Preview Newsletter
AM ACC 1/19/2018
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(ACC Blog) Some Good News on Recycling
Jan 18, 2018 | American Chemistry Matters
By Steve Russell
There’s been a lot of negative news coverage on recycling. And while plastic recycling markets face serious challenges, there are areas that are making significant strides. One of those areas is plastic film recycling. -
Senate Standoff Raises Specter of Shutdown
Jan 19, 2018 | PoliticoPro - Whiteboard
By Jennifer Scholtes
With just over 24 hours until federal funding runs dry, the Senate gaveled out with no plan for clearing the four-week stopgap spending bill the House passed earlier in the night. -
DOJ Enviro Lawyer One of Many Cleared in Marathon Meeting
Jan 18, 2018 | E&E News PM
By Amanda Reilly
President Trump's pick to be the top environmental lawyer at the Justice Department is once again headed to the full Senate floor. -
CEQ Pick Hartnett White May Be in Trouble
Jan 19, 2018 | E&E Daily
By Geof Koss
Council on Environmental Quality nominee Kathleen Hartnett White, one of the White House's most controversial staffing choices, may be stuck in the Senate. -
(ACC Mentioned) EPA Aids Chemical Makers as Listing Deadline Looms
Jan 19, 2018 | BNA Daily Environment Report
By Pat Rizzuto
The EPA is promising chemical makers last minute assistance by posting additional resources online to help them get their products on a crucial inventory needed to allow chemical sales. -
Application of New TSCA Rules Will Continue to Evolve in 2018
Jan 18, 2018 | Lexology
By Todd D. Kantorczyk
In the waning days of the Obama Administration, the United States Environmental Protection Agency (EPA) published three draft Toxic Substances Control Act (TSCA) rules that were required by the Frank R. Lautenberg Chemical Safety for the 21st Century Act... -
TSCA Mercury Reporting Final Rule Expected by Summer 2018
Jan 18, 2018 | Lexology
By Zachary J. Koslap and Michael Nines
As part of EPA's continuing efforts to implement the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended the Toxic Substance Control Act (TSCA) enacted on June 22, 2016, the EPA has issued a proposed mercury reporting rule to implement TSCA... -
‘Tide Pod Challenge’ Highlights Danger of Colorful Laundry Packets
Jan 18, 2018 | Environmental Working Group
By Samara Geller
An unbelievably dumb and extremely dangerous dare has gone viral on social media. It’s the “Tide Pod Challenge”: biting down on the small, colorful – and potentially poisonous – packets of liquid laundry detergent until they burst in your mouth. -
8 Ways to Reduce Your Exposure to Hormone-Disrupting Chemicals
Jan 18, 2018 | AlterNet
By Caroline Cox
What keeps you up at night? Sick kids, restless pets, the latest tragedy on the evening news, politics, wars, earthquakes, hurricanes, fires, money troubles, job stress, and family health and wellbeing? -
BLM, States, Industry Fighting Natural Gas Venting/Flaring Lawsuits
Jan 19, 2018 | Natural Gas Intelligence
By Charlie Passut
The Bureau of Land Management (BLM) is pushing back against efforts in federal district court to derail the Trump administration's decision to postpone the compliance dates for rules governing associated natural gas flaring and venting on public and tribal lands... -
BLM Defends Offering More Leases
Jan 19, 2018 | E&E Daily
By Jennifer Yachnin
Brian Steed, the Bureau of Land Management deputy director for programs and policy, yesterday defended his agency's push to auction new oil and gas leases, despite thousands of inactive permits, siding with industry representatives who argued such delays... -
States, Environmentalists Oppose Continued Pause of CPP Case
Jan 18, 2018 | Inside EPA
States and environmental groups defending the Obama EPA's Clean Power Plan (CPP) utility greenhouse gas rule in court are asking the U.S. Court of Appeals for the District of Columbia Circuit to reject the Trump EPA's recent request to continue to hold the case... -
TransCanada Pushes Forward on Keystone XL - for Now
Jan 19, 2018 | Houston Chronicle
By Jordan Blum
TransCanada said it has received enough customer support to build the controversial Keystone XL pipeline and will continue to press forward. -
Constitution Taking Natural Gas Pipeline Fight to U.S. Supreme Court
Jan 18, 2018 | Natural Gas Intelligence Report
By Jamison Cocklin
Constitution Pipeline Co. LLC is refusing to back down in its saga to get its beleaguered 124-mile natural gas pipeline approved and has petitioned the U.S. Supreme Court to review an appeals court ruling in August against the project. -
Protesters Make 8 Demands for FERC Permit Reviews
Jan 18, 2018 | E&E PM News
By Sam Mintz
Two protesters were escorted out of today's Federal Energy Regulatory Commission meeting, both carrying an eight-point plan describing ways their groups want the agency to change its review of pipelines. -
States Take Lead in Preparing Toxic Sites for Climate Change
Jan 19, 2018 | BNA Daily Environment Report
By Sylvia Carignan
States and cities are proactively adapting their contaminated sites for severe weather amid federal reluctance to plan for risks related to climate change. -
Toxic Pollutants in California Mudslide Present Cleanup Challenges
Jan 19, 2018 | BNA Daily Environment Report
By Adam Allington
A potential environmental emergency is looming as cleanup continues from California's deadly mudslide: pollution from toxic mud and sludge, some of which is being dumped on local beaches. -
New Type of Cyberattack Targets Factory Safety Systems
Jan 19, 2018 | Wall Street Journal
By Robert McMillan
Hackers who attacked a petrochemical plant in Saudi Arabia last year gained control over a safety shut-off system that is critical in defending against catastrophic events, according to security researchers shedding light on what they describe as a new type of cyberattack. -
Bill Would Require Emergency Train-Stopping Technology
Jan 18, 2018 | AP (In U.S. News & World Report)
A new bill in the U.S. House would require railroads to have emergency train-stopping technology in the wake of the Washington Amtrak derailment that killed three passengers and injured dozens of others. -
Infrastructure Bill; Preventing Re-Regulation Top REMSA 2018 Advocacy Priorities
Jan 18, 2018 | Railway Track & Structures
By Kyra Senese
The Railway Engineering-Maintenance Suppliers Association (REMSA) announced on Jan. 18 the three main areas of focus for its advocacy priorities in the New Year. -
In Bid to Speed up EPA, Pruitt Takes on Entrenched Air Pollution System
Jan 18, 2018 | Houston Chronicle
By James Osborne
Lining the 50-mile long Houston Ship Channel is a network of chemical plants, oil refineries and other industrial facilities so vast that the city's business leaders like to refer to it as the "petrochemical capital of the world. -
EPA Defends Obama-Era CSAPR 'Update' from Competing Legal Attacks
Jan 18, 2018 | Inside EPA
By Stuart Parker
The Trump administration in a new legal brief is defending an Obama-era rule “updating” the Cross-State Air Pollution Rule emissions trading program, rejecting some states' claims that the rule is unnecessarily stringent and other states' and environmentalists' arguments... -
The Planet Just Had Its Hottest 4 Years in Recorded History. Trump Is Dismantling Efforts to Fight Climate Change.
Jan 18, 2018 | Washington Post
By Chris Mooney
2017 was among the hottest years ever recorded, government scientists reported Thursday.
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(ACC Blog) Some Good News on Recycling
Jan 18, 2018 | American Chemistry Matters
By Steve Russell
There’s been a lot of negative news coverage on recycling. And while plastic recycling markets face serious challenges, there are areas that are making significant strides. One of those areas is plastic film recycling.
Earlier this month, I spoke with PlasticsToday about plastic film recycling, including industry initiatives that are helping to grow the recovery of plastic film.
In my interview, I cited the Wrap Recycling Action Program (WRAP) as an example of recovery rates that are increasing when consumers are given an opportunity to recycle their bags and wraps. One of the reasons opportunities are growing is because WRAP is partnering with cities and states to conduct successful consumer awareness campaigns about how to recycle plastic film. Its campaigns have led to more plastic film—both in volume and types of film—collected for recycling, and decreased contamination in the recycling stream. These achievements caught the attention of the U.S. EPA, which signed on as an official partner at the end of 2016. This year, WRAP is poised to launch additional campaigns at the state level.
While WRAP focuses exclusively on plastic wraps and film made solely from polyethylene, there are other programs working on the challenge of sorting and repurposing multi-material film packaging. The Hefty® Energy Bag gives communities an immediate opportunity to collect plastics that currently cannot be recycled, like these multi-material packages, and convert them into energy.
Meanwhile, the Materials Recovery for the Future (MRFF) project is researching long-term solutions to capturing and recycling film packaging. This research found that it is possible—from a technological and an economic standpoint—to recover film packaging at materials recovery facilities (MRFs) using existing sorting equipment. MRFF is continuing to research end-market opportunities for film packaging collected and baled at MRFs.
Check out the full interview on PlasticsToday to learn about other ways in which film recycling is making important strides and where the Division sees the value chain playing a role in recycling more plastic film.
https://blog.americanchemistry.com/2018/01/some-good-news-on-recycling/
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Senate Standoff Raises Specter of Shutdown
Jan 19, 2018 | PoliticoPro - Whiteboard
By Jennifer Scholtes
With just over 24 hours until federal funding runs dry, the Senate gaveled out with no plan for clearing the four-week stopgap spending bill the House passed earlier in the night.
After one successful procedural vote earlier tonight, leaders from both parties acknowledged that the next move — which requires 60 votes of support — is sure to go down given Democratic opposition.
Senate Minority Leader Chuck Schumer urged GOP leaders to quickly call that vote, arguing that its failure would prompt President Donald Trump to start negotiating on immigration protections under the Deferred Action for Childhood Arrivals program. But Senate Majority Leader Mitch McConnell demurred, adjourning the Senate until 11 a.m. Friday.
“To delay a vote on cloture when we all know the outcome makes no sense,” Schumer said. “Let us vote tonight on cloture so we can move forward, so perhaps we can bring the president to the table.”
Schumer is now calling for GOP leaders to bring up a shorter spending patch to fund the government for a few days while both parties work toward a DACA deal and overall budget caps — an idea some Republican senators have floated.
McConnell did not reject or embrace that plan, saying only that Democrats will be to blame for a shutdown and that their DACA demands have continually held up a broader deal on spending levels.
“Why do they never let us reach an agreement? Illegal immigration,” McConnell said. “This is a big enough issue to warrant being discussed all by itself without being shoehorned into a bill full of real emergencies.”
https://www.politicopro.com/energy/whiteboard
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DOJ Enviro Lawyer One of Many Cleared in Marathon Meeting
Jan 18, 2018 | E&E News PM
By Amanda Reilly
President Trump's pick to be the top environmental lawyer at the Justice Department is once again headed to the full Senate floor.
The Senate Judiciary Committee today voted 11-10 along party lines to approve the nomination of Jeffrey Bossert Clark to serve as assistant attorney general leading DOJ's Environment and Natural Resources Division.
Clark was one of 23 nominees the Senate Judiciary Committee took up today. Among the judicial nominees advanced by the committee are three picks to fill vacant circuit court seats: 11th Circuit nominee Elizabeth Branch passed in a 19-2 vote, 5th Circuit nominee Stuart Kyle Duncan in an 11-10 vote and 8th Circuit nominee David Stras in a 13-8 vote.
This is the second time the Judiciary Committee has approved Clark. In August, the panel sent him to the Senate floor after a contentious confirmation hearing, but the full Senate failed to take up the nomination before the end of the year. The Senate sent the nomination back to the White House in December, along with several other nominees for spots in environment and energy departments.
As head of ENRD, Clark would be in charge of defending U.S. EPA, the Interior Department and other government agencies in litigation, as well as overseeing DOJ's enforcement of environmental laws and regulations. A former Southern Co. lobbyist, Jeffrey Wood, is filling the position in an acting role.
Clark is a partner at Kirkland & Ellis LLP, where he represented BP PLC during litigation regarding the oil company's 2010 Deepwater Horizon incident in the Gulf of Mexico, and is a former George W. Bush DOJ official.
During the confirmation process, he's come under fire for saying the Obama administration's environmental agencies pursued "an agenda out of control," claiming that ground-level ozone pollution blocks ultraviolet radiation and expressing doubts about climate change science (E&E Daily, June 29, 2017).
Senate Minority Whip Dick Durbin (D-Ill.) again urged the White House to send a new nominee for the position.
"He questions the science of climate change, and he's being asked to head up the division to protect the environment," Durbin said.
Along with Clark, the Senate Judiciary Committee voted on a handful of other DOJ nominees, as well as more than a dozen judicial picks. Some nominees received Democratic support, but panel members were sharply divided over others.
Democrats reiterated concerns with a number of the picks, including circuit court nominee Duncan, a lawyer and former solicitor general for Louisiana who previously wrote a brief on behalf of states urging the Supreme Court to not recognize marriage equality.
A nominee for district court in North Carolina, Thomas Farr, also faced stiff Democratic opposition over his defense of the state's now-invalid voter ID law and other actions Democrats said were aimed at rolling back civil rights gains.
"Many of these nominees are part of an effort to reshape the judiciary in the image of the hard-right, extremist dogma that has been advanced by this administration," Sen. Richard Blumenthal (D-Conn.) said.
Democrats also complained about the confirmation process for judicial nominees, focusing on Stras, the nominee for the 8th Circuit.
Stras is a justice on the Minnesota Supreme Court whose nomination was opposed by Sen. Al Franken (D-Minn.) before he resigned earlier this month. Despite Franken's objections, Judiciary Chairman Chuck Grassley (R-Iowa) went ahead with a hearing for Stras, prompting cries by Democrats that he was breaking a long-standing tradition that allows a home state senator to block a judicial nominee by not returning a "blue slip" to the committee.
Today's meeting came as a progressive group, Alliance for Justice, also accused Grassley of holding a "monster markup" to rubber-stamp judicial nominees.
Despite the concern over process, Stras received Democratic support from the senior senator from Minnesota, Amy Klobuchar. She said he was qualified, even if "he would not be my first choice for this job." Sen. Sheldon Whitehouse (D-R.I.) also voted in support of Stras.
Sen. John Kennedy (R-La.), meanwhile, voted in favor of Duncan after last year expressing concerns he had not been adequately consulted about the nomination (E&E News PM, Nov. 29, 2017).
Grassley today pushed back on the criticism for moving forward with 17 judicial nominees in one meeting, noting several nominees were voted out of committee last year. He rejected a request by Sens. Cory Booker (D-N.J.) and Kamala Harris (D-Calif.), new members of the committee, to hold another confirmation hearing on Farr, saying the concerns over his nomination had already been adequately hashed out at a September hearing.
"I don't believe a second hearing for Mr. Farr is warranted," Grassley said before the committee sent the nominee to the full Senate in an 11-10 party-line vote.
The other district court nominees sent to the floor today:
· Annemarie Carney Axon, Northern District of Alabama, by a 17-4 vote.
· R. Stan Baker, Southern District of Georgia, by voice vote.
· Jeffrey Uhlman Beaverstock, Southern District of Alabama, by a 16-5 vote.
· Liles Clifton Burke, Northern District of Alabama, by an 11-10 vote.
· Charles Goodwin, Western District of Oklahoma, by a 15-6 vote.
· Michael Joseph Juneau, Western District of Louisiana, by an 11-10 vote.
· Matthew Kacsmaryk, Northern District of Texas, by an 11-10 vote.
· Emily Coody Marks, Middle District of Alabama, by a 17-4 vote.
· Terry Moorer, Southern District of Alabama, by a 17-4 vote.
· Mark Norris, Western District of Tennessee, by an 11-10 vote.
· William Ray II, Northern District of Georgia, by an 11-10 vote.
· Eli Jeremy Richardson, Middle District of Tennessee, by an 11-10 vote.
· Holly Lou Teeter, District of Kansas, by a 21-0 vote.
The other nominees to advance:
· Brian Benczkowski to serve as assistant attorney general for DOJ's Criminal Division.
· Eric Dreiband to serve as assistant attorney general for DOJ's Civil Rights Division.
· John Durham to serve as U.S. attorney for the District of Connecticut.
· Michael Baylous and Daniel McKittrick to serve as U.S. marshals.
https://www.eenews.net/eenewspm/2018/01/18/stories/1060071335
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CEQ Pick Hartnett White May Be in Trouble
Jan 19, 2018 | E&E Daily
By Geof Koss
Council on Environmental Quality nominee Kathleen Hartnett White, one of the White House's most controversial staffing choices, may be stuck in the Senate.
White cleared the Environment and Public Works Committee last year on a party-line vote, but strong Democratic opposition meant the White House had to renominate her this month. And her problem is not only with Democrats.
EPW Chairman John Barrasso (R-Wyo.) was cautious when addressing White this week. "We'll come back to committee, and we'll get her up for a vote again," he told E&E News.
Asked whether he was pressing other Republicans to support her, Barrasso said he was "working on all the president's nominees."
White's opponents were hoping the president would not renominate her. When he did, EPW ranking member Tom Carper (D-Del.) responded: "Well, they should expect a fight."
Carper is following through with that threat.
"It's not just Democrats who are deeply troubled, there are Republicans, as well," he said this week.
White's critics see Republicans such as Sens. Lamar Alexander of Tennessee and Susan Collins of Maine as possible no votes. That would be enough to sink the nomination.
White has written books including "Fueling Freedom: Exposing the Mad War on Energy," with conservative scholar Stephen Moore, and "Fossil Fuels: The Moral Case."
Alexander told E&E News before the Christmas recess he planned on reading some of her work, but said yesterday he still had some catching up to do.
"I didn't get it done. I still have it, though," he said last week. Asked whether he would meet with her, Alexander said, "Well, I'm going to read her book and see."
Collins yesterday said she had also not met with White but was familiar with some of her statements at her nomination hearing.
"I've seen some excerpts from the hearing," she said, "but I haven't seen the whole hearing, so I don't know whether they were in context or whether they represent how the hearing went in general."
White is not only a defender of fossil fuels but has questioned climate science and touted the benefits of carbon dioxide. And even though she appeared to moderate her comments last year, critics panned her performance (Greenwire, Nov. 8, 2017).
Carper said it was "maybe the most painful testimony I've ever witnessed in my 17 years here." The ranking member added it was "mind-boggling to watch someone so poorly prepared to undertake a position of this responsibility" and "to walk back what she said for 10-15 years, what she said on environmental issues."
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said this week she has not met with White but was aware that her nomination was sent back to the White House at the end of last year.
Given that White was renominated, Murkowski indicated that she may study White's positions.
"I don't know her, and given what's been talked about, I suppose I should find out," she said.
Reporter Manuel Quiñones contributed.
https://www.eenews.net/eedaily/2018/01/19/stories/1060071377
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(ACC Mentioned) EPA Aids Chemical Makers as Listing Deadline Looms
Jan 19, 2018 | BNA Daily Environment Report
By Pat Rizzuto
The EPA is promising chemical makers last minute assistance by posting additional resources online to help them get their products on a crucial inventory needed to allow chemical sales.
Companies are facing a Feb. 7 deadline to get their products on the agency's official list of chemicals that are in U.S. commerce. Before that deadline, the Environmental Protection Agency will provide and update a list of frequently asked questions it has received and agency answers it has provided, agency staff told Bloomberg Environment.
“EPA will be as transparent and helpful as possible as the deadline approaches,” Jahan Wilcox, an agency spokesman, told Bloomberg Environment.
The agency Jan. 18 posted online slides and transcripts from three webinars it held last year. The webinars offered companies compliance assistance so they would know how to notify the EPA of chemicals they've made or imported since 2006.
The EPA will use the notices companies file to establish an official inventory of commercial and industrial chemicals that have been in active commerce since that year, which marks 10 years before the Toxic Substances Control Act was amended. The revised statute required the EPA—for the first time since the 1980s—to update its chemical inventory, which consists of tens of thousands of chemicals, and separate it into two parts: a list of chemicals active in commerce and a list of chemicals that used to be made in or imported into the U.S., but no longer are.
Chemical manufacturers and importers must notify the EPA by Feb. 7 of any chemical that needs to be on the active list. Paint, cleaning product, glue, and other manufacturers that mix, or “process,” chemicals have until Oct. 5 to notify the EPA about chemicals they've used since 2006, although they are not required to do so.
Any chemical that is not on the active inventory may not be made, imported, or used in the U.S. without companies taking additional steps.
Crafting an Up-to-Date List
“The key audience for the Q&A are manufacturers and importers—the regulated entities for whom reporting is mandatory by Feb. 7,” Karyn Schmidt, senior director of regulatory and technical affairs at the American Chemistry Council, told Bloomberg Environment.
“With this deadline looming, it is essential that EPA offer guidance and clarifications well before this date to be most useful,” Schmidt said, repeating a request companies have been making for some months.
The American Chemistry Council has already created a new website to help chemical manufacturers comply with EPA's rule. The site allows manufacturers, importers, and processors to upload and share the receipts they receive from the EPA when they notify it about a chemical. Having such a receipt exempts other companies from also having to notify the EPA that they too make, import, or process the same chemical.
Although EPA's most recent efforts are coming late in the process, they're needed, Martha Marrapese, a partner in the Washington office of Wiley Rein LLP, told Bloomberg Environment.
“There are still many companies out there that will benefit from published guidance to file or check their reports,” she said Jan. 18.
The agency received about 8,000 notifications just last week, Marrapese said.
Clarification Please
Schmidt said the agency could be helpful if it clarified as quickly as possible a question chemical manufacturers and importers have been asking about joint submissions they're allowed to file.
The EPA's final rule establishing the inventory notification process (RIN:2070-AK24) allows companies to file a joint submission when needed to protect their trade secrets. For example, a domestic importer of a chemical mixture and its foreign suppliers can jointly notify the EPA about the constituents in that mixture. That way the EPA knows the specific identities, but the companies keep proprietary information to themselves.
Domestic importers know they must meet the Feb. 7 deadline, but can't control whether their suppliers comply, Schmidt previously told Bloomberg Environment.
Chemical manufacturers repeatedly have urged EPA to clarify that a manufacturer or importer will be deemed to have met the deadline if it has submitted its portion of the notification, even if the other parties portion has not yet been filed, she said.
“We continue to urge that this clarification be made immediately,” Schmidt said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=127174831&vname=dennotallissues&fn=127174831&jd=127174831
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Application of New TSCA Rules Will Continue to Evolve in 2018
Jan 18, 2018 | Lexology
By Todd D. Kantorczyk
In the waning days of the Obama Administration, the United States Environmental Protection Agency (EPA) published three draft Toxic Substances Control Act (TSCA) rules that were required by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the “Act”) to be finalized by June 22, 2017. EPA did, in fact, publish final versions of these three rules—the Risk Evaluation Rule, the Prioritization Rule, and the Inventory Reset Rule—in late July and early August of 2017, but the final versions differed in certain key respects from the draft rules. In general, the final versions of the Risk Evaluation Rule and the Prioritization Rule gave EPA additional flexibility regarding the “conditions of use” that EPA must consider in determining whether a new or existing chemical poses an unreasonable risk to human health or the environment. With respect to the Inventory Reset Rule, the final rule modified how companies can assert that the identity of a chemical qualifies as confidential business information.
Environmental groups that had previously lauded the draft rules now asserted that the final rules failed to satisfy the requirements of the Act and ultimately filed seven challenges to the final rules in three different federal circuits (D.C., 4th and 9th). Those appeals are still in the briefing stage, and at the end of November 2017, the Ninth Circuit denied EPA’s motion to move the challenge pending before that court to the Fourth Circuit.
The courts hearing the foregoing challenges have not stayed any of the new rules, however, and EPA has continued to move forward with plans to implement them. For example, EPA continues to expect that manufacturers and importers of chemical substances will identify by February 7, 2018, whether substances listed on the current TSCA Inventory are active in U.S. commerce, with processors required to supplement that list by October 5, 2018. And at the end of 2017, EPA released two documents and held two public meetings concerning the Agency’s future approaches towards the review of new chemicals and the identification of existing chemicals for priority risk reviews. EPA is taking public comment on the new chemicals framework document and the prioritization document until January 20 and January 25, 2018, respectively. It is also working on a TSCA mercury reporting rule which is addressed here. In short, 2018 promises to be another significant year with respect to implementation of the fundamental amendments to the TSCA regulatory framework as required by the sweeping reforms contained in the Act.
https://www.lexology.com/library/detail.aspx?g=5514344b-5d23-4e11-9b93-75ceac9178cc
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TSCA Mercury Reporting Final Rule Expected by Summer 2018
Jan 18, 2018 | Lexology
By Zachary J. Koslap and Michael Nines
As part of EPA's continuing efforts to implement the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended the Toxic Substance Control Act (TSCA) enacted on June 22, 2016, the EPA has issued a proposed mercury reporting rule to implement TSCA section 8(b)(10)(D). The TSCA Amendments require EPA to issue a final mercury reporting rule no later than two years after the enactment of the TSCA amendments (by June 22, 2018) to establish reporting deadline(s) and information requirements for the purpose of assisting EPA's statutorily-mandated periodic update and publication of the inventory of mercury supply, use, and trade in the United States. As required under TSCA, the reporting requirements would apply to any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process.
EPA published the proposed rule on October 26, 2017 requiring those who manufacture, import, or otherwise distribute in commerce mercury or mercury-added products to report to EPA both quantitative and qualitative data related to those activities. The proposed rule has no reporting threshold, and as such, anyone conducting the regulated activity with any amount of mercury falls within the framework of the proposed rule. Persons engaging in certain activities with mercury will be required to provide the information necessary for the inventory.
Generally, the proposed rule applies to those who manufacture, store, import, export, sell, or otherwise distribute in commerce mercury and mercury-added products. Those engaged in the above-mentioned activities must report on quantities of mercury used in industrial processes, whether that mercury was manufactured, imported, exported, or distributed. Some reduced burden for reporting is envisioned in the proposed rule for manufacturers or importers already subject to reporting programs such as TSCA’s Chemical Data Reporting (CDR) Rule. For example, those who manufacture (including import) or otherwise engage in the regulated activities with mercury at levels greater than or equal to 2,500-pounds for elemental mercury and 25,000-pounds for mercury compounds in a specific reporting period; the country of origin or destination, the North American Industrial Classification System (NAICS) codes for mercury distributed in commerce, and amount of mercury stored must be included in reports. The proposed rule establishes a reporting deadline of July 1, 2019, coinciding with the Toxic Release Inventory (TRI) program deadline, and every three years thereafter. As it stands, the proposed rule would require reporting data of the proceeding calendar year only (i.e., 2018).
The proposed rule exempts certain activities from the rule’s reporting obligations. Persons “engaged in the generation, handling, or management of mercury-containing waste” are not required to report to the mercury inventory. The notice specifically calls out hazardous waste treatment facilities that convert recovered mercury from mercury-containing waste to mercury sulfide for export as exempt from reporting to the proposed rule. At the same time, the exemption does not apply to persons who distill and recover elemental mercury for its eventual sale.
EPA estimates that approximately 750 entities will be impacted by the reporting requirements.
https://www.lexology.com/library/detail.aspx?g=c1ef15bd-8709-4a18-b8a2-f2177fba35ac
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‘Tide Pod Challenge’ Highlights Danger of Colorful Laundry Packets
Jan 18, 2018 | Environmental Working Group
By Samara Geller
An unbelievably dumb and extremely dangerous dare has gone viral on social media. It’s the “Tide Pod Challenge”: biting down on the small, colorful – and potentially poisonous – packets of liquid laundry detergent until they burst in your mouth. Children, teens and young adults are posting videos of themselves taking the challenge – with the gagging, spitting and coughing that follows.
It’s unclear exactly how and when the online challenge took off. But the problem, and the danger, is not new.
Laundry pods came on the market in 2012. The American Association of Poison Control Centers says that between 2013 and 2017, there were more than 56,500 reported incidents of children 5 years old or younger ingesting, inhaling or touching the highly concentrated detergent found in single-dose laundry products. Vomiting, burns, corneal abrasions, breathing problems and at least 10 deaths have been linked to pods.
In 2015, the Consumer Product Safety Commission, or CPSC, recommended that detergent makers adopt voluntary safety standards to make pods’ packaging opaque and more child-resistant. The standards also recommended changes to the packet film, such as making them tougher to break open, or adding a bitter taste to deter children from biting down on them or swallowing.
The safety commission has also worked with companies to reduce the toxicity and strength of the detergents. Since then, reported hazardous exposures for kids 5 and younger have dropped, but still remain far too high. Crucially, the voluntary rules don’t require full disclosure of the detergents’ ingredients.
EWG recommends strong caution with these products, especially if you have kids or someone with dementia at home. If you choose to use them, pay attention to these safety tips:
· Keep the products in a high place, or in a locked or childproof cabinet or drawer.
· Avoid use while children are around.
· Refer to the product safety information on the package for proper handling and first aid for unintended exposure.
· Keep the number for your local poison control center, 1-800-222-1222, on hand.
· Use EWG’s Guide to Healthy Cleaning to find products with full ingredient disclosure and lower hazard concerns. Fewer poisonings and less severe injuries are reported for powder detergent pods.
https://www.ewg.org/news-and-analysis/2018/01/tide-pod-challenge-highlights-danger-colorful-laundry-packets#.WmGsC3aWY2w
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8 Ways to Reduce Your Exposure to Hormone-Disrupting Chemicals
Jan 18, 2018 | AlterNet
By Caroline Cox
What keeps you up at night? Sick kids, restless pets, the latest tragedy on the evening news, politics, wars, earthquakes, hurricanes, fires, money troubles, job stress, and family health and wellbeing? There is no shortage of concerns that make us all toss and turn.
But what keeps the chemical industry up at night? A couple of decades ago a senior Shell executive was asked this very question. The answer? Endocrine disruption.
If you can even pronounce “endocrine disruption,” you’re doing well. What is it? Why should we care? And why is it keeping chemical bigshots up at night?
The endocrine system is the system of glands, hormones and hormone targets that is responsible for almost everything our bodies do. Hormones are chemical messengers that control blood sugar, infant and child development, sexual function, growth, energy production and much more. Without them, we would not be ourselves. Hormones are particularly impressive because tiny amounts of them, so small they’re difficult even to comprehend, have profound effects on our health and well-being.
In the last 30 years, we’ve learned that synthetic chemicals, widely used in industry and agriculture, can disrupt the way that this finely tuned system works. We call these chemicals—including compounds made from lead, mercury and arsenic, DDT, BPA and phthalates—endocrine disrupting chemicals (EDCs).
These chemicals are known to cause obesity, diabetes, heart disease, reduced fertility, premature birth, reduced sperm quality and cancer. Exposures before birth, during childhood and during the teenage years are especially important because of the rapid growth and development that occurs during those periods. Now new research indicates that some EDCs cause problems that are passed along for generations.
A study released last month by Healthy Babies Bright Futures highlights the pervasiveness of one of these endocrine-disrupting chemicals, arsenic. The study found that levels of arsenic in infant rice cereal are six times higher than in infant cereals made from other ingredients.
Everyone who has spent time reading mysteries knows that arsenic can kill. But how many of us know that it also causes cancer, damages developing brains in babies and children—reducing IQ test scores—and disrupts important hormones in our bodies, making diabetes more likely.
According to recent research by Abt Associates, children's exposures to arsenic in infant rice cereal and other rice-based foods accounts for an estimated loss of up to 9.2 million IQ points among U.S. children ages 0-6. This damage costs the country an estimated $12-18 billion annually in lost wages. To date, the FDA has not taken action, and with this administration, it will let this travesty continue.
But let's go back to that Shell executive. What exactly is he worried about during his sleepless nights? We can only guess. But one thing that probably runs through his mind is that almost none of us escapes exposure to EDCs. BPA is so ubiquitous that government studies found it in over 90 percent of the people studied. That represents a potentially huge liability for the companies that make BPA.
How did this happen? This has everything to do with the way that we regulate chemicals. For the last century or so, the foundation of chemical regulation has been that small exposures are not a problem—just a little won’t hurt you or "the dose makes the poison." Endocrine disruption turns that concept on its head, because hormones are active in such small amounts. Counter-intuitively, some endocrine disruptors are more potent in tiny amounts than in larger amounts. In 2012, a lead author of a major study on EDCs stated that “fundamental changes in chemical testing and safety determination are needed to protect human health."
Weak regulations also mean we really have no idea how many chemicals are endocrine disruptors. The EPA says there are about 85,000 chemicals used by industry, and most of them have never been tested to find out whether they can disrupt our hormones or not. There is decent evidence that over 1,400 hormone-disrupting chemicals are endocrine disruptors.
A chemical executive's sleepless nights should not be our sleepless nights. Where do we go from here?
About 25 years ago, Congress passed a law stating that the EPA should begin testing for endocrine disruption in a subset of those 85,000 chemicals. It hasn’t happened, and in today’s political climate it’s not likely to happen. Fortunately, there are some easy ways to reduce your exposure to EDCs:
1. Eat organic food when it’s available and affordable.
2. If you’re feeding a baby cereal, stay away from rice. Buy oat, wheat or multigrain cereal instead.
3. Avoid household bug sprays.
4. Use cosmetics, shampoos and soaps with simple, pronounceable ingredients.
5. Use old-fashioned cleaners like vinegar and baking soda, or products with the Safer Choice logo.
6. Keep rooms well aired and vacuum, clean and dust regularly to remove chemicals that can be found indoors.
7. Minimize unnecessary use of plastics.
8. Add your name to the growing movement to stop EDCs.
It's time companies like Monsanto, Dow-DuPont and ExxonMobil take responsibility for gambling with your family’s health and the health of future generations and stop making these silent killer chemicals. We deserve nothing less.
Caroline Cox is the Senior Scientist at the Center for Environmental Health.
https://www.alternet.org/personal-health/8-ways-reduce-your-exposure-hormone-disrupting-chemicals
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BLM, States, Industry Fighting Natural Gas Venting/Flaring Lawsuits
Jan 19, 2018 | Natural Gas Intelligence
By Charlie Passut
The Bureau of Land Management (BLM) is pushing back against efforts in federal district court to derail the Trump administration's decision to postpone the compliance dates for rules governing associated natural gas flaring and venting on public and tribal lands, calling the rules suspension "a commonsense, time-limited solution to a practical problem."
North Dakota, Texas and three energy industry groups joined the BLM in opposing a pair of lawsuits in U.S. District Court for the Northern District of California over the administration's order to delay the compliance dates for BLM's Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule -- aka the venting and flaring rule -- until January 2019. The rule was promulgated in 2016, during the Obama administration.
The lawsuits were filed last month by the states of California and New Mexico, and a coalition of environmental groups, led by the Sierra Club. The BLM, North Dakota and Texas, along with the American Petroleum Institute (API), the Independent Petroleum Association of America and the Western Energy Alliance, each filed separate briefs on Tuesday. API had filed a motion to intervene on Jan. 5.
"Plaintiffs would have this court believe that the suspension rule fundamentally revises the 2016 rule," the BLM said. "This is false. The suspension rule merely postpones the most expensive compliance requirements of the 2016 rule for one year, while BLM considers whether to substantively revise the 2016 rule through a separate rulemaking process."
The BLM said oil and gas operators "should not be required to make expensive equipment investments to meet requirements that may be rescinded or significantly revised in the near future, and it is not a good use of scarce agency resources to implement a rule that is likely to change."
In a joint filing, North Dakota Attorney General (AG) Wayne Stenehjem and Texas AG Ken Paxton said the 2016 rule "rides roughshod over North Dakota and Texas's sovereign interests in administering their own distinct regulatory programs governing oil and gas production and air quality within their borders.
"If reinstated in full as plaintiffs request, that rule will further frustrate and impede North Dakota and Texas's several sovereign interests in administering their distinct oil and gas programs, their air quality programs, and the orderly development of the states' natural resources."
Last October, the San Francisco court sided with AGs for California and New Mexico, as well as another coalition of environmental groups. The court ruled that the Trump administration violated the Administrative Procedure Act four months earlier when BLM first proposed delaying the compliance dates.
The lawsuits, each filed on Dec. 19 with Judge William Orrick presiding, are State of California et al v. Ryan Zinke et al, No. 3:17-cv-7186; and Sierra Club et al v. Ryan Zinke et al, No. 3:17-cv-7187.
http://www.naturalgasintel.com/articles/113088-blm-states-industry-fighting-natural-gas-ventingflaring-lawsuits
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BLM Defends Offering More Leases
Jan 19, 2018 | E&E Daily
By Jennifer Yachnin
Brian Steed, the Bureau of Land Management deputy director for programs and policy, yesterday defended his agency's push to auction new oil and gas leases, despite thousands of inactive permits, siding with industry representatives who argued such delays are a necessity in their business.
Steed testified before the House Natural Resources Subcommittee on Energy and Mineral Resources, which held an oversight hearing on efforts by the Trump administration to ease restrictions on energy extraction on public lands.
During the hearing, Rep. Don Beyer (D-Va.), a member of the subcommittee, asked Steed to justify offering new leases when records show 7,950 BLM permits unused at the end of fiscal 2016.
"Last year we approved 1,000 more permits," Beyer said. "Why do we need to be aggressively doing new permits when so many existing permits are outstanding?"
Steed defended new lease sales, arguing idle leases are caused by "a variety of factors."
"Some of them are lease stipulations [that] may prohibit drilling during certain time frames or other reasons that may be better for business overall," Steed said.
Arizona Rep. Paul Gosar (R), the subcommittee's chairman, also asked witnesses to address the question of unused leases, pointing to criticism by Democrats on the panel.
"It has been reported recently that BLM has a backlog of permits to drill that have been approved, yet companies continue to submit APDs for other projects," Gosar said, referring to applications for permit to drill.
"My colleagues on the other side of the dais seem to believe there is a smoking gun here as to why companies would leave undeveloped leases and undeveloped permits on the table while pursuing leases elsewhere," he said.
Both Shane Schulz, the director of government affairs for Denver-based QEP Resources Inc., and Jarred Kubat, the vice president of land, legal and regulatory for Denver-based Wold Energy Partners, defended the process of allowing leases to sit idle.
Schulz said that many leases have gone unused as companies work to piece together significant acreage before beginning extraction.
"It's also important to know that not every lease is going to get developed. At the end of the day, you're going out and making an educated guess on what you think that acreage holds," he added.
Kubat likewise argued developers need time to assess new parcels. "When you drill and develop on lease hold ... you're learning more about it as each well progresses from one to the next, and that will drive where you go in the development and drilling program."
https://www.eenews.net/eedaily/2018/01/19/stories/1060071397
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States, Environmentalists Oppose Continued Pause of CPP Case
Jan 18, 2018 | Inside EPA
States and environmental groups defending the Obama EPA's Clean Power Plan (CPP) utility greenhouse gas rule in court are asking the U.S. Court of Appeals for the District of Columbia Circuit to reject the Trump EPA's recent request to continue to hold the case in indefinite abeyance while the agency moves to repeal the rule.
Led by New York, the state and municipal CPP supporters say in a Jan. 17 filing in West Virginia, et al. v. EPA, et al., that they oppose EPA's Jan. 10 request for additional abeyance “pending the conclusion of rulemaking” because, “Neither EPA's proposed repeal of the [CPP] nor its prolonged and uncertain plans to replace the rule justify additional abeyance. State intervenors therefore respectfully request that the Court deny the abeyance.”
Environmental and public health groups say in a separate Jan. 17 filing, “While abeyance might be benign in other circumstances where the underlying rule remains in effect, that is emphatically not so regarding the” CPP, which was stayed by the Supreme Court “in the knowledge that this Court had scheduled the case for expedite consideration on the merits.”
The high court stay was not supposed to last indefinitely, the environmental groups say, but EPA Administrator Scott Pruitt “seeks to exploit the stay well beyond its intended effect, pursuing a repeal of the [CPP] based on the same legal arguments that the petitioners (including Mr. Pruitt himself, as Oklahoma Attorney General) made in this fully briefed case, while indefinitely fending off this Court’s decision on the merits of those legal arguments.”
The filings oppose EPA's request for continued abeyance of the litigation -- which was argued before the full D.C. Circuit in September 2016 -- until it completes repeal of the CPP. The states argue that repealing the CPP without a replacement “would put EPA in violation of its statutory duty to regulate carbon dioxide from existing power plants.”
CPP proponents made a similar argument in October filings that the court rejected when it granted continued abeyance last year. Then, the states and environmentalists argued that EPA was asking the court to refrain from ruling on the merits of the CPP while allowing EPA to only move forward on a repeal, “leaving EPA's statutory duty completely unfulfilled.”
The latest state filing notes that EPA's decision to extend the public comment period on the CPP repeal until late April “means it is unlikely that the agency will complete repeal until late 2018 at the earliest, more than two years after the en banc argument in this case. And only then would State Petitioners (and other parties) be able to initiate a challenge to the repeal, which would turn on the same statutory authority arguments already fully briefed and argued before this Court.”
Also, EPA's suggestion of a possible replacement -- outlined in an advance notice of proposed rulemaking that is subject to comment through Feb. 26 -- is not enough to justify abeyance, the states say. “Such a preliminary regulatory tool is patently inappropriate in these circumstances, where there has already been an extraordinarily lengthy regulatory process” in addressing “the Nation's most important and urgent environmental challenge.”
The environmentalists argue EPA's push for continued abeyance is “an unsubtle and intolerable strategy of delay. Absent this Court's decision of the pending case, the Administrator's delay will continue at least through 2018 -- 11 years after” the high court decided GHGs are a regulated Clean Air Act pollutant -- “and perhaps far longer.”
https://insideepa.com/daily-feed/states-environmentalists-oppose-continued-pause-cpp-case
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TransCanada Pushes Forward on Keystone XL - for Now
Jan 19, 2018 | Houston Chronicle
By Jordan Blum
TransCanada said it has received enough customer support to build the controversial Keystone XL pipeline and will continue to press forward.
The Canadian pipeline company, however, said it hasn't definitively decided to build the much-delayed and disputed pipeline project. The company has time because heavy construction isn't slated to begin until 2019.
"Over the past 12 months, the Keystone XL project has achieved several milestones that move us significantly closer to constructing this critical energy infrastructure for North America," said TransCanada CEO Russ Girling, crediting President Donald Trump for helping revitalize the project that was rejected under the Obama administration.
Over the past several years, the $5.2 billion project became a focal point of the anti-crude environmental movement to oppose the pipeline that would carry up to 830,000 barrels a day of crude oil from Canada's tar sands through the already completed southern leg of the Keystone system that terminates near Houston and Beaumont.
TransCanada is headquartered in Calgary, but employs close to 1,000 people in Houston.
TransCanada said Thursday it has secured commitments to carry about 500,000 barrels a day on 20-year deals. That's enough to justify moving forward, the company said, although it's continuing to work on contracting the remaining capacity.
The Keystone XL portion would be built through Nebraska and connect to Keystone's already functioning southern leg that ties into Texas oil refineries.
In November, the Nebraska Public Service Commission to approve the Keystone XL route through the state. However, lawsuits and other legal hurdles remain.
TransCanada said it is reaching out in the communities where the pipeline will be built and working with landowners to obtain the necessary easements for the approved route.
http://www.chron.com/business/energy/article/TransCanada-pushes-forward-on-Keystone-XL-for-12507272.php
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Constitution Taking Natural Gas Pipeline Fight to U.S. Supreme Court
Jan 18, 2018 | Natural Gas Intelligence Report
By Jamison Cocklin
Constitution Pipeline Co. LLC is refusing to back down in its saga to get its beleaguered 124-mile natural gas pipeline approved and has petitioned the U.S. Supreme Court to review an appeals court ruling in August against the project.
The Supreme Court has been asked to review a ruling by the U.S. Court of Appeals for the Second Circuit. Constitution posted a statement on its website on Tuesday notifying the public of its petition. The move came less than a week after what appeared to be a major setback for the Constitution project when FERC refused to waive New York’s regulatory authority.
Constitution received a Federal Energy Regulatory Commission certificate authorizing the project in 2014. However, sponsors have battled the New York State Department of Environmental Conservation (DEC) since 2016. After nearly three years of regulatory review, the agency denied the pipeline’s section 401 water quality certificate (WQC) required under the Clean Water Act (CWA).
“Without a ruling from the U.S. Supreme Court, there is a serious risk that states will use the Second Circuit’s ruling to abuse their narrowly circumscribed CWA Section 401 authority in their efforts to frustrate interstate natural gas pipeline development at the expense of vital national interests,” Constitution’s sponsors said.
The project has bounced through the regulatory and legal process. After the DEC denied its WQC application, mainly over a disagreement about trenchless crossings and the agency’s contention that it didn’t have enough information to determine the environmental projects, the company petitioned the Second Circuit to review the decision.
The appeals court denied the challenge, with a three-judge panel ruling that the DEC is entitled to its regulatory review under relevant federal laws. Constitution later petitioned the court for a rehearing of the case en banc, which was also denied.
Last week, FERC denied the company’s petition for declaratory order that the DEC waived its authority when it failed to issue a WQC within a reasonable period of time. FERC found that the DEC did not fail to act within the one-year timeframe required under the CWA because Constitution withdrew and resubmitted its application twice, resetting the deadline each time.
Constitution argued in its petition to the Supreme Court that the Second Circuit’s decision conflicts with the decisions of the high court and other federal courts of appeals.
New York has similarly denied a WQC for National Fuel Gas Co.’s Northern Access expansion project and Millennium Pipeline Co. LLC’s Valley Lateral project. While Valley Lateral is moving forward after a favorable ruling from FERC, Northern Access remains bogged down in court.
The industry has continued to argue through legal proceedings that New York’s stance on the projects violates the federal/state balance struck by Congress in the Natural Gas Act’s process for approving gas pipeline projects. The industry has also expressed concerns about what New York’s stance against the pipelines could mean for interstate commerce, as environmentalists have been emboldened by the WQC denials and have called on other states to follow suit.
Constitution said Tuesday the “federally-approved project has been unjustly prohibited from construction.” The project would move more gas from northeast Pennsylvania to New York and the Northeast. It is backed by Williams, Cabot Oil & Gas Corp., Piedmont Natural Gas Co. Inc. and WGL Holdings Inc.
http://www.naturalgasintel.com/articles/113091-constitution-taking-natural-gas-pipeline-fight-to-us-supreme-court
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Protesters Make 8 Demands for FERC Permit Reviews
Jan 18, 2018 | E&E PM News
By Sam Mintz
Two protesters were escorted out of today's Federal Energy Regulatory Commission meeting, both carrying an eight-point plan describing ways their groups want the agency to change its review of pipelines.
Activists also plastered copies of the plan across FERC's main entrance, which were promptly removed by security guards.
The actions come as the agency embarks on a review of its policy for issuing pipeline certificates, which was last updated in 1999.
Organizers from the groups, which include the Delaware Riverkeeper Network, Green America and Beyond Extreme Energy, frequently attend FERC meetings to protest the agency, which they call a "rubber stamp" for natural gas infrastructure.
The plan asks that FERC hold six public hearings allowing people to testify directly to agency commissioners about the pipeline review process. It also urges FERC to mandate that companies make a "genuine demonstration of an end-use need" that is verified by experts and cannot be met by renewable sources of energy.
The other demands include that FERC:
· Respect state and local authorities as well as agency decisions.
· Stop using tolling orders, which extend the wait as FERC considers requests from parties to reconsider decisions.
· Eliminate bias by not hiring consultants with conflicts of interest and barring commissioners from working on pipeline projects in which they have financial stakes or which they have represented in the recent past.
· End the practice of segmentation, or breaking projects into multiple segments.
· Commit to a complete analysis of the costs and benefits of pipelines, including a "full and fair" implementation of the National Environmental Policy Act.
"If Chairman McIntyre truly wants a better process, then he will honor all 8 of our demanded reforms," Maya van Rossum, the Delaware Riverkeeper, said in a statement. "But, if this is just another dog and pony show designed to serve the industry, we are making clear that we are engaged, informed, active, and will fight to protect our environment and communities, for both present and future generations."
FERC Chairman Kevin McIntyre's announcement that he would review the pipeline policy, an action that environmentalists, analysts and Democratic FERC commissioners have long called for, earned cheers from some pipeline opponents, but others remain wary (Greenwire, Jan. 8).
Asked by reporters today, McIntyre did not commit to holding public hearings. The agency has not yet said what format its promised review will take.
"We're thinking about all of it. I've already announced that whatever the specific process may be, it will be one that allows ample opportunity for stakeholders to weigh in on it. It's just the specific format that's not yet been identified," he said.
"Whatever it is, it will allow plenty of opportunity for people to follow up. We do want to hear from people," McIntyre added.
https://www.eenews.net/eenewspm/2018/01/18/stories/1060071339
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States Take Lead in Preparing Toxic Sites for Climate Change
Jan 19, 2018 | BNA Daily Environment Report
By Sylvia Carignan
States and cities are proactively adapting their contaminated sites for severe weather amid federal reluctance to plan for risks related to climate change.
Several states are drafting plans, assembling panels, and writing new guidance to keep toxic chemicals contained at contaminated sites and waste sites during severe weather.
“We need to make sure that any type of environmental change [at the site] is accounted for, and climate change is one of those,” Chance Asher, toxicologist for the Washington State Department of Ecology, told Bloomberg Environment.
Alaska's approach to climate change risks is specific to the conditions at each site, but the state has been considering the effects of climate change for decades.
Some coastal villages were already eroding as early as the 1990s, Bill O'Connell, environmental program manager at the Alaska Department of Environmental Conservation, told Bloomberg Environment.
The latest action by state and local governments comes at a time of skepticism at the federal level. President Donald Trump and EPA Administrator Scott Pruitt are reluctant to acknowledge predominantly human-caused climate change, an about-face from the Obama administration.
In a House Energy and Commerce committee hearing Jan. 18, an EPA official signaled that nonpolitical EPA staff are still considering the effects of climate change at contaminated sites.
“We have to respond to climate change,” said Barry Breen, principal deputy assistant administrator for EPA's Office of Land and Emergency Management, which handles the Superfund program. “We have to design remedies to account for that.”
Developing a Plan
The Washington State Department of Ecology published guidance in November on what climate change and severe weather-related risks to consider for sites under remediation, such as those with soil and groundwater contamination.
For example, severe storms may knock out developed shorelines along Washington's Puget Sound, one of the largest estuaries in the state. Along its shore, structures are supported by artificial fill, such as wood waste. The waste can be toxic to aquatic life if released, the guidance states.
The state's contaminated sites guidance, released in November, also warns of the consequences of sea level rise, flooding along rivers, landslides and wildfires.
“Some of them are natural environmental changes,” Asher said, “but what we're finding is that they're more severe, and they're becoming more severe, as a result of climate change.”
Vulnerable Sites
Massachusetts is keeping a close eye on contaminated sites and how climate change may affect them. Extreme heat, storms and flooding could disrupt treatment systems and cause storage containers to leak hazardous material, according to Thomas Potter, chief clean energy development coordinator for the Massachusetts Department of Environmental Protection.
There are almost 450 sites under active remediation in the state, and 52 of them are at risk for hurricane damage, while 50 are at risk for flooding, according to the department.
To adapt remediation technology for climate change, the state recommends choosing off-grid power sources in case of a power outage, designing remedies to protect aboveground equipment from wind damage, and placing critical equipment out of the path of a potential flood.
Those upgrades, especially those that cut down on energy usage, can save property owners money while adapting the site for severe weather, Potter told Bloomberg Environment.
“A lot of people are spending money on cleanup and they feel that it's money thrown out the door, but this way it's going somewhere,” he said.
The state is considering a pilot program that would encourage potentially responsible parties to make those changes to their contaminated sites, Potter said.
Facing Flooding
The city of Chester, Pa., sits on the bank of the Delaware River, southwest of Philadelphia. The city's 2020 Vision plan acknowledges that its brownfields sites could contaminate adjacent communities if flooded.
Brownfields are underutilized properties that may be contaminated by hazardous materials. Developers invest in brownfields to remediate and redevelop them, usually with the help of incentives from local and federal government.
Pennsylvania Sea Grant College, part of Pennsylvania State University, has funded a research project looking into Chester's brownfields. The majority of them are along the city's waterfront, Peter Rykard, the city's planning director, told Bloomberg Environment.
Researchers are building a model of how storm surge and sea level rise may affect brownfields and the contaminants present. Since the city is assessing the potential for development along its waterfront, the research is important to the city's economic development, according to Chad Freed, a principal investigator studying Chester at Widener University.
Finding Higher Ground
Alaska's coastline is eroding quickly, O'Connell said.
“There are some stretches along the Arctic coast where it might erode several hundred feet a year,” he said.
Alaska and the Defense Department have had to move some landfills inland due to the threat of coastal erosion.
“Relocating a landfill is not an inexpensive proposition,” O'Connell said.
The state reconvened its panel on climate change in October 2017, which will review climate change risks as related to emergency response, health, infrastructure and other issues. The panel is expected to create a plan of action for the state by Sept. 1.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=127174824&vname=dennotallissues&fn=127174824&jd=127174824
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Toxic Pollutants in California Mudslide Present Cleanup Challenges
Jan 19, 2018 | BNA Daily Environment Report
By Adam Allington
A potential environmental emergency is looming as cleanup continues from California's deadly mudslide: pollution from toxic mud and sludge, some of which is being dumped on local beaches.
“When the mud is 10 feet high on a telephone pole on Danielson Road [in Montecito] and people are still missing, maybe buried in mud ... we have only a few options,” said Tom Fayram, deputy director of public works for Santa Barbara County, responding to concerns about the dumping from a local environmental group.
According to Santa Barbara county, 1,700 cubic yards of mudslide cleanup has been dumped on nearby Goleta Beach and the Carpinteria Salt Marsh Reserve, which protects an estuary supporting many sensitive plant and animal species. Without these efforts, the county contends, subsequent storms that are expected this weekend could cause more destruction.
Three people are still missing after last week's heavy rains caused mud and debris to crash through homes in Montecito, killing at least 20 people and destroying more than 120 homes. Given the urgency of the situation, Fayram said less-than-ideal options had to be considered.
“Our chief concern is to return the community to normal as soon as possible,” he said. “After we get the community back in shape, people can slap me around all they want.”
Cleanup Today vs. Pollution Tomorrow
But some local residents worry that putting so much potentially contaminated soil right next to the ocean will only exacerbate an already difficult environmental cleanup. And the concerns are not without merit.
“That mud could contain everything from sewage, to oil and gas from ruptured lines, as well as pesticides, ash, maybe chemicals from inside houses,” said Chris Bryant, a regulatory consultant with Bergeson and Campbell, a Washington D.C.-based law firm focuses on issues related to chemical regulatory compliance.
In fact, a Jan. 17 advisory from the Santa Barbara County Department of Public Health said: “Unknown amounts of potentially hazardous chemicals and untreated sewage were swept into the mudslide debris that flowed through impacted areas.”
Residents returning to their properties after evacuation are being advised to get vaccinated against tetanus as well as hepatitis A, B, and C, which can result from exposure to unsanitary conditions.
Regulatory Carve-Out
“Even if [the mud] does contain hazardous materials, it will likely be exempt from the federal regulations for disposal of hazardous waste in special landfills,” Bryant told Bloomberg Environment.
A statutory and regulatory carve-out exists for so-called “household hazardous waste,” which includes any solvents, paints, pesticides, fertilizer, or poisons generated by “normal household activities.”
Despite the risk posed by potentially toxic mud, even environmental groups that would normally oppose shortcutting federal guidelines say the focus needs to remain on immediate cleanup
“Good environmental work focuses on fixing, upgrading and cleaning up everyday, ongoing practices that pollute,” said Hillary Hauser, executive director of Heal the Ocean, a Santa Barbara-based environmental group focused on water issues.
“We must realize this is not business as usual, and support our emergency workers all we can,” said Hauser. “Once we get to the other side of this monster that has hit us, we will do all we can to clean up and fix it.”
An Unprecedented Disaster
The U.S. Army Corps of Engineers confirmed to Bloomberg Environment that the beach dumping was permitted under emergency waivers.
“This is really an event of unprecedented magnitude for this location,” said Colin Jones, a spokesman for the California Department of Transportation (Caltrans).
Caltrans has deployed more than 300 workers and some 200 dump trucks, loaders and excavators to manage the cleanup along a 2-mile stretch of the 101 Freeway, which has served as a catch basin for most of the mud.
In addition to the mud being dumped into the surf, most of the mud and dirt being cleaned up is going to inland locations, including along the freeway right-of-way, as well as an old quarry.
“We're clearing out about 9,000 cubic yards of mud every day,” said Jones. “That's a lot of trucks.”
According to a statement from Santa Barbara County, flood control personnel are at each of the beach dump sites and have been instructed to refuse any load that contains unpermitted material.
“Emergency permits issued do not require testing for this critical operation,” the county's statement said. “However, Public Health Department officials will continue to test ocean waters and will act accordingly.”http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=127174829&vname=dennotallissues&fn=127174829&jd=127174829
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New Type of Cyberattack Targets Factory Safety Systems
Jan 19, 2018 | Wall Street Journal
By Robert McMillan
Hackers who attacked a petrochemical plant in Saudi Arabia last year gained control over a safety shut-off system that is critical in defending against catastrophic events, according to security researchers shedding light on what they describe as a new type of cyberattack.
Security firms first disclosed the attack last month, but now the company that makes the emergency shut-off system, Schneider Electric SU 0.77% SE, has analyzed code used in the attack and determined its purpose.
The malicious software, dubbed Triton, was able to manipulate Schneider devices’ memory and run unauthorized programs on the system by leveraging a previously unknown bug, said Andrew Kling, a director of process automation cybersecurity with Schneider Electric.
“It gives the attacker the ability to control what a safety system will do in the event of an emergency,” Mr. Kling said. The company would not say how long the plant was compromised.
The 2017 attack represents a new phase in the increasingly worrisome attacks on control-system computers used to manage factory floors, chemical plants and utilities. The best-known such attack, called Stuxnet, discovered in July 2010, manipulated the industrial-control systems that run nuclear centrifuges, and programmed the machines to destroy themselves.
Stuxnet was a joint effort by the U.S. and Israeli government designed to disrupt Iran’s nuclear program. The Triton code’s objective isn’t clear, but it appeared to be a work in progress, according to the security firms that analyzed it.
The Triton code targets safety-instrumented systems, a different type of machine from the industrial controllers targeted by Stuxnet. These systems act as one of the last lines of defense when plant floors face dangerous situations that could lead to explosions or spills.
“This is really the first breach of that safety protection layer,” said Marty Edwards, managing director with Automation Federation, a trade group for industrial-systems professionals. “If the basic control system gets hacked, the safety system is supposed to protect you.”
Once attackers have perfected a Triton-type attack, the “logical next step” would be to combine it with a Stuxnet-type attack in order to disrupt a plant and its safety back-up systems, said Rob Lee, chief executive of the cybersecurity firm Dragos Inc.
The Triton attackers were able to reprogram a 16-year-old version of a Schneider product, known as a Tricon TMR, after gaining access to an engineering workstation, according to the cybersecurity firm FireEyeInc., which was hired to investigate the hack.
From the workstation, the Schneider devices can be reprogrammed when a switch on the front of the device is set to “program,” Mr. Kling said. Schneider advises customers not to leave the switch set to “program.”
Schneider and FireEye declined to name the victim of the attack. The attack occurred in Saudi Arabia, according to Mr. Lee.
Representatives from the Saudi Arabian consulate in the U.S. didn’t immediately respond to a request for comment.
Although the Triton code wouldn’t work on newer versions of the Tricon devices, there are thousands of older devices being used, Mr. Kling said. Schneider is now developing a fix for its older, vulnerable devices, Mr. Kling said.
Schneider learned of the incident Aug. 4, when a customer in the petrochemical industry called to report one of the company’s systems had “tripped,” prompting a plant shutdown, Mr. Kling said.
The shutdown, which caused Schneider and others to investigate, turned out to be a lucky break. It was prompted by a bug in the Triton code, Mr Kling said. “The attackers messed up, which caused the system to fail,” he said.
The motivation behind the attack isn’t clear, but it could have been used for a range of activities, from stealing intellectual property to something much worse, Mr. Kling said. “You can let your mind run as far as Hollywood scriptwriter would run,” he said.
The software is extremely difficult to detect, said Mr. Lee. Plant owners who learn they have been hacked won’t necessarily know whether their safety-instrument system code was altered without taking apart the system, he said.
Some details of the attack remain unclear. Mr. Kling declined to say, for example, how the attackers were able to access the petrochemical company’s engineering station.
The attack was likely planned more than a year earlier, said Marina Krotofil, an analyst with FireEye. The company’s analysis shows the malicious code found on the Schneider device was first developed in June 2016, and the research required to write it would have begun months before that, she said.
Triton’s authors were a “sophisticated group,” said Mr. Lee.
https://www.wsj.com/articles/hack-at-saudi-petrochemical-plant-compromised-a-safety-shut-off-system-1516301692
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Bill Would Require Emergency Train-Stopping Technology
Jan 18, 2018 | AP (In U.S. News & World Report)
A new bill in the U.S. House would require railroads to have emergency train-stopping technology in the wake of the Washington Amtrak derailment that killed three passengers and injured dozens of others.
The Seattle Times reports the Positive Train Control Implementation and Financing Act, sponsored by Democratic State Rep. Peter DeFazio, would prohibit railroads from launching new passenger routes until the technologies are installed.
The deadline for railroads to implement a positive train control technology is December 2018.
DeFazio says seven railroads are at high risk of missing the deadline: Trinity Rail Express in Texas, Canadian National, Central Florida Rail Corridor, CSX, Massachusetts Bay Transportation Authority, Norfolk Southern and Metra in Illinois.
The government would give railroads $2.6 billion to install the technologies under the bill.
https://www.usnews.com/news/best-states/washington/articles/2018-01-18/bill-would-require-emergency-train-stopping-technology
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Infrastructure Bill; Preventing Re-Regulation Top REMSA 2018 Advocacy Priorities
Jan 18, 2018 | Railway Track & Structures
By Kyra Senese
The Railway Engineering-Maintenance Suppliers Association (REMSA) announced on Jan. 18 the three main areas of focus for its advocacy priorities in the New Year.
REMSA intends to focus on working with its members and associated railroad and rail supply associations to put forth a pro-rail agenda in Congress.
The association's priorities aim to seek passage of an infrastructure package, block misguided regulations and support first-and-last-mile rail service.
"We were pleased to see Congress successfully pass a tax reform package, but we all know there is much more work to be done to ensure a healthy rail network" said REMSA President Bruce Wise. "We must commit to the sustainable funding of our nation's infrastructure and prevent misguided regulations that jeopardize the health of the rail supply community."
David Tennent, REMSA's executive director, said the association looks forward to representing its membership in front of Congress and participating in Railroad Day on Capitol Hill.
"We are ready to stand with the entire rail industry to ensure our Congress effectively deals with these pressing issues," Tennent said.
The association's first outlined priority is entitled, "Infrastructure Package: Federal Direct Investment, Rail Financing Fixes, and Highway Trust Fund Solution."
REMSA said since the Trump Administration took office in January 2017, it has vowed to create a legislative package to fix U.S. infrastructure.
"We strongly support this holistic approach to fixing our nation's infrastructure and think it is long overdue that Congress take action on this issue," the association said. "We believe an infrastructure package should feature direct, federal infrastructure investments, fixes to a rail financing program, and a long-term solution to the Highway Trust Fund."
REMSA said permitting reforms are an important infrastructure package component, but added that it does not believe they would end the need to stop the "chronic underfunding of our nation's transit systems and passenger railroads."
REMSA also said direct federal spending would be the best tool to use to enhance U.S. passenger rail infrastructure.
The association said it believes the Railroad Rehabilitation and Improvement Financing (RRIF) program is a well-meaning program, but clarified its "slow application processing and costly administrative fees" would hinder the program from reaching its potential.
"Congress should consider reforms to the program that reduce the burden the credit risk premium places on railroads and speed up the application process," REMSA wrote.
Since 2008, policymakers have transferred $143 billion in general funds to the Highway Trust Fund, the association stated.
"Our bridges and roads cannot continue to survive on short-term bailouts," REMSA said.
The association also suggested that Congress should consider enacting a weight-distance tax to fix the Highway Trust Fund.
"A weight distance tax would fairly modernize our highway user-fee model, follow the principle of modal equity, and help to end the underfunding of our highway system," REMSA said.
The second priority outlined by REMSA for 2018 is entitled, "Preventing Regulations That Discourage Railroad Investments."
In the summer of 2016, the Surface Transportation Board (STB) released proposed regulations that REMSA said risk disturbing consistent investments in the country's rail network.
Throughout the past 35 years, REMSA said U.S. freight railroads have spent more than $635 billion to grow and maintain the rail network.
"These investments promote an efficient, modern, and safe rail system, while supporting hard working railway suppliers throughout the United States," the association said.
Though REMSA said it believes the STB is ill advised in its aims to re-regulate commodities and limit shipping rates, the association emphasized it is particularly concerned about the STB's Notice of Proposed Rulemaking (NPRM) on forced access.
Under the STB's Competitive Access NPRM, railroads would be required to allow competing railroads access to their rail lines.
"This introduces an unproven, radical approach, which forces railroads to surrender their privately-owned property for use by competing operators," REMSA stated. "Alarmingly, this forced access proposal would disrupt network efficiencies, which would limit revenues and discourage sustained investments and maintenance of the rail system."
REMSA said such investments are crucial to supporting high-wage rail and supplier manufacturing jobs throughout the country. The association said the proposed rule jeopardizes the capacity growth and the continued efficiency of the 140,000-mile U.S. rail network.The third priority outlined by the association is referred to as, "Polices that Enable and Support First and Last Mile Rail Service."
REMSA says reliable first-and-last-mile rail services are crucial in supporting economic development initiatives and rural communities across the U.S.
"Shortline and regional railroads face unique financial and logistical challenges in meeting the demand for first-and-last-mile service," the association said. "Given the numerous public benefits spurring from rail access, the federal government has enacted policies that support the expansion and maintenance of short line rail networks. We strongly advocate for this federal approach to continue."
The association notes that the Short Line Tax Credit (45G) has supported safety improvements and a state-of-good repair across the shortline rail network, in addition to spurring manufacturing activity throughout the U.S.
"Unfortunately, the credit lapsed in 2016 without an intervention from Congress, despite its vast popularity in both chambers of Congress," REMSA said. "We urge Congress to speedily re-enact this common-sense policy.
http://www.rtands.com/index.php/supplier-news/infrastructure-bill-preventing-re-regulation-top-remsa-2018-advocacy-priorities.html
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In Bid to Speed up EPA, Pruitt Takes on Entrenched Air Pollution System
Jan 18, 2018 | Houston Chronicle
By James Osborne
Lining the 50-mile long Houston Ship Channel is a network of chemical plants, oil refineries and other industrial facilities so vast that the city's business leaders like to refer to it as the "petrochemical capital of the world.
But the area also has some of the worst air quality in the country, drawing tough federal regulations that slow the development of new industrial projects.Companies seeking to build or expand plants must navigate a laborious permitting process that routinely requires them to spend 18 months going back and forth with state environmental agencies to gain permits needed to emit more pollution into the atmosphere.
Now, inside the Environmental Protection Agency, officials are working to find a way to speed and overhaul that process. With the backing of President Donald Trump, EPA Administrator Scott Pruitt has told staff that the agency's air permitting process is too convoluted. He set a goal of processing applications in no more than six months.
That would be a dramatic departure from established practices. Under the current system, which dates back to 1963 when Congress passed the Clean Air Act, applicants must go through multiple reviews by state officials operating under tomes of rules and regulations promulgated by the EPA. The nationwide average wait time for a major air permit – called New Source Review – was 14 months for a coal or gas-fired power plant or oil refinery between 2002 and 2014, according to an Indiana University study.
"That's where we've been for a long time," said Toby Hanna, a consultant with Environmental Resources Management, a London firm that advises companies on the EPA's air permitting process. "Some of the folks at EPA now were there in the [George W.] Bush administration trying to fix these problems."
'Second guessing'
Industries and their lobbyists have complained for years that the slow permitting times make the United States a less desirable place to locate manufacturing. In the months ahead, a task force assembled by Pruitt will review EPA protocols, with the goal of implementing new procedures before the end of the year.
In at least one case, Pruitt is not waiting. Under former president Barack Obama, EPA officials would frequently intercede before air permits were issued to double check the work of companies and state officials. But Pruitt described those reviews as "second guessing" in a memo to EPA regional administrators last month and said he planned to do away with the practice.
EPA officials insist that their goal is to streamline the permitting process , not relax air quality regulations. But environmentalists are skeptical, speculating that Pruitt's ultimate plan is to allow companies to pollute more.
"These permits are super technical," said Pat Gallagher, legal director of the Sierra Club. "There's all sorts of process and engineering issues that come up and it's not like you can just jam it through."
Pruitt and President Donald Trump have moved to rollback a long list of environmental rules, including Obama's plan to regulate greenhouse gas emissions from power plants and new offshore safety standards implemented after the explosion on the Deepwater Horizon drilling rig in 2010.
In his memo last month, Pruitt said he also would review a long-standing policy under which high polluting facilities that operate under strict regulation remain subject to those tougher standards even when emissions are significantly reduced. Bill Wehrum, assistant administrator for EPA's Office of Air and Radiation, described the policy as nonsensical and another example of a unnecessary layer of regulation that hurts economic growth.
"Can we be better and more efficient at what we do? Yeah. " said Wehrum, an agency veteran from the George W. Bush administration. "Can the permittee be more efficient? In a lot of cases, yeah."
Lean regulation
At EPA headquarters in downtown Washington, one of the officials charged with speeding up the permitting process is Henry Darwin, the agency's chief of operations.
As the head of Arizona's environmental agency, Darwin said, he managed to cut wait times for environmental permits by more than 60 percent. He credits that time savings to the implementation of a management technique known as "lean manufacturing," which has its origins in the efficiency protocols established by the Japanese auto manufacturer Toyota following World War II. Under the methodology, bureaucratic systems are analyzed for wasteful, unnecessary activities, which are then eliminated.
"The fact of the matter is most processes that have not gone through a process improvement event, 80 to 90 percent of that time the process takes is spent sitting without any activity," he explained. "We're just trying to eliminate periods of time where there's no work being performed."
But eliminating those wasted moments might not be so easy. Environmental consultants, hired by industrial companies to help navigate the permitting process, said one of the major causes in permitting delays is the lack of manpower at state environmental agencies due to budget cuts.
"All the states need more staff," said Pat Patrick, vice president at the Houston environmental consulting firm Air Consulting, Environmental, & Safety. "Right now, you submit your application and have to wait your turn until it gets to the top of the pile. We tell our clients that it's likely to be three months before you hear anything substantive from the state."
In Texas, that has translated into lengthy waits for permits as companies have rushed to build petrochemical projects up and down the Gulf Coast, to take advantage of cheap natural gas flowing from the shale drilling boom.
French oil giant Total waited 20 months for an air permit for its new ethane cracker in Port Arthur. It took the Texas Commission on Environmental Quality more than 18 months to issue air permits for LyondellBassel's new $2.4 billion chemical plant near the ship channel.
And that is nothing compared to the wait times in other states.
"Texas is pretty fast," said Jeff Holmstead, an energy attorney with the Washington law firm Bracewell. "They say here are the requirements, we're going to make the decision quickly."
Further complications
Considering the long wait times in industry-friendly states like Texas, the question for some environmental consultants and lawyers is how much can EPA really do to speed things up, especially in states like California and New York, which have more extensive regulations.
Others worry that Trump administration's effort to move industry through the permitting process faster could lead to court challenges brought by environmental advocates, throwing the system into turmoil and creating even longer delays..
"The challenge is if EPA goes too far, there could be a backlash with the states trying to fill voids," Hanna said. "We want to make the turn, but if we're trying to turn too quickly, our necks are going to snap."
CHEMICAL BREAKDOWN: In November 2014, four workers died at a DuPont plant in La Porte after being exposed to a toxic gas. Responding emergency workers weren't sure what was in the air. The surrounding community wasn't, either. A Houston Chronicle investigation dives deep into Houston's hidden world of explosions and toxic releases and probes the regulatory failures that put us in jeopardy.
http://www.houstonchronicle.com/business/article/In-bid-to-speed-up-EPA-Pruitt-takes-on-12506953.php?t=b76912b60b
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EPA Defends Obama-Era CSAPR 'Update' from Competing Legal Attacks
Jan 18, 2018 | Inside EPA
By Stuart Parker
The Trump administration in a new legal brief is defending an Obama-era rule “updating” the Cross-State Air Pollution Rule emissions trading program, rejecting some states' claims that the rule is unnecessarily stringent and other states' and environmentalists' arguments that the update should have imposed stricter air pollution limits.
The 2016 rule tightened states' emissions caps for ozone-forming nitrogen oxides (NOx) under the CSAPR emissions trading system in order to reduce ozone levels further to help states meet the 2008 ozone national ambient air quality standard (NAAQS), set at 75 parts per billion (ppb). The 2008 standard is tougher than the prior limit expressed as 84 ppb that the original 2011 CSAPR was designed to meet, along with particulate matter limits.
CSAPR, as updated, imposes an emissions trading system for NOx emissions from power plants in 22 states, but leaves untouched the original rule's sulfur dioxide (SO2) provisions. The update rule also addressed a U.S. Court of Appeals for the District of Columbia Circuit remand that found the original NOx trading system “over-controlled” upwind states by requiring them to reduce air pollution more than is required to attain the NAAQS.
However, the D.C. Circuit and Supreme Court in earlier litigation largely upheld the CSAPR framework -- a fact that the Trump administration relies on in its Jan. 17 initial brief in State of Wisconsin, et al. v. EPA, et al., which consolidates legal challenges filed over the Obama-era update rule.
EPA has not promulgated a similar trading rule to help states meet the tougher-still 2015 ozone NAAQS of 70 ppb, which the agency has indicated it may reconsider in 2018. Unlike other lawsuits over high-profile Obama-era air rules, litigation over the CSAPR update has not been held in abeyance pending an EPA revision.
But pressure is growing from upwind states and their industry allies for EPA to revise key aspects of the CSAPR methodology that they say are arbitrary and result in excessively tough pollution control mandates. For example, Robert Hodanbosi, Ohio's top air regulator, told a Dec. 12 meeting of EPA's Clean Air Act Advisory Committee that EPA's criteria for determining which states should participate in CSAPR are unrealistic and arbitrary.
Critics also note that CSAPR applies only to power plants, when NOx from the power sector has already fallen dramatically and much of the remaining pollution stems from mobile sources, such as cars and trucks.
But the long-term fate of EPA's interstate pollution policy remains in doubt. EPA air policy chief William Wehrum has said he would prefer states to craft their own interstate air plans, as required by the Clean Air Act, rather than EPA promulgating another federal program to fulfill that duty instead.
Legal Fight
With a long-term Trump administration approach to CSAPR and interstate air pollution still pending, EPA is defending the update rule from claims that it is either too stringent or too weak.
In its brief on behalf of EPA in the litigation, the Department of Justice (DOJ) says, “Industry and State Petitioners’ arguments alleging that the Rule 'over-controls' upwind emissions lack merit. The Rule essentially applies the same four-step framework of the original CSAPR, complying with Supreme Court and D.C. Circuit precedents upholding EPA’s approach."
The method involves identifying downwind areas with NAAQS attainment problems; linking upwind states' emissions to those areas; determining upwind states' “significant” contribution to those problems, taking implementation costs into account; and imposing a trading system to reduce that pollution, based on state emissions “budgets,” or caps.
EPA's application of that framework is due “substantial deference” by the courts, DOJ says. It points to ambiguity in the Clean Air Act's provisions for implementation of the “good neighbor” provision, which requires that states mitigate their air emissions that contribute significantly to problems meeting NAAQS in other states.
EPA's method determines “significant” to be a contribution of one percent of the applicable NAAQS -- here, 0.75 ppb. The agency also set thresholds to establish reasonable costs of emissions controls. DOJ in its brief defends EPA's discretion to use these methods from critics saying it over-controlled upwind emissions.
It further defends EPA's computer modeling approach against a slew of criticisms, including that the agency failed to ground-truth its projections against actual pollution readings, and that its approach to predicting pollution over water bodies results in exaggerated pollution estimates and needless inclusion of upwind states in the CSAPR program. DOJ also rejects accusations that EPA should have taken international emissions more fully into account.
DOJ rejects “collateral attacks” brought by states critical of the program, for example by Wyoming, which takes issue with the methodology, claiming it will disadvantage the state in regulatory actions to curb interstate pollution. “Wyoming’s complaint about modeling that considered western states lacks merit as the Rule took no action in regard to western states,” DOJ says, also fending off challenges to the agency's disapproval of some state implementation plans for interstate pollution. Those disapprovals are the subject of separate agency actions, and cannot be litigated in the context of the CSAPR update, DOJ argues.
'Due Consideration'
Meanwhile, DOJ also strongly defends EPA against arguments by other states, such as Delaware, and environmental groups, that the CSAPR update rule is unlawfully weak.
A central argument these litigants raise is that the update is only a partial remedy to meet the 2008 ozone NAAQS, and that it should have gone further in requiring tougher pollution controls in upwind states. The rule in effect requires that power plants operate existing controls more than they have previously.
“EPA gave due consideration to the upcoming 2018 attainment date” for states in 'marginal' nonattainment to meet the 2008 NAAQS, and “focused on NOx emission reductions achievable during the relevant 2017 ozone season, acting quickly after the uncertainty” caused by protracted litigation was resolved. Ozone-season in the CSAPR region, covering the eastern United States, is essentially summertime.
“Contrary to Environmental Petitioners’ and Delaware’s assertions, this partial remedy is both lawful and entirely reasonable in light of the implementation delays,” DOJ writes.
DOJ also defends EPA's decision to permit power plants to use emissions allowances “banked” from the first phase of CSAPR to comply following the update.
“EPA reasonably evaluated the feasibility of available emission reductions in establishing emission budgets, and made a balanced choice to authorize limited conversion of banked allowances from the original CSAPR ozone season program,” DOJ says. “EPA’s expertise in these highly technical matters warrants substantial deference.”
In a related development, New York and Connecticut filed suit in a separate action Jan. 17 in the U.S. District Court for the Southern District of New York, seeking to force EPA to issue federal interstate pollution plans for Illinois, Michigan, Pennsylvania, Virginia and West Virginia. New York and Connecticut claim that because CSAPR is only a partial remedy to ensure attainment of the 2008 ozone standard, EPA still has a legal obligation to issue plans to ensure attainment.
https://insideepa.com/daily-news/epa-defends-obama-era-csapr-update-competing-legal-attacks
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Jan 18, 2018 | Washington Post
By Chris Mooney
2017 was among the hottest years ever recorded, government scientists reported Thursday.
The year was the second-hottest in recorded history, NASA said, while scientists from the National Oceanic and Atmospheric Administration reported 2017 was the third-warmest they have ever recorded.
The two government agencies use different methodologies to calculate global temperatures, but by either standard, the 2017 results make the past four years the hottest period in their 138-year archive.
“The planet is warming remarkably uniformly,” Gavin Schmidt, director of NASA’s Goddard Institute for Space Studies, told reporters Thursday.
The renewed evidence of climate change, driven by human emissions of greenhouse gases, comes as the Trump administration moves to open new areas for oil drilling and rolls back regulations that sought to reduce global warming, most prominently by moving to repeal the Obama administration’s Clean Power Plan. The administration said it would withdraw from the Paris climate agreement last year.
This has prompted a counter-reaction — with some states, like California, doubling down on climate policies, such as the state’s cap-and-trade system — but the fact remains that it is far from clear at the moment whether a recent trend of slowly declining U.S. greenhouse gas emissions will continue. In 2018, the U.S. Energy Information Administration just predicted, emissions should actually rise by about 1.7 percent.
“The climate has changed and is always changing,” said White House principal deputy press secretary Raj Shah in a statement in response to the new temperature findings. “To address climate change as well as other risks, the U.S. will continue to promote access to affordable and reliable energy and support technology, innovation and the development of modern and efficient infrastructure in order to reduce emissions and effectively address future climate related risks.”
“To answer your question, no this report does not affect [Energy Secretary Rick Perry’s] beliefs on climate change,” said Shalyn Hynes, press secretary at the Department of Energy. “He is already on record saying that he believes that the climate is changing and that man is having an impact. As the Secretary of Energy he is focused on the ways we can use innovation and technology to expand American energy production in a cleaner way so that the United States can continue to lead the world in our reduction of emissions.”
The Environmental Protection Agency referred the Post to a recent interview with Reuters in which administrator Scott Pruitt also acknowledge that the climate “is changing” but said, “That’s not the debate. The debate is how do we know what the ideal surface temperature is in 2100?… I think the American people deserve an open honest transparent discussion about those things.”
A number of scientists have faulted Pruitt’s idea of hosting a government-wide debate about climate change this year, which may be through a “red team/blue team” exercise in which outside scientists would challenge and critique the work of government researchers.
Further stirring the climate debate, 2017 was a year of record breaking disasters affecting the United States, including devastating California wildfires and a trio of hurricanes that cost over $200 billion — events of the sort many experts fear may worsen as the planet warms.
2017 achieved a temperature of 1.51 degrees Fahrenheit (0.84 degrees Celsius), above the average temperature seen in the 20th century, according to NOAA’s National Centers for Environmental Information.
NASA found that 2017 was 1.6 degrees Fahrenheit (.9 degrees Celsius) above the average temperature from 1951 through 1980. 2016 was .99 degrees Celsius higher, and 2015 just .86 degrees Celsius higher, according to the agency.
“The annual change from year to year can bounce up and down. There is year to year variability, but the long term trends are very clear,” said Deke Arndt, who heads the global monitoring branch at NOAA’s National Centers for Environmental Information.
Before 2017, the years 2014, 2015, and 2016 had set new all-time temperature records in stepwise fashion — culminating in a dramatic new high in 2016 — and NASA and NOAA had both agreed on their rankings as they occurred. 2017, in contrast, merely stayed within the elevated temperature range these prior years had already established.
Here’s a month by month visualization of how the warming has grown dating all the way back to 1880, based on NASA’s data:
The difference between the two agencies in ranking 2017 is somewhat driven by the different methodology the two agencies use to measure temperatures in the Arctic, the fastest-warming part of the planet, said Zeke Hausfather, a climate scientist who also closely tracks annual temperatures with Berkeley Earth.
2017 was unequivocally the warmest year on record that was not substantially influenced by the periodic El Niño phenomenon, which releases added warmth from the Pacific Ocean and was present in the record warm years of 2015 and 2016.
1998, for instance, was at the time a record year for global temperatures, as it coincided with a very strong El Niño — but 2017’s temperature now comfortably surpasses it.
NASA and NOAA presented the following slide in a briefing Thursday to show the planet has continued to warm throughout fluctuations in this cycle in the Pacific Ocean:
NASA’s Schmidt noted El Nino probably boosted the temperatures of the warmest year on record, 2016, by .12 degrees, but did not affect 2017 at all — suggesting if not for natural variability, 2017 might have been the warmest year on record.
“This kind of analysis really brings it home that the warmth that we’re seeing are independent of this variation in the Pacific,” he said.
In another striking analysis of 2017’s heat, NOAA’s Arndt pointed out that according to his agency, the amount of heat being stored in the upper layer of the global ocean, between the surface and about 700 meters depth, was at its highest on record last year.
“It’s unlikely we’ll ever see temperatures as cool as we had back before 2014 again,” said Hausfather, who commented on the NASA and NOAA numbers and also released his own group’s temperature record Thursday.
The result come in a big year for global climate diplomacy as countries seek to hew to the Paris climate goals of holding warming below 2 or perhaps 1.5 degrees Celsius above preindustrial levels.
2017 was 1.12 degrees Celsius above late 19th century temperatures, according to NASA’s Schmidt. It is the third straight year in NASA’s records temperatures have eclipsed 1 degree Celsius above temperatures in the late 19th century.
“This year governments are due to start the process of assessing the size of the gap between their collective ambitions for reducing greenhouse gas emissions and the goals of the Paris agreement,” said Bob Ward, policy and communications director at the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science, in a statement.
“The record temperature should focus the minds of world leaders, including President Trump, on the scale and urgency of the risks that people, rich and poor, face around the world from climate change.”
NASA and NOAA, which both keep independent records of the Earth’s temperature, have adopted a practice in recent years of jointly announcing their numbers, even though they can differ.
In addition to the official U.S. agencies, a number of additional expert outlets have tracked temperatures and found results consistent with those of NOAA and NASA.
Hausfather’s group, Berkeley Earth, also found 2017 was the second-hottest year on record.
“The Arctic has warmed 2 and a half degrees C since the middle of the century,” he said. “It’s really warming faster than anywhere on earth. So much of the difference in 2017 between the groups that find it in second place and third place has to do with how the Arctic is handled.”
NOAA, NASA, and Berkeley Earth track temperatures at the surface of the Earth, over both land and oceans. Another way to track the planet’s warming is to analyze the temperature of the atmosphere at a significantly higher elevation, in the so-called “lower troposphere” extending from a little above the planet’s surface to several miles into the air.
Here, too, assessments of 2017 differ.
Remote Sensing Systems, which studies lower tropospheric temperatures using satellites, found 2017 was the second-hottest year in a record dating back to 1979, a pretty striking finding in that El Niño events tend to be amplified in the troposphere, and 2017 was not one.
“The near-record warmth of 2017 is notable because an El Niño event did not occur in 2017,” wrote RSS physicist Carl Mears. “The other 3 warmest years, 1998, 2010, and 2016, were El Niño years.”
A group of scientists at the University of Alabama-Huntsville who also track tropospheric temperatures by satellite instead put 2017 at 3rd place, rather than 2nd, behind 1998.
https://www.washingtonpost.com/news/energy-environment/wp/2018/01/18/2017-was-among-the-planets-hottest-years-on-record-government-scientists-report/?utm_term=.b54b04e0db50
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