Preview Newsletter
ACC AM 03/01/18
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9th Circ. Tells EPA To Get To Work On Lead Paint Standard
Jan 2, 2018 | Law 360
By Juan Carlos Rodriguez
The Ninth Circuit has ordered the U.S. Environmental Protection Agency to update lead-based paint and dust lead hazard standards, finding that the agency unreasonably delayed acting on environmentalists’ petition for a review. -
EPA Ordered To Act On Lead To Protect Children’s Health
Jan 2, 2018 | Safer Chemicals, Healthy Families
Last week, thanks to our coalition partners WE ACT for Environmental Justice, Sierra Club, and Earthjustice, and others, a federal court ordered the U.S. EPA to update standards for lead in paint and dust to protect children’s health. The agency must propose the revised standards in 90 days, and finalize them a year after that, despite EPA’s arguments for a further delay. -
For Chemical Safety Board, Advice to Federal Agencies Piles Up
Jan 3, 2018 | BNA Daily Environment Report
By Sam Pearson
Launched two decades ago as a free agent with the power to call out scofflaw businesses and any lax federal regulations enabling them, the U.S. Chemical Safety Board is still waiting for systemic changes only willing federal partners can secure. -
These Toxic Chemicals Are Everywhere — Even In Your Body. And They Won’t Ever Go Away.
Jan 2, 2018 | The Washington Post
By Joseph G. Allen
They say nothing lasts forever. Nothing, that is, except a group of toxic chemicals that may be associated with testicular cancer, kidney cancer, high cholesterol and suppression of vaccine effectiveness in children. -
New Hampshire Eyes Tighter Lead Paint Requirements
Jan 3, 2018 | Inside EPA
State lawmakers in New Hampshire are weighing bipartisan legislation aimed at requiring lead testing in young children and tightening the blood lead level at which landlords must act to mitigate lead sources on properties, coming just as EPA is being ordered by a federal appeals court to update a 2001 lead dust hazard standard. -
EU Adopts Opinion On Cosmetic Ingredient P-BMHCA
Jan 3, 2018 | Chemical Watch
The European Commission's Scientific Committee on Consumer Safety has issued an Opinion on the fragrance ingredient butylphenyl methylpropional (p-BMHCA), saying that it cannot conclude on the substance's safety. -
Danish Investigation Highlights EDC Use In Mascaras
Jan 2, 2018 | Chemical Watch
By Tammy Lovell
The Danish Consumer Council 'Think Chemicals' initiative has released test results showing the presence of endocrine disrupting chemicals (EDCs) and other unwanted chemicals in mascaras. -
UK Business Body Backs Remaining With Echa Post-Brexit
Jan 3, 2018 | Chemical Watch
By Luke Buxton
The Confederation of British Industry, an organisation representing 190,000 UK businesses, has recommended that the UK remains "within Echa and its associated regulatory frameworks" after Brexit. -
BLM Cites 'Unjustified' Costs To Scrap Obama-Era Fracking Rule
Jan 3, 2018 | Inside EPA
The Bureau of Land Management (BLM) has finalized its repeal of an Obama-era rule addressing hydraulic fracturing on federal lands, arguing the costs of the 2015 rule are “unjustified” and that states already regulate fracking -- although a federal appeals court recently upheld the previous administration's power to issue the rule. -
Chevron Phillips Chemical Co. Completes Ethane Cracker
Jan 3, 2018 | Hydrocarbon Engineering
By Callum O'Reilly
Chevron Phillips Chemical Co. LP (Chevron Phillips Chemical) announced the successful mechanical completion of its ethane cracker at Cedar Bayou in Baytown, Texas, today. -
U.S. Urges Railroads To Quickly Install Anti-Crash Safety System
Jan 2, 2018 | Reuters
By David Shepardson
U.S. Transportation Secretary Elaine Chao urged the nation’s railroads and transit agencies to take all possible measures to meet deadlines to install a safety system called positive train control (PTC) to prevent crashes. -
Industry Eyes Permitting Fixes Beside Power Plan Replacement
Jan 3, 2018 | BNA Daily Environment Report
By Abby Smith and Jennifer Lu
The narrow replacement of Obama-era power plant carbon controls must run on a track that's parallel to, but separate from, changes to a major EPA air pollution permitting program, industry groups say. -
More States Hosting 'People's' Hearings On Rule Repeal
Jan 2, 2018 | E&E News PM
By Arianna Skibell
Two more states have announced they intend to hold public hearings on U.S. EPA's proposal to repeal the Clean Power Plan, former President Obama's signature climate regulation. -
EPA Floats New Ozone NAAQS Nonattainment Areas But Changes Possible
Jan 2, 2018 | Inside EPA
By Stuart Parker
EPA is suggesting that several counties should be designated as out of attainment with the 2015 ozone national ambient air quality standard (NAAQS), but affected states can attempt to change those findings to attainment and at least one area might be able to claim a Clean Air Act waiver for “exceptional” air pollution to avoid nonattainment. -
EPA Eyes Steps To Ease Implementation Of Contested 2015 Ozone NAAQS
Jan 3, 2018 | Inside EPA
By Stuart Parker
EPA's updated regulatory agenda includes several priority actions designed to ease implementation of the Obama-era tightening of the ozone standard to 70 parts per billion (ppb) from the prior 75 ppb limit, including issuing guidance on waivers from compliance with the standard and easing air permitting under the stricter ozone limit. -
Unified Agenda Signals EPA Plan To Relax, Modernize Suite Of Air Rules
Jan 3, 2018 | Inside EPA
By Stuart Parker
EPA is pursuing several rulemakings this year designed to relax and modernize a suite of Clean Air Act rules, including easing emission monitoring requirements for several industrial sectors, updating its fuel air policies in a bid to reduce compliance costs, and new steps for approving non-ozone depleting refrigerants. -
Delaware Threatens To Sue EPA Over Out-Of-State Air Pollution
Jan 2, 2018 | The Hill - E2 Wire
By Timothy Cama
Delaware’s state government is threatening to sue the Environmental Protection Agency (EPA) for not approving four requests to crack down on out-of-state air pollution.
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9th Circ. Tells EPA To Get To Work On Lead Paint Standard
Jan 2, 2018 | Law 360
By Juan Carlos Rodriguez
Law360, New York (January 2, 2018, 5:58 PM EST) -- The Ninth Circuit has ordered the U.S. Environmental Protection Agency to update lead-based paint and dust lead hazard standards, finding that the agency unreasonably delayed acting on environmentalists’ petition for a review.
In a Dec. 27 ruling, a split three-judge panel granted a petition for writ of mandamus brought by environmental groups that sought to force the agency to act on their rulemaking petition for updated standards, which was granted by the Obama administration in 2009. The majority opinion said that the Toxic Substances Control Act and amendments to it from the Paint Hazard Act create a duty for the EPA to act.
“Congress did not simply state a goal when enacting the TSCA and the Paint Hazard Act; Congress established statutory standards that the EPA must enforce,” said the majority opinion, penned by Circuit Judge Mary M. Schroeder and U.S. District Judge for the District of South Dakota Lawrence L. Piersol, sitting by designation.
Even if the EPA did not have a duty to act under TSCA, it does under the Administrative Procedure Act.
“Under the applicable law, the EPA has to reach some final decision,” the majority said. “Having chosen to grant the petition for rulemaking, EPA came under a duty to conclude a rulemaking proceeding within a reasonable time. The agency does not comply with that duty merely by ‘beginning an appropriate proceeding.’”
On the question of whether the EPA’s delay has been unreasonable, Judges Schroder and Piersol found it has been, noting that eight years have passed since the petition was granted and the agency has not published a concrete timetable for final action.
In addition, the majority judges found that there is a clear threat to human welfare, citing the EPA’s own information that “lead poisoning is the No. 1 environmental health threat in the U.S. for children ages six and younger” and that the current standards are insufficient.
“The children exposed to lead poisoning due to the failure of EPA to act are severely prejudiced by EPA’s delay, and [this] factor thus favors issuance of the writ,” the opinion said.
The opinion ordered the EPA to issue a proposed rule within 90 days of the date that the decision becomes final and said that the agency must promulgate the final rule within one year after the promulgation of the proposed rule.
Circuit Judge N. Randy Smith dissented, finding that neither TSCA nor the Administrative Procedures Act creates a duty for the EPA to act.
Hanna Chang of Earthjustice, who represented petitioners A Community Voice, California Communities Against Toxics, Healthy Homes Collaborative, New Jersey Citizen Action, New York City Coalition to End Lead Poisoning, Sierra Club, United Parents Against Lead and We Act for Environmental Justice, cheered the decision
“The court’s decision changes the lives of the tens of thousands of children who live in the 37 million homes in the U.S. containing lead-based paint,” Chang said on Tuesday. “Once EPA complies with the court’s order, lead hazards from paint and dust in the homes will be properly identified — no longer will these children and their poisoning by lead serve as the indicators of lead hazards in their own homes.”
The EPA said in a statement Tuesday that it disagrees with the Ninth Circuit’s decision.
"The decision simply means that EPA must either work in accordance with the timeframes set by the court or seek modification of the court-ordered deadlines," the agency said. "Lead exposure remains a significant health threat to children, and EPA will continue to work diligently on a number of fronts to address issues surrounding childhood lead exposure from multiple sources."
A representative for the EPA did not immediately respond to a request for comment on Tuesday.
Judges Mary M. Schroeder, N. Randy Smith and U.S. District Judge for the District of South Dakota Lawrence L. Piersol, sitting by designation, sat on the panel for the Ninth Circuit.
The plaintiffs are represented by Hannah Chang, Eve C. Gartner and Jonathan J. Smith of Earthjustice.
The EPA is represented by Perry M. Rosen of the U.S. Department of Justice.
The case is A Community Voice et al. v. U.S. Environmental Protection Agency, case number 16-72816, in the U.S. Court of Appeals for the Ninth Circuit.https://www.law360.com/appellate/articles/997955/9th-circ-tells-epa-to-get-to-work-on-lead-paint-standard
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EPA Ordered To Act On Lead To Protect Children’s Health
Jan 2, 2018 | Safer Chemicals, Healthy Families
Last week, thanks to our coalition partners WE ACT for Environmental Justice, Sierra Club, and Earthjustice, and others, a federal court ordered the U.S. EPA to update standards for lead in paint and dust to protect children’s health. The agency must propose the revised standards in 90 days, and finalize them a year after that, despite EPA’s arguments for a further delay.
Eve Gartner, an Earthjustice staff attorney who helped argue the case, stated: “This is going to protect the brains of thousands of children across the country . . . It’s going to mean that children that otherwise would have developed very elevated blood lead levels will be protected from the damage associated with that, assuming E.P.A. follows the court order.”
The court’s timeline may seem quick, but every day the current standards are in place, children remain at risk for lead poisoning. Moreover, without a court mandate, the agency planned to delay for at least six more years. It’s already been eight years since EPA agreed to update these standards, in what would be the first revision since they were established. EPA issued the dust-lead hazard standards in 2001 and adopted Congress’s definition of lead-based paint in 1996.
Advances in scientific research in the intervening years have shown us that children face harm even from low levels of exposure to lead. EPA’s 2001 dust-lead hazard standards are tied to what was previously thought to be the “level of concern” for lead in a child’s blood: 10 micrograms per deciliter (µg/dL). But in 2012, the Centers for Disease Control and Prevention (CDC) officially acknowledged that there is no safe level of lead in a child’s blood. CDC changed its recommendation on what level should trigger a public health response by cutting its level of concern in half and renaming it a reference level.
In our 2017 report, Children at Risk, we discussed the importance of regular blood testing to identify young children with elevated lead levels. This approach allows for earlier intervention to mitigate developmental damage, and identification and elimination of sources of exposure. Because it’s better to prevent the exposure in the first place, it’s crucial that EPA gets these dust and paint standards right.
The long road to the court’s decision began in 2009. A group of non-profit organizations including Sierra Club and Alliance for Healthy Homes petitioned EPA “to more adequately protect” children and update the standards for lead in paint and dust. EPA quickly agreed to issue a rule, and worked on the matter over the next several years, but a rule never materialized. To prompt action, WE ACT, Sierra Club, and others represented by Earthjustice petitioned the 9th Circuit Court of Appeals to direct EPA to finally update the standards as it promised years earlier.
We applaud our coalition partners for this critical achievement for children’s health. EPA’s standards are more than overdue for an update.
http://saferchemicals.org/2018/01/02/epa-ordered-to-act-on-lead-to-protect-childrens-health/
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For Chemical Safety Board, Advice to Federal Agencies Piles Up
Jan 3, 2018 | BNA Daily Environment Report
By Sam Pearson
Launched two decades ago as a free agent with the power to call out scofflaw businesses and any lax federal regulations enabling them, the U.S. Chemical Safety Board is still waiting for systemic changes only willing federal partners can secure.
Though the CSB lacks its own regulatory authority, it can urge federal agency changes with implications for oil and chemical companies as well as labor unions and workers because their facilities are subject to these regulations.
But a large majority of the independent agency's recommendations to federal counterparts have languished without action, records show.
Federal agencies failed to respond to CSB recommendations 31 percent of the time. And just 37 percent of the CSB's recommendations to federal authorities have been adopted since the agency opened in 1998, according to a Bloomberg Environment analysis of CSB data.
By comparison, trade organizations have implemented 73 percent of recommendations, while facility owners and operators adopted 77 percent. Manufacturers of equipment, vendors, contractors, and suppliers of facilities where a chemical incident has occurred have met 89 percent of recommendations.
Mixed Results
The CSB “frankly, has somewhat of a mixed history in relating to other federal agencies,” board member Rick Engler said at a public meeting in October. “Maybe that's a nice way of putting it.”
The discrepancy reflects the difficulty of the tasks the CSB assigns to federal agencies, Michael Wright, health and safety director at the United Steelworkers Union, which represents workers at some industrial facilities that have been investigated by CSB, told Bloomberg Environment.
A trade organization “can just assemble a group and get to work on a new consensus standard,” if that is what CSB asks for, Wright said. “It's infinitely easier to do that than it is for OSHA [the Occupational Safety and Health Administration] to go through a whole rulemaking.”
A CSB spokeswoman didn't respond to a request for comment.
Off the Hook
Recent questions about the feasibility of the CSB's recommendations to federal agencies has led to some second guessing.
In one instance following debate during a public meeting in November, the board voted 3-1 to abandon a recommendation to the Bureau of Safety and Environmental Enforcement that suggested the Interior Department agency set up a system of labor management safety councils for offshore oil facilities in the Gulf of Mexico.
The board had identified insufficient worker participation in safety roles at offshore oil platforms as a problem in its Deepwater Horizon explosion investigation in 2010. But earlier this year, BSEE told the CSB it lacked the legal authority to set up the program.
In a March 22 letter to CSB Director of Investigations Charles Barbee, Douglas Morris—BSEE's chief of its office of offshore regulatory programs—did not specify why the agency lacked authority. The letter said BSEE thought the CSB's safety objectives have been addressed by “recent BSEE reforms.”
The move prompted claims from some labor advocates and former Obama administration officials that the CSB was failing to stand up for strong safety standards. The board said it wanted the changes but was convinced by BSEE's legal analysis.
The action means that CSB will no longer list BSEE as noncompliant with the regulation. The board's next move is unclear, but the CSB has “an obligation to fix that problem and to get [the recommendation] addressed to the right people and push to see it adopted,” the United Steelworkers’ Wright said.
Some Successes
After an explosion at a Delaware oil refinery killed one worker and injured eight in 2001, the CSB issued eight recommendations to industry trade associations—the American Petroleum Institute, National Association of Corrosion Engineers, and National Petrochemical and Refiners Association—five of which have been adopted and completed.
But a request that OSHA cover certain atmospheric storage tanks like the one that exploded at the refinery under its process safety management standard remains incomplete. The board designated it as open with an unacceptable response in 2013, more than 10 years after issuing the request. The board said it had “inquired about the progress of this revision on multiple occasions, without receiving a clear answer.”
BSEE is not the only agency with outstanding recommendations from the CSB. Records show the board has 31 other open recommendations to federal agencies for which it has not received a response, though there's no indication of broader pushback to the CSB standards.
Sometimes agencies, such as the Occupational Safety and Health Administration, found it more practical to wait to incorporate CSB suggestions en masse in a future rulemaking, rather than address the recommendations individually as they arrived, Jordan Barab, former OSHA deputy director from 2009 to 2017, told Bloomberg Environment.
“A lot of the agencies they are going to are EPA and OSHA, which have severe cases of regulatory constipation,” Jeff Ruch, executive director of Public Employees for Environmental Responsibility, which advocates for government employees, told Bloomberg Environment.
For example, federal programs that protect workers and the public from unplanned chemical releases haven't seen rewrites in decades. OSHA has not updated its process safety management standard since 1992, and the EPA has not rewritten its facility risk management program regulation since it was published in 1996.
How Recommendations Work
Recommendations are developed by career staff, but Senate-confirmed board members must vote to approve them or modify their status later.
The agency rarely reconsiders recommendations to federal agencies, as it did for BSEE. It has done so only five other times since its founding. Halted proposals to these entities include:
• On Feb. 1, 2017, it abandoned a request that the EPA play a role in a process safety culture survey oversight committee at Andeavor Corp.'s Tesoro, Wash., refinery, a recommendation first issued in 2014. CSB said it “reconsidered the appropriateness” for a federal agency to participate in a company-specific program.
• On July 5, 2017, it scrapped a call that OSHA amend its permit-required confined spaces rule for general industry to reduce the limit below the level at which a flammable chemical could ignite, a recommendation issued in 2010. OSHA told the CSB that the standard already prohibited such conduct and enforced it against the company, Xcel Energy, that the CSB had investigated.
CSB Outcomes Reviewed
CSB staff audited some recommendations in 2015, releasing a report finding that recipients who did not complete the suggestions understood what was expected of them, and that recipients whose recommendations were already marked as closed had not backtracked on their progress.
At the same time, the report said it was hard to know whether chemical incidents had declined as a result of specific safety recommendations because the CSB lacks more reliable data on how often they occur.
The board has since been sued by advocacy groups that wanted a court to order it to issue a chemical reporting regulation, as called for in the Clean Air Act Amendments of 1990.
Barab said the CSB might be able to achieve better outcomes by working collaboratively with federal agencies in advance of issuing a safety recommendation.
It's important to “make sure you have a thorough discussion with the targets of the recommendation to make sure that what you're doing is possible legally for the agency to do, and where it's the most effective way to get where you want to go,” Barab said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=125918567&vname=dennotallissues&fn=125918567&jd=125918567
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These Toxic Chemicals Are Everywhere — Even In Your Body. And They Won’t Ever Go Away.
Jan 2, 2018 | The Washington Post
By Joseph G. Allen
Joseph G. Allen is assistant professor at Harvard T.H. Chan School of Public Health and faculty adviser to the Harvard Healthier Building Materials Academy.
They say nothing lasts forever. Nothing, that is, except a group of toxic chemicals that may be associated with testicular cancer, kidney cancer, high cholesterol and suppression of vaccine effectiveness in children. They are now in nearly all of our bodies, are found in the air and water around the globe, and they never go away. They are “Forever Chemicals.”
These are stain-repellent chemicals that we use in products throughout our homes, offices, schools, hospitals, cars and airplanes. They are characterized by a fluorine-carbon backbone. And the F-C bond, the Forever-Chemical bond, is quite amazing, representing one of the strongest bonds in all of organic chemistry.
When several F-C bonds are strung together, some really useful industry properties appear, including allowing air to pass through while blocking things such as grease, oil and dirt. This ability to act as a stain repellent is why we apply them to all sorts of products we like to keep clean, from carpets and furniture to camping gear. It’s also why we apply it to nonstick cookware — almost nothing can stick to the pan when we have a layer of these chemicals on the surface.
But this property comes with a pernicious dark side. The F-C bond is so strong that these chemicals never fully degrade. Ever. Like, for millennia ever.
Forever Chemicals have been used in products since the 1940s and, to confuse things as only scientists can, the terminology around these chemicals is so precise as to be useless. You might have heard them referred to as “stain-repellent compounds” or “highly fluorinated chemicals.” For years, many called them by their infamous toxic poster child “C8,” referring to the eight-carbon Forever Chemicals “PFOA” and “PFOS.” The most recent technical name for the Forever Chemicals we are talking about — the ones in consumer products and building materials — are perfluorinated or polyfluorinated alkyl substances, or PFASs. Rolls off the tongue, doesn’t it?
(There is another set of Forever Chemicals, called hydrofluorocarbons, that we are not talking about here. These are used as refrigerants and, because they are potent greenhouse gases, are being phased out of use under the latest amendment to the Montreal Protocol.)
It might be one thing if Forever Chemicals stayed put once in our consumer products and building materials. But that’s simply not the case. Forever Chemicals escape from the products we put them in and from the industrial facilities that produce them. The latest high-profile Forever Chemical to come under scrutiny is GenX, a nonstick chemical in cookware that Chemours, the manufacturer behind Teflon, was allegedly discharging into Cape Fear River, the drinking-water source for hundreds of thousands of people in North Carolina. We now find Forever Chemicals all over the globe, from the blood of polar bears to the middle of the Pacific Ocean.
We also find them inside all of us; in the most recent survey of the U.S. population, one set of these Forever Chemicals showed up in the blood of more than 98 percent of Americans. My colleagues published a paper in 2016 showing that 6 million Americans have these chemicals in their drinking water above the “safe” limit set by the Environmental Protection Agency. That might be an underestimate, because regulators are considering lowering that limit.
Public-health scientists often describe the wicked game of replacing one harmful chemical with an equally harmful chemical as “regrettable substitution.” But Forever Chemicals are worse. We don’t swap one for one. They are more like weeds in a garden; as soon as we remove one from the market, 10 more appear. We have largely eliminated the use of PFOA and PFOS, but there are thousands of new variants of Forever Chemicals in use.
And it may get worse. In every chemical with a carbon-hydrogen bond (the fundamental unit of organic chemistry), you can theoretically replace the “H” with an “F,” creating a Forever Chemical. Thus, the number of Forever Chemicals that can be made is close to infinite. Scientists could study these indefinitely and not make any progress. It’s job security that I don’t want.
We need a market solution to this problem. Thankfully, there is already action across several sectors. In the health-care industry, Kaiser Permanente announced in 2016 that it is banning Forever Chemicals in furniture and materials in its building projects. Manufacturers HermanMiller and Shaw are offering products without them as well. Even consumer product retailers are getting involved: Columbia Sportswear partnered with hip-hop artist Macklemore in 2016 to introduce a rain jacket with no added Forever Chemicals.
Universities have a role to play, too. Harvard recently announced new Green Building Standards requiring that we no longer purchase furniture and other materials containing Forever Chemicals. We are using our campus as a living laboratory to test out better products and create the scientific evidence that demonstrates that when we act, we see an improvement in environmental quality in our buildings.
Collectively, from all sectors, we need to send clear market signals that we all want products that adhere to green science principles, such as designing for degradation. Because nothing should last forever, including our patience.
https://www.washingtonpost.com/opinions/these-toxic-chemicals-are-everywhere-and-they-wont-ever-go-away/2018/01/02/82e7e48a-e4ee-11e7-a65d-1ac0fd7f097e_story.html?utm_term=.e0a603a7949c
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New Hampshire Eyes Tighter Lead Paint Requirements
Jan 3, 2018 | Inside EPA
State lawmakers in New Hampshire are weighing bipartisan legislation aimed at requiring lead testing in young children and tightening the blood lead level at which landlords must act to mitigate lead sources on properties, coming just as EPA is being ordered by a federal appeals court to update a 2001 lead dust hazard standard.
According to the Keene Sentinel, the New Hampshire Senate is slated to vote on Senate Bill 247 on Jan. 3, just one day after Gov. Chris T. Sununu (R-NH) scheduled a press conference to voice support for the bill. The bill aims to improve prevention of childhood lead poisoning caused by paint and water, New Hampshire Public Radio reported Jan. 1.
Among other things, the bill would require children at ages 1 and 2 to be tested for lead in their blood, and would reduce the "action level" for blood in lead at which landlords would be required to abate lead on their properties, the Sentinel says. The legislation would also create a $6 million fund to offer grants over two years for property owners to use to abate lead hazards, it reports.
The push in New Hampshire comes as a federal appeals court in late December issued a ruling ordering EPA to propose updates to its 2001 lead dust hazard standard within 90 days, and take final action no later than a year after that.
In a 2-1 decision in A Community Voice, et al. v EPA, the U.S. Court of Appeals for the 9th Circuit Dec. 27 held that EPA has both neglected a statutory duty to update the lead standards it enacted in 2001 in response to new scientific information, and unreasonably delayed work in that area by accepting a rulemaking petition that sought new standards in 2009, yet failing to take further action for the following eight years.
The 9th Circuit's decision backed environmental and health groups who alleged EPA has ignored Congress' intent to revise the standards based on new information.
The 2-1 majority rejected EPA's argument that current law only required it to issue the original lead dust standard, leaving any further updates entirely to regulators’ discretion.
But EPA could satisfy the court's mandate by deciding to scrap the proposal and keep the current standards, though it would face a certain lawsuit over that decision.
Environmentalists and other groups have long sought more stringent standards to protect against childhood exposure to dust from lead paint and other sources, based on findings that the metal is a neurotoxin with no safe level of exposure. In particular, the Centers for Disease Control and Prevention (CDC) in 2012 tightened its “level of concern” for lead dust from 10 micrograms per deciliter (ug/dL) to a “reference value” of 5 ug/dL -- a significant move since EPA based its 2001 standards on CDC’s 10 ug/dL figure.
https://insideepa.com/daily-feed/new-hampshire-eyes-tighter-lead-paint-requirements
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EU Adopts Opinion On Cosmetic Ingredient P-BMHCA
Jan 3, 2018 | Chemical Watch
The European Commission's Scientific Committee on Consumer Safety has issued an Opinion on the fragrance ingredient butylphenyl methylpropional (p-BMHCA), saying that it cannot conclude on the substance's safety.
The SCCS adds that evaluation by other scientific bodies (under REACH) will also need to be taken into consideration for any future assessment of the substance.
The Commission requested the Opinion last June, following the submission of a new safety dossier by the International Fragrance Association (Ifra) in March.
Ifra's revised dossier proposed lower maximum use levels of p-BMHCA. It also aimed to address previous SCCS concerns over impurities in the ingredient.
Based on analysis of data in the dossier, the SCCS has decided the genotoxicity potential of the substance cannot be excluded. And therefore it cannot conclude on its safety.
In 2016, the committee decided that the fragrance ingredient is not safe in leave-on or rinse-off cosmetics, due in part to its skin sensitisation properties.
https://chemicalwatch.com/62793/eu-adopts-opinion-on-cosmetic-ingredient-p-bmhca
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Danish Investigation Highlights EDC Use In Mascaras
Jan 2, 2018 | Chemical Watch
By Tammy Lovell
The Danish Consumer Council 'Think Chemicals' initiative has released test results showing the presence of endocrine disrupting chemicals (EDCs) and other unwanted chemicals in mascaras.
Think Chemicals checked the ingredients listed on the labels of 55 mascaras and matched them against lists of problematic substances, including the EU's endocrine disruptor priority list and its list of harmonised classifications.
Of those tested it found 32 contained substances that were allergenic or "endocrine disrupting and problematic to the environment".
The problematic substances identified were:parabens – suspected to be endocrine disrupting;butylated hydroxytoluene (BHT) – suspected to be endocrine disrupting;cyclopentasiloxane – suspected to be endocrine disrupting and problematic to the environment;PTFE – a fluorinated substance that is problematic to the environment;chloroxylenol – an allergenic substance;imidazolidinyl urea – an allergenic substance; andiodopropynyl butylcarbamate – an allergenic substance.'Cocktail effect'
The research says that endocrine disrupting and allergenic substances in mascara do not generally constitute a problem, because the amount in a single product is very small.
However, they can contribute to consumers' combined exposure to unwanted chemicals encountered from many sources.
"The cocktail effect is the combined effect when you add up your exposure to many different substances from many different products. Even though the single product is safe, your combined exposure can be too high," the research says.
It, therefore, recommends buying cosmetics without problematic chemicals as one of the ways consumers can minimise their exposure.
The report found that brands such as Clinique, MAC, Chanel, Helena Rubinstein, Lancôme and L'Oreal had mascara products both with and without problematic chemicals.Company reactions
In response an Estée Lauder Cosmetics spokesperson said the company does not use substances which constitute any danger and all ingredients were approved for use in skin care products and cosmetics by the EU and the Danish authorities.
A spokesperson for L’Oréal said consumer safety is the company's most important objective and it has a team of more than 100 toxicologists, doctors and experts, who are responsible for verifying that all launched products are safe.
"When it comes to preservatives in our products, they can be necessary to protect the product against bacteria and fungus and to secure that the product can be used for several months," the company added. "We use only safe products and legal preservatives and do not compromise our consumers' safety."
And a spokesperson for Dark Blond Cosmetics said the company's future mascaras will be made without cyclopentasiloxane.
The Danish Consumer Council Think Chemicals is a programme which carries out independent testing of products, aimed at helping consumers avoid chemicals of concern.
https://chemicalwatch.com/62765/danish-investigation-highlights-edc-use-in-mascaras
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UK Business Body Backs Remaining With Echa Post-Brexit
Jan 3, 2018 | Chemical Watch
By Luke Buxton
The Confederation of British Industry, an organisation representing 190,000 UK businesses, has recommended that the UK remains "within Echa and its associated regulatory frameworks" after Brexit.
In a December report The room where it happens: A guide to EU bodies and regulators that matter to business in the Brexit negotiations, the CBI says that while its members find EU chemicals rules burdensome and costly to implement Echa is "world leading".
And, it adds, as UK business will be subject to these rules after Brexit, "influence and involvement in this forum matters".
The UK chemicals industry has become highly integrated within European supply chains, the guide says. If Britain were to leave this system of rules, national businesses would face "a serious competitive disadvantage from having to comply with a UK version of REACH in addition to the European version in order to import and export".
The compliance costs of this would be high, it says. And because Echa is recognised as "setting the gold standard" in chemicals regulation, it adds, some multinational companies adopt REACH despite not exporting to the EU, to bring their own compliance to "the strongest standard".
The CBI singles out the aerospace industry in a case study, and says any departure from Echa and REACH would have "an enormous impact" on the sector's highly integrated supply chains across the EU and the UK.
Meanwhile, the UK's Cosmetic, Toiletry and Perfumery Association (CTPA) has recently said a national REACH law that separates the country from authorities like Echa after it leaves the EU, would be detrimentalfor companies in the chemical and cosmetics sectors.
The CBI report resonates with the positions adopted by the UK's Chemical Industries Association (CIA) and Chemical Business Association (CBA). They have both staunchly advocated the UK's continued affiliation with the agency.UK voice
In sectors such as chemicals, the CBI says, "the EU leads the world, and the UK’s voice is lifted across the globe when it works hard to set the standard with EU partners". Where this is the case, it adds, businesses want to see the UK retain full participation in the bodies that set these rules, "to have as much control as possible" over the economy’s future direction.
In February last year, a House of Lords committee said the UK must continue to push its "informal influence" on EU discussions on chemicals legislation following Brexit.
And the head of the CIA said earlier that during the pre-Brexit and exit negotiation period, UK government officials taking part in EU talks must "stay the course as best they can" in order to continue to influence regulation.
The CBI points out that there is precedent for non-EU member state involvement in Echa – Norway, Iceland and Liechtenstein all have observer status. However, it remains unclear at this stage if the UK will have some kind of third-country membership to the agency.
https://chemicalwatch.com/62778/uk-business-body-backs-remaining-with-echa-post-brexit
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BLM Cites 'Unjustified' Costs To Scrap Obama-Era Fracking Rule
Jan 3, 2018 | Inside EPA
The Bureau of Land Management (BLM) has finalized its repeal of an Obama-era rule addressing hydraulic fracturing on federal lands, arguing the costs of the 2015 rule are “unjustified” and that states already regulate fracking -- although a federal appeals court recently upheld the previous administration's power to issue the rule.
“The BLM believes that it is not only better policy to rescind the 2015 rule to relieve operators of duplicative, unnecessary, costly and unproductive regulatory burdens, but it also eliminates the need for further litigation about BLM’s statutory authority,” BLM says in the final rescission rule issued in the Federal Register Dec. 29.
Environmentalists are faulting the decision, with Earthjustice attorney Mike Freeman telling the Washington Post Dec. 29 that the Obama fracking rule was “reasonable and long overdue,” and claiming that the rescission shows the Trump administration sacrificing public lands to benefit the oil and gas industry.
BLM in the final rescission rule says the scrapping the policy is consistent with President Donald Trump's March 2017 Executive Order 13783 on “Promoting Energy Independence and Economic Growth,” and a subsequent Department of Interior (DOI) Secretary Ryan Zinke directive to rescind the rule.
The 2015 rule from BLM, which is part of DOI, required oil and gas operators on public lands to disclose chemicals used in the fracking process, and sets requirements for disposing fracking wastewater and well integrity standards.
States and industry groups challenged the Obama BLM rule in the case, State of Wyoming, et al. v. BLM, et al, arguing that the rule violated the 2005 energy law that exempted fracking from Safe Drinking Water Act requirements.
Environmental groups in legal filings have called the district court's ruling setting aside the Obama-era rule erroneous, and opposed administration efforts to delay appellate review of the lower court's ruling as a violating the Administrative Procedure Act.
In September, the U.S. Court of Appeals for the 10th Circuit reversed the lower court's decision and instructed the court to dismiss the plaintiffs' lawsuit without prejudice. Plaintiffs have sought en banc review of the appellate ruling. And DOI says that since the 10th Circuit has not issued its mandate to the lower court the 2015 rule has not taken effect.
In the rescission rule, DOI calls the benefits of the 2015 fracking rule “questionable,” and notes that “all 32 states with Federal oil and gas leases currently have laws or regulations that address hydraulic fracturing operations.”
Additionally, the agency argues that disclosure of the chemical content of fracking fluids is more prevalent than in 2015, making a federal disclosure requirement unnecessary.
“Commenters and a District Court have raised doubts about BLM’s statutory authority to regulate hydraulic fracturing operations on Federal and Indian lands,” the agency says. “With this final rule, the BLM is rescinding the 2015 rule because we believe it imposes administrative burdens and compliance costs that are not justified.”
https://insideepa.com/daily-feed/blm-cites-unjustified-costs-scrap-obama-era-fracking-rule
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Chevron Phillips Chemical Co. Completes Ethane Cracker
Jan 3, 2018 | Hydrocarbon Engineering
By Callum O'Reilly
Chevron Phillips Chemical Co. LP (Chevron Phillips Chemical) announced the successful mechanical completion of its ethane cracker at Cedar Bayou in Baytown, Texas, today.
In order to guarantee a smooth start-up and the desired production the cracker is currently being subjected to numerous commissioning tests, system checks and mandatory certifications. Chevron Phillips Chemical anticipates that the unit – for which 5000 workers were required – will generate a minimum of 1.5 million tpy.
"With the mechanical completion of Cedar Bayou's ethane cracker, we are now on the cusp of completing the most transformative project in our company's history, or US Gulf petrochemical project," said Mark Lashier, president and CEO of Chevron Phillips Chemical.
When the cracker begins production it will create product for the company’s ethylene business as well as feedstock for its ethylene derivatives businesses. The unit joins the company’s two new polyethylene (PE) units at Old Ocean, Texas, and forms another part of the company’s drive to meet the increasing worldwide demand for PE. The units create various polyethylene resins, such as metallocene LLDPE film and bi-modal film.
Supplementing the completion of the cracker and PE units is the company’s purchase of approximately 3000 new rail cars, along with the construction of a storage-in-transition facility; the latter will ship PE by rail to national consumers and ports for global export.
https://www.hydrocarbonengineering.com/refining/02012018/chevron-phillips-chemical-co-completes-ethane-cracker/
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U.S. Urges Railroads To Quickly Install Anti-Crash Safety System
Jan 2, 2018 | Reuters
By David Shepardson
WASHINGTON (Reuters) - U.S. Transportation Secretary Elaine Chao urged the nation’s railroads and transit agencies to take all possible measures to meet deadlines to install a safety system called positive train control (PTC) to prevent crashes.
Letters dated Dec. 27, which were made public on Tuesday, said Chao wanted railroads to “greatly accelerate” efforts to meet congressional deadlines. A deadly Amtrak crash last month near Seattle that killed three occurred on a section of track that did not have the PTC system operating.
The system is designed to prevent derailments caused by excessive speed. Investigators have said several deadly U.S. train crashes in recent years could have been prevented if the system was in place.
In 2008, Congress mandated the implementation of PTC nationwide by the end of 2015, then extended that deadline until the end of 2018 when its installation became more complex than anticipated. The government can extend the deadline to 2020 to complete some aspects of the system.
The National Transportation Safety Board said last month the Amtrak train that derailed onto a highway near Seattle was going 78 miles per hour (125.5 km per hour) in a 30-mph zone.
The letters went to the chief executives of railroads, including Amtrak, BNSF Railway Co, Canadian National Railway (CNR.TO), CSX Corp (CSX.O), Norfolk Southern Corp (NSC.N), Union Pacific Corp (UNP.N) and transit systems in Chicago, Boston, New York, Boston, Newark, Seattle and Los Angeles.
Amtrak said last month it was “imperative that the rail industry urgently work together to get PTC activated on the national network as soon as possible - and certainly by the December 2018 federal deadline, if not before.”
The Transportation Department said 12 of 41 railroads covered by the requirements report having installed less than 50 percent of the hardware required for their PTC systems as of Sept. 30. The government said the systems are in operation on 45 percent of route miles owned by freight railroads and just 24 percent of passenger railroads
Chao’s letter said the Federal Railroad Administration (FRA) leadership plans to work with railroads “to help create an increased level of urgency to underscore the imperative of meeting existing timeline expectations for rolling out this critical rail-safety technology.”
The Association of American Railroads said on Tuesday that railroads are making progress on installing and testing PTC technology and freight railroads are on track to meet the deadlines established by Congress.
Separately, the Transportation Department wrote to U.S. senators on Tuesday asking them to approve the nomination of Ronald Batory to head the FRA. Batory, a former Conrail president, was approved unanimously by a committee but has been held up due to a dispute over a New York area infrastructure project.
https://www.reuters.com/article/us-usa-railroads-safety/u-s-urges-railroads-to-quickly-install-anti-crash-safety-system-idUSKBN1ER1O7?feedType=RSS&feedName=newsOne
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Industry Eyes Permitting Fixes Beside Power Plan Replacement
Jan 3, 2018 | BNA Daily Environment Report
By Abby Smith and Jennifer Lu
The narrow replacement of Obama-era power plant carbon controls must run on a track that's parallel to, but separate from, changes to a major EPA air pollution permitting program, industry groups say.
As the Environmental Protection Agency begins to consider options to replace the Clean Power Plan, which focuses on curbing greenhouse gas emissions, electric utilities and manufacturing groups argue that the agency's success depends on also ensuring fixes to the New Source Review permitting program, which deals with other types of air pollution.
“There's an [interconnection] that is essential to understand,” Kirk Johnson, senior vice president of government relations for the National Rural Electric Cooperative Association, told Bloomberg Environment. “The more clarity we have on the policy, the more durable we see all clean air rules.”
But Johnson, like other industry representatives, doesn't see a Clean Power Plan replacement as the best vehicle to alter the air permitting program, saying the latter “should be done through other rulemakings or guidance procedures.”
Calls to ‘Harmonize’
Under New Source Review, industrial facilities—including coal-fired power plants and refineries—are required to install modern air pollution controls when renovating or building new facilities that significantly increase air emissions.
Installing those controls can be costly, depending on the facility. For example, a 2012 Government Accountability Office report on the EPA's implementation of New Source Review found installing one type of pollution control equipment for nitrogen oxides at the typical coal-fired power plant could cost between $108 million and $129 million.
Industry groups argue those requirements complicate compliance with carbon controls for existing power plants because New Source Review acts as a deterrent for major efficiency upgrades at individual facilities.
Efficiency improvements alone likely wouldn't trigger New Source Review requirements, said Bruce Buckheit, a former director of the EPA's air enforcement division.
“Directly speaking, efficiency is a bonus. It's a way to reduce your annual emissions,” Buckheit told Bloomberg Environment.
But making a power plant more efficient also makes it cheaper to run, meaning it could be called on to provide more power. If a power plant runs more—even taking into account efficiency improvements—it could ultimately lead to increased emissions, triggering requirements to install new pollution controls.
Industry groups want to avoid that scenario, a position that EPA Administrator Scott Pruitt appears sympathetic to. Pruitt in September said New Source Review requirements discourage industry from investing in facility upgrades that would achieve “good environmental outcomes.”
EPA Exploring Permitting Flexibility
The EPA is now seeking input on how to “harmonize” any potential replacement carbon controls with New Source Review. That includes exploring any “flexibilities” the agency could provide in the permitting program to ensure projects taken to comply with carbon controls don't prompt “major” New Source Review requirements.
Environmental groups and Democratic state regulators argue narrow carbon controls coupled with the permitting changes industry seeks would not do enough to limit greenhouse gas emissions.
Michael Dowd, air division director at Virginia's Department of Environmental Quality, told Bloomberg Environment he's concerned the combination could increase overall emissions of pollutants like nitrogen oxides and sulfur dioxide.
“We don't want increases in criteria [air] pollutants to occur under the guise of reducing CO2 emissions,” Dowd said.
The EPA proposed Oct. 10 to repeal the Clean Power Plan, the Obama administration's first-ever greenhouse gas limits for existing power plants. Trump administration officials argue the rule exceeded the agency's authority by setting standards based on measures taken beyond what is possible at an individual power plant.
‘Elephant in the Room’
On Dec. 18, the EPA issued an advance notice seeking input on options that fit within its narrower interpretation of agency authority, with a focus on improving efficiency at individual plants.
Industry groups say they're encouraged to see that the EPA notice also seeks input on how the New Source Review program “overlays” with any replacement carbon dioxide emission controls.
The EPA must address the permitting program if it wants to achieve the level of emissions reductions it is seeking from efficiency improvements, Ross Eisenberg, vice president of energy and resources policy for the National Association of Manufacturers, told Bloomberg Environment.
New Source Review “is the elephant in the room that wasn't really addressed or contemplated in the Clean Power Plan,” Dan Byers, vice president for policy at the U.S. Chamber of Commerce's Global Energy Institute, told Bloomberg Environment.
Task Force Review
The Trump administration isn't the first to set its sights on altering New Source Review: The EPA under President George W. Bush tried to overhaul the permitting regime, but saw many of its changes struck down in court.
EPA air chief Bill Wehrum, who spearheaded those Bush administration efforts, is now leading a task force review of the permitting program and says he's looking for targeted changes, rather than an overhaul.
Pruitt has already directed a major shift in how the EPA implements New Source Review. In a Dec. 7 memo, Pruitt said the agency will defer to industry estimates of how much air pollution will result from new or expanding operations and won't “second-guess” such projections unless there is “clear error.”
Generally, industry is looking for the EPA to provide “clarity and consistency” to the New Source Review requirements, Eisenberg said.
For example, Eisenberg said, the definition of what qualifies as a major modification triggering permit requirements is not consistent across regions.
“EPA simply delineating once and for all what's in and what's out would go a long way for manufacturers,” he said. Similar clarity is needed for determining when a project's construction period begins, he added.
Eisenberg also cited concerns with what he considers “bigger” issues—including the EPA's so-called “netting,” or the process the agency uses to determine whether net emissions increase, and its treatment of aggregation, which groups smaller, related physical or operational changes as a single project for permitting considerations.
The manufacturers’ group is still working out specific fixes to suggest for those issues, he said.
Pollution Increases
But environmentalists argue the EPA, by taking a narrower view of its authority to set power plant carbon limits, is setting up tensions with the permitting program.
The flexibility allowed by the Clean Power Plan, including options to shift to cleaner generation and emissions trading, would not trigger New Source Review, Sean Donahue, an attorney with Donahue & Goldberg LLP who has represented the Environmental Defense Fund, told Bloomberg Environment.
The EPA is now floating a more rigid option for reducing carbon dioxide emissions based solely on efficiency rate improvements at individual plants.
Under that “cramped” view, “it becomes possible, maybe even likely, that some of these plants if they do increase their heat rate” would trigger New Source Review requirements, David Doniger, climate and clean energy director at the Natural Resources Defense Council, told Bloomberg Environment.
Ultimately, environmentalists question the intentions of industry and the Trump EPA.
The pairing of the permitting program and any power rule replacement “is a clue that the objective of this administration is not to reduce pollution but to accommodate pollution increases,” Doniger said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=125918563&vname=dennotallissues&fn=125918563&jd=125918563
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More States Hosting 'People's' Hearings On Rule Repeal
Jan 2, 2018 | E&E News PM
By Arianna Skibell
Two more states have announced they intend to hold public hearings on U.S. EPA's proposal to repeal the Clean Power Plan, former President Obama's signature climate regulation.
Maryland and Delaware will join New York in hosting a "People's Hearing" on the new administration's plans. While EPA chief Scott Pruitt has scheduled hearings on the repeal in several cities, he failed to set any on the East Coast (E&E News PM, Dec. 18, 2017).
"States are taking matters into their own hands after EPA's Scott Pruitt ignored multiple requests to host public hearings on his plan to dismantle the Clean Power Plan," David Hayes, executive director of the State Energy & Environmental Impact Center and former Interior deputy secretary, said in a statement.
A number of states sent Pruitt letters last fall requesting local agency-led hearings. Jurisdictions included Connecticut, Maine, Maryland, Massachusetts, New York and Virginia.
"While claiming to respect state-based environmental decision-making, Pruitt is pushing a federal override of carbon pollution solutions that progressive states have crafted under the Clean Power Plan," Hayes said.
"These hearings will provide a much-needed forum for more voices to show how implementing the Clean Power Plan will turbocharge a clean energy economy that brings investment, jobs and energy security."
The attorney general of New York and the mayor of New York City announced their hearing last month and asked residents to register to testify or submit written statements (E&E News PM, Dec. 15, 2017).
Attorney General Eric Schneiderman has decried Pruitt's decision to rescind the Clean Power Plan and praised Obama's rule as imperative.
"The Clean Power Plan is a vital tool to slash greenhouse gas emissions from one of the leading causes of climate change pollution, fossil-fuel-burning power plants," he said last month.
Several states have said they will sue the Trump administration if Pruitt proceeds with the repeal. But advocates of scrapping the rule have welcomed the opportunity for a do-over.
Clean Power Plan critics similarly accused the Obama administration of not holding enough hearings close to coal country and other affected communities.
https://www.eenews.net/eenewspm/2018/01/02/stories/1060069903
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EPA Floats New Ozone NAAQS Nonattainment Areas But Changes Possible
Jan 2, 2018 | Inside EPA
By Stuart Parker
EPA is suggesting that several counties should be designated as out of attainment with the 2015 ozone national ambient air quality standard (NAAQS), but affected states can attempt to change those findings to attainment and at least one area might be able to claim a Clean Air Act waiver for “exceptional” air pollution to avoid nonattainment.
Late last month, the agency released its recommendations for designations, through “120-day” letters to states responding to their own suggestions for which areas should be labeled nonattainment. The letters give states an opportunity to respond before the agency issues final designations.
Areas in nonattainment must impose tougher pollution controls on industry or face the ultimate sanction of losing federal highway funding. States therefore try to avoid nonattainment status so they that do not have to mandate strict emissions controls in their state implementation plan (SIP) air pollution reduction compliance strategies.
In November, EPA designated 2,646 of more than 3,100 counties as attaining the NAAQS, but said it lacked the data to issue the other designations. The next month, EPA on Dec. 22 issued its 120-day letters that list some of the remaining areas as suggested for nonattainment status.
The findings are part of EPA's implementation of the 2015 ozone standard of 70 parts per billion (ppb), which is stricter than the prior 2008 limit of 75 ppb. EPA Administrator Scott Pruitt has said he is reconsidering the 2015 NAAQS, but faces lawsuits from several states and environmentalists pushing him to implement the standard.
The agency is due to tell the U.S. Court of Appeals for the District of Columbia Circuit by Jan. 12 of its plan for completing the designations process, which should have been done by an Oct. 1, 2017 Clean Air Act deadline. The 120-day letters are part of the process, and EPA could reference the letters in the upcoming report as a sign of its efforts to meet the designation mandates.
EPA is seeking to create nonattainment counties in Illinois (two counties), Indiana (five counties), Kentucky (three counties), Pennsylvania (five counties) and Wisconsin (nine counties). For Missouri, the agency appears to largely agree with the state's initial recommendations, but the state has indicated its desire to reconsider its recommendations. EPA further notes that if it approves a regulatory waiver for air pollution stemming from “exceptional events” in Pennsylvania, that state can avoid several counties being designated nonattainment.
As in prior rounds of designations under different administrations, EPA in its recommendations differs with states and seeks in some cases to add extra counties, or partial counties, to areas designated nonattainment.
However, the agency has also said that almost all areas outside of California will likely attain the 70 ppb standard without taking additional pollution control measures in the next few years -- although not necessarily by air law deadlines. California continues to face uniquely tough challenges with ozone and other air pollution thanks to its climate and topology, which could complicate its efforts to attain the standard.
Nonattainment Designations
Under the air law, states designated in 'marginal' nonattainment with the 2015 ozone NAAQS must by three years after designation reduce their emissions to a level that brings them into attainment. Areas with more serious nonattainment issues have longer to attain, depending on the severity of their problem.
The agency has denied the requests of Delaware and New Jersey for the agency to designate multiple entire states as part of the Delaware and New Jersey nonattainment zones. The two states seek such large areas as recognition of the major contribution of out-of-state emissions to their ozone attainment problems. EPA ignores these requests in its 120-day letters and instead designates both states along county lines, which is the agency's traditional approach.
In determining the extent of nonattainment areas, EPA considers not just local sources but also contributing sources in neighboring counties, which may be in an adjacent state, and can include part or all of a neighboring county in a nonattainment area even if that neighboring area is itself meeting the standard.
But the agency has not stretched nonattainment areas so far as to account for long distance, interstate transport of air pollution.
In a related development, the agency Nov. 3 denied a 2013 petition from several East Coast states to dramatically expand the 12-state Ozone Transport Commission (OTC) area, where tougher ozone controls apply than elsewhere, to include an additional eight states and the remainder of Virginia, which is only a partial OTC member.
The denial prompted Connecticut, Delaware, Maryland, Massachusetts, New York, Pennsylvania, Rhode Island and Vermont to sue EPA Dec. 26 in the D.C. Circuit to overturn that decision.
Delaware has previously sued EPA over its denial of the state's earlier efforts to institute a multi-state nonattainment area, but courts have upheld EPA's approach based on adjacent whole or partial counties.
While some East Coast states seek to expand the pollution control obligations of upwind states, other states question the legitimacy of the 2015 NAAQS itself. Litigation against the NAAQS is currently on hold in the D.C. Circuit, in Murray Energy Corp. v. EPA, while EPA considers its position on the standard.
Texas Gov. Greg Abbott (R) in a Sept. 30, 2016, cover letter submitted with the state's nonattainment recommendations to then-acting EPA air chief Janet McCabe, says, “The ozone rule should be vacated because it is unlawful as both a constitutional and statutory matter.” But Texas submitted recommendations anyway. EPA in its response to the state designates 18 Texas counties in nonattainment.
https://insideepa.com/daily-news/epa-floats-new-ozone-naaqs-nonattainment-areas-changes-possible
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EPA Eyes Steps To Ease Implementation Of Contested 2015 Ozone NAAQS
Jan 3, 2018 | Inside EPA
By Stuart Parker
EPA's updated regulatory agenda includes several priority actions designed to ease implementation of the Obama-era tightening of the ozone standard to 70 parts per billion (ppb) from the prior 75 ppb limit, including issuing guidance on waivers from compliance with the standard and easing air permitting under the stricter ozone limit.
Even as the agency pursues the measures, EPA Administrator Scott Pruitt continues to review whether to rescind the October 2015 decision to tighten the national ambient air quality standard (NAAQS). A decision could come this year, though in the interim the agency is complying with air law mandates to implement the 70 ppb standard -- albeit on a delayed timeline and under legal pressure from environmentalists and some states to do so.
EPA Dec. 22 announced it had responded to states’ recommendations for which areas should be considered to be violating the standard, putting the agency on track to issue final designations for “nonattainment” zones in 2018. Designations are required for states to craft air quality plans to meet the new NAAQS, and the agency is far behind an October 2017 air law deadline for issuing findings for all areas.
Pruitt previously stated his opposition to the stricter ozone standard but the outcome of the reconsideration process for now remains unclear. The Unified Agenda of pending rules suggests that the Trump administration is pursuing options under the Clean Air Act to reduce burdens on states and industry in meeting the NAAQS.
In its list of priorities for rulemaking in fiscal year 2018, EPA says it “intends to use the additional time afforded by the designations extension to finalize necessary guidance” including “updated” guidance on regulatory exemptions for “exceptional events,” and screening tools used to ease the permitting process for industrial sources.
The agency further aims to finalize its “2015 Ozone NAAQS Implementation rule,” which will outline how states should craft their NAAQS compliance plans. These state implementation plans (SIPs) must detail the emissions reduction strategies states will rely on to reduce ozone-forming emissions and attain the NAAQS. Nonattainment areas are required to impose stricter, more-expensive pollution controls on sources of ozone.
The Obama EPA before leaving office proposed a comprehensive implementation rule that included timetables for compliance and for states to submit SIPs, but the agency never finalized it.
EPA now has split the implementation effort into at least two different rules, the first establishing “classifications” for which areas are designated in progressively worse levels of nonattainment, which under EPA’s scale ranges from “marginal” through “moderate,” “serious” and “extreme."
The proposed rule, currently under review by the White House Office of Management and Budget, sets threshold levels of ozone that qualify areas for their nonattainment status. Areas at worse levels of nonattainment must impose tougher air quality controls, but also have longer to comply. These areas are chiefly in California.
The second implementation rule, which will be a final rule, would presumably contain the remaining elements needed for states to craft SIPs. Both rules are listed as “long term” actions in the Unified Agenda, without target dates for their completion.
Permitting Guidance
While it works on the implementation rules, EPA further says it will develop final guidance on significant impact levels (SILs) and Model Emissions Rates for Precursors (MERPs), sought by industry to ease compliance with permit requirements applicable now.
SILs are threshold levels of projected pollution. If a source is projected to emit pollution below the SIL, those emissions are considered de minimis and further modeling of its likely emissions is not required to win an air permit. Industry groups have pushed for EPA to issue SILs for ozone to ease implementation of the 2015 ozone NAAQS. Federal courts have previously accepted SILs in principle, despite environmentalists’ objections that treating sources’ emissions as de minimis is inappropriate and could lead to cumulative emissions from several sources contributing to NAAQS violations. However, federal judges have rejected specific SILs in the past, questioning EPA’s justification for the levels.
The Obama EPA in draft 2016 non-binding guidance recommended that states use a SIL for the 2015 ozone NAAQS of 1 ppb, but the agency said at the time it would wait for states to gain more experience using this value before any move to codify it.
MERPs, also sought by industry, help industry and states calculate the relationships between the air pollution precursors that sources emit, such as ozone-forming nitrogen oxides, and the resulting ozone pollution, in order to craft air permits. The Obama EPA issued draft MERP guidance in December 2016, again drawing objections from environmentalists that MERPs, like the SILs they are based on, are arbitrary and unlawful.
Under EPA's “exceptional events” rule, states can seek air law exemptions for high air pollution levels experienced during such events as windstorms and wildfires, easing NAAQS compliance. The Obama EPA sought to ease states' use of the rule through a rule revision and guidance, but the Trump EPA appears willing to go further to help states exempt their air quality data from NAAQS compliance.
https://insideepa.com/daily-news/epa-eyes-steps-ease-implementation-contested-2015-ozone-naaqs
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Unified Agenda Signals EPA Plan To Relax, Modernize Suite Of Air Rules
Jan 3, 2018 | Inside EPA
By Stuart Parker
EPA is pursuing several rulemakings this year designed to relax and modernize a suite of Clean Air Act rules, including easing emission monitoring requirements for several industrial sectors, updating its fuel air policies in a bid to reduce compliance costs, and new steps for approving non-ozone depleting refrigerants.
Several of the pending rules announced in last month's updated Unified Agenda of upcoming policies appear for the first time, while some are efforts that the Trump administration announced in its last update to the Unified Agenda in July.
One of the new efforts aims to ease continuous emissions monitoring requirements that are part of new source performance standards air rules for fossil fuel-fired steam generators, fluid bed catalytic cracking unit catalyst regenerators, sulfuric acid plants and nitric acid plants. EPA says that it intends to update a 1975 regulation specifying what state air plans must include when addressing monitoring from these sources.
The update would relax a requirement for these sources to report excess emissions quarterly, to require such reports only semi-annually. States could follow the relaxed requirements in their national ambient air quality standard compliance plans if they wish, EPA says. “Some states assert that quarterly reporting by the affected source categories has proven unnecessary and overly burdensome,” the agency says.
EPA said it intended to issue the proposed version of the rule in December -- but failed to do so - with a final rule slated for July.
Meanwhile, the agency says it is also working on a proposal -- due by January 2019 -- on modernization of its fuels regulations “to update EPA’s existing gasoline, diesel, and other fuels regulations to help reduce compliance costs for industry as well as EPA, while improving overall compliance assurance and maintaining environmental performance.” EPA says it intends to remove expired, redundant or duplicate requirements.
On the issue of stratospheric ozone, which unlike ground-level ozone is required to protect human health and the environment, EPA says it will propose two actions.
In the first proposal, due by April, EPA will “revisit” a 2016 EPA rule’s extension of refrigerant management requirements designed for ozone-depleting substances to non-ozone depleting substances such as hydrofluorocarbons (HFCs). The Obama EPA intended the rule to restrict HFCs because of their climate-warming properties, but a federal court has found it unlawful.
In the second proposal EPA will consider “submissions and petitions” from refrigerant manufacturers concerning listings of substitute chemicals under the Significant New Alternatives Policy (SNAP) program. SNAP aims to replace substances harmful to the ozone layer with safer alternatives. EPA plans a proposed rule on this topic by November, with a final rule to follow in January of 2020, according to the agenda.
https://insideepa.com/daily-news/unified-agenda-signals-epa-plan-relax-modernize-suite-air-rules
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Delaware Threatens To Sue EPA Over Out-Of-State Air Pollution
Jan 2, 2018 | The Hill - E2 Wire
By Timothy Cama
Delaware’s state government is threatening to sue the Environmental Protection Agency (EPA) for not approving four requests to crack down on out-of-state air pollution.
The state’s Department of Natural Resources and Environmental Control says that four specific power plants in Pennsylvania and West Virginia are contributing to ozone pollution in Delaware, and that the EPA has a responsibility under the Clean Air Act to force them to better control their pollution.
“The Clean Air Act entitles Delaware to relief from upwind pollution and the remedy we are seeking is reasonable and within EPA’s authority and responsibility to grant,” Gov. John Carney (D) said in a statement.
“Delawareans deserve clean air, but our air quality is significantly impacted by pollution traveling downwind from other states. We are simply asking that the EPA require these power plants that pollute Delaware’s air to run their existing pollution control equipment when the plants are in operation.”
Delaware officials filed four petitions with the EPA in 2016 — one for each power plant — asking the agency to take action under the “good neighbor” provision of the Clean Air Act.
The EPA extended its deadlines to respond to the petitions by six months, but did not decide whether to grant or deny them.
Delaware’s official notices of intent to sue, which it said Tuesday that it will send, are required 60 days before it can file the actual lawsuits.
Multiple states have sued the EPA under the Trump administration to get it to take action against out-of-state polluting facilities.
Last week, a group of northeastern states filed a lawsuit over the EPA’s denial of their petition under a separate Clean Air Act section, and Maryland sued over specific out-of-state plants earlier last year.
http://thehill.com/policy/energy-environment/367112-delaware-threatens-to-sue-epa-over-out-of-state-air-pollution
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