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ACC AM 19/12/17

Industry and Association News

(ACC Mentioned) The Bomb That Went Off Twice
Dec 19, 2017 | Propublica
By Abrahm Lustgarten

IT WAS A SECRET wartime project, with a code name and an urgent mission: develop a more powerful bomb, one that could be mass produced in time to fend off the German forces ravaging Europe. It was 1940.
Pruitt's EPA Turns to ‘Lean Manufacturing’ to Speed Up Reviews
Dec 19, 2017 | BNA Daily Environment Report
By Eric Roston and John Lippert

President Donald Trump's bid to speed up regulatory approvals is relying on a “lean manufacturing” approach inspired by Toyota Motor Corp.
Bigger But Slimmer
Dec 19, 2017 | Chemistry World
By Rebecca Trager

Economic and political pressure is encouraging industry to become more specialised as certain sectors consolidate

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

Chemical Management News

Your Furnishings Could Be Causing Indoor Air Pollution
Dec 19, 2017 | The Washington Post
By Elisabeth Leamy

We feel safe in our homes, but that can be a false sense of security. The threat I’m talking about is something we can’t see: indoor air pollution.
Northrop Grumman Hazmat Class Claims Stay Federal
Dec 19, 2017 | BNA Daily Environment Report
By Steven M. Sellers

A would-be class action against Northrop Grumman Corp. over hazardous waste pollution should be litigated in federal, not state, courts because the complaint was amended solely to defeat federal jurisdiction, the Eastern District of New York ruled Dec. 15.
Australia, EU, Brazil Making Moves in 2018 on Chemical Regulation
Dec 19, 2017 | BNA Daily Environment Report
By Adam Allington

Here are some major developments on the global chemical front we'll be watching in 2018:
Echa and Aviation Safety Agency Sign Cooperation Agreement
Dec 19, 2017 | Chemical Watch

Echa and the European Aviation Safety Agency (Easa) have signed a memorandum of cooperation. This, they say, will help to ensure the best use of available resources by "avoiding any duplication of efforts and overlapping activities".

Energy News

Trump Plan Stresses 'Energy Dominance,' Infrastructure
Dec 18, 2017 | E&E News PM
By Nick Sobczyk

President Trump laid out a starkly nationalist vision of American defense policy today, as he unveiled a National Security Strategy that emphasizes "energy dominance" and fossil fuel development.
Tellurian Planning Two More NatGas Systems to Move Permian, Haynesville Supply to Gulf Coast
Dec 18, 2017 | Natural Gas Intelligence
By Carolyn Davis

Houston-based Tellurian Inc. said Monday it is developing a three-pipeline attack to expand natural gas supply alternatives in southwestern Louisiana that would not only give its Haynesville Shale production more access, but also link to a massive export project in the works.

Chemical Security News

Blackout Nightmare at Atlanta Airport Shows Grid Vulnerability
Dec 19, 2017 | BNA Daily Environment Report
By Mark Chediak

A sudden power failure at the world's busiest airport that stranded thousands of passengers and snarled U.S. holiday air traffic underscores the vulnerability of the nation's grid.

Transportation and Infrastructure News

What Is Positive Train Control, And Could It Have Prevented The Amtrak Crash?
Dec 18, 2017 | CNN
By Madison Park

The Amtrak passenger train didn't have a safety technology called the positive train control activated at the time it derailed in Washington state, said Richard Anderson, the rail service's president and co-CEO.

Environment News

Trump Team Signals Replacement Rule
Dec 18, 2017 | E&E News PM
By Robin Bravender and Niina Heikkinen

The Trump administration today released the most comprehensive look to date on its plans to replace President Obama's signature climate change rule.
CPP Replacement Plan Launches Debate On State Flexibility, NSR Overhaul
Dec 19, 2017 | Inside EPA
By Doug Obey and Lee Logan

EPA's advance notice of proposed rulemaking (ANPRM) seeking input on a narrow replacement for the Obama-era Clean Power Plan (CPP) tees up discussion of a rule limiting greenhouse gas cuts to those obtainable from plant efficiency improvements, while suggesting the agency might give states maximum flexibility to limit requirements, including whether any federal standards are “binding.”
States, Environmentalists Cite EPA Agenda To Fault Ozone Delay
Dec 18, 2017 | Inside EPA

States and environmentalists who continue to sue the agency over its delay designating areas attainment with ozone national ambient air quality standards (NAAQS) -- even though the measure has been withdrawn -- are citing statements in the agency's just-released regulatory agenda for the coming year to rebut EPA's claim that the litigation is moot.
EPA Sued Over Texas Air Pollution Trading Program
Dec 19, 2017 | BNA Daily Environment Report
By Nushin Huq

Environmental groups asked a federal appeals court to review the EPA's final plan to reduce visibility-impairing air pollution in Texas, where the state has a trading program for utility emissions.
Trump Critics Cite Regulatory Agenda To Keep Ozone Suit Alive
Dec 18, 2017 | E&E News PM
By Sean Reilly

Some oddly worded language in U.S. EPA's semiannual rulemaking agenda has quickly become grist for a previously filed legal challenge to the agency's delay in making all attainment designations for its 2015 ground-level ozone standard.
EPA Seeks Long-Term Hold On Suit Over Ark. Haze Plan
Dec 18, 2017 | E&E News PM
By Sean Reilly

U.S. EPA attorneys are citing a newly signed deal with Arkansas regulators as grounds for putting a long-term freeze on litigation surrounding an Obama-era haze reduction plan.
EPA Eyes Dropping Ozone Guide In Face Of Oil & Gas Industry Criticism
Dec 18, 2017 | Inside EPA
By Dave Reynolds

EPA is seeking White House approval of a proposal to withdraw Obama-era guidelines states use for reducing ozone-forming emissions from the oil and gas industry in areas out of attainment with the agency's ambient air quality standards for the pollutant, after the sector attacked the guidelines as an unnecessary extra layer of regulation.

Industry and Association News

(ACC Mentioned) The Bomb That Went Off Twice

Dec 19, 2017 | Propublica

By Abrahm Lustgarten

IT WAS A SECRET wartime project, with a code name and an urgent mission: develop a more powerful bomb, one that could be mass produced in time to fend off the German forces ravaging Europe. It was 1940.
British chemists toiled with a tripod-shaped bond of nitrogen and oxygen molecules linked by carbon and hydrogen they referred to as “research department explosive” — a substance one and a half times as powerful as TNT, but so delicate it had to be mixed with beeswax to be stable and pliable enough to fit into warheads. Even then, it wasn’t good enough. Only 70 tons could be made in a week. Defeating the Nazis would require more.
In 1941, American chemists accomplished what their British counterparts could not. John Sheehan and Werner Bachman, University of Michigan researchers, worked with a team of government scientists to invent a new chemical process that made it possible to manufacture what Sheehan described as “super-explosives.” Best, enormous quantities could be churned out quickly — 500 tons a day, an assembly line for destructive might.
The Americans called the new formula RDX, and it transformed weapons overnight. RDX enabled the bazooka — the world’s first hand-held anti-tank rocket launcher — to pierce armor. RDX was packed into 10,000-pound underwater bombs dropped by British airplanes to blow up German river dams and disrupt the country’s hydropower in the critical Dambuster campaign. It was even surreptitiously soaked into firewood that would later explode in the furnaces of German locomotives.
By many estimates, RDX was critical to victory in World War II. It also spawned the greatest period of military manufacturing — and perhaps the largest arsenal — in the history of the planet. For most of the last 74 years, a single industrial plant in rural Tennessee served as America’s RDX factory and it produced as much as 40 million pounds of white crystalline powder each month that fueled the vast carpet bombing of the Korean peninsula, and then later, America’s involvement in Vietnam.
RDX is “a mighty instrument,” Sheehan wrote, “that may well have transformed the nature of modern warfare.”
But RDX, a powerful triumph of military ingenuity, has had an unwanted second life — as an unusually persistent pollutant poisoning the American homeland.
At bomb-making plants and ordnance testing ranges across the United States, RDX has spread into the soil and contaminated water supplies. The first signs of trouble emerged at Army bomb-packing plants in Tennessee, and then near Grand Island, Nebraska, where drinking water aquifers were found to be contaminated with the explosive. By 1990, the U.S. Environmental Protection Agency had designated RDX a possible human carcinogen. Near Salt Lake City, people who grew their food with RDX-contaminated water alleged it caused their cancers. Then RDX damage was identified in Virginia, California, and even on one of the East Coast’s iconic vacation destinations, Cape Cod.
The Pentagon nonetheless never stopped manufacturing with RDX or test-firing the weapons made with it on U.S. soil. As a result, the number of bases — and their surrounding communities — that face environmental threats from RDX has only continued to grow. In 2013, for example, residents near Fort Jackson in Columbia, South Carolina, who live near a U.S. Army grenade range where more than half the Army’s soldiers train, were told the Army had found RDX in their drinking water wells. In 2015, the Department of Defense settled a lawsuit after contamination was found in public drinking water 143 miles downstream from the Army’s RDX manufacturing facility in Kingsport, Tennessee. According to the court complaint, the plant was dumping more than 68 pounds of pure RDX directly into the nearby Holston River each day. And just this summer, high levels of RDX were identified in the groundwater on the site of an old missile factory near Los Angeles that was supposed to have already been cleaned up.
In all, previously unreleased federal EPA and Defense Department data obtained by ProPublica shows there is RDX contamination at more than 65 military installations across the country.
Harry Craig, one of the EPA’s foremost authorities on explosives and Defense site cleanups, said RDX was the “number one” challenge facing the EPA’s office of federal facility enforcement. Worse, he said, was the fact that all these years later the scope of the dangers posed by RDX was still “not fully recognized.”
From the first reports of RDX contamination on American soil, the Pentagon has either ignored or actively sought to discount RDX’s threat to public health and the environment, according to ProPublica’s review of thousands of pages of EPA and Pentagon documents and the accounts of more than 23 current and former officials and lawmakers. When confronted with evidence of the risk posed by RDX, the Pentagon tried to get its bases exempted from almost any kind of environmental oversight, Congressional records, transcripts and Pentagon documents show. When that failed, the Department of Defense financed an array of studies that minimize evidence of RDX’s potential to cause cancer and other health problems, and then pressed the EPA to relax its classification of RDX’s cancer threat — and the environmental cleanup standards that are recommended along with it, Pentagon and EPA records show.
“Where they believe their core interests are threatened, they become quite adversarial,” said Robert Sussman, who was senior policy counsel to the EPA in the Obama administration. “The chain of command is behind them and they are able to bring to bear a lot of pressure within the government.”
ProPublica’s broader investigation of the Pentagon’s handling of its environmental liabilities makes clear that denial and avoidance are key elements of a playbook its officials have employed for decades. The Pentagon, for instance, has continued to dispose of munitions with open burning, insisting it is necessary and safe long after other countries abandoned the practice in favor of cleaner methods. And the Pentagon routinely hires private contractors to handle its toxic cleanups, looking the other way or claiming not to be liable when those companies have proven to be incompetent or corrupt.
With RDX, the Pentagon’s long and bitter behind-the-scenes combat with the EPA endures to this day. In 2013, the EPA appeared ready to declare RDX not just a possible, but a “likely” carcinogen, an outcome that would have costly and complex implications for the Pentagon. The Pentagon’s existing obligations to address thousands of contaminated installations are already daunting, with costs that could top $70 billion. If EPA officials were to decide that RDX “likely” causes cancer, it could lead to new regulations and demands for more thorough cleanups, adding significant costs. Some military officials have said those additional costs — several cleanups have cost $1 billion — could cut into spending on weapons and soldiers.
And so over the last four years, the Pentagon has campaigned heavily against any upgrading of RDX’s cancer risk.
The effort appears on the verge of a striking victory — not only avoiding any upgrade of RDX’s cancer risk, but actually leading the EPA to downgrade its estimate of RDX’s cancer potency.
Ronald Melnick, a former senior toxicologist at the National Institutes of Health, has been observing the EPA’s scientific review of RDX and submitted comments to the agency. Melnick said he believes the pressure exerted by the Pentagon through comments and presentations, and the RDX research it has recently funded, have prompted the EPA to reverse a long-held position justified by the scientific findings over decades.
“I was surprised and shocked,” Melnick said about the EPA’s latest assessment.
In an emailed response to questions, the EPA rejected Melnick’s suggestion. “No individual, agency, or stakeholder group has had undue influence in the development of the peer review draft,” a spokesperson wrote, referring to the agency’s chemical assessment process.
In interviews and in emailed questions, four Pentagon officials also said that they believed the Defense Department has acted in good faith. The Army’s director of toxicology, Mark Johnson, rejected assertions that the Army’s research has been motivated by anything other than advancing the science. And Lucian Niemeyer, the assistant secretary of defense for energy, installations, and environment, said in a statement that “the Department of Defense is committed to meeting environmental cleanup requirements while protecting human health, safety and the environment.”
ProPublica’s examination of the battle over RDX lays bare an enduring predicament: The military’s role in protecting America comes at the price of being one of the nation’s most prolific polluters.
“As long as we fight wars and we send men and women into combat, we have an obligation to them and to the country to train them realistically. And one of the costs of that training is to create some environmental damage,” said Alberto Mora, a former general counsel for the Navy, and now a senior fellow at the Harvard Kennedy School of Government. “I always felt this was a tradeoff that the country needed to make and would want to make.”
Few Americans, though, have any idea such a bargain was ever struck.
THE U.S. ARMY BEGAN to grasp that its use of RDX could cause enormous problems when it found explosives in the groundwater seeping underneath the fence line of the Cornhusker Army Ammunition Plant, eight miles outside the town of Grand Island, Nebraska.
Cornhusker was run by the Quaker Oats Ordnance Corp., a subsidiary of the cereal company, since it began operating in 1942. With so many American men fighting in Europe, women ordnance workers, or WOWs, built the bombs they dropped. They received crystalline RDX by the trainload, then stirred it in vats mixed with TNT and tamped it into the tops of 5-foot-tall bomb shells destined, as the local newspaper put it, “for Hitler.”
Explosives residue collected on the tables, floors and equipment, and on the workers’ clothing. The dust was hosed down and the clothing laundered before so much accumulated that the waste itself could explode. But wastewater, running in a frothy pink mixture that is a telling sign of the explosives, streamed uncontrolled from the plant’s processing units and was allowed to seep into soil or pool in large, unlined pits dug at some 58 sites across the 19-square-mile property. For more than 30 years, the plant operated this way, its production surging to produce mines and artillery shells for the fighting in Korea and Vietnam.
Then, in 1980, the Army tested the grounds at Cornhusker and found that RDX and other explosives had settled more deeply into the soils than had been understood, reaching the aquifer used for drinking water. The Army knew this was likely not isolated contamination. “Pink water” had been seen running from other Army plants that manufactured ordnance, in states from Tennessee to California. At the Iowa Army Ammunition Depot, residents reported seeing raccoons with dyed fur after the animals had waded in nearby reddened streams.
But if the Army was only starting to come to terms with the physical spread of RDX contamination, it had long known of the compound’s potential toxicity. Army documents show that as early as the 1970s, Pentagon medical experts suspected that RDX might cause cancer, and by 1979 the Army had begun experiments to test the long-term effects of RDX on mice and rats.
Still, even after detecting what the U.S. Centers for Disease Control staff later described in a 1992 report as “high concentrations” of explosives in central Nebraska’s groundwater, the Army kept its problem there quiet. After it idled weapons assembly at the plant in 1981, it continued to let laborers working for a private company that leased part of the property drink from a 4-inch pipe drawing well water at the site.
“All of us drank that water and washed in it, for years and years,” said Dennis Mudloff. He was in his late 20s when he first went to work at the plant in 1981, and he said he felt invincible. He worked around a warehouse called the “nitrate building” — for the explosives that were once processed there.
“We slurped it all day long,” he said of the water.
When the Grand Island newspaper wrote about contamination problems at the base in 1982, the Army minimized the threat and said it could take more than a century for the pollution to reach the city of Grand Island.
But what the Army was learning about RDX was more ominous. RDX, it turned out, does not dissolve in water, quickly degrade underground, or cling to soil particles that can keep it in place and limit its spread. Instead of becoming diluted over distance — like many other pollutants — it remains concentrated, and then travels quickly.
“It’s widely used, persistent, and mobile,” said the EPA’s Craig. “It doesn’t go away.”
By 1983, the Army’s monitoring of wells at Cornhusker showed that a plume of pollution containing RDX was already stretching over some four square miles from the nitrate building, and like a blot of ink spreading on wet paper, it was bearing down on the 35,000 people who lived in Grand Island at the pace of 827 feet each year.
The Army’s medical researchers had come up with their own estimate for how much RDX might be safe for people, and by 1985 their testing showed that water in more than 236 homes near Grand Island contained as much as three times that limit. The Army quickly agreed to build out Grand Island’s municipal drinking water system, taking hundreds of private wells tapped into the aquifer off line. Residents who lived out of reach of city water were advised to drink bottled water.
For the EPA, warning people away from poisoned water sources wasn’t enough.
The agency, formed in 1970, had struggled in its early years to enforce brand new statutes and regulations meant to protect public health and the environment. But by 1985, the EPA had grown muscles, and was newly empowered with a broad array of enforcement powers — hazardous waste laws, the Safe Drinking Water Act, the Clean Water Act and more. It didn’t take long for the EPA to realize the military’s role as environmental offender.
The Pentagon, the agency learned, was responsible for legions of disastrously contaminated sites across the country, sites that by sheer number would soon dwarf the liabilities of any other single entity. There were the artillery testing grounds, packed with unexploded ordnance; the chemical weapons ranges; and the rocket fuel and airplane sites, saturated with solvents and fire retardants. The damage at the sites was so serious that in 1984 the EPA amended the rules of its Superfund cleanup program — the powerful 1980 law that allows federal authorities to take jurisdiction over the highest-priority contamination sites in the country and mandate their cleanup — to include military sites. Then it listed 36 of them.
The emboldened EPA added Cornhusker’s RDX groundwater plume to its list of federal Superfund sites in 1987.
RDX’s threat as a powerful neurotoxin affecting brain and nervous system development was at the same time becoming better understood. American troops in Vietnam had experienced epileptic fits when they ate C-4 explosives containing RDX as a sort of gruesome initiation rite. A Chinese medical journal reported that a person who accidentally ate RDX had died. Then five RDX factory workers in Tennessee also succumbed to seizures after being exposed to high levels of RDX in dust. And in 1986, researchers in Arkansas reported on a 3-year-old child who had violent seizures after he was exposed to RDX on his mother’s work boots.
But it was the experiments the Army had begun to conduct on mammals in 1979 in a medical research lab at Fort Detrick, Maryland, that raised the strongest warnings about what long-term exposure to the explosives could mean. That year, the Pentagon had toxicologists feed high doses of RDX to rats and mice. Then they watched the animals’ response over a period of two years.
This type of research had rarely been done and it posed a question that had no simple answer: How much RDX exposure was too much? Given the potential enforcement powers of the EPA, and the severity of the pollution, “they needed to establish permissible levels in drinking water,” one of the studies’ authors, Barry Levine, said later in a court deposition.
The Army experimented on 850 animals. Of the mice receiving larger doses, roughly half died — so many that researchers lowered the maximum dosage midway through the test. Before they died, as the dosage increased, the RDX made the rats and mice agitated and aggressive, so much so that it became difficult for researchers to differentiate between the lesions — on genitals, eyes and organs — caused by RDX poisoning and those resulting from fighting in the cages. The hearts of the animals became enlarged, and their eyes grew discolored, then opaque.
But it was the response among the female mice that drew the most concern. Of the animals receiving moderate to heavy doses of RDX, one in six had grown tumors on their livers, roughly half of which were malignant — a “statistically significant” and worrisome sign that RDX could mutate genes and cause cancer in people. There was also evidence that both male and female mice developed carcinomas — cancerous tumors — in their lungs.
The studies were never peer reviewed or published. But after the Army shared its final reports with the EPA in 1984, work described as “the gold standard of research” by one EPA scientist, the agency intensified its oversight of explosives pollution.
In 1990, the EPA classified RDX as a “possible human carcinogen,” a formal warning that a contaminant is potentially dangerous and deserves more study. It also revised its suggested limits for how much RDX was safe in water, determining that the level the Army had applied at Cornhusker was 17 times too lenient. Instead, the EPA suggested that only two parts per billion of RDX was safe, giving it a danger score stricter than other deadly pollutants, including benzene and the herbicide atrazine.
Residents of Grand Island believe the growing awareness about RDX came too late. Mudloff began experiencing health symptoms his doctors could not explain. First, he became chronically fatigued. Hanging Christmas lights would lead him to wheeze. Then even minor math — addition and subtraction — proved difficult.
“My mind was getting worse. I could not think,” Mudloff said. Even the Mayo Clinic, which he visited in 2008, was stumped. Then a neurologist diagnosed myoclonus, a spasmodic, jerky contraction of muscles that has forced him to walk with a cane. Still, the diagnosis could not account for what was happening to his brain, or the sluggishness of the muscles in his tongue, which makes him speak as if he’s had a stroke. Mudloff’s doctor blamed his illness on his exposure to military explosives including RDX.
Mudloff’s former co-workers and neighbors, he said, have fared worse. One by one, he said, the men he worked with in the 1980s took disability, suffering from exhaustion and odd mental degradation. One died of kidney cancer, another of lymphoma. These illnesses were never tied to RDX or any other pollution — no one investigated them. But they put the town on edge.
The Agency for Toxic Substances and Disease Registry, a division of the CDC, came to Grand Island to examine widespread reports of illness across the city. It couldn’t pin health effects directly to RDX. The agency’s report was inconclusive about the ways people were exposed, and ambiguous about when and for how long.
But the agency did declare that the pollution posed a serious health threat and made public a new element of the threat: The explosives were likely making their way to people not only via local water supplies, but through meat, fish and produce.
ABOUT AN HOUR SOUTH of Salt Lake City, the Wasatch Mountains transition from rugged peaks to a sloping field of sediment, forming a fertile plain outside the small city of Mapleton, Utah.
There, in the mid-1990s, Marilyn Petersen was planting a garden of squash and beans and tomatoes. Petersen was a member of Mapleton’s city council, and would later become its mayor. At home, she was an avid gardener, tending a large plot outside her stately brick, nine-bedroom ranch home on a quaint country lane lined with aspens and pearly white fences. The neighborhood was wealthy — full of estates with swimming pools and stables and dazzling mountain views. But many of the residents shared a more humble practice: They grew their own food.
Neither Petersen nor her neighbors knew what RDX was at the time. Nor did she know that for the 15 years since she had purchased her home, the water she drank and used to irrigate her plants contained enormous amounts of it — far more of it than was considered safe.
Where the Spanish Fork Canyon spills into the Utah Valley, a short ways south of Petersen’s property, the Trojan explosives plant had been either manufacturing or recycling bomb material since the 1940s. Its latest owner — Connecticut-based Ensign-Bickford — was the recipient of more than 1,600 contracts with the Department of Defense, worth hundreds of millions of dollars.
For at least 20 years — and probably for decades longer — the Trojan plant discharged its waste, including pure RDX, pink water and nitric acid, into ponds and an unlined ditch running downhill from the plant. Near the facility’s outfall, an irrigation canal cuts north along the foothills, using gravity to route Spanish Fork river water north past Mapleton so the river can be tapped by farmers throughout the valley. The water carried RDX, and other chemical compounds associated with or derived from it, toward Mapleton and into the groundwater aquifer beneath Petersen’s property, according to plaintiff’s experts in a lawsuit neighbors filed against Ensign-Bickford.
Petersen began eating vegetables grown on farmlands that had been flood irrigated with water from the ditch in 1980, and drilled a new well into the polluted aquifer in 1983. In 1984, at the age of 41, she was found to have stage IV non-Hodgkin’s lymphoma, a cancer of the immune system.
Soon after, three of her neighbors received the same diagnosis. There was Charles Bates, who lived a block south, and Howard Ruff, a nationally known investor who had advised Presidents Carter and Reagan, who lived six blocks to the east, and Glenn Allman, a Brigham Young University professor, who lived two miles north. A similar cancer that affects white blood cells was diagnosed in Cherie Hunt, who lived two blocks southeast, and 17-year-old Stacy Broadbent, two blocks to the southwest, was found to have lymphoblastic leukemia. Besides being members of the same privileged community, they all grew their own food and they all lived less than 1,500 feet from the irrigation ditch.
For 13 years, Petersen fought her cancer, charging through rounds of chemotherapy and enjoying brief respites of remission only to see her illness rage back. The suspicion that the Trojan explosives plant might be to blame emerged over time. Anecdotally, cancer in the area seemed to be on the rise. The Trojan plant itself had had a reputation for problems — explosions, a deadly accident and a large spill in 1986 that made the local newspaper.
Then, in August 1997, Petersen received a letter from Kendall Robins, Ensign-Bickford’s manager at the Trojan plant, explaining that the company had found significant levels of RDX in the local aquifer. “Please don’t be alarmed,” Robins wrote, assuring her that the levels detected were safe. But if “you use the water from your well for culinary purposes, we ask you to contact us immediately.”
Petersen and the five other families ultimately sued Ensign-Bickford — filing two separate cases — in federal court, blaming the company for their cancers. In the years before the cases were settled, extensive and acrimonious court proceedings hashed out the most thorough investigation into the chemistry and dangers of RDX ever completed. The records from Petersen’s case — including her account, internal Ensign-Bickford documents, and extensive expert testimony — provide a rare window not just into what happened in Utah, but the possible liabilities the Pentagon faced at RDX-contaminated sites elsewhere.
It turns out that Ensign-Bickford, and the companies that operated the Trojan plant before it, were well aware that they had caused extensive groundwater pollution years before they told Marilyn Petersen, and before she ever drew a sip or sprinkled a drop from her well.
As early as 1979, company documents show, Mallinckrodt, the company that operated the plant before Ensign-Bickford acquired it, had detected nitrate contamination related to explosives in water wells offsite. In 1980, after reports of more waste being dumped into ditches and leaking from unlined pits, an EPA official stated that the contaminants that leaked could be expected to contain explosives. By 1981, the company was theorizing that the contaminants were seeping through the ground and into the irrigation ditch.
“I regularly saw the waste water from that operation leave the production building and flow in a downhill ditch,” Lawrence Bradshaw, who worked with RDX production at the plant for 19 years, said in testimony. Bradshaw described poor maintenance and constantly overflowing equipment. “The waste water … contained RDX waste and TNT waste. … It was red in color.”
Then, in 1986, the liner for a 45,000-square-foot, 12-foot-deep waste pond of nitric acid ruptured, sending hundreds of thousands of gallons of acid and other contaminants from the production of the explosives into the soil and the ditch nearby. After the spill, Ensign-Bickford tested the water in its monitoring wells and detected RDX at 10,700 parts per billion — some of the highest levels ever recorded in the environment and about 5,000 times what the EPA thought was safe. A few years later, a consultant hired by the company warned its executives that the contaminants could be consumed through irrigated vegetables.
None of this was disclosed to Petersen or the other residents of Mapleton, who continued to water their fields and drink from their wells.
Instead, the company continued to quietly study its problem, and strategize about ways to minimize the fallout. Ensign-Bickford hired consultants who outlined the enormous liability the company could face, and the “negative publicity” it would undoubtedly endure depending on how the contamination was made public. “A serious threat exists to the long-term water supply of the city of Mapleton,” read handwritten meeting notes from the Trojan Corp., which Ensign-Bickford owned, dated 1990. The notes said Mapleton would be forced to shut its groundwater wells and could lose a significant portion of its water supply, leading to “media attention, increased pressure from regulatory agencies and potential lawsuits.”
“Trojan Corporation,” the notes state, “faces implication as the probable cause.”
By 1994, the company had tested and documented the existence of RDX in the private wells of Petersen and Ruff, having collected samples under the guise of routine water monitoring, but it still hadn’t informed them of the results, according to the plaintiffs’ statements. (In some documents Ensign-Bickford denies it documented unsafe levels of RDX. The company did not respond to requests for comment.) Trojan was able to keep the contamination secret in part because the EPA’s guidelines for RDX concentrations in drinking water were not a legal, enforceable limit. The agency had never specifically formalized regulation of RDX, and so the pollution was not in violation of the law.
As evident as Ensign-Bickford’s cover-up was, however, Petersen and the other plaintiff families still had to prove that the explosives had made them sick. Petersen’s lawyers built their case not on RDX itself, but by focusing on the chemistry that results as RDX degrades in the ground, and how those unusual compounds are then absorbed into plants consumed as food.
What they found casts new light on the nation’s RDX problem, suggesting that even as RDX fades away, the chemicals in it will remain lethal, perhaps becoming even more so as they break down.
In 1999, the plaintiffs hired a professor specializing in microbiology and epidemiology from the University of Nebraska Medical Center to examine how RDX might be connected to the specific types of cancers found in Mapleton. For years, the doctor, Dennis Weisenburger, had studied how non-Hodgkin’s lymphoma develops and how environmental exposures may play a role in it.
Weisenburger examined the chemical breakdown of RDX into groups including what are called hydrazines, and another called nitrosamine compounds. These descendant compounds can be more prevalent and more dangerous than the RDX itself, he warned. He noted that nitrosamines in particular are “some of the most potent carcinogens.” (Formaldehyde, another breakdown product, has since also been classified as carcinogenic.)
Hydrazines were already classified by the EPA as a “probable human carcinogen” based on animal studies. One related breakdown compound is so potent it has long been used to induce colon cancer in rodents for research purposes, often on the basis that a single dose will cause tumors. Another variation has been specifically linked to non-Hodgkin’s lymphoma in mice.
The nitrosamines — and their broader family of related compounds — are more difficult to analyze because there are many, and some are extremely dangerous. More than 300 varieties are believed to cause cancer, Weisenburger noted in his testimony. One type, for example, led to tumors in mice with a single minuscule dose of just one-tenth of a part per billion. The variations derived from RDX are not well studied, but based on his research and published papers, “one should assume that they have carcinogenic potential, until proven otherwise,” Weisenburger wrote.
Both nitrosamine derivatives and hydrazines were found in the water wells of Petersen and the others. And both types of compounds, Weisenburger noted, have been directly linked with the same type of non-Hodgkin’s lymphoma that befell the Mapleton residents.
Years earlier — as concerns about residents’ health mounted — Utah’s health department investigated a potential cancer cluster in Mapleton, but concluded that while leukemia cases appeared unusually common, they could not be linked to pollution from explosives. The agency found no apparent cluster of non-Hodgkin’s lymphoma. Weisenburger argued that the state had diluted the sample pool by including an area far away from the Ensign-Bickford plant, and that it had erroneously divided two types of lymphoma into separate categories when they should have been counted as one. He also found that Petersen and Ruff’s cases had not been counted in the study. When he combined the incidents of chronic lymphocytic leukemia and non-Hodgkin’s lymphoma and added in Petersen and her neighbor, the numbers were stark: Mapleton had twice as many cases of non-Hodgkin’s lymphoma and three times as many cases of leukemia as would have been expected.
Petersen’s legal team believed that she and her neighbors got their cancers by eating food grown with explosives-saturated water and by drinking that water. For years, researchers, including those working for the Pentagon, had been investigating the potential for plants to absorb RDX and other explosives, often with the goal of using those plants to remediate, or suck the contaminants out of polluted soils. That RDX and its chemical derivatives accumulated in plants and fish was well accepted.
“Plants need nitrogen for protein, just like we do,” said Terry McLendon, a former University of Texas professor of biology and an ecological risk assessor who has worked with the Department of Energy on contamination in plants at Los Alamos, and on other federal projects. “And RDX is a nitrogen-based substance.”
But accumulation in plants also meant that the vegetables concentrate the chemicals and amplify the exposure to anyone who eats them far beyond what it would have been if they’d simply swallowed polluted water. The question was how much did the chemicals accumulate, and how much had Mapleton residents consumed?
The group hired McLendon’s consulting company to find out, and the calculations he presented to the court were striking. Based on previous research, he calculated that a carrot grown with water containing the amount of RDX measured in Petersen’s well, for example, would have up to 286 times as much RDX in it as the water it was grown with. Spinach would contain 55 times as much RDX, the researchers found.
The chemicals are most concentrated in the roots and the leaves of plants. So tomatoes might be less of a risk than lettuce or potatoes. Petersen meticulously accounted for her home-grown diet over the years, calculating that she’d eaten at least one potato, on average, each day since she’d moved into her home, as well as thousands of beans, carrots, squash, cucumbers and more. McLendon calculated that she’d consumed more than 100 mg of pure RDX and its derivatives each year.
The defense team criticized Weisenburger’s and McLendon’s conclusions for making what it described as theoretical leaps beyond what could be proven. But before the case was settled in 2002, the arguments made in the Mapleton lawsuit were subjected to a special kind of scrutiny: The federal district court judge held a so-called Daubert hearing to evaluate the credentials of the experts and the scientific approach they took in offering their testimony. And after weeks of deliberation and an extensive review of the evidence, the judge validated the plaintiffs’ approach, ruling that their experts’ analysis that hydrazines and nitrosamine compounds were likely to cause non-Hodgkin’s lymphoma were valid, and that the methods used to quantify residents’ exposure were legitimate.
It takes significant evidence to meet that legal standard, said Laurie Ashton, the attorney who represented the Mapleton families. “You can’t just be a crank,” she said.
What appeared to be missing, though, was more conclusive research along the lines of the studies that Levine had done for the Army in 1984, a controlled experiment exposing live mice and rats to RDX doses. Levine, deposed in the Mapleton case, said the Pentagon was extremely unlikely to ever sponsor such a study again.
Ensign-Bickford’s settlement with the six families was for an undisclosed amount of money — Rodney Petersen, Marilyn’s husband, said their share amounted to $1.8 million — but the company did not acknowledge responsibility for any harm they experienced. Marilyn Petersen died of her illness in 2004. Glenn Allman, Charles Bates and Cherie Hunt died before the lawsuit was settled.
“We have seven kids and they were also exposed,” Rodney Petersen told ProPublica during a recent visit to his home near the Spanish Fork Canyon. “So the end of the story may not be written yet.”
CAPE COD IN MASSACHUSETTS depends on one large aquifer for the vast majority of its drinking water. That underground body of water is shaped like a lens, with a high point that approaches the surface at its peak. There, at its most vulnerable, it is separated from the grassy fields and thick woods of the western Cape by a relatively thin layer of porous sand.
Directly above this high point in the aquifer is the 14,000-acre target area of a vast firing range where Army National Guard troops have for decades launched ordnance and munitions, testing their power and precision on the training fields of the Massachusetts Military Reservation.
In the mid-1990s, the EPA discovered RDX in that single source of drinking water, a supply that supports more than 520,000 people during the Cape’s busiest summer months.
The roots of the Massachusetts Military Reservation — as the sprawling 21,000-acre military bases of Camp Edwards and Otis Airfield were called — date back to 1911, when the Cape was remote and far less inhabited.
Now known as Joint Base Cape Cod, the bases have served as critical training grounds for the Pentagon since World War II. The southern half has been overseen by the Air Force, which ran an experimental aeronautical missile program there in the 1960s and classified nuclear missile preparations in the 1970s. Meanwhile, the Army has long used the ranges of the northern base for artillery practice.
The bases also have had confusing lines of ownership and authority. They were once federal land, then were transferred to the state for its National Guard, but with portions, including the test ranges, leased back by the Army. That, in turn, muddled the question of which jurisdiction’s environmental laws apply and who enforces them.
“The net result is an atmosphere in which no one knows who is in charge,” Lt. Col. William FitzPatrick wrote in an analysis for the Army Environmental Policy Institute in 2001.
Serious environmental problems had been a concern at the bases prior to the EPA’s RDX finding. Otis Airfield was declared a Superfund site in 1989. And for decades the people of Cape Cod wondered which environmental blight — from pesticides to smog — might be responsible for high rates of cancers there. In 1991, the Boston University School of Public Health even noted the risk of air pollution around Camp Edwards’ bombing ranges, finding that lung and breast cancers near there were unusually common.
The prospect that the Army’s firing ranges were contaminating the drinking water posed a new problem, one with significant implications. Not only were far more people at risk than in any of the other known cases of RDX groundwater contamination, but in Massachusetts, RDX couldn’t be written off as coming from messy, outdated practices at the nation’s weapons manufacturing sites. It appeared to be coming from active training that was still underway.
One thing stood in the way of the EPA finding out for sure: Because of the continuing Superfund cleanup at Otis Airfield, the EPA and the Army had already legally agreed to the boundaries of the cleanup area long ago, as the law requires. Camp Edwards’ firing ranges and the new RDX contamination lay outside that cleanup boundary. The Army refused to voluntarily expand the boundaries, arguing that the ranges were still active, and that an environmental investigation would interrupt training of troops. The RDX coming from active ranges could be subject to different environmental laws, but those wouldn’t apply until the firing ranges were closed — something EPA lawyers say the Army postponed even for areas that hadn’t seen action in decades — or until the contaminants seeped off the military’s land and actually began dripping out of people’s taps.
As a result, the Army had kept the EPA from testing on the northern part of the base’s ranges for years. And when confronted with mounting concerns about the RDX in groundwater there, the Army sought to keep it that way.
“They were using every argument in the book,” said one EPA official familiar with cleanup effort at Camp Edwards.
Such friction was hardly new. The Pentagon had for years argued that “sovereign immunity” clauses protected the military from prosecution and fines under environmental law. In the spring of 1992, the Supreme Court ruled on a similar argument by the Department of Energy, confirming that the Pentagon was correct; environmental agencies couldn’t fine it for past violations of hazardous waste statutes. The move took the teeth out of enforcement at both the federal and the state level, because without fines there were no consequences for refusing to clean up contaminated sites.
Congress ultimately responded a few months later with the 1992 Federal Facilities Compliance Act, restoring a large portion of the EPA’s oversight authority over federal agencies’ handling of hazardous waste. But it didn’t come easy.
“DOD fought it, for six years, over three Congresses,” said Richard Frandsen, who served as chief counsel for environment issues for the House Energy and Commerce Committee for more than 30 years. “We had all 50 attorneys general, Republican and Democrats, and we finally got it passed.”
Ever since, the relationship between the Pentagon and the EPA has remained uneasy, often dysfunctional.
In 1997, the EPA began pressing the Army to measure the amount of RDX and other contaminants in the groundwater near its firing ranges. EPA officials hoped to identify the source of the contamination and asked the Army to survey its grounds for unexploded munitions. According to an internal EPA document obtained by ProPublica, the “EPA received no meaningful response.”
The EPA didn’t have military expertise or much knowledge of the physics and chemistry of explosives; it depended on Pentagon officials for such information. In what EPA officials viewed as an effort to quell their concerns, the then head of the Department of Defense’s explosive safety board filed a technical memo with the agency promising that the risk of contamination from unexploded munitions was “virtually zero.” The memo said that unexploded shells lying in the ground don’t leak or break, that they are essentially secure “museum quality” vaults of metal. For a short time, the document convinced EPA senior managers that the RDX must have come from a different source, and the agency relaxed its order.
But soon after, EPA lawyers came to believe that the Army had deceived them. Another Army weapons expert told the EPA that the Army had been studying the fate of buried munitions and knew at the time the memo was prepared that unexploded ordnance in fact does break down and ultimately leak its contaminants.
“They knew it was false,” said William Frank, a senior EPA attorney who worked in enforcement over Department of Defense facilities, including at Camp Edwards, for 25 years before his retirement. The technical memo “was given to EPA to influence its implementation and oversight in an enforcement matter,” Frank said. A short while later, Army officials would discover a large quantity of “extremely corroded” ordnance that included a rotten, rusted 155 mm shell on the Massachusetts fields with a hole worn through and raw RDX exposed to the open air.
To federal environmental officials — and even some defense experts — the Pentagon’s efforts at deception and delay seemed to reflect concern over the broader, national implications of the pollution. If RDX was indeed spreading in the water beneath a test bombing range, it meant the scope of the Pentagon’s RDX liabilities across the country could be monumentally larger than previously thought. Munitions containing RDX had been fired on ranges at thousands of American military sites; at many of those sites old unexploded munitions were still strewn across the land, slowly degrading over time.
“They don’t want to get stuck with the bill,” said Rick Stauber, a leading munitions expert who has worked under contract with the Army to identify unexploded ordnance for most of the last three decades, including in Massachusetts.
A few months later the EPA issued a second order forcing the Army to suspend its live-fire exercises while it investigated the groundwater plume. The agency’s regional administrator at the time, John DeVillars, announced in May 1997 that the RDX pollution in the Cape’s aquifer was an “imminent and substantial endangerment” to the public, an unusual declaration that gave the EPA jurisdiction under the Safe Drinking Water Act, and the emergency authority to stop dangerous pollution still taking place, regardless of its nature or cause.
DeVillars didn’t mind taking on an interagency battle and was of the mind that “the bigger the opponent, the bigger the fight,” according to colleagues.
His move outraged Pentagon officials, who felt the EPA had overstepped its bounds. Generals and high-ranking EPA officials, including the agency’s assistant administrator, convened in a Pentagon conference room in Arlington to hear the Army’s pleas. But in the end, the EPA upheld DeVillars’ “imminent endangerment” order.
The issue had by then escalated beyond environmental concerns. With the interruption of Army National Guard training, the core missions of the Defense Department and the EPA were colliding. The Army asserted that any restrictions on training would endanger soldiers and compromise national security. If the EPA could disrupt training for environmental reasons in Massachusetts, it could interfere with the Pentagon’s mission anywhere on U.S. soil.
“There was zero trust, and it was because of what I was wearing, the camouflage,” said Lt. Col. Joseph Knott, who ran the Army’s cleanup at Cape Cod once it was underway. “The military is like, ‘We’ve got to train our soldiers so when they go fight, they come home.’ That seems pretty obvious.”
From the EPA’s perspective, the spread of RDX directly threatened the health of the very Americans the Army was fighting to protect overseas.
“They felt like EPA was encroaching on their mission of protecting the country,” said one senior EPA official with knowledge of the clash. “We felt our mission was more important than their mission.”
The environmental testing the EPA had pressed for, in the meantime, had yielded the results the agency had most feared. Nineteen separate groundwater plumes emanated from 10 distinct ordnance targets or gun positions on Camp Edwards, spanning much of the 14,000 acres. RDX levels were as high as 43,000 parts per billion in the soil, 21,000 times greater than the EPA’s advised lifetime human health exposure threshold and four times the highest levels ever detected near Mapleton, Utah. Perchlorate, a rocket fuel, as well as lead, cadmium and other significant explosives such as TNT, nitroglycerin and HMX — a byproduct explosive of RDX — were also spreading from the target ranges.
In firing munitions, as many as one in five fail to detonate, and the EPA believed that a significant amount of the contamination was coming from unexploded bombs that eventually leaked their contents. EPA scientists were tracking the plumes as they moved from the base. The drinking water in towns including Mashpee, Bourne, even one day Barnstable were all at risk.
Still, according to internal EPA legal documents, the Army National Guard “was unwilling” to clean up the contamination. The disagreement boiled down to a matter of perception of risk, since the contamination, at the time, remained within the bounds of Camp Edwards.
The resistance was based on concerns that bowing to EPA authority would set a precedent for interrupting military training at sites across the country, as well as fears about what cleaning up the groundwater beneath a site like Camp Edwards might cost, according to several military officials and contractors familiar with the confrontation. A cleanup would be a decades-long process, involving scraping millions of tons of soil off the land, and then pumping water from underground, treating it, and reinjecting it into the aquifer.
Every year, the Pentagon gets $3 billion to $4 billion in funding from Congress to support its environmental work. But that money is specifically targeted for work under the Superfund and hazardous waste laws designated by the Federal Facilities Compliance Act of 1992. When the EPA declared Cape Cod’s water problem an “imminent and substantial endangerment” under the Safe Drinking Water Act, it triggered an entirely different form of response, one that had to be paid for directly out of the base’s operations budget. Cleanup funds were scraped together out of monies meant for the bases’ water and fire services, power generation and maintenance. “Some of these other pieces of the pie were going to get cut back to put the cleanup on steroids,” Knott said.
In early 2000, the EPA issued its most substantial demands in a third order, laying out a specific plan for cleaning up the sites. It involved gathering and then safely disposing of unexploded munitions material, and gradually treating contaminated groundwater to reduce the size of the plumes. Though that cleanup has since progressed with the Army’s cooperation and has slowed the spread of contaminants, RDX ultimately made its way into public groundwater beyond the base’s boundaries in 2010. In 2011 the Army announced a plan to scrub the aquifer, systematically pumping that groundwater up, treating it, and injecting it back underground until the RDX and other military-related contaminants are nearly gone. That process continues today.
The Pentagon lost its battle with the EPA at the Massachusetts Military Reservation. But it came away with a renewed commitment to fend off liability for RDX contamination.
In a speech delivered at an explosives safety seminar in 2000, the Army’s then deputy assistant secretary for the environment, Raymond Fatz, said that at least 20 other military bombing ranges in the U.S. lay directly over sole-source drinking water aquifers, just like on Cape Cod, and warned that because RDX would be so prevalent at these sites, “this has the potential of being a huge problem.”
Pentagon officials feared that if it continued to be held liable under federal environmental regulations, its cleanup costs could bankrupt the Defense Department’s environmental programs, according to the accounts of several lawyers and environmental contractors who have worked with the Pentagon. A typical DOD cleanup cost around $15 million to $22 million. The cleanup at the Massachusetts Military Reservation alone — which continues today — will wind up costing the Pentagon nearly $1 billion.
The military’s budget, though huge, was not infinite and Pentagon officials also worried that protecting the environment would get in the way of training and protecting troops.
“The only other option they had was to go to Congress and try to change the statute,” said Frank.
And that is what the Pentagon did.
As the U.S. went to war in Iraq in 2003, top Pentagon officials saw a political climate that might yield the ultimate reprieve. Defense Secretary Donald Rumsfeld, with a small group of Pentagon lawyers, argued that in order to preserve “readiness” for the fight against terrorism, the Pentagon would need to be freed once and for all from EPA oversight. One of the nation’s largest polluters should be allowed to operate largely outside of the scope of the law, especially, the Pentagon’s lawyers noted, when it came to pollution from explosive chemicals, which included RDX.
“There were those in the department who thought that this was a great opportunity to try to remove environmental impediments,” said Robert Taylor, a former general counsel to the Department of Defense who describes himself as a reluctant architect of the strategy.
The Pentagon proposed amendments to six of the nation’s most important environmental laws that would largely exempt Defense Department lands with ongoing operations from regulation: the Comprehensive Environmental Response, Compensation and Liability Act, or Superfund; the Resource Conservation and Recovery Act, which governs hazardous waste; the Clean Air Act; the Marine Mammal Protection Act; the Migratory Bird Treaty Act; and the Endangered Species Act. The Pentagon negotiated over five specific pollutants, including RDX and perchlorate. The final language of the bill specifically named “munitions constituents,” which include all chemicals from explosives, as substances it sought to redefine as noncontaminants outside the scope of waste handling.
“It was stunning, what they were trying to do,” Frandsen said. “They were basically trying to take all enforcement away.”
The Pentagon argued that after the 9/11 attacks, environmental cleanups would come at the expense of the safety of U.S. forces in Iraq and Afghanistan.
“Preparing America’s military forces for battle,” Raymond DuBois, the deputy undersecretary of defense for installations and the environment, told a House energy and commerce subpanel in 2004, “is critical.”
Others were more hyperbolic, arguing that exemptions were necessary for the sake of “winning the war on terror,” and “protecting Americans from deliberate attacks that would kill millions of our fellow citizens,” as Rep. Christopher Cox, R-California, then chair of the Select Committee on Homeland Security, said.
But this strategy, too, largely failed.
Since exempting the Department of Defense from hazardous waste laws effectively would have transferred the cleanup burden to local businesses and municipalities attempting to turn old military lands into economically productive places, not even reliable Pentagon allies in Congress felt able to support such a step. There were more than 5,000 contaminated military installations and 900 Superfund sites linked to military operations nationwide — enough that almost all members of Congress had such sites in their districts. They rejected the Pentagon’s pursuit of exemptions from the major water and waste statutes.
John Dingell, the longtime Democratic congressman from Michigan who chaired the House committee on energy and commerce and the committee on investigations, and was ranking member during the exemption hearings, put it simply:
“Nowhere has a single set of legislative proposals had so much audacity — and so little merit.”
IN 2012, 22 years after it first issued a cancer warning for RDX, the EPA launched a toxicological review to re-examine the risk the chemical posed to people.
To health professionals observing the process, the agency seemed poised to strengthen its cancer warning for RDX. Using Barry Levine’s original study, the EPA had already calculated what it calls a cancer slope factor for RDX, an in-depth quantitative process that attempts to predict the specific dose of a chemical that will cause cancer and which is normally done only for a chemical already believed to pose a serious cancer threat.
In 1998, the agency had added RDX to a list of candidate contaminants for concern — a regulatory status that reflects a risk to public drinking water and is often a precursor to regulation. In 2008, it listed RDX among contaminants to be monitored by water utilities across the country. And as it released formal documents to begin its review in 2013, the EPA summarized its case for RDX’s cancer-causing properties starkly: In the best studies ever conducted, RDX was linked to two different types of cancer, in two sexes among two different species of animals. That checked every box in the agency’s formal criteria for classifying a toxin as a “likely” human carcinogen.
The EPA has a lengthy formal process for reviewing toxins, and it’s aimed at identifying which substances are dangerous to humans and how much people can be exposed to. First, EPA scientists assemble a dossier that includes a thorough assessment of published research, a literature review that can consider hundreds of papers, and a proposed methodology for weighing the evidence. Then those documents are made public, and agency officials incorporate the feedback as they write early internal drafts.
The EPA then shares a more developed draft with other federal agencies — in this case including the Department of Defense — and revises the document further based on their response. Only then is a version released to the public, and only then does an outside advisory committee of experts get to review the draft. The process is repeated, including public comment periods, with the outside scientists submitting criticism before the EPA issues its final assessment.
The Department of Defense told ProPublica that it had anticipated the EPA’s review long before it was launched. By the time the EPA released its initial dossier in 2013, the Pentagon had already funded a number of new scientific studies that raised and amplified doubts about whether RDX caused cancer, or posed any health threat. One of these studies was even paid for out of the very same Pentagon environmental cleanup program responsible for addressing some of the lands contaminated with RDX. These studies made up much of the new research the EPA considered.
One article argued that the models used in peer-reviewed papers to predict how much RDX persists in the organs of mice that ingest it were not reliable. Another showed that mice genes didn’t mutate after RDX exposure, suggesting cancer was a less likely threat.
“Looking at the merits of the science was absolutely something that the department felt that it should do to make sure that the science was well developed and objective,” said Taylor, the former Pentagon general counsel.
In 2006, Gunda Reddy, an Army Ph.D. toxicologist working at Aberdeen Proving Ground in Maryland, was part of a team that re-examined Levine’s original RDX study using the original data and samples. Reddy concluded that the increase in cancer Levine observed was less pronounced than previously thought. Reddy, who has published nearly 100 scientific papers, called the evidence of a cancer risk “equivocal.”
Separately, Reddy force-fed RDX to baby pigs to learn how they digested the explosive and then co-published a study that found that RDX had not accumulated in the pigs’ livers, prompting skepticism that it could cause tumors there. In 2011, a researcher from the Naval Medical Research Unit raised doubts about whether RDX was the cause of noncancerous prostate inflammation observed in rats. Though she, too, had merely reanalyzed old data, she concluded that RDX could be safely ingested by people in far higher doses than the EPA had suggested.
That these studies were funded by the Pentagon, which had a specific stake in how RDX was classified, did not make the research less trustworthy, EPA toxicologists and others involved in the review said. The EPA’s Craig points out the studies helped fill a void in overall knowledge about RDX’s effects — especially their noncancerous effects — and several were validated through peer review.
But scientists directly involved in the review process said the Pentagon shaped the outcome of its studies by the questions its researchers asked, or chose not to ask. The persistent focus of the Pentagon studies on uncertainties in existing research, their aversion to repeating the original rodent studies, and the consistent findings that RDX was less dangerous than previously thought, sparked skepticism.
“You can always get a burger your way,” said Frank, the former EPA federal facilities enforcement attorney. “The scientific process itself has been under attack by the Department of Defense for many years.”
Just as Levine predicted in his testimony in the Utah case, the Defense Department researchers never repeated the original graduated-dose study of RDX on mice to observe whether it caused malignant liver and lung tumors in higher numbers.
Reddy, for his part, wrote in a PowerPoint presentation he and two co-authors made about the EPA review for the Army Public Health Center that if the EPA didn’t loosen its RDX standards based on his research, “training and testing activities will be adversely affected, adversely affecting military readiness.” Furthermore, if “artificially low” environmental standards were set for RDX, “significant resources will be spent [on] cleanup costs associated with unnecessary remediation.”
Military assessments from scientists trained in toxicology, who are not supposed to have an interest in the outcome of their research, are “frankly, highly unusual,’’ said the EPA’s Craig. Reddy did not respond to a request for comment about his statements; it is unclear how he determined what effect changing RDX standards would have on military readiness.
In an emailed response to questions, Mark Johnson, director of toxicology for the Army Public Health Center at Aberdeen Proving Ground, said the notion that the Pentagon had tailored its research on RDX to sway the EPA’s review — or that it was part of an agency-wide campaign to avoid responsibility for RDX — was “simplistic’’ and incorrect.
“There has never been a strategy to manipulate RDX regulation by deciding not to do studies,” he wrote. “Our interest has always been to provide as much information as possible so that the best possible science can be used to reduce uncertainty associated with establishing safe levels of exposure for decision-making.”
J.C. King, the Army’s director of munitions and the chief official responsible for Army explosives cleanups, said the Army simply wants to make sure taxpayer funds are not wasted on unnecessary environmental work.
“That’s our obligation,” he said in an interview at the Pentagon in July. “We’re spending your money. And we spend your money as wisely as we can.”
The Pentagon-sponsored research bolstered the military’s longstanding argument that the health and environmental dangers of RDX are unproven.
By the time the EPA completed the first internal draft of its RDX review in 2014, meant for deliberation between executive agencies, it indicated it was considering a looser and more ambiguous categorization that is less likely to lead to stringent regulation. Instead of declaring RDX a likely carcinogen, it was now prepared to say RDX was merely “suggestive” of carcinogenicity.
The EPA declined to allow its advisory committee members to speak with ProPublica. The EPA also has not responded to three public records requests about the board’s meetings and communications, the first of which ProPublica filed with the agency more than 13 months ago.
But other public comments and records from the EPA’s RDX meetings show that from 2013 to 2016, the Pentagon and organizations and agencies friendly to it, including the American Chemical Counsel (an advocacy group that generally lobbies against chemical regulations) and the Office of Management and Budget (which approves the Pentagon’s cleanup spending) either recommended looser standards, pushed the EPA to include more studies that found no negative effects from RDX, or advocated a “weight of evidence” approach.
This would mean considering all studies on the subject and giving each more or less equal weight, regardless of their quality. Since the Pentagon had funded so many studies that found RDX to have less health risk, this approach was more likely to lead the EPA to downgrade RDX’s risk profile.
The EPA, in a statement to ProPublica, insists that the quality of studies is not ignored in this approach. But critics argue that the scales are better balanced when the EPA evaluates the research and allows the best studies to have the most influence — or at least protects them from being dismissed as aberrations.
“If you base it on weight of evidence, and you stack it with a bunch of negative studies, you are going to win,” Melnick, the former NIH toxicologist who submitted comments to the EPA (and does not sit on its advisory committee), told ProPublica. “even if the negative studies are not very good.”
In his formal comments submitted to the EPA, Melnick called the agency’s representation of the Army’s research “a misleading justification” for its decision to downgrade, warning the decision will “protect polluters rather than protecting U.S. citizens.”
Of particular concern to Cobb are the known cancer risks of RDX’s breakdown chemistry, the nitrosamines that were the subject of the Petersen lawsuit in Mapleton

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Pruitt's EPA Turns to ‘Lean Manufacturing’ to Speed Up Reviews

Dec 19, 2017 | BNA Daily Environment Report

By Eric Roston and John Lippert

President Donald Trump's bid to speed up regulatory approvals is relying on a “lean manufacturing” approach inspired by Toyota Motor Corp.
The Environmental Protection Agency's chief of operations has a long history of implementing Toyota's concept, which focuses on labor-management dialogue to curb defects and cut delays. The agency is in discussions about entering into a contract with Toyota's management spinoff to help it accomplish its goals.
“It's not about policy. It's not about specific decisions,” Henry Darwin, the EPA operations chief, said in an interview. It's “about the process that we use in order to basically eliminate waste and maximize customer value.“
Before joining the EPA, Darwin had a 20-year career in Arizona where he served as director of the Department of Environmental Quality and then as chief of operations. He led development of the state's management strategyfor Governor Doug Ducey before leaving at the end of June.
Still, overhauling how the agency works may face difficulties at the EPA where many members of the 15,000 workforce have bristled under the leadership of Trump and Administrator Scott Pruitt. This year EPA ranked 22nd out of 23 mid-size federal agencies in how its employees rate the effectiveness of its senior leaders, according to a survey by the Partnership for Public Service.
EPA is a sprawling organization, offering everything from advice on eradicating bedbugs to state-by-state data showing the first frost of autumn comes later than it ever has historically. Pruitt, who sued the agency a number of times while attorney general of Oklahoma, came into the agency pledging to scale-back its reach, leave more rulemaking and enforcement to states and get “back to basics.” Critics, including Democrats in Congress, have said he's too cozy with the industries he's supposed to regulate and wondered about the need for a $25,000 soundproof “privacy booth.“
Pruitt dropped Darwin's name this month at a congressional oversight hearing when explaining that the agency is “actually partnering with Toyota to begin a ‘lean’ process at the agency to evaluate management practices.”
“The agency for many years―and this is something I found surprising―has not measured outcomes consistently,” he added.
Toyota introduced lean manufacturing into the U.S. in the 1980s when it began building factories outside Japan for the first time. For a quarter century, Toyota has also had a non-profit affiliate, called the Toyota Production System Support Center, that consults with Toyota suppliers and outside manufacturers, and provides advice to organizations, such as hospitals, food banks and governments.
The EPA and several other agencies are in talks with the TSSC about a contract on how they could redesign the way they conduct environmental reviews and permit “high-priority” infrastructure projects -- pipelines, ports, bridges and the electricity grid.
Read More: EPA Investigators Probe Meeting of Pruitt, Mining Group
Pruitt's name check of Toyota raised some initial concerns that EPA was partnering with a company that it also regulated. Since the contract under discussion would be with a non-profit affiliate, the risks aren't as great, said George Wyeth, a career EPA attorney who retired this year.
“There is a potential ethics issue here, but not a big one,” Wyeth said in an interview.
Still, longtime staff members are skeptical. It's not the first time the agency has tapped a management trend, according to John O'Grady, a 31-year EPA veteran who spoke in his capacity as president of Council 238 of the American Federation of Government Employees.
“I've been through too many flavors-of-the-month, of-the-year, whatever it is. They do it intensely for a while—and then it just goes away,” he said. “I'm very skeptical.“
O'Grady said he's concerned that, because the agency hasn't conducted a true workforce analysis in 20 years, any decisions about the organization won't have sufficient data. And that could lead to staff cuts when more staff may be necessary to work on the EPA's growing portfolio, he said.
Darwin said that “lean” is in some ways a misnomer, and the goal of the process at EPA isn't to cut staff.
“It's not about creating the ability to reduce the size of an organization,” Darwin said. “What it can do is allow it to become more effective and more efficient so that if we do create a capacity to do more with less.“

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Bigger But Slimmer

Dec 19, 2017 | Chemistry World

By Rebecca Trager

Economic and political pressure is encouraging industry to become more specialised as certain sectors consolidate
Consolidation and specialisation
The chemical industry is in the throes of a massive consolidation that has sparked worldwide competition concerns and regulatory investigations. Perhaps the area of largest amalgamation is in agrochemicals, with mega-mergers between Dow and DuPont; Bayer and Monsanto; and ChemChina and Syngenta.
Bayer’s $66 billion takeover of Monsanto was agreed in late 2016, with the intent of providing farmers with a one-stop shop for their seeds and crop protection products. The two companies have argued that this vertical integration of traits, seeds and agrochemicals will create economic efficiencies that outweigh any harm that the merger would pose to competition. However, opponents of the deal have suggested it would just magnify the market power of the few companies that dominate the global field crop sector.
The two agricultural giants are awaiting approval from international regulators. A decision from the US Department of Justice is expected around the end of 2017, while the European commission is working towards a deadline of 5 March 2018.
Meanwhile, several US state attorneys general are also investigating competition concernsrelated to the deal. If it goes through, almost the entire global seed and agricultural chemical business will be controlled by just four companies: Bayer–Monsanto, ChemChina–Syngenta, Dow–DuPont, and BASF.
ChemChina and Swiss firm Syngenta agreed a $43 billion merger in 2016, aimed at enhancing China’s agricultural output. Competition regulators in the US and Europe expressed concern that the two companies have overlapping portfolios in the areas of herbicides, insecticides, fungicides and plant growth regulators.
To satisfy EU regulators, the two companies agreed to sell off a large part of their European pesticide and growth regulator business, while the US Federal Trade Commission’s (FTC) demanded they offload three types of pesticides.
Other efforts to block the deal intensified this year as it gained the necessary international approvals. In the US the Nebraska Farmers Union tried to get the merger kiboshed at the last minute by petitioning the FTC. Nevertheless, the deal was finally completed in June.
While there is a clear consolidation going on within the chemical industry, there is a simultaneous movement to refocus on core functions and split off peripheral or underperforming segments.
In March, AkzoNobel of the Netherlands announced plans to separate its speciality chemicals business from its paints and coatings unit by April 2018. The goal of the break-up is to create two more focused and distinct companies.
But the landscape is dominated by the rumbling $130 billion merger between Dow Chemical and DuPont, which was completed at the end of August. The newly created DowDuPont has been restructured into three distinct businesses, with the aim of eventually splitting into separate companies: agriculture; material sciences, and speciality products like advanced polymers, electronics and nutritional goods.
To satisfy competition regulators, Dow has divested its global ethylene acrylic acid copolymers and ionomers business, and a portion of Dow AgroSciences’ corn seed business in Brazil. For its part, DuPont agreed to shed its cereal broadleaf herbicides and chewing insecticides portfolio. In addition, the company has sold portions of its crop protection portfolio to US firm FMC, including some R&D capabilities.
As it prepares to split itself into three, DowDuPont unveiled plans to reduce its global workforce, consolidate buildings and facilities, and shut down assets to help achieve $3 billion in cost savings. The company did not disclose how many jobs would be cut, but it pointed to $180 million in pre-tax charges incurred during the third quarter and another $1 billion in charges expected for the fourth quarter.
Although it may seem that the chemical industry is converging, what’s actually occurring is increased specialisation, according to industry observers. ‘The simplifying of portfolios and the dealmaking that is going on will help reduce costs for a lot of companies – it will create an altogether more profitable, more focused industry,’ says Vijay Sarathy, North America industry leader for chemicals at Accenture.
However, analysts warn that although streamlined chemical businesses with narrower purviews are easier to manage, they may have difficulty generating growth through innovation in new areas or technology. Being too homogeneous or overly focused can limit growth, especially in very consolidated markets.Healing from hurricanes
When hurricane Harvey pummelled the US Gulf Coast with record-breaking rain and winds in August, it knocked offline between one-third and half of the more than 130 petrochemical sites and speciality chemical facilities along the Houston Ship Channel. US industrial production suffered substantially from the reduced operations of these plants.
Working US capacity for organic chemicals and resins was at about 90% prior to Harvey’s landfall, and by the end of August, less than half was available. Capacity use remained below pre-Harvey levels well into September, but had rebounded to nearly 85% by the end of September as plants resumed operations. Federal Reserve data also paint a rosy picture of recovery for the US chemicals sector, due to minimal asset damage from Harvey. For example, total US industrial production rose 0.9% in October, and the output of chemical materials jumped 12.3% as factories shuttered by the hurricane returned to regular operations.
Only one ethane cracker in the region remains shut down because of the storm – Chevron Phillips Chemical’s (CPChem) 835,000 million tonne-per-year cracker at the Cedar Bayou complex. It’s been shuttered since 26 August, just hours after Harvey came ashore. ‘In general, there have been workarounds or repairs for all the damage that has been done by Harvey, other than at CPChem Cedar Bayou, because of the fact that there was high water damage,’ says Steve Lewandowski, vice president of olefins for IHS Markit. ‘They had eight feet of water in some parts of the plant.’ Beyond crackers, CPChem also has two alpha olefins units in Cedar Bayou that remain offline, Lewandowski adds. He says all of the other assets that were running pre-Harvey are now back onstream.
The disruption caused by hurricane season might not be over. Chemical product supply chains that were already constricted – for propylene, polyethylene and caustic soda, for example – will likely see additional tightness that could last into the first quarter of 2018 or longer. ‘It is just compounding an already tight situation,’ Lewandowski explains. ‘Demand continues to be good and prices are poised to move up.’
In addition to the economic impact of hurricane Harvey, there is also potential regulatory fallout. The US Chemical Safety Board (CSB) is in the middle of investigating the explosions that took place in at an Arkema chemical plant in Crosby, Texas after massive flooding from the storm caused the facility to lose critical refrigeration of organic peroxides. The CSB is not expecting to issue its report until June, but the agency has already urged companies to revisit their emergency preparedness, hazard and risk assessments, given the expectation that climate change will cause more frequent and intense extreme weather events that could impact their operations.
Companies that are ill-prepared could experience legal repercussions. Arkema now faces multiple lawsuits arising from the incident at its Crosby facility. A suit from the local Harris County government seeks to recover its costs for responding to the week-long incident and hold the company legally responsible for violating state environmental laws. Separately, residents from around Arkema’s Crosby facility have joined in a class action lawsuit against the company. They claim numerous toxic substances have been found in soil, surface water and ash samples in the area, resulting from the incident.Emissions clampdown
Efforts to curb emissions of harmful pollutants across various industries abounded in 2017. In China, for example, thousands of factories are facing closure or sanctions after the country’s cabinet has ramped up environmental inspection programmes and provided authorities with new powers to restrict air and water pollution. The European commission has proposed new limits on carbon dioxide emissions from passenger vehicles. For new cars as well as vans, the average CO2 emissions will have to be 30% lower in 2030, compared to 2021.
Under the Paris climate agreement, which came into force in November, nearly 200 countries committed to reducing greenhouse gas emissions and curbing global temperature rises. The treaty’s goal is to limit the global average temperature rise to well below 2°C and as close as possible to 1.5°C, but the US is not on board. In June, President Trump withdrew the US from the Paris accord, saying it imposed unfair financial and economic burdens on the country. At the time, the US’ exit meant that it joined Nicaragua and Syria as the only nations not party to the international treaty. However, Nicaragua eventually ratified the agreement in October, and Syria followed a month later. The US now stands alone as the only country yet to join the global consensus to act to prevent global warming.
Just months after bailing from the Paris agreement, the Trump administration also acted to repeal former president Barack Obama’s regulation that set the first ever limits on carbon emissions from coal-fired power plants, known as the Clean Power Plan (CPP). The CPP was finalised in August 2015, and it set national standards to reduce carbon dioxide emissions from the power sector by about a third from 2005 levels by 2030. In retreating from the programme, Trump’s US Environmental Protection Agency (EPA) said the regulation exceeds the agency’s statutory authority, and argued that eliminating it will reduce unnecessary regulatory burdens.
Despite the political landscape, at an individual company level, progress is being made to curtail emissions. For example, ExxonMobil agreed to invest about $300 million to install pollution and monitoring controls at eight of its petrochemical manufacturing facilities in Texas and Louisiana, after settling allegations that it violated the Clean Air Act by failing to properly operate and monitor industrial flares. DuPont spin-off Chemours also reached an agreement with North Carolina’s environmental agency to end a long-running dispute over the company’s release of polyfluorinated compounds from its plant in Fayetteville into the Cape Fear river, which is a significant source for drinking water in the area.
The auto industry is also not immune illegal emissions, as revealed in 2015 when Volkswagen (VW) was accused of evading emissions standards and importing falsely certified vehicles into the US. Earlier this year, the DOJ announced that six senior VW employees have been indicted related to the company’s emissions cheating scandal, and VW was ordered to pay a further $4.3 billion in penalties.Shale gas
When Donald Trump entered the White House in January, he promised to ‘embrace the shale oil and gas revolution’, and indeed it does continue to thrive. In 2016, the US shale gas boom led to 275 new chemical production plants, of which 40% were completed or under construction by the end of the year, and 60% of the proposed $170 billion investment came from foreign sources. By comparison, 318 chemical industry projects due to shale gas had been announced as of late November 2017. These are valued at $185.5 billion, and just about half have been completed or are under construction. However, not all the projects have survived – South Africa’s Sasol has decided to abandon a proposed US gas-to-liquids plant.
Around 62% of this announced investment came from outside the US, and that looks set to continue, with significant interest from China. When Trump and Chinese president Xi Jinping met in China in November, two deals were reached between Chinese entities and the US states of West Virginia and Alaska.
The International Energy Agency (IEA) predicted in November that the shale revolution will help the US become the world’s largest exporter of liquefied natural gas by the mid-2020s. ‘A remarkable ability to unlock new resources cost-effectively pushes combined US oil and gas output to a level 50% higher than any other country has ever managed,’ the IEA concluded. The agency estimated that the 8 million barrels per day rise in US tight oil output from 2010 to 2025 would match the highest sustained period of oil output growth by a single country in the history of oil markets.
The agency said this rapid expansion is having wide-ranging impacts within North America, fuelling major investments in petrochemicals and other energy-intensive industries. It is also reordering international trade flows and challenging incumbent suppliers and business models.
https://www.chemistryworld.com/news/chemical-industry-roundup-2017/3008406.article

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Chemical Management News

Your Furnishings Could Be Causing Indoor Air Pollution

Dec 19, 2017 | The Washington Post

By Elisabeth Leamy

We feel safe in our homes, but that can be a false sense of security. The threat I’m talking about is something we can’t see: indoor air pollution. The air in our homes and workplaces can be more polluted than outdoor air in the most industrialized cities, according to the Environmental Protection Agency. The EPA says the problem is compounded by the fact that Americans spend 90 percent of their time indoors. Many different things can cause indoor air pollution, and they have a cumulative effect on our health.
Let’s look at one of those possible sources: our furnishings. Yes, your new carpet or cabinet could be subtly poisoning you with chemicals such as benzene, ethylene glycol or formaldehyde. It’s called “off-gassing.” Four of the top 10 chemicals emitted from furnishings are considered “acute” hazards, or irritants. “Poor indoor air quality can cause or contribute to the development of infections, lung cancer and chronic lung diseases such as asthma,” according to the American Lung Association.
[House fires burn much faster than they used to. Here’s how to survive. ]
How do researchers know that some furnishings emit harmful gaseous chemicals? Greenguard, a division of UL Environment, has developed a way of testing furniture to find out. In a generic-looking office park outside Atlanta, researchers heft furniture into giant, airtight chambers. The chambers are made of stainless steel and glass — two materials that don’t interfere with the testing because they do not off-gas. A piece of furniture sits inside the chamber for as long as a week while small tubes measure all of the chemicals coming off it.
When I was at “Good Morning America,” I asked Greenguard to test furniture for a baby’s nursery for a story. The rocker we tested put off seven times as much formaldehyde as the state of California considers safe. The paint contained five times the amount of chemical gases as the recommended limit. And more than 100 chemicals wafted from the crib mattress — some of them alcohols and industrial solvents.
Greenguard developed the testing method so manufacturers who wanted to sell low-emission furniture could prove their products were healthier. UL awards its Greenguard certification to furniture that emits low or no levels of hazardous chemicals. “Many manufacturers are testing their products to determine the amount of emitted volatile organic compounds,” said Scott Laughlin of UL Environment. “In some cases, they may choose to reformulate their products to reduce chemical emissions.”
Manufacturers don’t have to state what chemicals they use in their furnishings. The EPA singles out engineered wood — otherwise known as particleboard — as being particularly prone to emitting formaldehyde, a probable carcinogen. UL Environment adds that products that are applied wet, such as glues and paints, often off-gas while they are curing. Sometimes a strong industrial odor is a good hint that a piece of furniture is emitting chemicals. If you develop a headache while inside a building where paints, stains or glues are being used, that’s another clue. But it’s hard for consumers to know for sure whether harmful chemicals are present.
[How to find flame-resistant pajamas for kids, without toxic chemicals]
However, it is possible to know whether harmful chemicals are not present, because more and more furnishings are being certified as having low emissions. Here are certifications you can look for and other steps you can take to reduce your exposure to indoor air pollution from your furnishings:
1. Check certifications. Look for an indoor-air-quality certification, such as the one offered by Greenguard. Another firm that certifies low-emission furniture is SCS Global Services.
2. Air out. Unwrap new furniture outdoors and let it sit for at least a week to air out. You can also unwrap traditional dry-cleaning outdoors or in a detached garage before taking it inside. Open doors and windows to get fresh air into your house as often as possible, even when you are not doing a home improvement project.
3. Paint first. If you’re renovating your house, paint it and air it out before installing carpeting and curtains, because they can absorb chemical fumes from the paint. Also paint in the spring or fall when it’s most comfortable to leave doors and windows open for air circulation.
4. Buy used. Off-gassing diminishes over time, so buying older furniture can be better. Just be sure the products you buy meet current safety standards, and avoid painted furniture made before 1978, the year lead paint was banned.
5. Avoid particleboard. This material is also called pressed wood, engineered wood and MDF. The glues used to hold the material together often contain harmful chemicals such as formaldehyde. Alternatively, look for certified particleboard products. “Manufacturers who use engineered wood often encapsulate the engineered wood with laminates, sealants or finishes to reduce emissions,” Laughlin of UL said.
6. Choose unscented. Many products come in scented or unscented versions. The unscented ones should contain fewer chemicals.
7. Beyond furnishings. Other products frequently used in homes can also off-gas and cause indoor air pollution. Consider the potential pollution when you bring new flooring, paint, adhesives, electronics, gypsum board or insulation into your home.
https://www.washingtonpost.com/lifestyle/home/your-furnishings-could-be-causing-indoor-air-pollution/2017/12/18/626ad808-d91c-11e7-b1a8-62589434a581_story.html?utm_term=.bcf8b737a755

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Northrop Grumman Hazmat Class Claims Stay Federal

Dec 19, 2017 | BNA Daily Environment Report

By Steven M. Sellers

A would-be class action against Northrop Grumman Corp. over hazardous waste pollution should be litigated in federal, not state, courts because the complaint was amended solely to defeat federal jurisdiction, the Eastern District of New York ruled Dec. 15.
Long Island landowners allegedly injured by toxic chemicals from a former Northrop facility can't shift the case to more plaintiff-friendly New York state courts simply by adding a local town as a defendant, the court said.
The decision follows a trend in which federal courts have turned aside efforts by plaintiffs to side-step federal jurisdictional requirements in mass tort cases.
Here, an amendment of the complaint shortly after the transfer of the case to federal court added no new allegations and “gives rise to a strong suggestion of forum shopping,” the U.S. District Court for the Eastern District of New York said.
Rosalie Romano and other plaintiffs allege that thousands of residents have been injured by polychlorinated biphenyls, or PCBs, from Northrop's former plant that migrated onto their land. She added the town of Oyster Bay, N.Y., as a defendant, potentially defeating the court's jurisdiction under the Class Action Fairness Act.
The gives federal courts jurisdiction over mass actions of 100 or more people if they meet a monetary threshold and at least one plaintiff and defendant are citizens of different states.
Romano didn't satisfy an exception in the law requiring federal courts to defer to state courts in “local controversies,” the Eastern District said.
CAFA requirements are properly determined by the original complaint, not amended filings, particularly when the plaintiffs’ sole intent is to meet the local controversy exception, the court said.
Judge Denis R. Hurley wrote the opinion. Napoli Shkolnik, as well as Imbesi Law, represented the plaintiffs.
Hollingsworth, as well as Morrison & Foerster, represented Northrup Grumman.
The case is: Romano v. Northrop Grumman Corp., 2017 BL 449989, E.D.N.Y., No. 16-cv-5760, 12/15/17.

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Australia, EU, Brazil Making Moves in 2018 on Chemical Regulation

Dec 19, 2017 | BNA Daily Environment Report

By Adam Allington

Here are some major developments on the global chemical front we'll be watching in 2018:
1. BIG CHANGES IN AUSTRALIA
Prime Minister Malcolm Turnbull's government is moving forward with sweeping changes to Australia's national chemicals agency, NICNAS. If a package of bills becomes law, as expected, new regulation of industrial chemicals will begin in July, and other changes will be implemented by September.
The biggest change? The measures would shift responsibility for new chemicals from pre-market assessment conducted by the government to a post-introduction verification and “self-assessment”—conducted by the chemical companies themselves.
Why We're Watching?
The government anticipates self-assessment of “low risk” chemicals will reduce the number of chemicals subject to regulatory review by 70 percent. The plan “better reflects the level of risk to human health and safety and the environment,” Assistant Minister for Health David Gillespie said when he introduced the plan.

Australia's National Toxics Network, which advocates a “toxic-free future,” said up to 90 percent of new chemicals self-assessed by industry as “low risk” would enter Australia without any government scrutiny. “To make matters even worse, the regulator will no longer even keep any records of these so called ‘low-risk’ chemicals coming into Australia,” the group said in an analysis of the proposals.
And the Cancer Council Australia said if the changes are approved, 99 percent of new industrial chemicals would not be officially assessed before being introduced to the public.
“Our history is full of examples of chemicals that were once thought to be ‘low risk,’ which were later proven to be horribly toxic,” warned Mariann Lloyd-Smith, a senior policy adviser to the International POPs Elimination Network (IPEN).
The measures also would ban testing cosmetics on animals.
2. NEONICOTINOID PESTICIDES AND BEES
The European Union introduced a freeze on the three most toxic neonicotinoid pesticides for flowering crops back in 2013: thiamethoxam (produced by Syngenta); and clothianidin, and imidacloprid (produced by Bayer).
Now the European Commission wants to extend the restrictions to nonflowering crops, with an exception for permanent greenhouses.
Why We're Watching?
Neonicotinoid insecticides (NNIs) introduced in 1994, are a common type of insecticide used to control a variety of pests, and work by attacking the central nervous system of insects. They can be sprayed on leaves, but the most common use is seed-coating.
The question is not whether they're toxic to bees: These chemicals are sold as insecticides, and bees are insects. What has been harder to prove is whether exposure levels in the wild are especially harmful to bees and other pollinators:
• A recent PLOS study found that flying insect populations declined by more than 75 percent in Germany over a 27-year period,
• A 2016 study in Proceedings of the Royal Society B, found that clothianidin and thiamethoxam reduced the reproductive capacity of male honeybees by 40 percent,
• Two studies published in Science in 2017 found that NNIs may harm bee colonies, but that statistically significant results varied by country, as well as where the pesticide exposure came from.
Farmers Concerned
Reacting to the European Commission's proposal to extend a restriction on neonicotinoids, a spokesperson for Bayer in the U.K. said: “We know from talking to farmers that such a ban would seriously impact the U.K.'s ability to grow high-quality wheat, barley, sugar beet and some vegetable crops.”
France will ban all five EU-authorized neonicotinoids starting in September 2018, although some crops lacking alternatives will be exempted until 2020.
“For French maize producers, the full neonicotinoid ban will remove our last-used NNI, thiacloprid,” said Celine Duroc of CEPM, a European maize lobby.
“Currently, there are no alternatives,” she said. “And European farmers would be at a disadvantage to other regions who have still access to these molecules.”
The European Commission's proposal is expected to be voted on by all EU member states in early 2018.
Neonicotinoid insecticides are not banned in the U.S.
3. INTERNATIONAL CHEMICALS MANAGEMENT
The United Nations’ voluntary chemicals program, the Strategic Approach to International Chemicals Management (SAICM), was adopted in 2006 and its mandate will expire in 2020.
Unlike big global treaties, such as the Stockholm Convention or the Montreal Protocol, SAICM is stakeholder-based, meaning any group can participate.
Whether SAICM should be replaced, amended, or kept as is a matter of hot debate among countries and other parties.
Why We're Watching?
• The production of chemicals has been growing exponentially. Some 15,000 new substances are added to the universally shared Chemical Abstracts Service (CAS) registry every day,
• Many argue that SAICM's goal of achieving sound chemicals management globally by 2020 will not be met, and therefore a framework with binding commitments is necessary,
• Others say SAICM has been valuable for creating a space where both state and nonstate actors can collaborate. They want SAICM or something like it to remain in place after 2020,
• Industry largely wants SAICM to remain, because of concern that a new global treaty might be modeled too closely on Europe's REACH, which they view as burdensome.
Binding Multilateral Agreements
To meet its 2020 goals, the SAICM in 2015 urged stakeholders—from individual nations to groups like the World Health Organization— to take steps to implement 11 basic elements recognized as critical at the national and regional levels, including frameworks that address the life cycle of chemicals and waste.
“Beyond 2020, we need to create a regime that combines the flexibility of SAICM, with robust commitments and enforcement,” said Carroll Muffett, president of the Center for International Environmental Law.
“This treaty-by-treaty approach for specific things like mercury, persistent organic pollutants (POPs) have been good as far as they go, but they leave the overwhelming amount of chemicals in global trade unassessed,” he said.
An independent evaluation funded by a group of Nordic countries is calling for a legally binding treaty to replace SAICM.
The SAICM is next scheduled to meet in March 2018, in Stockholm.
4. BRAZIL MOVES TOWARD CHEMICAL REGISTRY
Brazil has regulations for agricultural products like pesticides and fertilizers, but the country has never had a modern national chemical registry.
The country's national chemical safety agency, Conasq, met in mid-2016 and developed a draft document—called the Regulacao de Substancias Químicas Industriais, or simply, Regulaçao—to begin the process of creating a chemical registry.
It's taken more than a year to wade through a mountain of stakeholder feedback, but the final text of an amended draft could go to Congress in 2018.
Why We're Watching?
The country has the eighth-largest domestic market for industrial chemicals, so Brazil's proposed policy would affect a big portion of the global chemicals industry:
• The new regulation is said to be based on the Domestic Substances List model used in Canada.
• Important items, such as the notification process and exemptions, remain to be shared,
• Conasq estimates that “up to 15,000 compounds are placed on the market without any monitoring or systematic control by the government.”
Political Concerns
Big questions remain, among them: Will Brazil recognize industrial chemicals registered through other systems like the Toxic Substances Control Act in the U.S., or REACH in the European Union? Or will companies have to reproduce testing results?
Even when the draft eventually emerges from the revision process and those questions are presumably answered, the issue might not be very high on the political priority list, as Brazil has a presidential election in October.
“We don't see early 2018 as a realistic deadline to have this bill go up for a vote in Brazil's congress,” said Michael Wenk, a regulatory consultant with Bergeson & Campbell PC in Washington.
If and when Regulacao does come to fruition, “there could be a domino effect, as other countries in South America rush to follow Brazil's lead,” Wenk said.
This story is part of a Bloomberg Environment series on issues to look for in 2018. We're publishing these Outlook articles on a wide range of topics throughout December.

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Echa and Aviation Safety Agency Sign Cooperation Agreement

Dec 19, 2017 | Chemical Watch

Echa and the European Aviation Safety Agency (Easa) have signed a memorandum of cooperation. This, they say, will help to ensure the best use of available resources by "avoiding any duplication of efforts and overlapping activities".
The cooperation will focus on:the exchange of information regarding authorisation and restriction of chemicals as well as classification, labelling and packaging of substances and mixtures when relevant for the activities of Easa;the exchange of information regarding aspects of civil aviation as relevant for the activities of Echa;participation in meetings in which the other party has an interest;the implementation of joint projects; andconsulting one another on matters of common interest.
A full copy of the memorandum – signed on 13 and 14 December – is available on Echa's website.
The agencies have worked together before. Three years ago they published a joint report on how REACH relates to the aviation sector.
https://chemicalwatch.com/62694/echa-and-aviation-safety-agency-sign-cooperation-agreement

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Energy News

Trump Plan Stresses 'Energy Dominance,' Infrastructure

Dec 18, 2017 | E&E News PM

By Nick Sobczyk

President Trump laid out a starkly nationalist vision of American defense policy today, as he unveiled a National Security Strategy that emphasizes "energy dominance" and fossil fuel development.
The comprehensive security policy document is the first of the new administration. In a wide-ranging speech this afternoon, which addressed everything from the 2016 election results to tax cuts, the president attacked the energy policies of past administrations and sold his strategy as a path to economic prosperity.
"For the first time, American strategy recognizes that economic security is national security," Trump said at the Ronald Reagan building near the White House in Washington.
The strategy "calls for cutting taxes and rolling back unnecessary regulations. It embraces a future of American energy dominance and self-sufficiency," he added.
Trump's emphasis on economic prosperity and energy security is not unique, however. President Obama's last NSS, produced in 2015, included references to economic growth and touted growing U.S. oil and gas exports.
Indeed, both Obama's last strategy document and Trump's first include passages that lay out plans to continue developing fossil fuel resources while also advancing cleaner, renewable forms of power.
"Unleashing these abundant energy resources — coal, natural gas, petroleum, renewables, and nuclear — stimulates the economy and builds a foundation for future growth," Trump's security strategy says.
While developing oil and gas exports — and other forms of energy — is important for national security, Trump's focus on energy dominance could be a concern for international diplomacy, said Andrew Holland, senior fellow for energy and climate at the American Security Project.
"Our energy production has materially impacted our energy security and our place in the world, but when you start using rhetoric like 'dominance,' what that implies is that somebody's dominant and somebody's submissive," Holland said.
"That's not a way to get others to do what you want them to do in global affairs," he added.
More worrying for some advocates is Trump's omission of climate change from the document's list of threats to national security.
Obama's 2015 strategy pegged global warming as a major facet of U.S. national defense policy, laying out the administration's views on climate on the first page.
The Trump administration includes a mention of how climate policies "will continue to shape the global energy system," but otherwise, the changing climate is largely left out of the document.
"The demotion of climate change from the first rank of national security threats will disappoint our allies, who are seeing the increased importance of this issue in their own countries," Neil Bhatiya, a research associate with the Energy, Economics and Security Program at the Center for a New American Security, said in a statement.
"Many of our closest partners are pushing the agenda forward in fora like the United Nations Security Council. The U.S. absence from that effort is an abdication of responsibility," Bhatiya added.
Congress last month passed the annual defense authorization bill, which for the first time addresses climate change as a threat to national security. Trump signed the bill into law last week, a step that Holland and others say is much more significant than the new document.
"Despite this strategy, which is more of a political document than anything else, I think the broader national security community in the U.S. will continue to prepare for this challenge, as was made clear by the defense bill and as has been made clear by the Department of Defense," added Frank Femia, co-president of the Center for Climate and Security.
Environmentalists tore into the Trump administration, highlighting the spate of hurricanes and wildfires that have swept across the U.S. this year.
"This is an incredibly senseless move from a president whose first term was marked by devastating superstorms and wildfires," Kassie Siegel, director of the Center for Biological Diversity's Climate Law Institute, said in a statement.
"Climate change will exacerbate future extreme weather events, fueling geopolitical instability and threatening security around the world," said Siegel. "Trump's single-minded mission to protect fossil fuel companies gravely endangers the health, safety and security of Americans at home and abroad."
Trump's strategy also calls for greater investment infrastructure, decrying the environmental regulations that he says have dampened investment.
"Excessive environmental and infrastructure regulations impeded American energy trade and the development of new infrastructure projects," Trump's strategy says.
The president similarly tweeted about needing to boost infrastructure in response to a train derailment in Washington state. But concrete plans have long been elusive.
Some defense hawks praised the broader goals behind the new strategy. But building new infrastructure, as well as the broader military buildup called for in the document, will take a funding effort that Congress has so far struggled to get behind, noted House Armed Services Chairman Mac Thornberry (R-Texas).
"The strategy depends on the US military maintaining its edge over our adversaries; remaining agile and deployable, and retaining the ability to reassure our allies and deter our enemies," Thornberry said in a statement.
"To achieve that goal, Congress has to stop asking our military to do more with less and pass adequate and reliable funding for our troops. This strategy is a good start, but only sufficient funding for our military can make it real."
https://www.eenews.net/eenewspm/2017/12/18/stories/1060069321

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Tellurian Planning Two More NatGas Systems to Move Permian, Haynesville Supply to Gulf Coast

Dec 18, 2017 | Natural Gas Intelligence

By Carolyn Davis

Houston-based Tellurian Inc. said Monday it is developing a three-pipeline attack to expand natural gas supply alternatives in southwestern Louisiana that would not only give its Haynesville Shale production more access, but also link to a massive export project in the works.
The Tellurian Pipeline Network would include the Driftwood Pipeline (DWPL), which is scheduled to start up in 2021. Two additional pipelines announced Monday could begin service by the end of 2022.
"The Tellurian Pipeline Network would serve the approximately 8 Bcf/d of incremental natural gas demand expected by 2025 in southwest Louisiana,” said Tellurian CEO Meg Gentle.
DWPL, a 96-mile, 48-inch diameter gas pipeline, would transport up to 4 Bcf/d from near Gillis, LA, and terminate at Tellurian’s planned liquefied natural gas (LNG) export project, Driftwood LNG.
The export terminal planned in Louisiana’s Calcasieu Parish, located south of Lake Charles, would be able to export up to 26 million metric tons/year, requiring up to 4 Bcf/d of feed gas. The design for the project, now set to go online in 2022, includes five plants, each composed of one gas pretreatment unit and four liquefaction units.
The Driftwood pipeline would deliver feed gas to the facility from the interstate pipeline grid, according to the filing with FERC [PF16-6].
Two additional pipeline systems, one that would carry gas from the Permian Basin, and the other to push more supply from the Haynesville Shale, would help to supplement LNG export plans.
The proposed Permian Global Access Pipeline (PGAP), a 42-inch diameter system running 625 miles, would be able to transport up to 2 Bcf/d.
PGAP would originate at the Waha Hub in West Texas and connect to the Permian and associated unconventional plays around Midland, then terminate near Gillis, with proposed deliveries from various gas pipeline systems in the region.
The third proposed gas system, Haynesville Global Access Pipeline (HGAP), also would be a 42-inch diameter pipeline that could carry up to 2 Bcf/d. The 200-mile-long system is proposing also to terminate near Gillis.
Last September, Tellurian veered into the upstream sector to make an $85.1 million deal to buy Haynesville acreage in northern Louisiana.
“When completed, PGAP and HGAP will deliver natural gas from multiple low cost production basins and debottleneck the existing pipeline infrastructure in southwest Louisiana,” Gentle said. “We intend to begin soliciting third-party shipper interest in the first half of 2018, and would seek to commercialize PGAP and HGAP by year-end 2018.”
The proposed Tellurian pipeline system, Gentle said, would represent nearly $7 billion of investment in infrastructure and 15,000 jobs in Texas and Louisiana. In November, Tellurian awarded Bechtel Oil, Gas and Chemicals contracts worth $15.2 billion to begin the groundwork for the LNG export project.
In related news, Joey Mahmoud has been appointed president of the pipeline network. He previously was executive vice president of engineering and construction for Energy Transfer Partners LP.
Tellurian was co-founded by the co-founder of Cheniere Energy Inc., Charif Souki, and former BG plc executive Martin Houston.
http://www.naturalgasintel.com/articles/112795-tellurian-planning-two-more-natgas-systems-to-move-permian-haynesville-supply-to-gulf-coast

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Chemical Security News

Blackout Nightmare at Atlanta Airport Shows Grid Vulnerability

Dec 19, 2017 | BNA Daily Environment Report

By Mark Chediak

A sudden power failure at the world's busiest airport that stranded thousands of passengers and snarled U.S. holiday air traffic underscores the vulnerability of the nation's grid.
The 11-hour outage was caused by a fire in an underground electrical facility that also cut backup supplies to Hartsfield-Jackson Atlanta International Airport, said Southern Co.’s Georgia Power utility. Frustrated passengers were left scrambling in the dark while more than a thousand flights were canceled.
“This highlights two things,” said Paul Patterson, a utility analyst for Glenrock Associates LLC. “One, the grid is vulnerable. Secondly, it shows how dependent the modern economy is on reliable electric power.”
The airport blackout comes on the heels of hurricanes and wildfires that knocked out electricity service to millions of people from Florida to California. Earlier this year, power disruptions in New York City and San Francisco delayed commuters. Utilities say billions are needed to upgrade the nation's aging infrastructure and make it more robust by investing in equipment sensors and other technologies that can be used to track and quickly resolve power failures.
The Atlanta incident “raises a question of whether a smart grid can help,” said Swami Venkataraman of Moody's Investors Service. “Sensors can give you real-time information on important equipment across the grid that allows you to do preventative maintenance to avoid these type of issues.”
Fumes, Smoke
A piece of switchgear in an underground electrical facility could have failed and started the fire that caused the trouble in Atlanta, Georgia Power said in a statement. Firefighters had to clear dangerous fumes and smoke from the underground facilities before utility workers could gain access to carry out repairs.
Most power at the Atlanta airport was restored around midnight.
Questions will be asked about why it took so long for Georgia Power to restore electricity and state utility regulators say they will review the incident.
The blackout adds to a tumultuous year for Southern in which it wrote down billions after scrapping a first-of-its kind “clean coal” project in Mississippi and the fate of an over-budget and long-delayed nuclear project was thrown into disarray by the bankruptcy of a contractor. The utility will find out later this week whether it can complete the nuclear project in Georgia.
“It's not a good time for them to be high profile with a power failure,” said Kit Konolige, an analyst for Bloomberg Intelligence.
—With assistance from Brian Eckhouse and Michael Sasso.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=125265543&vname=dennotallissues&fn=125265543&jd=125265543

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Transportation and Infrastructure News

What Is Positive Train Control, And Could It Have Prevented The Amtrak Crash?

Dec 18, 2017 | CNN

By Madison Park

(CNN)The Amtrak passenger train didn't have a safety technology called the positive train control activated at the time it derailed in Washington state, said Richard Anderson, the rail service's president and co-CEO.
Positive train control, or PTC, can automatically slow down and stop a train if it senses the locomotive is going too fast or could get into an accident. The Federal Railroad Administration has called the system the "single-most important rail safety development in more than a century."
Monday's train derailment killed at least three people and injured more than 100 others on a new route between Seattle and Portland, Oregon. The train was traveling 80 mph in a 30-mph zone, a National Transportation Safety Board member said. The crash again raises the question that has surfaced after other fatal rail disasters: Why isn't PTC used throughout all US rails?
For decades now, railroad safety experts have pushed for it, and Congress passed a law mandating it in 2008. But here's why that hasn't happened yet.
It's a system that combines GPS, wireless radio and computers to monitor trains and stop them from colliding, derailing or speeding.
"We consider it an angel on our shoulders out there on the track, and it's our backup and our safety net," said John Hyatt, a former railroad engineer.
PTC was designed to prevent the human errors behind roughly 40% of train accidents by ensuring that it's being operated in accordance with signals, speed limits or other rules, rail safety experts say. It's an integrated system using tracks and train.
For example, if a train engineer doesn't see a curve coming or a spot where the train is supposed to slow down, signals are sent to the train and "it will begin applying the brakes on the train to get it down to that speed which is required, or stopping the train," Hyatt told CNN.
The NTSB has recommended the use of PTC for decades.Why wasn't PTC activated?
So Congress extended the deadline, giving companies until December 31, 2018, with extensions up to 2020 if certain requirements are met. The delay left some safety advocates fuming.
"The reason why they've been given so many extensions has been money," said Mary Schiavo, a CNN analyst and a former Department of Transportation inspector general. "It is expensive to put it on tracks all over the country."
The Association of American Railroads estimated that freight railroads had spent $8 billion and passenger railroads $3.5 billion to meet the PTC mandate, as of March 2017.Could PTC have prevented this derailment?
That remains to be seen as the investigation gets underway.
"PTC would prevent types of accidents such as this," said T. Bella Dinh-Zarr, NTSB board member. "Whether it will prevent this accident remains to be seen. We should remember that PTC can't prevent every accident. It does prevent certain types of derailments, overspeed accidents as well as incursions into work zones, for example."
PTC can't prevent accidents if there's trespassing onto the tracks or if a car moves through a railroad crossing, according to the Association of American Railroads.Is it known to have averted accidents?
The NTSB has said that PTC technology could have prevented numerous railroad accidents that involved human error.
The agency points to the 2013 Metro-North commuter train derailment in the Bronx, New York, in which four people were killed and dozens injured. The engineer fell asleep and failed to slow the train from more than 82 mph to the maximum authorized speed of 30 mph as it entered a curve, the NTSB said.

In 2015, an Amtrak train in Philadelphia derailed after it hit a curve at 106 mph in a 80-mph zone. The wreck killed eight people and injured more than 200 others. NTSB board member Robert Sumwalt said then that the derailment would not have happened if PTC had been in place.
https://edition.cnn.com/2017/12/19/us/positive-train-control-amtrak/index.html

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Environment News

Trump Team Signals Replacement Rule

Dec 18, 2017 | E&E News PM

By Robin Bravender and Niina Heikkinen

The Trump administration today released the most comprehensive look to date on its plans to replace President Obama's signature climate change rule.
EPA issued a formal document this afternoon asking for the public to comment on what a possible replacement for the Clean Power Plan might look like. The notice, known as an advanced notice of proposed rulemaking, offers the latest indication that the administration would prefer a scaled-back regulation that targets specific power plants' emissions, and touts the role of state regulators in the process.
The agency is also in the process of repealing the Obama-era rule, arguing the previous administration overstepped its legal authority under the Clean Air Act when it issued the regulation in 2015.
"EPA continues to consider the possibility of replacing certain aspects of the CPP in coordination with a proposed revision," the notice says. Specifically, EPA said it wanted feedback on the roles of the federal and state governments and information about the appropriate scope of a replacement rule and technologies that could be required.
The agency has left the door open to not replacing the rule at all, which is the preferred approach by some conservatives who would like to see EPA blocked from regulating greenhouse gas emissions entirely. However, EPA seems to be planning to issue a replacement. EPA said last week in a regulatory planning document that it plans to release a proposed replacement rule in June 2018 (Climatewire, Dec. 15).
In its proposed repeal of the Clean Power Plan, the Trump administration said it believes EPA only had the authority to require source-specific emission limits, rather than the more flexible approach taken by the Obama administration. In today's notice, EPA said it wants comment on "how the program should be implemented assuming adoption of that proposed interpretation."
EPA is asking for information about "the burden that it would create for states to determine unit-by-unit emission standards" for each electric generating unit. And given that some states have already developed programs to limit power plants' greenhouse gas emissions, EPA wants to know how those programs could interact with a potential new rule.
Notably, the agency pointed to the process that North Carolina used to develop its draft rule in response to the Clean Power Plan. EPA said that state's plan "may provide a useful example of a process a state could go through to determine unit-level emission standards based on technology that can be applied at or to a source." The state developed a menu of potential heat-rate improvements, then examined potential opportunities on a unit-by-unit basis, determining that some units could make cost-effective improvements and developing specific standards based on those rates, EPA said.
EPA said it's "mindful that its regulatory powers are limited to those delegated to it by Congress," as the agency maintains the Obama administration exceeded its authority.
"Consistent with our commitment to the rule of law, we've already set in motion an assessment of the previous administration's questionable legal basis in our proposed repeal of the Clean Power Plan. With a clean slate, we can now move forward to provide regulatory certainty," EPA Administrator Scott Pruitt said in a statement.
"Today's move ensures adequate and early opportunity for public comment from all stakeholders about next steps the Agency might take to limit greenhouse gases from stationary sources, in a way that properly stays within the law, and the bounds of the authority provided to EPA by Congress."No 'shocking plot twists'
Energy and environmental lawyers are scrambling this afternoon to digest the 44-page document. Advocates of repealing the rule welcomed the opportunity for a redo, while environmentalists assailed the Trump administration's plan.
Joe Stanko, an industry attorney at Hunton & Williams LLP, said his takeaways were that "EPA recognizes the original, state-led intent of 111(d), with states having broad authority to design a program" and flexibility for implementation. He noted EPA was advocating "a return to an inside-the-fence-line analysis of controls," and a future rule would have "engineers looking at controls actually used at power plants, as opposed to the prior rule's use of computer modelers projecting future economywide reductions."
Karen Harbert, president and CEO of the U.S. Chamber of Commerce Global Energy Institute, said the notice "starts the process of developing a better way to approach greenhouse gas regulations than the Clean Power Plan."
She added, "Our hope is that today's request for input will begin a true collaboration between the federal government, states and all stakeholders to develop a more durable and achievable approach to addressing carbon emissions. The new approach should lower emissions, preserve America's energy advantage and respect the boundaries of the Clean Air Act. We look forward to participating in the process."
David Doniger, director of the Natural Resources Defense Council's climate and clean air program, called the notice a "scam."
"Everyone knows President Trump and Scott Pruitt want to gut the Clean Power Plan, taking our best fire truck away from a blazing fire. They should be strengthening, not killing, this commonsense strategy to curb the power plant carbon pollution fueling dangerous climate change," he said in a statement.
Miles Keogh, executive director of the National Association of Clean Air Agencies, wasn't surprised by the document. "There are not a lot of things that are shocking plot twists," he said. He commended EPA for seeking to incorporate more state and local input into the rulemaking process. NACAA includes 156 state and local members. "We see their interest as being very positive and feel it's a real opportunity to use that expertise usefully for whatever goes forward," he said.
Keogh noted the agency "played very carefully" around how a Clean Power Plan replacement might interact with the New Source Review and New Source Performance Standards for new and highly modified power plants.
A footnote of the document also noted the agency wasn't taking a position one way or the other on whether to review the endangerment finding for greenhouse gases.
"These were areas where EPA could have taken a very definitive stance in another direction. They chose not to take a provocative stance on it," he said.
https://www.eenews.net/eenewspm/2017/12/18/stories/1060069329

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CPP Replacement Plan Launches Debate On State Flexibility, NSR Overhaul

Dec 19, 2017 | Inside EPA

By Doug Obey and Lee Logan

EPA's advance notice of proposed rulemaking (ANPRM) seeking input on a narrow replacement for the Obama-era Clean Power Plan (CPP) tees up discussion of a rule limiting greenhouse gas cuts to those obtainable from plant efficiency improvements, while suggesting the agency might give states maximum flexibility to limit requirements, including whether any federal standards are “binding.”
The notice, released Dec. 18, also includes language that all-but invites conservative groups to offer strategies to block or significantly delay any power sector GHG rule by outlining discussion about whether EPA was required to adopt a power sector finding for GHGs.
EPA, however, finesses this issue by not specifically seeking comment on it and focuses largely on technical issues surrounding the possible CPP replacement.
Further, EPA in the notice sets up a discussion of using a CPP replacement to justify changes to EPA's Clean Air Act new source review (NSR) permitting program, in order to avoid plant efficiency improvements under the CPP triggering other requirements for non-GHG emissions controls.
“EPA continues to consider the possibility of replacing certain aspects of the CPP,” the ANPRM says, declining to commit to replacing the CPP, which the Trump EPA in October proposed to repeal. However, the notice seeks input on a range of potential elements of such a rule.
Those elements or issues include “aspects of the States' and the EPA's role in that process”; the best system of emission reduction (BSER) consistent with EPA's proposed repeal, and interaction of a potential CPP replacement with NSR and a companion rule for new and modified power plants.
The ANPRM is considered a first step in replacing the CPP, which the agency is separately seeking to repeal. Many industry groups have urged the administration to replace the CPP, fearing that if the Obama-era rule is repealed without a replacement, it will leave them vulnerable to nuisance suits.
But completion of a replacement rule will likely take much longer than the separate repeal effort, likely creating uncertainty during any interim period.
EPA Administrator Scott Pruitt has long argued that the Obama-era rule was unlawful because it sought to regulate “beyond the fenceline” of individual power plants.
As such, the bulk of EPA's ANPRM specifically seeks comment on several issues conducive to replacing the CPP with a narrower regulation focused primarily on actions, such as heat rate improvements, that occur “inside the fenceline” at specific power plants.
“The EPA has examined technologies and strategies that could potentially be applied at or to existing [power plants] to reduce emissions of GHG,” the notice says. “The Agency primarily focused on opportunities for heat rate (or efficiency) improvements at fossil fuel-fired steam generating [plants] to be a part of the BSER,” which is an air act standard used to calculate the regulation's emissions targets.
'Less Stringent Emissions Standard'
The agency also invites a discussion on the role of states in implementing a CPP replacement, including the key question of whether EPA's “guidelines” must be binding as states develop compliance plans under section 111(d) of the Clean Air Act -- the section of the air act that supported the CPP.
“It is fortuitous that the regulations implementing CAA section 111(d) recognize that States possess considerable flexibility in developing their plans response to the emission guideline(s) established by the EPA,” the notice says, stating that the agency retains “discretion” to make its standards “binding” or not when states develop their plans.
“[W]here the EPA has not exercised its discretion to make its emission guideline binding, States 'may provide for the application of less stringent emissions standards,' where a State makes certain demonstrations,” the document says.
EPA adds ways for states to demonstrate more lenient approaches could include case-by-case reviews of whether a weaker standard is “significantly more reasonable” because of cost issues, physical limitations or other factors, floating the possibility that a replacement might not include “presumptive emission limits.”
Instead it could allow states to set standards based on EPA's definition of BSER while considering the “unique circumstances” of the state and power plant.
And EPA cites as a “useful example” of a state process a draft North Carolina rule developed in response to the CPP that included a menu of potential heat rate improvements, and which concluded some units could be improved cost effectively and that other units did not have such opportunities because they are nearing retirement or for other reasons.
With respect to heat rate improvements, EPA also invites discussion on issues including how power plants might be sub-categorized under the rule and the merits of “gross” or “net” heat rates.
EPA's ANPRM comes as numerous industry groups are already pushing separately for changes to make EPA's NSR program more flexible -- a program which can cause facilities that undergo changes, including efforts to boost heat rates, to be subject to state-of-the-art emissions control regulations for conventional pollutants.
And the notice accordingly seeks comment on “actions that can be taken to harmonize and streamline” applicability of NSR to sources subject to a CPP replacement. EPA urges commenters to weigh in on CPP replacement rule compliance scenarios that could trigger NSR; what “rule or policy changes or flexibilities" EPA could pursue under NSR to aid compliance with a CPP replacement; potential actions facilities could take through EPA's minor NSR program or other means to avoid being subject to NSR; ways to draft CPP replacement compliance plans -- including use of inter- or intra-state trading -- to minimize power plants subject to NSR, and “other approaches” the agency should take into account.
Endangerment Finding
EPA in its notice also touches on the thorny issue of the endangerment finding, offering a lengthy discussion of the Obama administration's legal interpretations regarding GHG endangerment, including the issue of whether the agency needed to craft a sector-specific endangerment finding to issue the rule.
The latter issue aligns with arguments floated by conservative opponents of GHG rules, and they are likely to offer comments on the issue in response to the ANPRM.
However, EPA states in the notice that none of the discussion regarding endangerment in the ANPRM should be construed as “addressing or modifying” prior EPA findings with respect to endangerment.
“The ANPRM mentions them merely to explain the genesis of the CPP,” the notice says. For example, the ANPRM notes that the Obama EPA, which issued a landmark finding that GHGs from mobile sources endanger the public, “took the position that no new or separate GHG endangerment finding” for power plants was needed, given that power plants “were already regulated under the Clean Air Act as a source category.”
Such language appears to anticipate that conservative critics of the endangerment finding would file comments critical of either EPA's mobile source finding or its decision not to offer a power plant-specific finding, though EPA does not explicitly invite such comments and Pruitt has publicly downplayed the notion that EPA will revisit the endangerment finding.
EPA in its notice also seeks input on an array of other technical issues in its ANPRM, including whether regulated plants should be allowed to trade emissions credits or engage in emissions averaging for compliance.
“If so, should averaging be limited to units within a single facility, to units within a State, to units within an operating company, or beyond the State or company?” the document asks.
Many observers have said that a rule based only on actions physically taken at a power plant might preclude trading because the rule's targets assume that plants can comply without trading.
EPA in the document also agrees with the prior administration's finding that carbon capture and storage (CCS) technologies cannot be considered as part of BSER, which is the formula used to create the rule's targets. But it does float CCS as a compliance option and also raises the possibility that plants that have conducted CCS retrofits can engage in credit trading under the rule.
https://insideepa.com/daily-news/cpp-replacement-plan-launches-debate-state-flexibility-nsr-overhaul

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States, Environmentalists Cite EPA Agenda To Fault Ozone Delay

Dec 18, 2017 | Inside EPA

States and environmentalists who continue to sue the agency over its delay designating areas attainment with ozone national ambient air quality standards (NAAQS) -- even though the measure has been withdrawn -- are citing statements in the agency's just-released regulatory agenda for the coming year to rebut EPA's claim that the litigation is moot.
In a Dec. 18 filing in New York, et al. v. EPA, et al., 15 states led by New York tell the U.S. Court of Appeals for the District of Columbia Circuit that EPA, in its “Fall 2017 Agency Statement of Regulatory Priorities,” makes clear “that it understands the supposedly withdrawn extension to still be effective.”
EPA says it “'intends to use the additional time afforded by the designations extension' to complete tasks that are unrelated to the statutory bases for a NAAQS extension,” the filing says.
It adds, “Likewise, in an abstract describing air-quality designations for the 2015 ozone NAAQS, EPA states that it 'extended the deadline' to make designations 'to October 1, 2018.' Moreover, EPA does not list the outstanding 2015 ozone designations as agency actions likely to occur in the next year, or even as long-term agency actions.”
However, EPA air policy director William Wehrum told members of the agency's Clean Air Advisory Committee at a Dec. 12 meeting of the group in Washington, D.C., that EPA will shortly issue “120 day letters” to states advising them of its views on their recommendations for which areas should be designationed nonattainment. This is a necessary procedural step under the air law, and paves the way for final designations in 2018.
EPA in June issued a one-year delay of its designations for the 2015 ozone NAAQS of 70 parts per billion (ppb), pushing the Clean Air Act deadline from Oct. 1 this year to Oct. 1, 2018.
In August, faced with lawsuits from environmentalists and states challenging the legality of the delay, the agency withdrew that decision. EPA has indicated its intent to reconsider the NAAQS, which is tougher than the prior standard of 75 ppb set in 2008 by the George W. Bush administration.
The agency has now issued designations of which parts of the country are considered “attainment,” and which are “unclassifiable,” but has not yet designated any of the hundreds of remaining areas that are “nonattainment,” and therefore required to take additional steps to cut pollution. In response, states and environmentalists have filed deadline suits in federal district court to compel EPA to issue the nonattainment designations.
But states and environmentalists have not dropped their cases in the D.C. Circuit challenging the one-year-extension, because they dispute EPA's contention that the case is moot and are seeking a ruling limiting EPA's ability to issue such delays.
Environmentalists in a Dec. 18 filing in their suit, American Lung Association, et al. v. EPA, et al., say that according to the regulatory agenda, “EPA 'intends to use the additional time afforded by the designations extension to finalize' guidance documents related to ozone standards 'as well as to finalize its 2015 Ozone NAAQS Implementation rule'” which will detail for states the ozone-reduction measures they can including in NAAQS compliance plans.
Yet EPA has no currently published timeline for completion of that rule, proposed under the Obama administration. Hence the designations delay continues to have effects, and vacatur is necessary, they argue.
https://insideepa.com/daily-feed/states-environmentalists-cite-epa-agenda-fault-ozone-delay

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EPA Sued Over Texas Air Pollution Trading Program

Dec 19, 2017 | BNA Daily Environment Report

By Nushin Huq

Environmental groups asked a federal appeals court to review the EPA's final plan to reduce visibility-impairing air pollution in Texas, where the state has a trading program for utility emissions.
The National Parks Conservation Association, the Sierra Club, and the Environmental Defense Fund argue the Environmental Protection Agency's plan, which allows power plants in Texas to join an intrastate sulfur dioxide emissions trading program instead of installing pollution controls, isn't sufficient to protect the environment.
The National Parks Conservation Association and the Sierra Club supported a previous plan by the EPA, created under the Obama administration, that would have required the individual plants to install the pollution controls.
The decision to allow the coal plants to participate in an intrastate trading program instead won't reduce sulfur dioxide emissions, Chrissy Mann, senior campaign representative for Sierra Club's Beyond Coal Campaign, told Bloomberg Environment.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, the ultimate owner of Bloomberg Environment.
“The EPA essentially created a rule that didn't do anything,” Mann said. “The emission limits allowed by the new rule are higher than emissions that were released last year.”
Haze Rule
The regional haze program's purpose is to reduce haze and increase visibility at national parks and monuments, such as Big Bend National Park in Texas.
The Obama administration, in its initial rule, singled out eight Texas coal plants owned by Vistra Energy, Dynegy Inc., and Xcel Energy Inc. and required them to install pollution controls, known as Best Available Retrofit Techonology, to reduce sulfur dioxide emissions.
The Trump administration switched gears and allowed the Texas plants to participate in the trading program instead.
Industry applauded the new sulfur dioxide emissions trading program, saying it will be less costly to coal-fired power generators than retrofitting the plants with pollution controls. Some Texas coal plants have shut down as a result of low wholesale power prices.
EPA Petitioned
The three environmental groups also filed a petition Dec. 15 with the EPA, asking the agency to reconsider the emissions trading rule. They said the trading rule was adopted without notice or ability to comment, the EPA provided no rationale for abandoning its January 2017 pollution-control rule, and the trading program won't be better in improving visibility than installing pollution controls.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=125265542&vname=dennotallissues&fn=125265542&jd=125265542

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Trump Critics Cite Regulatory Agenda To Keep Ozone Suit Alive

Dec 18, 2017 | E&E News PM

By Sean Reilly

Some oddly worded language in U.S. EPA's semiannual rulemaking agenda has quickly become grist for a previously filed legal challenge to the agency's delay in making all attainment designations for its 2015 ground-level ozone standard.
The lawsuit, brought in July by the American Lung Association and other advocacy groups, challenged EPA Administrator Scott Pruitt's June decision to push back the deadline for making the designations from October 2017 until October 2018.
In August, Pruitt reversed himself and dropped plans for the blanket extension; the agency is now striving to have the lawsuit, pending before the U.S. Court of Appeals for the District of Columbia Circuit, thrown out as moot.
Attorneys for the advocacy groups argue the litigation should be kept alive until EPA finishes work on the designations, which were statutorily due at the beginning of October but are still not complete.
As part of their latest semiannual agenda released Thursday, however, agency officials appeared to suggest the designations extension remains in effect, writing they intend to use the added time to "finalize" guidance documents, along with an implementation rule for the 70-parts-per-billion standard.
In a court filing this afternoon, lawyers for the American Lung Association and other advocacy groups seized on that wording as evidence that the extension "continues to have effects, and thus is not moot."
They again urged the court to officially vacate the delay "to ensure it has no continuing effects that harm" the plaintiffs or their members.
From a practical standpoint, the attainment decisions are important because they start the clock for states to draft cleanup plans for out-of-compliance areas. In a brief interview Tuesday, EPA air chief Bill Wehrum said he expects to wrap up work on the designations process by this coming spring.
https://www.eenews.net/eenewspm/2017/12/18/stories/1060069325

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EPA Seeks Long-Term Hold On Suit Over Ark. Haze Plan

Dec 18, 2017 | E&E News PM

By Sean Reilly

U.S. EPA attorneys are citing a newly signed deal with Arkansas regulators as grounds for putting a long-term freeze on litigation surrounding an Obama-era haze reduction plan.
With EPA's blessing, the Arkansas Department of Environmental Quality is now proceeding with proposed changes to that plan, which is mainly intended to curb pollution from coal-fired power plants in the state. The memorandum of understanding between EPA and the Arkansas agency lays out a timetable for final federal action on that rewrite by the end of next year.
The MOU was signed late last week by acting EPA Region 6 Administrator Sam Coleman and Becky Keogh, head of the Arkansas Department of Environmental Quality. In a Friday status report with the 8th U.S. Circuit Court of Appeals, EPA pointed to the agreement as reason for "complete abeyance" of legal proceedings until the rewrite is complete.
"EPA and the state have a clear path forward and have embarked on a long-term process for administratively replacing the final rule," agency attorneys wrote.
The litigation, dating back to last year, has already been on hold since March (Greenwire, Nov. 1). In their own status report Friday, the National Parks Conservation Association and Sierra Club urged resumption of the proceedings and said the proposed state plan "unlawfully and arbitrarily fails to control sulfur dioxide pollution" from two Entergy Corp. plants.
https://www.eenews.net/eenewspm/2017/12/18/stories/1060069319

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EPA Eyes Dropping Ozone Guide In Face Of Oil & Gas Industry Criticism

Dec 18, 2017 | Inside EPA

By Dave Reynolds

EPA is seeking White House approval of a proposal to withdraw Obama-era guidelines states use for reducing ozone-forming emissions from the oil and gas industry in areas out of attainment with the agency's ambient air quality standards for the pollutant, after the sector attacked the guidelines as an unnecessary extra layer of regulation.
“In this action, the EPA requests comment on potentially withdrawing these guidelines in their entirety,” says a White House Office of Management & Budget (OMB) explanation of the notice of proposed withdrawal that it received on Dec. 15 for mandatory pre-publication review -- a process that typically takes 90 days but can take more or less time.
The agency is projecting publication of the notice sometime in January, says OMB's website.
The effort would further distance the Trump administration from the Obama EPA's efforts to reduce ozone and greenhouse gas emissions from the oil and gas sector. The agency has already announced it is reconsidering a rule forcing limits on the greenhouse gas methane from new oil and gas drilling.
While the new source performance standards (NSPS) rule was mandatory and applied to new operations, the Control Techniques Guidelines (CTGs) were voluntary measures to address volatile organic compounds (VOCs), an ozone precursor, for existing operations. They aimed to help states with oil and gas facilities in nonattainment areas better plan for ways to reduce ozone from the industry.
The decision to seek comment on a possible full withdrawal of the CTGs could create fresh confusion for states on how to plan for attaining the ozone national ambient air quality standards (NAAQS).
EPA has yet to issue any findings of nonattainment for the 2015 ozone NAAQS of 70 parts per billion despite a Clean Air Act deadline to do so by Oct. 1, so it is unclear which areas would need, or be able to use, the guidelines.
The proposed rule appears to address criticism from the oil and gas sector, including the American Petroleum Institute and the Independent Petroleum Association of America (IPAA) that the Obama-era guidelines were issued without adequate data and piled an unnecessary layer of regulation on the oil and gas sector.
For example, IPAA's Lee Fuller in August presented a white paper at the Texas Environmental Superconference, that faulted the CTGs as creating unnecessary regulation over the methane NSPS and increased uncertainty, in part because of litigation against the NSPS on which the CTGs are based.
“States are now considering regulations and, since the existing source CTG was finalized in October 2016, it is
now a CTG that must be included in state planning,” the paper says. “Consequently, this CTG -- based on NSPS regulations that are being reconsidered -- is now in play for small business wells.”
'Less Meaning'
Fuller also faulted the CTG's deferral on how to treat low production wells. “This deferral has less meaning than [the] NSPS action because CTG are a framework for states to develop their own regulations and are not specific mandates,” the paper says. “However, if a state fails to adopt a CTG based regulation, it must adopt other regulations to achieve the calculated reductions in emissions that the CTG would have provided.”
The CTGs did not directly impose binding regulations for VOC sources, instead providing recommendations for states to consider in determining reasonable available control technology (RACT) to cut VOCs from certain existing sources. States would be allowed to use different technologies or approaches than are outlined in the CTGs, but RACT is subject to EPA approval and a state must show its approach will achieve the required pollution cuts.
“These guidelines provided recommendations for reducing [VOC] emissions from existing oil and natural gas equipment and processes in Moderate and higher classified ozone nonattainment areas and states in the Ozone Transport Region,” according to OMB's website entry on the notice which will seek comment on whether to repeal the guidelines.
The Obama EPA said that implementation of the CTG's would have the co-benefit of reducing emissions of the potent greenhouse gas methane, and it is unclear whether the notice will seek to revise those co-benefits or otherwise alter the cost-benefit analysis for the guidelines.
In a fact sheet issued alongside the CTGs, the Obama administration said that the benefits of implementing the guidelines could result in a reduction that is “the equivalent of reducing more than 4.5 millions tons of carbon dioxide, or the greenhouse gas emissions of nearly a million passenger vehicles driven for one year.”
https://insideepa.com/daily-news/epa-eyes-dropping-ozone-guide-face-oil-gas-industry-criticism

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