruitt, the former Oklahoma attorney general, to lead the E.P.A., the complaints got a fresh — and sympathetic — hearing. Ms. Shinkman, in an interview, said she was instructed to write the new policy memo after Mr. Pruitt received letters of complaint from oil industry executives in North Dakota and Colorado. Ms. Shinkman, who joined the agency in 2012 as an Obama administration appointee, retired from the E.P.A. in September; in its statement to The Times, the E.P.A. did not say whether the oil and gas industry had been a factor in its decision.
Ron Ness, the president of the North Dakota Petroleum Council, wrote to Mr. Pruitt in March describing the tests as burdensome and costly. “Under the previous administration, the E.P.A. initiated sweeping Clean Air Act (CAA) Section 114 information requests and threatened company-ending sanctions.” Mr. Ness wrote in a letter obtained by The Times.
In his response to Mr. Ness, Mr. Pruitt wrote that the E.P.A. would “develop best practices for the judicious use” of the requests, and also hand off much of the enforcement of air pollution laws to North Dakota officials, except on Indian lands where the federal government has jurisdiction.
“The E.P.A. acknowledges the critical role that the oil and gas industry plays in ensuring the nation’s energy independence through domestic energy production,” Mr. Pruitt wrote to Mr. Ness in July.
The change in North Dakota was part of a broader effort by the E.P.A. to give states more say in how to treat polluters.
In a letter to the Missouri Department of Natural Resources, Edward Chu, the deputy administrator of the E.P.A.’s regional office in Kansas, said the agency would back off some inspection and enforcement activity so the state could take the lead. “These shifts in direction do represent significant change,” Mr. Chu wrote.
Officials in North Dakota said the new arrangement there is leading to faster resolution of cases involving the oil and gas industry.
“We are focused on compliance and fixes, not on big fines that are trumped up,” said Jim Semerad, who leads the division of the North Dakota Department of Health that enforces air emissions rules.
But some critics question the sincerity of Mr. Pruitt’s deference to state authorities, in part because it comes as the Trump administration has proposed cutting grants that help states pay for local enforcement. And the vigilance of some states in taking on the new responsibilities is also uncertain.
An audit by the E.P.A. inspector general in 2011 described North Dakota as “a state philosophically opposed to taking enforcement action” against polluters.
The state’s fines, moreover, are a tiny fraction of those imposed by the E.P.A. for the same violations, records obtained by The Times show, and some North Dakota settlements do not require the hiring of independent inspectors to ensure companies honor their promises.
In Ohio, a change in state law that was tucked into a budget bill this year cut funding for an inspector in East Liverpool, even as Ohio authorities found continued evidence of air pollution violations at the Heritage Thermal incinerator, according to state records obtained by The Times.
Ohio Environmental Services Industry, a trade group that represents Heritage Thermal and a handful of other hazardous waste companies, pushed for the change. The group said the facility would receive sufficient oversight without the dedicated state inspector.
The changes across the country, some lawyers suggest, are giving violators an upper hand in negotiating with the E.P.A.
Paul Calamita, who represents cities accused of violating the Clean Water Act when they release sewage and contaminated storm water into rivers and lakes, recommends that clients team up with state governments to push back against the E.P.A.
Under President Trump, Mr. Calamita said, the E.P.A. and the Department of Justice have been willing to compromise, withdrawing a six-figure penalty in one instance after refusing to do so in two previous rounds of negotiations during the Obama administration.
“States with new Republican governors are following the Trump approach — providing compliance assistance at the outset to avoid enforcement where the discharger is cooperative,” he said in a presentation to utility executives from around the United States. “A state that pushes back on E.P.A. is likely to be successful.”A Muscular Office Loses Muscle
The E.P.A. under Mr. Pruitt has pursued some high-profile prosecutions of polluters and has talked tough about companies like Fiat Chrysler, which like Volkswagen has been accused of installing software on its vehicles meant to evade emissions standards.
The agency’s biggest civil case filed since Mr. Trump took office involves Exxon Mobil, which was accused of not properly operating and monitoring industrial flares at its petrochemical facilities. Exxon agreed in October to pay $2.5 million in civil penalties, some of which will go to Louisiana, and spend $300 million to install new technology to reduce air pollution.
The agency on Friday also released a list of 21 Superfund sites contaminated with hazardous substances and pollutants that Mr. Pruitt has targeted for immediate and intense attention. One of the sites on the list, Tar Creek, a former lead and zinc mine, is in Oklahoma, where Mr. Pruitt once served as attorney general and state senator.
But more than a dozen current and former E.P.A. officials told The Times that the slowdown in enforcement is real on the ground, and that it is being directed from the top.
At the Ralph Metcalfe Federal Building in Chicago, which houses a regional office of the E.P.A., employees said it has become difficult to even start a new investigation. Because it covers states populated with Rust Belt industries, the Chicago office has traditionally been one of the busiest of the 10 regions.
An agency spokeswoman, in a statement, said “we have not rejected any requests for sampling, monitoring and testing” that were sent to headquarters as a result of the new policy. But agency staff said the memo made clear such requests were discouraged, and many fewer were being drafted.
Jeff Trevino, a lawyer in the Chicago office, who has worked for the agency for 27 years, said the new hurdles imposed by Mr. Pruitt had created “a Catch-22” because, with new policies effectively discouraging requests for information, investigators will have a harder time getting the data needed to detect and confirm violations.
Mr. Trevino, like other current E.P.A. employees, was not authorized by the agency to speak with The Times, and did so as a member of the labor union.
“We are the boots on the ground and we just are having a hard time now getting the information we need to do our job,” said Felicia Chase, who has worked for nearly a decade as a water pollution enforcement officer in the Chicago office, which covers states from Minnesota to Ohio. She was also speaking in her capacity as a union member.
Ms. Chase sat glumly in the cafeteria just before Thanksgiving. On a television set on the wall, President Trump could be seen offering an official pardon to a turkey, joking that he could not reverse Mr. Obama’s turkey pardons from the previous year.
Some workers said they would take the unusual step of asking members of Congress to protect funding for the work they do, while others said they held out hope that the new restrictions on information gathering would not be permanent. Ms. Shinkman, the retired author of the May memo, said she had hoped to avoid a sharp drop in requests for information, but she declined to elaborate how that would be possible.
Mr. Czerniak, who led the air pollution unit in Chicago until his retirement in 2016, said it was hard to watch the agency struggle through this new era.
“People at the agency are just being cautious, almost to the point of paralysis,” he said. ”They do not want to do anything for fear of being told they have done something wrong — something the new administrator won’t like.”
https://www.nytimes.com/2017/12/10/us/politics/pollution-epa-regulations.html?_r=0
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Senior Officials Ordered Removal of 'Climate Change' — Emails
Dec 11, 2017 | E&E Greenwire
By Christa Marshall
A DOE official's controversial request this summer for scientists to remove "climate change" from research abstracts was ordered by senior national lab managers and was intended to satisfy President Trump's budget request, according to emails obtained by E&E News and confirmed by a lab aide.
The communications, obtained through a Freedom of Information Act request, suggest officials at Pacific Northwest National Laboratory, a national lab funded by DOE, were trying to protect scientists. But the emails also leave unanswered questions about why decisions were made on a Trump plan that was not law.
The senior officials "don't have the authority to say ... 'We don't care whether Congress appropriated the funds,'" said Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists.
In August, Northeastern University associate professor Jennifer Bowen started a social media frenzy by posting a letter on Facebook from a DOE employee asking for removal of climate language from her research summary on salt marsh carbon sequestration. Later, additional scientists who received similar DOE requests identified the sender as Ashley Gilbert, a project coordinator at PNNL (Greenwire, Aug. 29).
According to emails sent between Aug. 23 and Aug. 25, Gilbert acted at the request of Terry Law, a manager of user services at the Environmental Molecular Sciences Laboratory (EMSL), a user facility at PNNL.
PNNL spokesman Greg Koller said Law was further directed by "EMSL management" but did not name which officials. It was a "team decision," he said.
While the identities of affected scientists were previously known, Lane's directive, the role of senior management and the lab's full reasoning were not.
Law said removing climate language was necessary because President Trump's budget proposal called for elimination of user access for EMSL research related to "climate feedbacks and carbon."
"Can you look at the 14 abstracts ... and find those that talk about global warming or climate change? Then contact the PIs to get different wording? Just explain to them we still have to meet the president budget language restrictions," Law said to Gilbert on Aug. 23.
The proposals were from 14 grant winners supported by EMSL and the Joint Genome Institute.
Gilbert then contacted Bowen, University of Arizona assistant professor Scott Saleska and Concordia University biologist David Walsh, who told E&E News he was asked to scrub language in his abstract on terrestrial organic matter transformations in the Arctic Ocean.
"Holy cow, really?" Walsh wrote to Gilbert when first asked to change wording.
"I understand that you are just doing your job, so I will refrain from comment. I redacted the offensive clause," Bowen wrote to Gilbert.
In an email to Saleska on Aug. 25, Law said the accepted research proposals likely follow the president's budget request but require revision to "eliminate confusion by others who may not understand the nuances" and "falsely assume we're funding research that was specifically eliminated for EMSL." Law did not define who the "others" were.
Once Bowen posted her letter publicly, inquiries from journalists started flowing in to Bowen and Law. Eventually, inquiries were kicked over to DOE headquarters.
In one exchange, Koller floated text to lab officials stating that "we routinely ask folks to modify their abstracts for length, clarity, etc. In this case, it could have been as simple as someone wanting to just highlight the parts of the research that are priorities for this administration."
In an email interview, Koller said there was a misunderstanding about the intent of the revisions, emphasizing that they occurred after proposals were accepted, and were never a condition of funding.
"There have been no other incidents where PNNL has asked scientists to remove climate change from research proposals," he said.
"Asking authors to clarify abstracts isn't unusual in the science community," he said when asked why DOE was basing decisions on a budget request. The revisions were made so scientists could "clarify the focus of their research plans," he added.
Rosenberg at the Union of Concerned Scientists said he had never heard of federal officials making such requests based on a president's budget proposal, which is just a suggestion to Congress.
"I think that's crazy," he said.
It didn't help the situation that Congress so rarely meets budget deadlines, but the revisions still should not have happened, he said.
DOE spokeswoman Shaylyn Hynes said "the short answer is no" when asked whether DOE headquarters directed PNNL managers.
After Bowen's post this summer, Hynes said "there is no departmental-wide policy banning the term 'climate change' from being used in DOE materials. That is completely false." Koller said that includes PNNL.
It's uncertain whether the PNNL incident was an isolated one. When told of the abstracts, one employee at a national lab said he is free to attend conferences on climate change.
Privately, other DOE workers outside PNNL say they've been asked to alter climate change language on documents, but internally.
"There are some program offices discouraging the use of the term, but none of these instances are from political guidance," said one DOE staffer.
Jeff Navin, a former acting chief of staff at DOE in the Obama administration, said the Trump administration created "this mess" by putting the lab in a tough spot.
"They want to fund good science, but they also want to be seen as a team player with the department that funds them. But the question shouldn't be why PNNL asked for these changes; the question should be who in the administration suggested this prohibition and why."
https://www.eenews.net/greenwire/2017/12/11/stories/1060068671
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