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ACC PM 01/02/18

Industry and Association News

(ACC Mentioned) Feature: The Bomb That Went Off Twice, Part 3
Feb 1, 2018 | Planet Jackson Hole
By Abrahm Lustgarten

The explosive compound RDX helped make America a superpower.

LCSA News

US EPA Offers Additional Guidance on TSCA Inventory Reporting
Feb 1, 2018 | Chemical Watch
By Julie A. Miller

With a 7 February deadline looming, the US EPA has provided more information for manufacturers and importers who must report on their chemical use for the substance inventory reset required under the TSCA amendments.

Chemical Management News

US Federal Agencies to Lead NAMs Development, According to Iccvam Roadmap
Feb 1, 2018 | Chemical Watch
By Emma Davies

The Interagency Coordinating Committee on the Validation of Alternative Methods (Iccvam) has published its strategic roadmap for new approaches to evaluate the safety of chemicals and medical products.
The Unexpected Health Risk That's Probably Hiding in Your Coat Pocket Right Now
Feb 1, 2018 | AlterNet
By Melissa Cooper Sargent

Taking a receipt from a cashier, ATM or gas station seems like a benign activity.
European Plastics Trade Groups Oppose Latest BPA Decision
Feb 1, 2018 | Chemical Watch
By Leigh Stringer

Organisations from the European plastics industry have opposed Echa's recent decision, identifying BPA as a substance of very high concern due to its endocrine disrupting effects on the environment.
Echa Round-Up
Feb 1, 2018 | Chemical Watch

Echa has updated the regulatory and practical advice for substance identification by adding text about substance identity profile (SIP).
Germany Challenges Board of Appeal Decision in Legal First
Feb 1, 2018 | Chemical Watch

An EU member state is, for the first time, directly challenging in the courts a Decision made by Echa's Board of Appeal (BoA).

Energy News

Colorado Supreme Court Agrees to Examine State’s Energy Regulation Criteria
Feb 1, 2018 | Natural Gas Intelligence
By Richard Nemec

After a lower court ruled against the oil and natural gas industry last year, the Colorado Supreme Court has agreed to examine how public health and environmental protections are weighed in decisions by state energy regulators.
White House Seeks 72 Percent Cut to Clean Energy Research, Underscoring Administration’s Preference for Fossil Fuels
Feb 1, 2018 | The Washington Post
By Chris Mooney and Steven Mufson

The Trump administration is poised to ask Congress for deep budget cuts to the Energy Department’s renewable energy and energy efficiency programs, slashing them by 72 percent overall in fiscal 2019, according to draft budget documents obtained by The Washington Post.
Ewire: Could Trump's FY19 Renewable Budget Foreshadow EPA?
Feb 1, 2018 | Inside EPA

Even as Congress remains deadlocked on final appropriations legislation for fiscal year 2018, the Trump administration is putting the finishing touches on its budget request for FY19, and the early numbers look grim for the Department of Energy's (DOE) Office of Energy Efficiency and Renewable Energy (EERE).
With Ire for FERC and Hill Dems, Activists Plan for 2018
Feb 1, 2018 | E&E Greenwire
By Sam Mintz

Nearly 100 environmental activists met for two days in Washington, D.C., a few weeks ago to strategize about how to oppose natural gas pipelines.
D.C. Circuit Ruling Could Shut Down Pipeline
Feb 1, 2018 | E&E Energywire
By Ellen M. Gilmer

A federal court may shut down a Southeast natural gas pipeline in a stunning rebuke of government regulators who approved the project.

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

Transportation and Infrastructure News

House T&I Subcommittee Schedules Hearing on PTC
Feb 1, 2018 | Railway Track & Structures
By Mischa Wanek-Libman

A February hearing of the Subcommittee on Railroads, Pipelines, and Hazardous Materials for the House Transportation and Infrastructure Committee will focus on the progress made toward implementing Positive Train Control (PTC).
Lawmakers Push Safety Agenda in Wake of Crash
Feb 1, 2018 | E&E Greenwire
By George Cahlink

California Republican Rep. Jeff Denham, who leads a congressional panel overseeing railway safety, got an unexpectedly up-close look at Amtrak emergency response efforts yesterday.
Lawmaker Warned of 'Glaring Omission' in Security Before Crash
Feb 1, 2018 | E&E Energywire
By Blake Sobczak

Rep. John Katko (R-N.Y.) urged transportation security officials to fix a "glaring omission" in rail security the day before he and other Republican lawmakers were involved in a train crash.
BNSF Details $3.3B Capital Program for 2018
Feb 1, 2018 | Railway Track & Structures
By Mischa Wanek-Libman

BNSF Railway has released details about its 2018 capital plan of $3.3 billion, noting that it reflects continued focus on maintaining its network as well as expansion projects aimed at meeting customer demands.

Environment News

Democrats Introduce 'Cap-and-Dividend' Legislation
Feb 1, 2018 | Inside EPA

Democrats in the House and Senate are introducing “cap-and-dividend” legislation setting a nationwide cap on greenhouse gases from coal, oil and natural gas that would decline annually through 2050, while directing all of the proceeds of emission credits to residents in quarterly dividends to offset higher energy costs.
Trump Permitting Plan Would Dramatically Weaken NEPA, Shorten Reviews
Feb 1, 2018 | Inside EPA
By Dawn Reeves

Leaked White House proposals to speed project permitting that are intended to be part of congressional negotiations over a major infrastructure bill would significantly scale back the National Environmental Policy Act (NEPA) and other environmental laws, including limiting EPA's review and veto authority over projects' environmental analyses.
Trump Says He's Best at Killing Rules. Is That True?
Feb 1, 2018 | E&E Climatewire
By Zack Colman

The story of President Trump's energy policy centers on removing regulations.
House Lawmakers Raise Pressure for CCS Tax Incentive
Feb 1, 2018 | E&E Greenwire
By Geof Koss

A bipartisan group of House lawmakers are pressing for a key carbon capture and sequestration (CCS) tax credit to be included in a tax extenders package that may move in the coming weeks.
EPA Defends Ozone NAAQS Designations Delay
Feb 1, 2018 | Inside EPA

EPA is again defending its delay in issuing designations for which parts of the country are meeting or violating federal ozone standards, saying that states and environmentalists' arguments in appellate and district court litigation over the delay are contradictory and that the appeals court litigation should be dismissed.
Toxins Hit Poor, Minority Schoolchildren Hardest — Study
Feb 1, 2018 | E&E Greenwire
By Oliver Milman

Black, Hispanic and low-income public school students in the United States are disproportionately exposed to air pollution, a new study has found.

Industry and Association News

(ACC Mentioned) Feature: The Bomb That Went Off Twice, Part 3

Feb 1, 2018 | Planet Jackson Hole

By Abrahm Lustgarten

The explosive compound RDX helped make America a superpower. Now, it’s poisoning the nation’s water and soil.
In early 2000, the EPA issued its most substantial demands in a third order, laying out a specific plan for cleaning up the sites.
It involved gathering and then safely disposing of unexploded munitions material, and gradually treating contaminated groundwater to reduce the size of the plumes. Though that cleanup has since progressed with the Army’s cooperation and has slowed the spread of contaminants, RDX ultimately made its way into public groundwater beyond the base’s boundaries in 2010. In 2011 the Army announced a plan to scrub the aquifer, systematically pumping that groundwater up, treating it, and injecting it back underground until the RDX and other military-related contaminants are nearly gone. That process continues today.
The Pentagon lost its battle with the EPA at the Massachusetts Military Reservation. But it came away with a renewed commitment to fend off liability for RDX contamination.
Read >> The Bomb That Went Off Twice, part 1
Read >> The Bomb That Went Off Twice, part 2
In a speech delivered at an explosives safety seminar in 2000, the Army’s then deputy assistant secretary for the environment, Raymond Fatz, said that at least 20 other military bombing ranges in the U.S. lay directly over sole-source drinking water aquifers, just like on Cape Cod, and warned that because RDX would be so prevalent at these sites, “this has the potential of being a huge problem.”
Pentagon officials feared that if it continued to be held liable under federal environmental regulations, its cleanup costs could bankrupt the Defense Department’s environmental programs, according to the accounts of several lawyers and environmental contractors who have worked with the Pentagon. A typical DOD cleanup cost around $15 million to $22 million. The cleanup at the Massachusetts Military Reservation alone — which continues today — will wind up costing the Pentagon nearly $1 billion.
The military’s budget, though huge, was not infinite and Pentagon officials also worried that protecting the environment would get in the way of training and protecting troops.
“The only other option they had was to go to Congress and try to change the statute,” said Frank.
And that is what the Pentagon did.
As the U.S. went to war in Iraq in 2003, top Pentagon officials saw a political climate that might yield the ultimate reprieve. Defense Secretary Donald Rumsfeld, with a small group of Pentagon lawyers, argued that in order to preserve “readiness” for the fight against terrorism, the Pentagon would need to be freed once and for all from EPA oversight. One of the nation’s largest polluters should be allowed to operate largely outside of the scope of the law, especially, the Pentagon’s lawyers noted, when it came to pollution from explosive chemicals, which included RDX.
“There were those in the department who thought that this was a great opportunity to try to remove environmental impediments,” said Robert Taylor, a former general counsel to the Department of Defense who describes himself as a reluctant architect of the strategy.
The Pentagon proposed amendments to six of the nation’s most important environmental laws that would largely exempt Defense Department lands with ongoing operations from regulation: the Comprehensive Environmental Response, Compensation and Liability Act, or Superfund; the Resource Conservation and Recovery Act, which governs hazardous waste; the Clean Air Act; the Marine Mammal Protection Act; the Migratory Bird Treaty Act; and the Endangered Species Act. The Pentagon negotiated over five specific pollutants, including RDX and perchlorate. The final language of the bill specifically named “munitions constituents,” which include all chemicals from explosives, as substances it sought to redefine as noncontaminants outside the scope of waste handling.
“It was stunning, what they were trying to do,” Frandsen said. “They were basically trying to take all enforcement away.”
The Pentagon argued that after the 9/11 attacks, environmental cleanups would come at the expense of the safety of U.S. forces in Iraq and Afghanistan.
“Preparing America’s military forces for battle,” Raymond DuBois, the deputy undersecretary of defense for installations and the environment, told a House energy and commerce subpanel in 2004, “is critical.”
Others were more hyperbolic, arguing that exemptions were necessary for the sake of “winning the war on terror,” and “protecting Americans from deliberate attacks that would kill millions of our fellow citizens,” as Rep. Christopher Cox, R-California, then chair of the Select Committee on Homeland Security, said.
But this strategy, too, largely failed.
Since exempting the Department of Defense from hazardous waste laws effectively would have transferred the cleanup burden to local businesses and municipalities attempting to turn old military lands into economically productive places, not even reliable Pentagon allies in Congress felt able to support such a step. There were more than 5,000 contaminated military installations and 900 Superfund sites linked to military operations nationwide — enough that almost all members of Congress had such sites in their districts. They rejected the Pentagon’s pursuit of exemptions from the major water and waste statutes.
John Dingell, the longtime Democratic congressman from Michigan who chaired the House committee on energy and commerce and the committee on investigations, and was ranking member during the exemption hearings, put it simply:
“Nowhere has a single set of legislative proposals had so much audacity — and so little merit.”
In 2012, 22 years after it first issued a cancer warning for RDX, the EPA launched a toxicological review to re-examine the risk the chemical posed to people.
To health professionals observing the process, the agency seemed poised to strengthen its cancer warning for RDX. Using Barry Levine’s original study, the EPA had already calculated what it calls a cancer slope factor for RDX, an in-depth quantitative process that attempts to predict the specific dose of a chemical that will cause cancer and which is normally done only for a chemical already believed to pose a serious cancer threat.
In 1998, the agency had added RDX to a list of candidate contaminants for concern — a regulatory status that reflects a risk to public drinking water and is often a precursor to regulation. In 2008, it listed RDX among contaminants to be monitored by water utilities across the country. And as it released formal documents to begin its review in 2013, the EPA summarized its case for RDX’s cancer-causing properties starkly: In the best studies ever conducted, RDX was linked to two different types of cancer, in two sexes among two different species of animals. That checked every box in the agency’s formal criteria for classifying a toxin as a “likely” human carcinogen.
The EPA has a lengthy formal process for reviewing toxins, and it’s aimed at identifying which substances are dangerous to humans and how much people can be exposed to. First, EPA scientists assemble a dossier that includes a thorough assessment of published research, a literature review that can consider hundreds of papers, and a proposed methodology for weighing the evidence. Then those documents are made public, and agency officials incorporate the feedback as they write early internal drafts.
The EPA then shares a more developed draft with other federal agencies — in this case including the Department of Defense — and revises the document further based on their response. Only then is a version released to the public, and only then does an outside advisory committee of experts get to review the draft. The process is repeated, including public comment periods, with the outside scientists submitting criticism before the EPA issues its final assessment.
The Department of Defense told ProPublica that it had anticipated the EPA’s review long before it was launched. By the time the EPA released its initial dossier in 2013, the Pentagon had already funded a number of new scientific studies that raised and amplified doubts about whether RDX caused cancer, or posed any health threat. One of these studies was even paid for out of the very same Pentagon environmental cleanup program responsible for addressing some of the lands contaminated with RDX. These studies made up much of the new research the EPA considered.
One article argued that the models used in peer-reviewed papers to predict how much RDX persists in the organs of mice that ingest it were not reliable. Another showed that mice genes didn’t mutate after RDX exposure, suggesting cancer was a less likely threat.
“Looking at the merits of the science was absolutely something that the department felt that it should do to make sure that the science was well developed and objective,” said Taylor, the former Pentagon general counsel.
In 2006, Gunda Reddy, an Army Ph.D. toxicologist working at Aberdeen Proving Ground in Maryland, was part of a team that re-examined Levine’s original RDX study using the original data and samples. Reddy concluded that the increase in cancer Levine observed was less pronounced than previously thought. Reddy, who has published nearly 100 scientific papers, called the evidence of a cancer risk “equivocal.”
Separately, Reddy force-fed RDX to baby pigs to learn how they digested the explosive and then co-published a study that found that RDX had not accumulated in the pigs’ livers, prompting skepticism that it could cause tumors there. In 2011, a researcher from the Naval Medical Research Unit raised doubts about whether RDX was the cause of noncancerous prostate inflammation observed in rats. Though she, too, had merely reanalyzed old data, she concluded that RDX could be safely ingested by people in far higher doses than the EPA had suggested.
That these studies were funded by the Pentagon, which had a specific stake in how RDX was classified, did not make the research less trustworthy, EPA toxicologists and others involved in the review said. The EPA’s Craig points out the studies helped fill a void in overall knowledge about RDX’s effects — especially their noncancerous effects — and several were validated through peer review.
But scientists directly involved in the review process said the Pentagon shaped the outcome of its studies by the questions its researchers asked, or chose not to ask. The persistent focus of the Pentagon studies on uncertainties in existing research, their aversion to repeating the original rodent studies, and the consistent findings that RDX was less dangerous than previously thought, sparked skepticism.
“You can always get a burger your way,” said Frank, the former EPA federal facilities enforcement attorney. “The scientific process itself has been under attack by the Department of Defense for many years.”
Just as Levine predicted in his testimony in the Utah case, the Defense Department researchers never repeated the original graduated-dose study of RDX on mice to observe whether it caused malignant liver and lung tumors in higher numbers.
Reddy, for his part, wrote in a PowerPoint presentation he and two co-authors made about the EPA review for the Army Public Health Center that if the EPA didn’t loosen its RDX standards based on his research, “training and testing activities will be adversely affected, adversely affecting military readiness.” Furthermore, if “artificially low” environmental standards were set for RDX, “significant resources will be spent [on] cleanup costs associated with unnecessary remediation.”
Military assessments from scientists trained in toxicology, who are not supposed to have an interest in the outcome of their research, are “frankly, highly unusual,’’ said the EPA’s Craig. Reddy did not respond to a request for comment about his statements; it is unclear how he determined what effect changing RDX standards would have on military readiness.
In an emailed response to questions, Mark Johnson, director of toxicology for the Army Public Health Center at Aberdeen Proving Ground, said the notion that the Pentagon had tailored its research on RDX to sway the EPA’s review — or that it was part of an agency-wide campaign to avoid responsibility for RDX — was “simplistic’’ and incorrect.
“There has never been a strategy to manipulate RDX regulation by deciding not to do studies,” he wrote. “Our interest has always been to provide as much information as possible so that the best possible science can be used to reduce uncertainty associated with establishing safe levels of exposure for decision-making.”
J.C. King, the Army’s director of munitions and the chief official responsible for Army explosives cleanups, said the Army simply wants to make sure taxpayer funds are not wasted on unnecessary environmental work.
“That’s our obligation,” he said in an interview at the Pentagon in July. “We’re spending your money. And we spend your money as wisely as we can.”
The Pentagon-sponsored research bolstered the military’s longstanding argument that the health and environmental dangers of RDX are unproven.
By the time the EPA completed the first internal draft of its RDX review in 2014, meant for deliberation between executive agencies, it indicated it was considering a looser and more ambiguous categorization that is less likely to lead to stringent regulation. Instead of declaring RDX a likely carcinogen, it was now prepared to say RDX was merely “suggestive” of carcinogenicity.
Two years later, when that assessment was finally released for review by the science advisory committee — made up of 26 prominent toxicologists, epidemiologists and cancer doctors from American universities — the less serious characterization of the risk immediately raised concerns.
“Why lower cancer risk designation?” asked George Cobb, a member of the EPA’s RDX advisory board and chairman of the environmental science department at Baylor University. Cobb wrote in late 2016 comments that the liver and lung tumors in the mice found by Levine nearly three decades ago alone warranted the more serious warning. “The hazard identification should be … indicative of higher risk,” he wrote.
“The case for this classification presented in the document is not strong,” wrote Stephen Roberts, another member of the RDX advisory board and a professor of public health at the University of Florida. The “likely” characterization, he wrote in 2016, “fits the data for RDX.”
The EPA contends that its overall rating of RDX is more or less unchanged, and that the term “suggestive” reflects the current state of the research.
“Choosing a descriptor is a matter of judgment and cannot be reduced to a formula,” an EPA spokesperson wrote to ProPublica in response to questions emailed to the agency. “EPA’s conclusions are driven by the scientific evidence and risk assessment methods available at the time of assessment development. The strength, reputation, and influence of the [EPA’s environmental risk program] is founded on its scientific integrity, highest caliber of scientific process, and rigorous peer review.”
The EPA declined to allow its advisory committee members to speak with ProPublica. The EPA also has not responded to three public records requests about the board’s meetings and communications, the first of which ProPublica filed with the agency more than 13 months ago.
But other public comments and records from the EPA’s RDX meetings show that from 2013 to 2016, the Pentagon and organizations and agencies friendly to it, including the American Chemical Counsel (an advocacy group that generally lobbies against chemical regulations) and the Office of Management and Budget (which approves the Pentagon’s cleanup spending) either recommended looser standards, pushed the EPA to include more studies that found no negative effects from RDX, or advocated a “weight of evidence” approach.
This would mean considering all studies on the subject and giving each more or less equal weight, regardless of their quality. Since the Pentagon had funded so many studies that found RDX to have less health risk, this approach was more likely to lead the EPA to downgrade RDX’s risk profile.
The EPA, in a statement to ProPublica, insists that the quality of studies is not ignored in this approach. But critics argue that the scales are better balanced when the EPA evaluates the research and allows the best studies to have the most influence — or at least protects them from being dismissed as aberrations.
“If you base it on weight of evidence, and you stack it with a bunch of negative studies, you are going to win,” Melnick, the former NIH toxicologist who submitted comments to the EPA (and does not sit on its advisory committee), told ProPublica. “even if the negative studies are not very good.”
In his formal comments submitted to the EPA, Melnick called the agency’s representation of the Army’s research “a misleading justification” for its decision to downgrade, warning the decision will “protect polluters rather than protecting U.S. citizens.”
Of particular concern to Cobb are the known cancer risks of RDX’s breakdown chemistry, the nitrosamines that were the subject of the Petersen lawsuit in Mapleton, Utah. The EPA’s review for RDX, he noted, hardly takes them into account. In the comments he submitted to the agency, Cobb described the Pentagon-funded research as “rehashes of old studies in attempts to decrease toxicity profiles of RDX.”
The only reliable way to answer the cancer question, Cobb insists, is for the EPA or the National Institutes of Health to fund and conduct their own repeat of Levine’s original 1984 research. “This should be done before any diminution of toxicity characteristics,” Cobb wrote in 2016.
Pentagon officials say they never repeated the study because of how much it would cost. According to Johnson, such a study “could be worthwhile” but would take five years to complete and cost $2 million to $3 million. “There has never been a strategy to not repeat” Levine’s studies, he wrote to ProPublica. But “currently there is no funding to support it,” he said, in the Pentagon’s annual budget, which has reached $585 billion.
In September, the EPA’s peer review advisory committee submitted its final comments for the EPA’s consideration. The committee consented to the EPA’s “suggestive” cancer hazard description, but raised numerous other concerns about the potential for underestimating RDX’s risk.
In a letter addressed to EPA Administrator Scott Pruitt, the committee warned that the EPA was overstating its confidence in some of the data, and recommended an “uncertainty” score three times higher than the EPA’s figure, noting the risk, for example, that “repeated exposures to RDX have cumulative effects” on brain function.
The committee criticized the completeness of the EPA’s data on RDX, saying that it “does not capture all of the potential adverse outcomes, or their severity.” It warned that the EPA’s suggested human exposure limits might not account for the fact that even low doses of RDX could cause behavioral and developmental problems, and didn’t consider other factors — including that the offspring of rats exposed to RDX also showed traces of RDX in their brains.
The EPA is now incorporating the advisory committee’s comments into a final assessment of RDX’s toxicity, which is not expected to be made public until sometime next year.
Jane Caldwell, a senior environmental health scientist in the EPA’s toxicology program until she retired last year, said she had concerns with the EPA’s handling of the RDX question dating back years. Indeed, in 2014, she wrote a memo describing the agency’s reassessment work as recklessly incomplete, saying it had glossed over or ignored important signs that RDX caused rare tumors and carried serious health risks.
In an interview this month, Caldwell said the EPA’s decision to “downgrade,” as she put it, RDX’s cancer status was ultimately a political choice. When it came to RDX, she believed senior agency staff overrode the agency’s toxicologists “to try to avoid pressure from the DOD.”
“It was obvious that it should have been one way, and all of a sudden it went another way,” said Caldwell, who worked at the EPA for 26 years. “The understanding was that from the top of the organization, probably with DOD influence, they had chickened out.”
One EPA scientist directly involved in the final stages of the review process offered a detailed sequence of events before what Caldwell called the EPA’s final capitulation.
The scientist, speaking on condition of anonymity for fear of reprisals from EPA management, said that at least 10 EPA staff toxicologists and statisticians had raised concerns about the significance of rare tumors in the RDX studies, and had made a case for calling RDX a “likely” carcinogen. And upon hearing those concerns, in a high-level meeting at EPA headquarters before the public review draft was released, a dozen EPA branch chiefs and managers reached a consensus to take that step.
Then, a few days later, the decision was reversed.
“DOD wasn’t going to let it go without a fight, and the EPA wasn’t interested in that fight,” said the scientist.
Sitting at a dark cherry wood table in a small conference room outside her office at the Pentagon one day last July, Maureen Sullivan, the deputy assistant secretary of defense for environment, safety and occupational health, would not say whether the Pentagon was happy with the EPA’s conclusions or if she had pressed for a specific outcome.
Though she is the top official overseeing the agency’s tens of thousands of cleanup sites, and administering a $4 billion annual environment budget, she said that she hadn’t given the implications of RDX regulation much thought.
“Honestly, I haven’t asked my staff to do an assessment of that, of what it means to us,” she said.
Coda
In 1982, John Sheehan, one of the scientists responsible for developing RDX, received a kind of lifetime achievement award from the University of Cincinnati and the American Chemical Society. For decades, Sheehan had been haunted by misgivings about RDX’s lasting consequences.
To him, his invention had been a “mixed blessing.” RDX had helped win wars, but it had also helped increase the human toll of those wars, among combatants and civilians alike.
“We tend to assume that we can contain the destructive effects of new weaponry more than history justifies,” Sheehan said in accepting his award.
The chance that RDX’s destructive effects could include damage to the American environment was just emerging when Sheehan gave his speech. Thirty-five years later, the EPA is still wrestling with just how much of an environmental and health peril RDX poses and how to regulate it.
But the EPA is an agency undergoing a radical remaking. In the 11 months since President Donald Trump was inaugurated, the EPA has dramatically scaled back its role as a regulator of dangerous chemicals of all sorts. The changes suggest the agency is less likely to move aggressively to take on Defense Department pollution, including RDX, former agency officials say. Pruitt is considering a relaxation of cleanup standards at Defense-related Superfund sites and chose Nancy Beck — a former American Chemistry Council executive who took the Pentagon’s side on RDX’s risk level — to lead the EPA office that will determine RDX regulations.
For much of the Obama administration, Mathy Stanislaus oversaw the EPA division tasked with hazardous waste management and restoration of lands once used as military facilities. He grew familiar with the Pentagon’s power and effectiveness in fending off EPA efforts to fix toxic leftovers related to its explosive weapons programs, including RDX.
In the current environment, Stanislaus said, a fight that once was difficult might now be impossible.
“What leverage does EPA have to move forward?” asked Stanislaus. “I would say it’s very limited.”
http://planetjh.com/2018/02/01/feature-the-bomb-that-went-off-twice-part-3/

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LCSA News

US EPA Offers Additional Guidance on TSCA Inventory Reporting

Feb 1, 2018 | Chemical Watch

By Julie A. Miller

With a 7 February deadline looming, the US EPA has provided more information for manufacturers and importers who must report on their chemical use for the substance inventory reset required under the TSCA amendments.
The agency has posted additional questions and answers and the transcripts from two of three informative webinars held in the autumn.
The inventory notification rule requires manufacturers and importers to report by 7 February all substances covered that they have used in the ten-year 'lookback period' ending 21 June 2016.
Processors (downstream users) have until 5 October. They are not required to report, but must do so to avoid having a chemical labelled "inactive".
The EPA plans to publish a final inventory within two months of the October deadline.Questions
Many questions asked during the webinars concerned how to handle joint submissions, especially when chemical suppliers are uncooperative or say they have reported use of a chemical, but do not supply a central data exchange (CDX) receipt, which is what the EPA requires. In response agency officials said individual circumstances cannot be addressed in a blanket fashion, but urged stakeholders to obtain as much information as possible about suppliers’ claims for their own protection.
The officials confirmed that foreign companies cannot make reports, but must work with US customers importing chemicals from abroad to obtain documentation.
Other information supplied by the officials included:the EPA cannot extend a statutory deadline, but will continue to accept late submissions "so that the agency can accurately designate substances as active or inactive;substances whose use does not have to be reported under chemical data reporting (CDR) requirements because of a low-volume or polymer exemption must be reported here if the substances are included on the public portion of the TSCA inventory.all companies using a substance are required to report, and the EPA will not remove reported substances from the electronic "pick list" until the end of the 180-day retrospective submission period for manufacturers and importers. Substances that have been subject to confidential business information (CBI) claims will not be removed until after the close of the 420-day submission period for processors "in order to afford processors the opportunity to request that EPA maintain the existing confidentiality claim"; andthe EPA has no plans to publish the content of submissions, but that could change and the information is subject to Freedom of Information Act requests, so it could be possible to gain information on a company’s use of chemicals.
https://chemicalwatch.com/63542/us-epa-offers-additional-guidance-on-tsca-inventory-reporting

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Chemical Management News

US Federal Agencies to Lead NAMs Development, According to Iccvam Roadmap

Feb 1, 2018 | Chemical Watch

By Emma Davies

The Interagency Coordinating Committee on the Validation of Alternative Methods (Iccvam) has published its strategic roadmap for new approaches to evaluate the safety of chemicals and medical products.
The roadmap sees federal agencies and industry working closely together to guide the development of new approach methodologies (NAMs), to ensure that they are widely taken up.
The "top-down" approach aims to link test method development directly to regulatory needs. In the past, a "lack of understanding" of regulatory needs has led to methods that have not met end users' testing requirements, says the roadmap document. As a result, the methods have either not been accepted by federal agencies or accepted by them but not used by the "regulated community". "Technologies too often emerge in search of a problem to solve," it says.
Representatives of 16 US federal agencies and multiple interagency workgroups developed the roadmap, with input from NGOs and the public.
It states three strategic goals:to connect end-users with test developers;to see stakeholders and federal agencies working together to establish confidence in NAMs; andto encourage federal agencies and regulated industries to use new methods and approaches.
Grant review criteria should also be tailored to NAM development, the roadmap suggests. Most grant processes in the US reward research involving animals, it states. Instead, funding for NAMs should begin as early as possible in the research and development process.
The Iccvam document also finds fault with validation processes assessing a test's suitability for a specific, intended purpose. It points out that data from a single guideline animal test can be used for multiple purposes, "all of which need to be considered when developing a replacement".
Failure to consider a test's "ultimate context of use" is one of the most frequently cited reasons for lack of agency and industry adoption of NAMs, it adds.
Those working on NAMs have expressed frustration at new tests being compared with "gold standard" animal tests. The roadmap instead suggests assessing NAMs using approaches driven by human biology, exposure and mechanistic relevance, such as mode of action.
Finally, it stresses the importance of international collaboration. "In a global economy, efforts by individual countries to develop NAMs will have little impact without international adoption of the new methods, as companies will always test according to the requirements of the most conservative country," it states.
Iccvam workgroups will develop detailed implementation plans to address roadmap goals. These will cover:defining testing needs;identifying available alternative tests;a plan to develop integrated testing strategies and defined approaches for interpreting data; anda plan to address scientific and non-scientific challenges, including international harmonisation.
Iccvam first released a draft of the roadmap for public comment in August 2017.
https://chemicalwatch.com/63597/us-federal-agencies-to-lead-nams-development-according-to-iccvam-roadmap

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The Unexpected Health Risk That's Probably Hiding in Your Coat Pocket Right Now

Feb 1, 2018 | AlterNet

By Melissa Cooper Sargent

Taking a receipt from a cashier, ATM or gas station seems like a benign activity. We don't give it much thought as we tuck the receipt in a pocket or purse. But each time you touch those receipts, you may be exposed to harmful chemicals, since many receipts have a coating of Bisphenol-A (BPA) or Bisphenol S (BPS), chemicals that may be harmful to our health.
Retailers like Trader Joe’s are stepping up to phase out these unnecessary toxic chemicals in receipts, yet others like TJ Maxx and Meijer, a Midwest superstore chain, have yet to take action.
BPS is not a safer alternative
BPA is banned in baby bottles and sippy cups because it’s a known hormone disruptor. It is linked to female and male infertility, early puberty, breast and prostate cancers, as well as metabolic disorders. BPA has also been voluntarily removed from some reusable water bottles and food can linings. However, this dangerous chemical is still used as the color developer in thermal receipt printers.
As many manufacturers move away from BPA (eager to be able to label their products as “BPA-free”), some have jumped out of the chemical frying pan and into the fire. The easiest chemical with which to replace BPA is its chemical cousin, BPS. BPA and BPS are phenols. Both BPA and BPS are known endocrine disruptors. BPS may be just as bad as BPA. It's a classic case of "regrettable substitution” or the toxic whack-a-mole game.
BPA and BPS are not strongly bound to receipt paper, causing them to rub off very easily. Once on the skin they get absorbed right into the bloodstream.
A recent study found that the use of hand-sanitizers actually increases absorption, as does having lotion or grease on your hands.
BPA and BPS found in 93 percent of receipts
Healthy Stuff, a project of the environmental health advocacy organization, the Ecology Center, recently examined 207 receipts from 148 businesses to see if the makers of receipt developers have moved away from BPA. The report, released in partnership with Safer Chemicals, Healthy Families (a coalition of environmental and health groups) and titled More than you Bargained For: BPS and BPA in Receipts, found that 93 percent of analyzed receipts contained BPA or BPS.
The results did indeed display a shift away from BPA—only 18 percent of the analyzed receipts contained BPA—but unfortunately, 75 percent contained BPS. Hello, fire.
While most BPA is used in polycarbonate plastics and resin linings of food and drink containers, research shows that handling BPA-laden receipts is the number one exposure route for people. Gillian Zaharias Miller, senior scientist at the Ecology Center, explains, “It’s important to realize that BPA or BPS in polycarbonate plastic and in can linings is largely reacted into a stable polymer. Whereas in receipts BPA and BPS are present in their unreacted forms, unbound, and in high concentration.”
Laura Vandenberg studies endocrine disruptors at the University of Massachusetts Amherst School of Public Health & Health Sciences. "Work in my lab has shown that BPS alters exposed mice. Low doses disrupt maternal behaviors, the brain, and the mammary gland in nursing females. These data, and emerging work from other groups raises concern that the replacement of BPA with BPS is regrettable. Even though the number of studies on BPS remains limited, I feel there is sufficient evidence to raise concern about its safety."
So what should consumers do? Shoppers can decline receipts or ask for electronic receipts when possible. Anyone handling thermal paper can fold the glossy side in because the back side is typically not coated with developer. This could prevent BPA and BPS from rubbing onto other items stored next to your receipts. Take it one step further by carrying a dedicated envelope for receipts.
As with most potential exposures, washing hands with soap and water can make a big difference. Also, don't let children play with receipts. And don’t recycle them: Recycling BPA- and BPS-based paper can contaminate future products made from the recycled paper.
As much as shoppers handle receipts, cashiers handle more of them—an average of 30 thermal receipts an hour. Cashiers who handle receipts show a large spike in BPA and BPS in their bodies after a work shift and have an estimated daily intake of these chemicals at least 70 times higher than the general population.
Retailers need to take action
Retailers should step up to safeguard the health of their workers and customers.
The Ecology Center has a list of suggestions for workers. But the organization is putting the onus on retailers in collaboration with the Mind the Store campaign. We are petitioning TJX Companies (TJ Maxx, Marshalls, HomeGoods, Sierra Trading Post) and Meijer to stop using these dangerous chemicals. You can sign the petition calling on these companies to switch to non-toxic receipts. We are encouraging all retailers to stop using BPA and BPS in their receipts. Other retailers whose receipts tested positive for BPA or BPS include Aldi, Barnes & Noble, Bed Bath & Beyond, Costco, CVS, The Home Depot, Kroger, Lowe’s, Rite Aid, Staples, Target, Walgreens, and Whole Foods.
"Businesses need to protect employees from occupational exposure to toxic chemicals," said Lauren Olson, science campaign director at the Ecology Center.
Trader Joe's was among the companies whose receipts were tested and were found to contain BPS. After the Ecology Center informed Trader Joe’s about the study, the discount natural grocery chain decided to make a change. As reported in Bloomberg News, Trader Joe's announced, "We are now pursuing receipt paper that is free of phenol chemicals (including BPA and BPS), which we will be rolling out to all stores as soon as possible.”
This follows Mind the Store's recent report card that gave Trader Joe’s an "F" for failing to have a comprehensive safer chemicals policy. We congratulate Trader Joe’s for taking these steps and hope the company won’t stop there. We’d like to seeTrader Joes take the next step and adopt a robust safer chemicals policy.
Receipts don’t have to be toxic
Trader Joe's and others can look to Best Buy, which received a "B" on the recent retailer report card. The electronics superstoree released a comprehensive chemicals policy in late 2017, is active on the Green Chemistry & Commerce Council’s Retailer Leadership Council, and uses phenol-free receipt paper.
Pergafast 201 is the phenol-free developer of choice for Best Buy. The Ecology Center’s testing also found no thermal coating on receipts from two independently owned hardware stores. “Phenol-free receipt paper is available. It’s just more expensive,” said Olson, who also encourages employers to offset the higher cost by offering customers electronic receipts. And if there’s still a price difference, Olson said, "Protecting workers from negative health effects is worth the price."
Safer Chemicals, Healthy Families' Mind the Store campaign recently evaluated and ranked the chemical policies and practices of 30 major U.S. retailers in order to push companies for broader, longer-lasting reforms. In order to stop the cycle of frying pan to fire decision-making for harmful chemicals, we urge manufacturers and retailers to adopt comprehensive chemical policies to eliminate hazardous chemicals.
https://www.alternet.org/personal-health/unexpected-health-risk-thats-probably-hiding-your-coat-pocket-right-now

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European Plastics Trade Groups Oppose Latest BPA Decision

Feb 1, 2018 | Chemical Watch

By Leigh Stringer

Organisations from the European plastics industry have opposed Echa's recent decision, identifying BPA as a substance of very high concern due to its endocrine disrupting effects on the environment.
BPA – which is mainly used in the production of the plastic polycarbonate and epoxy resins – was added to Echa’s candidate listearly last year for its toxic for reproduction properties, a recommendation put forward by France.
Then in June the substance was identified as an SVHC for its endocrine disrupting properties that cause probable serious effects to human health, again a recommendation from France.
The trade group PlasticsEurope has filed lawsuits against Echa for the first two decisions but would not comment on whether it will file a third for this latest decision, from December. Lawsuits against the decision must be filed two months and ten days from its publication.
Industry has struggled to find alternatives to BPA, with bisphenol S (BPS) receiving the most attention. However, an investigation by the Swedish Chemicals Agency (Kemi) found that 37 of 39 bisphenols surveyed on the European market could have potential endocrine disrupting properties.Industry impacts?
This latest identification, put forward by Gemany, will add more pressure on the industries using BPA to consider its replacement. In a statement to Chemical Watch, PlasticsEurope spokesperson Jasmin Bird said that BPA is predominantly used as an intermediate to manufacture polycarbonate and epoxy resin (polymeric materials) and pointed out that intermediate uses are exempt from Authorisation under REACH.
Therefore, she said, a potential later authorisation of BPA should have no direct regulatory impact on these type of BPA-based polymers. Concern is instead over the non-intermediate uses of the substance, such as additive uses of BPA. These are not exempt and would have to comply with the obligations under REACH Authorisation.
During a consultation on Gemany’s proposal, most comments from member states backed the decision. However, the PC/BPA, a subgroup of trade body PlasticsEurope; Sensopolis Ltd, a UK consultancy that works with distributors of epoxy resins; and Spanish chemicals company Berceo, who produces resins and other substances, strongly dispute the decision.
In their comments, they disagree that there is scientific evidence of probable serious effects to the environment which give rise to an equivalent level of concern compared to CMR or PBT substances. They also disagree with the studies selected to inform the dossier.
In its comments, Sensopolis says the report is "highly biased and completely ignores data from other sources" including the American Chemical Society, the FDA and the European Food Standards Agency. In response, Echa said that these sources address human health, but not environmental effects.'Disproportionate'
The PC/BPA said that because of existing regulatory measures covering BPA uses under REACH, the proposal to identify it as an SVHC based on "alleged endocrine disrupting properties for the environment does not provide regulatory value and could be considered premature".
It also highlights the German authorities risk management option alysis (RMOA) of BPA, which says "the authorisation procedure itself would not address the manufacture of BPA or use of BPA as intermediate" and that "the majority of uses is out of scope of authorisation".
The group then adds that if authorisation is "not the foreseen regulatory route, an additional SVHC identification of BPA as a first step of the authorisation process is considered unnecessary and disproportionate, even more as BPA is already identified as SVHC".
In response, Echa told Chemical Watch that this latest decision will have an impact on the scope of the authorisation requirement, if BPA is included in Annex XIV.
"[Under REACH] some uses, such as those in cosmetic products and in food contact materials within the scope of relevant legislation, are exempt from the authorisation requirement if the substance is identified as an SVHC due only to human health hazards."
Echa will submit its eighth Annex XIV recommendation to the Commission next week. However, BPA was not in the candidate list when this recommendation round started, so the agency has not yet assessed it. The next recommendation is expected for late 2019.
https://chemicalwatch.com/63607/european-plastics-trade-groups-oppose-latest-bpa-decision

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Echa Round-Up

Feb 1, 2018 | Chemical Watch

Update to substance evaluation webpages
Echa has updated the regulatory and practical advice for substance identification by adding text about substance identity profile (SIP).
SIP specifies the boundaries of the substance that the registrants agree to cover with the data they submit jointly. Echa said that translations will be available soon.Sodium and potassium chromate authorisation Opinions
The agency has published one consolidated opinion of the Committees for Risk Assessment and Socio-economic Analysis for the authorisation of two uses of sodium chromate and two uses of potassium chromate.
The application was made by Saes Getters SpA. Substance evaluation
The agency says the substance evaluation conclusion document for phenol, dodecyl-, sulfurized, calcium salts is now available on the website. The substance was added to the Corap list in 2016 and evaluated by France, it says.Guidance in a nutshell translated
Echa has published translated versions of its Guidance in a nutshell: requirements for substances in articles (v3.0).Q&As on UK withdrawal from EU
There are new contributions to the agency's Q&As on the UK's withdrawal from the EU. They can be searched by date.
https://chemicalwatch.com/63582/echa-round-up

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Germany Challenges Board of Appeal Decision in Legal First

Feb 1, 2018 | Chemical Watch

An EU member state is, for the first time, directly challenging in the courts a Decision made by Echa's Board of Appeal (BoA).
Germany says the BoA exceeded its powers by comprehensively examining, and reassessing, a REACH substance evaluation decision that it was responsible for through its competent authority.
At the heart of the case is benpat, a substance used predominantly as an antioxidant in rubber mixtures for the production of tyres. The German competent authority (CA) conducted a substance evaluation based on concerns that it might be persistent, bioaccumulative and toxic, as well as its wide dispersive use, which includes use by consumers. One output of that evaluation was a request to the registrants to conduct a biodegradation test according to OECD test guideline (TG) 309.
The registrants appealed that Decision and won a partial annulment. They had argued during the evaluation process that the low solubility of benpat meant the test would not reveal the metabolites. The BoA agreed with the registrants that Echa had failed to demonstrate that the requested test would provide the required information.
Consequently, the BoA annulled the requirement to identify the benpat metabolites formed in the test. It also:annulled the requirement to conduct a transformation test according to OECD TG 308 in the event that the 309 test proved inconclusive; andordered the removal from the contested Decision of a statement on bioaccumulation in the 'statement of reasons'.
Germany has now taken Echa to the European Court of Justice over that decision, claiming that, among other issues, the BoA "lacks competence in regard to substantive issues relating to the evaluation procedures". Echa confirmed that the case was a legal first.
The action is recorded in the EU Official Journal for 29 January.
The BoA has faced criticism before. In 2014, lawyers at a Brussels workshop said it was inconsistent in its rulings, sometimes behaving more like an administrative body, and sometimes more like an EU court. It has also encountered change. In 2016, the Commission took action to reinforce the independence of the board through a Regulation changing various procedures.
The October 2015 edition of the Global Business Briefing included an in depth look at the BoA.
https://chemicalwatch.com/63589/germany-challenges-board-of-appeal-decision-in-legal-first

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Energy News

Colorado Supreme Court Agrees to Examine State’s Energy Regulation Criteria

Feb 1, 2018 | Natural Gas Intelligence

By Richard Nemec

After a lower court ruled against the oil and natural gas industry last year, the Colorado Supreme Court has agreed to examine how public health and environmental protections are weighed in decisions by state energy regulators.
A three-judge panel of the Colorado Court of Appeals last March ruled 2-1 to support an initiative by a group of Boulder teenagers opposed to high-volume hydraulic fracturing.
The young plaintiffs want a mandate that the Colorado Oil and Gas Conservation Commission (COGCC) require proof by the best available science, and confirmed by independent third parties, that drilling may be done without harming the environment.
COGCC originally denied the 2013 initiative, a decision initially upheld by a Denver district court. However, the appeals court remanded the case back to the district court, ruling the COGCC did not follow state law.
The appellate panel agreed that public health and environmental protections must be in place before the COGCC approves new energy development. The appeals court ruling had no immediate impact on Colorado’s regulatory approach.
Colorado Oil and Gas Association (COGA) CEO Dan Haley welcomed the high court’s decision to take the case. The appeals court, he said, "ignored decades of regulatory precedent."
The Colorado Oil and Gas Conservation Act directs the COGCC to "balance a variety of development interests, including the environment," Haley said.
"The COGCC, which voted unanimously to appeal to the Colorado Supreme Court, has employed this strict balancing act on countless occasions as evidenced by the state's comprehensive regulations, among the most stringent in the nation."
http://www.naturalgasintel.com/articles/113234-colorado-supreme-court-agrees-to-examine-states-energy-regulation-criteria

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White House Seeks 72 Percent Cut to Clean Energy Research, Underscoring Administration’s Preference for Fossil Fuels

Feb 1, 2018 | The Washington Post

By Chris Mooney and Steven Mufson

The Trump administration is poised to ask Congress for deep budget cuts to the Energy Department’s renewable energy and energy efficiency programs, slashing them by 72 percent overall in fiscal 2019, according to draft budget documents obtained by The Washington Post.
Many of the sharp cuts would probably be restored by Congress, but President Trump’s budget, due out in February, will mark a starting point for negotiations and offer a statement of intent and policy priorities.
The document underscores the administration’s continued focus on the exploitation of fossil fuel resources — or, as Trump put it in his State of the Union address, “beautiful clean coal” — over newer renewable technologies seen as a central solution to the problem of climate change.
The Energy Department had asked the White House for more modest spending reductions to the renewable and efficiency programs, but people familiar with the process, who spoke on the condition of anonymity to share unfinished budget information, said the Office of Management and Budget had insisted on the deeper cuts.
The cuts would also be deeper than those the Trump administration sought for the current fiscal year but was unable to implement because of the budget impasse in Congress. The federal government has been operating on a series of continuing resolutions that have maintained existing spending. The current continuing resolution expires Feb. 8.
Spending for the Energy Department’s Office of Energy Efficiency and Renewable Energy (EERE) is set at $2.04 billion for the current fiscal year, which ends Oct. 1. Last year, the administration asked for st $636.1 million, a decline of more than two-thirds, although Congress did not implement the request. For 2019, the administration’s draft proposal would lower that request even further, to $575.5 million.
The document also suggests substantial staff cuts, down from 680 in the enacted 2017 budget to 450 in 2019.
“It shows that we’ve made no inroads in terms of convincing the administration of our value, and if anything, our value based on these numbers has dropped,” said one EERE employee, who spoke on the condition of anonymity to discuss the internal budget information.
Energy Department spokesperson Shaylyn Hynes said in an email that “anyone who questions this Administration’s commitment to an all-of-the-above energy approach simply look at our record.”
She said that “though it may not fit into the narrative of the environmental lobby and their pundits, the truth is that Secretary Perry believes that there is a role for all fuels—including renewables--in our energy mix.”
It is unclear whether the document represents a final budget proposal or will be subject to last-minute negotiation and revision.
One person familiar with the negotiating process, who spoke on the condition of anonymity to freely describe what the person had learned, said that the budget request had been lowered after negotiations with the Office of Management and Budget, and may have been lowered further because of a desire to channel more funding toward nuclear energy, a favored subject for Energy Secretary Rick Perry.
DOE spokesperson Hynes defended the department’s record, saying that last year it “awarded hundreds of millions of dollars to solar and wind energy.”
But the funding requests for next year represent a double whammy for renewable energy after the administration last week imposed tariffs on imported solar panels.
The tariff action e is likely to decrease the installation volumes of solar energy in coming years, according to industry analysts.
The Office of Energy Efficiency and Renewable Energy is perhaps best known for the solar “SunShot” program, which strives to drive down the price of solar energy.
The large bulk of its funding is deployed on research, most frequently at the National Renewable Energy Laboratory in Golden, Co. The vast majority of the laboratory’s $293 million budget in 2017 came from EERE.
But it is far from clear that the cuts would become a reality.
“The president suggests a budget, but, under the Constitution, Congress passes appropriations bills,” Sen. Lamar Alexander (R-Tenn.), an influential appropriator on energy issues, said in a statement.
The draft document says the administration will once again ask Congress to abolish the weatherization program, which has trained thousands of workers and helped reduce utility bills for thousands of homeowners.The budget proposal would also eliminate state energy grants. The budget would ax research in fuel efficient vehicles by 82 percent, bioenergy technologies by 82 percent, advanced manufacturing by 75 percent and solar energy technology by 78 percent.
The proposal would cut funds for electric car technologies and fuel-efficient vehicles — at $307 million currently the biggest of the program areas — to $56 million in 2019.
Money for bioenergy technologies have gone to research renewable fuels from nonfood sources.
The plan would also chop spending on more efficient building technologies and research into geothermal, hydro and wind power.
The renewable and efficiency programs represent about 7 percent of the Energy Department’s overall budget. The majority of the department’s budget goes to maintaining the nation’s nuclear weapons stockpile and cleaning up sites contaminated by federal nuclear programs.
https://www.washingtonpost.com/business/economy/white-house-seeks-72-percent-cut-to-clean-energy-research-underscoring-administrations-preference-for-fossil-fuelsv/2018/01/31/c2c69350-05f3-11e8-b48c-b07fea957bd5_story.html?utm_term=.f04e07c598a8

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Ewire: Could Trump's FY19 Renewable Budget Foreshadow EPA?

Feb 1, 2018 | Inside EPA

Even as Congress remains deadlocked on final appropriations legislation for fiscal year 2018, the Trump administration is putting the finishing touches on its budget request for FY19, and the early numbers look grim for the Department of Energy's (DOE) Office of Energy Efficiency and Renewable Energy (EERE).
The Washington Post obtained a leaked version of the administration's FY19 request for EERE, reporting that it seeks a 72 percent cut from what the office is slated to receive this year, just over $2 billion.
That proposed cut -- down to $575.5 million -- is lower even than what the Trump administration sought for the current year, $636.1 million.
“It shows that we’ve made no inroads in terms of convincing the administration of our value, and if anything, our value based on these numbers has dropped,” one EERE employee told the Post.
The Senate's draft DOE spending bill includes a relatively modest EERE cut, while the House would cut the funding roughly in half. Final figures, of course, are in flux as Congress has not reached a broad budget and spending deal for the remainder of FY18, even as current stop-gap funding is set to expire Feb. 8.
Many observers have been expecting the White House to similarly seek deep cuts in FY19 for EPA, given that it requested a roughly 30 percent cut for the agency in the current year -- a massive reduction few think is likely in part because state officials have said it could cripple their delegated environmental programs.
The House-passed EPA funding bill would cut overall agency funding by roughly 8 percent -- a level that drew fire from former EPA officials that say it includes far steeper cuts of over 25 percent to EPA's “core” environmental programs and management account.
The draft Senate EPA spending bill, meanwhile, would cut total EPA funding by about 2 percent, including a cut to “core” programs of 4.5 percent.
Trump's emerging FY19 budget plans are one signal of the president's staunch support for fossil fuels, though one DOE Office of Fossil Energy adviser, Doug Matheney, recently made that support much more explicit.
“The good news is I'm with the federal government and I'm here to help,” Matheney said Jan. 31 at the West Virginia Mining Symposium, according to an S&P Global report. “I went to Washington, D.C., for one purpose and that was to help create coal jobs in the United States. That's my total purpose for being there. I'm not a researcher, I'm not a scientist, I'm an advocate for the coal industry.”
Matheney formerly worked as a state coordinator for the Count on Coal group, which is supported by the National Mining Association.
https://insideepa.com/daily-feed/ewire-could-trumps-fy19-renewable-budget-foreshadow-epa

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With Ire for FERC and Hill Dems, Activists Plan for 2018

Feb 1, 2018 | E&E Greenwire

By Sam Mintz

Nearly 100 environmental activists met for two days in Washington, D.C., a few weeks ago to strategize about how to oppose natural gas pipelines.
The meeting was scheduled around January's public meeting of the Federal Energy Regulatory Commission, which is tasked with regulating interstate gas pipelines — several of the activists were escorted out of FERC's meeting after standing and chanting in protest of some recent agency decisions.
Four out of FERC's five members have joined in the last six months, and the commission last year switched to a Republican majority after nearly a decade with Democrats in charge. The agency went six months without a working quorum and just resumed full operation in September.
So it would be reasonable to assume that a group thinking strategically about how to respond to FERC might be considering a shift in tactics.
But for many of the activists who met last month — who have long been critical of FERC, accusing it of being a "rubber stamp" for pipeline developer applications and generally too friendly with industry — the new FERC is much the same as the old FERC.
"There was definite discussion about whether we thought that the new makeup might impact our strategies going forward," said Maya van Rossum, who leads the Delaware Riverkeeper Network and was a lead organizer of the meeting. "But overall, there was broad recognition that just looking at what had taken place in the last couple months ... just confirmed for us that there was not going to be a change in behavior, a change in pathway."
The new commissioners include Democrat Richard Glick, a former Senate staffer, and Chairman Kevin McIntyre, a longtime energy lawyer who has held his policy views close to the vest.
"Nothing has changed at FERC except the bodies sitting in the seat," said van Rossum. "It suggests that we need to not just continue on the path that we've been on ... but that we really need to ramp up our efforts. Every month, we need to really be ramping it up. Nothing is changing unless we, the people, make it change."
Protesters are a frequent presence outside FERC's First Street headquarters, and the past few years have seen arrests, hunger strikes and trips to chant outside commissioners' homes.
A central theme that comes up in talking to activists such as Karen Feridun, the founder of an eastern Pennsylvania grass-roots group called Berks Gas Truth, is that they feel like they have few allies — let alone champions — at FERC, or even in Congress.
"FERC has been a real problem for the last 30 years," said Feridun. "The case has been in Pennsylvania that the industry pretty much gets whatever it wants.High bar for policymakers
There have been some recent tangible victories for pipeline opponents, including yesterday, when a federal court ruled in favor of the Sierra Club regarding a possible pipeline shutdown in the Southeast (Energywire, Feb. 1).
But when Democrats both at FERC and on Capitol Hill have made moves toward challenging FERC's status quo, they have still fallen short of some activists' lofty expectations.
Take Glick. The Democratic commissioner recently voted against FERC's approval of the PennEast pipeline, a New Jersey project, dissenting from the other four commissioners, who voted for approval. He raised concerns about several aspects of the decision, including FERC's acceptance of customer commitments from companies affiliated with the project's developers and the agency's practice of issuing certificates with construction conditions that developers have not yet met (Energywire, Jan. 22).
Van Rossum brushed it off.
"We got one dissenting opinion from Glick, which made some good points. But a dissenting opinion that makes good points isn't going to change anything," she said.
"He highlighted some important things on need, and the misuse of eminent domain authority to gain access to private property. Those were certainly meaningful items to raise, but there was a lot more that he could and should have highlighted," she added.
Similarly, when McIntyre, the new chairman, announced in his first major action at the agency's helm that he would lead a review of the commission's nearly 20-year-old policy guidelines on pipeline permitting, the reaction was mixed. Delaware Riverkeeper and others jeered, while other environmental groups, such as the Natural Resources Defense Council, cheered (Greenwire, Jan. 8).
"Anyone who is saying this bodes well for communities, the environment and FERC review of pipelines has their head in the sand," said van Rossum at the time.
Then there's Capitol Hill. To have a chance to pass in this Congress, a bill would have to have the blessing of Republican leadership in both houses, so legislation to halt or slow down pipeline approvals is effectively impossible.
But when Democrats have tried to introduce bills for messaging purposes, legislation that even they know won't be advanced given the current leadership, it has fallen short of some anti-pipeline activists' expectations.
A bill from Sens. Tim Kaine and Mark Warner, both Democrats from Virginia, for example, would expand FERC's public outreach on pipeline projects (E&E Daily, June 9, 2017).
"It's not meaningful legislation," said van Rossum. "It's fine to put forth good prattle and chatter, but we need people of action in Congress, and we have yet to find somebody."
Since last year, Feridun has been using a telling hashtag: #ClimateDenialDemocratStyle.
"It's not just the Republicans that we have to worry about; this is a bipartisan problem," she said.Hope for a flipped House
A rare source of optimism is the wave of Democrats who are preparing to run for office in 2018.
"I'm interested to see what happens in the elections this year," said Feridun. "One of the great excuses that we've heard from people over and over again is that we're not in power, so there's nothing we can do about it. But next year, they might be."
Early analyses have suggested that both the House and Senate present challenges to Democrats' regaining control, but the chance of a wave election — where one party (and in the case of 2018, the Democrats) wins a majority of races — is not as much of a long shot as it once was.
In aiming at that goal, some environmental activists are taking matters into their own hands.
David Pringle, who until recently was New Jersey campaign director at Clean Water Action, announced in mid-January that he is running for Congress in New Jersey's 7th District, joining a growing cast of Democrats trying to unseat Republican Rep. Leonard Lance.
Lance is considered a moderate and has a 21 percent lifetime score from the League of Conservation Voters.
To Pringle, he has been enabling the "existential threat" of President Trump.
"Our current congressman is a poster child of a failure in Congress. He refuses to lead, he's afraid of his own shadow ... he has to go," Pringle said.
The candidate also shares an antagonistic view of FERC.
"It is a wholly owned subsidiary of the fossil fuel industry. The powers that be have been comfortable with that for years. And that's failing our environment, economy and public health," he said.
Pringle, a Princeton University graduate, said he hopes to take his views to the Hill.
"I spent 30 years running advocacy and political campaigns, so I know what it takes to win the election, and I know what it takes to be an effective congressman," he said.
Pringle faces an uphill climb, with a crowded primary field and in a district that still leans Republican, according to analysts.
But if he — and Democrats in general — beats the odds, he might be the kind of champion that activists like van Rossum and Feridun dream about.
https://www.eenews.net/greenwire/2018/02/01/stories/1060072647

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D.C. Circuit Ruling Could Shut Down Pipeline

Feb 1, 2018 | E&E Energywire

By Ellen M. Gilmer

A federal court may shut down a Southeast natural gas pipeline in a stunning rebuke of government regulators who approved the project.
The U.S. Court of Appeals for the District of Columbia Circuit yesterday refused to revisit its 2017 ruling that the Federal Energy Regulatory Commission should have taken a closer look at climate impacts from the Sabal Trail pipeline.
As soon as the court issues a formal mandate finalizing the decision, Sabal Trail's federal certificates will be void, and operations will come to a halt. The D.C. Circuit is expected to issue the mandate next week.
It's unclear, however, what FERC and pipeline backers could do to attempt to stall the process, and it's possible any interruption in pipeline operations would be short-lived.
Still, the court's decision is the strongest legal rebuke of FERC's oversight since the rush to build out natural gas pipelines began several years ago.
The case centers on a Sierra Club lawsuit that alleged, among other things, that regulators failed to study greenhouse gas emissions from the burning of natural gas delivered by Sabal Trail and the broader Southeast Market Pipelines Project, which cuts across Alabama, Georgia and Florida.
The D.C. Circuit sided with the environmental group in an August 2017 decision that ordered FERC to analyze the issue. In the meantime, the ruling said, underlying project permits would be vacated (Energywire, Aug. 23, 2017).
Government lawyers last fall asked the court to rethink one aspect of the decision: the remedy. FERC was willing to conduct the added review but wanted the court to leave the pipeline certificate intact during the process. Sabal Trail backers also asked for rehearing.
In a pair of decisions yesterday, a two-judge panel rejected the requests, and the full slate of active judges on the court refused to get involved. The court did not issue opinions explaining the orders.
D.C. Circuit mandates, which give force to rulings, typically are issued seven days after the court handles rehearing requests. That means Sabal Trail's certificates could be void next week, barring successful legal maneuvering by FERC or developers.What now?
Sabal Trail's fate is up in the air as government and industry lawyers figure out their next steps.
The quickest possible solution is for FERC to complete the supplemental review ordered by the D.C. Circuit last year. The agency drafted a five-page supplemental environmental impact statement in September and fielded comments for two months (Energywire, Nov. 22, 2017).
But it's unclear how close FERC is to completing the review.
"FERC staff's Final Supplemental EIS for Sabal Trail and the Commission's order on remand are pending final decisions," commission spokeswoman Tamara Young-Allen said yesterday.
ClearView Energy Partners analyst Christi Tezak noted that even if FERC completes the SEIS today, Council on Environmental Quality regulations may require it to wait 30 days before issuing fresh certificates for Sabal Trail.
"We therefore expect that it is possible that the project could need to temporarily wind down construction operations until new certificates can be issued ... as well as new notices to proceed," she wrote in a memo last night.
Tezak called the D.C. Circuit's decision to scrap the permits unprecedented and noted that "the exact procedural road ahead for the Commission looks unclear."
The agency or developers could also fight back in court. A new request for the D.C. Circuit to hold off on issuing the mandate would likely face long odds, as the court has already rejected their arguments on the issue.
They could also take their case to the Supreme Court. A petition for the high court to step in would likely buy the agency and the pipeline some time.
Environmentalists are likely to oppose any such effort.
"When FERC violates the National Environmental Policy Act by not fully considering the harmful impacts of a pipeline, that pipeline should not be allowed to stay in operation," Sierra Club attorney Elly Benson told E&E News.
Representatives for Sabal Trail backer Spectra Energy Partners, which recently merged with pipeline behemoth Enbridge Inc., declined to comment on the development last night.
And FERC's Young-Allen declined to answer questions about whether the commission and the developers have consulted yet on the issue.Climate review
The battle over the Sabal Trail pipeline represents a pivotal moment in the evolution of pipeline opposition and broader climate accountability.
Though FERC had already enhanced its climate review for most pipelines approved after Sabal Trail, the court's decision crystallized the agency's legal obligations for the future (Greenwire, Nov. 21, 2017).
The decision is also the strongest D.C. Circuit ruling to date requiring the federal government to pay closer attention to greenhouse gas emissions stemming from its actions. A few cases in other jurisdictions have also recently cemented the government's obligation (Energywire, Sept. 18, 2017).
Jayni Hein, policy director at New York University School of Law's Institute for Policy Integrity, said the Sabal Trail decision is a reminder to agencies and developers of the importance of in-depth review the first time around.
"In general, this decision is good news for environmentalists, and illustrates the risks of trying to cut corners in NEPA reviews," she said, "as doing so can subject projects to even longer delays through litigation and court-ordered remedies, including correcting deficient environmental impact statements before proceeding."
Parts of the Southeast pipeline project are already in service; other sections are still under construction.
https://www.eenews.net/energywire/2018/02/01/stories/1060072593

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

Transportation and Infrastructure News

House T&I Subcommittee Schedules Hearing on PTC

Feb 1, 2018 | Railway Track & Structures

By Mischa Wanek-Libman

A February hearing of the Subcommittee on Railroads, Pipelines, and Hazardous Materials for the House Transportation and Infrastructure Committee will focus on the progress made toward implementing Positive Train Control (PTC).
According to the chairman and ranking member of the subcommittee, U.S. Reps. Jeff Denham (R-CA-10) and Michael Capuano (D-MA-7), several groups and organizations will address the subcommittee including Amtrak, the National Transportation Safety Board, the Federal Railroad Administration, private rail operators, public transit officials and labor.
"PTC implementation is crucial to the safety of rail transportation for passengers, motorists and pedestrians alike. I look forward to hearing how efforts are progressing nationwide," said Rep. Denham.
"Periodic updates ensure that everyone is working towards meeting the congressionally imposed deadline for PTC. I look forward to hearing directly from those responsible for implementing PTC on their progress," said Rep. Capuano.
Earlier this month, Rep. Capuano joined House T&I Committee Ranking Member Rep. Peter DeFazio (D-OR-4) in introducing legislation that would make the Dec. 31, 2018 deadline for PTC implementation a final deadline; removing the option from current policy that allows for railroads showing a good faith effort to file an extension. The proposed legislation also includes $2.5 billion in grants to help passenger railroads meet the deadline.
The two representatives also joined forces in a letter to Amtrak in early January requesting an update to the passenger railroad's safety culture and PTC plan following several deadly derailments.
http://www.rtands.com/index.php/cs/house-ti-subcommittee-schedules-hearing-on-ptc.html

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Lawmakers Push Safety Agenda in Wake of Crash

Feb 1, 2018 | E&E Greenwire

By George Cahlink

California Republican Rep. Jeff Denham, who leads a congressional panel overseeing railway safety, got an unexpectedly up-close look at Amtrak emergency response efforts yesterday.
"You never expect to go through a train wreck," said Dunham, chairman of the House Transportation and Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials.
He was among the many GOP lawmakers on a chartered Amtrak train yesterday that collided with a trash truck en route to the party's annual legislative retreat here at the Greenbrier resort.
Denham declined to weigh in on the cause of the crash, but said his subcommittee would conduct a hearing next week on an automatic braking technology, known as positive train control, that is designed to reduce accidents.
He said PTC would be a "big part" of ongoing federal rail safety efforts, without detailing any specifics on deadlines for its deployment or possible federal funding.
The midday crash left a truck driver dead and a handful of members of Congress and staff seeking medical treatment for possible concussions and minor bumps and bruises (see related story). Investigations are ongoing into the cause of the incident, which occurred just west of Charlottesville, Va.
Denham said he first checked on the train's engineers, who sustained minor injuries, and then waited outside to observe how federal transit officials were responding.'A pretty tough day'
Lawmakers, meanwhile, shared harrowing stories about the crash, which left many members and their families rattled as they kicked off the three days of meetings.
"The lights went out, there was an acrid smell of smoke," said Rep. Mike Burgess (R-Texas), a member of the Energy and Commerce Committee. "Your immediate thought was this was an intentional act."
Burgess, who was among several physicians who responded, found himself covered in mud and blood after helping to try to stabilize one of those injured in the truck.
He appeared before reporters later wearing a dress shirt he had borrowed from Sen. Bill Cassidy (R-La.), another physician who was on the train and offered treatment.
"All in all, it was a pretty tough day," said Burgess.
Sen. Jeff Flake (R-Ariz.), who was on the field last summer during the congressional softball practice shooting, also found himself on the train yesterday rushing to help out victims.
"I thought after that day I never wanted to experience that again; unfortunately, it came too quick," said Flake.
Rep. Phil Roe (R-Tenn.), also a physician, said that for the medical doctors in Congress, their training immediately kicked in as the train slammed to a stop and they rushed to provide aid. He recounted seeing Rep. Chuck Fleischmann (R-Tenn.), who was standing in the aisle, slammed to the floor. Fleischmann said on Twitter last night that he was "OK" but shaken up.
GOP leaders made minor changes to the schedule last evening in the wake of the wreck, including adding a moment of silence for victims and receiving a security briefing from the Senate sergeant-at-arms.
Vice President Mike Pence, who delivered the keynote address last evening, said he was with President Trump in the Oval Office when the first reports came in, and they were "deeply troubled" before realizing it was not much worse.
Pence recounted traveling by rail to retreats with his family when he was in the House, and his own then-young children playing in the train aisles.
"I know it's been a harrowing day," he added.
https://www.eenews.net/greenwire/2018/02/01/stories/1060072663

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Lawmaker Warned of 'Glaring Omission' in Security Before Crash

Feb 1, 2018 | E&E Energywire

By Blake Sobczak

Rep. John Katko (R-N.Y.) urged transportation security officials to fix a "glaring omission" in rail security the day before he and other Republican lawmakers were involved in a train crash.
Katko wasn't hurt when Amtrak train 923 collided with a truck near Crozet, Va., yesterday morning, he said in a Twitter post. One of the truck drivers died in the crash, while two passengers were injured, according to local news reports.
Other Amtrak passengers were spared serious injuries, transportation officials say, although Rep. Jason Lewis (R-Minn.) was treated at a local hospital for a possible concussion (E&E News PM, Jan. 31). Several members of Congress were on the train en route to an annual Republican policy retreat in West Virginia.
The National Transportation Safety Board is investigating. Though apparently accidental, the collision could galvanize lawmakers' interest in freight and passenger rail security — a task that falls to the Transportation Security Administration.
At a House Homeland Security Committee hearing on the eve of the Amtrak crash, Katko pressed TSA officials on a strategic technology investment plan that prioritized aviation at the expense of other areas.
"What is starkly lacking from that five-year plan is any mention of surface transportation, anywhere," said Katko, chairman of the Subcommittee on Transportation and Protective Security, who organized the joint hearing alongside the Subcommittee on Emergency Preparedness, Response, and Communication.
"Given the billions of passengers per year on America's surface transportation systems, to me it would be a good idea to start including that on part of the plan," he added.
Robert Pryor, director of the intermodal division in TSA's Office of Requirements and Capabilities Analysis, said that the agency "has many different priorities, and has to rank them according to TSA's understanding of its mission and its threats."
TSA is better funded and better known for its role securing airports across the country, but the agency also has broad oversight of freight rail companies, passenger services like Amtrak and even natural gas pipelines.
A TSA spokeswoman deferred comment on yesterday's crash in Virginia to NTSB, citing "longtime NTSB protocol" following an accident.
Rep. Clay Higgins (R-La.), whose district includes major petrochemical facilities, asked TSA witnesses Tuesday about efforts to protect hazardous materials shipped by rail from possible attacks.
"Dangerous chemicals and fuels are leaving these plants, and they either ship by truck or by rail, mostly," he said. "I'm concerned about a timed device — an explosive device — being placed on a train."
Higgins is not alone — rail executives have privately circulated documents warning of the fallout from a "sticky bomb" attached to the side of a flammable oil or ethanol train (Energywire, Jan. 24, 2017).
Pryor at TSA said the agency had several ways of countering such threats, from supporting a redesign of rail tank cars to make them more resistant to ballistic damage, to screening under vehicles for suspicious devices.
Higgins was on his way to the Republican retreat in West Virginia yesterday but opted to drive rather than take the train.
https://www.eenews.net/energywire/2018/02/01/stories/1060072587

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BNSF Details $3.3B Capital Program for 2018

Feb 1, 2018 | Railway Track & Structures

By Mischa Wanek-Libman

BNSF Railway has released details about its 2018 capital plan of $3.3 billion, noting that it reflects continued focus on maintaining its network as well as expansion projects aimed at meeting customer demands.
"Every year we work to ensure our capital investment plan enables us to continue to operate a safe and reliable rail network as well as anticipates the needs of our customers," said Carl Ice, BNSF president and CEO. "Our attention to safety and service, along with our investments in our network, provide a solid foundation for our ability to grow with our customers today and in the future."
The 2018 program is equal to what the Class 1 spent in 2017 and will again invest the largest portion of the program, $2.4 billion, into the replacement and maintenance of the railroad's core network and related assets.
The projects included in the maintenance part of the plan will primarily be for replacing and upgrading rail, crossties and ballast and maintaining its rolling stock. It will include approximately 13,000 miles of track surfacing and/or undercutting work and the replacement of more than 500 miles of rail and nearly 3 million crossties.
"Our infrastructure is strong and robust. Our efforts to normalize our maintenance investment have positioned us to replace the right assets at the right locations at the right time," Ice said. "This allows our maintenance investment to be at similar levels year-to-year."
Approximately $500 million of this year's capital plan is for expansion and efficiency projects. The majority of those projects are focused on key growth areas along BNSF's Southern and Northern Transcon routes, connecting Southern California with Chicago and the Pacific Northwest to Upper Midwest respectively. The company has also allocated $100 million for positive train control (PTC) as it moves toward meeting the Dec. 31, 2018 implementation deadline.
BNSF notes that it is the only Class 1 freight railroad to have completed the installation of PTC on all its federally-mandated subdivisions and is currently running hundreds of trains daily with PTC as it tests revenue service across its mandated territory. Another element of its capital plan will be $300 million for freight cars and other equipment acquisitions.
BNSF says that since 2000, it has invested more than $60 billion in its network all while remaining focused on its commitment to safety, maximizing efficiency and continuing to meet customers' expectations.
http://www.rtands.com/index.php/freight/class-1/bnsf-details-33b-capital-program-for-2018.html

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Environment News

Democrats Introduce 'Cap-and-Dividend' Legislation

Feb 1, 2018 | Inside EPA

Democrats in the House and Senate are introducing “cap-and-dividend” legislation setting a nationwide cap on greenhouse gases from coal, oil and natural gas that would decline annually through 2050, while directing all of the proceeds of emission credits to residents in quarterly dividends to offset higher energy costs.
The Senate version of the legislation, S. 2352, was introduced by Sen. Chris Van Hollen (D-MD), while the House version, H.R. 4889, was introduced by Rep. Don Beyer (D-VA). It would set an initial GHG cap on covered fuels in 2019 that is 12.5 percent below 2005 levels, while also setting increasingly strict five-year targets culminating in an 80 percent reduction by 2050.
Proceeds from quarterly auctions of GHG credits would be returned to residents in the form of a “Healthy Climate Dividend.”
In addition, the bill would require EPA to develop a list of GHGs not covered by the nationwide cap and then “promulgate regulations addressing the contribution of non-auction greenhouse gases to global warming.” The agency would have to consider the “effect of such regulations on the international competitiveness” of domestic industry.
Within a decade, EPA would be required to regulate sources that collectively emit 100 percent of the “non-auction” GHGs it identified.
A Jan. 29 press release from Van Hollen cites a University of Massachusetts Amherst study finding that such a “cap-and-dividend” approach would mean that more than 80 percent of families would see more money in their pockets despite higher energy costs.
In addition, the lawmakers cite a revenue-neutral carbon tax floated in February 2017 by several top officials from prior Republican administrations. That proposal, they note, similarly would return proceeds to residents through a dividend, suggesting that a dividend approach could earn bipartisan support.
Some groups have continued to push for such a revenue-neutral carbon tax in the Trump era, despite public allergy to carbon controls by President Donald Trump and many elected Republicans.
Those measures have failed to gain traction in the current GOP-controlled Congress as part of the recent tax overhaul and in other venues, and the Van Hollen-Beyer legislation could also face an uphill battle.
https://insideepa.com/daily-feed/democrats-introduce-cap-and-dividend-legislation

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Trump Permitting Plan Would Dramatically Weaken NEPA, Shorten Reviews

Feb 1, 2018 | Inside EPA

By Dawn Reeves

Leaked White House proposals to speed project permitting that are intended to be part of congressional negotiations over a major infrastructure bill would significantly scale back the National Environmental Policy Act (NEPA) and other environmental laws, including limiting EPA's review and veto authority over projects' environmental analyses.
The wide-ranging Trump administration proposal also would limit the number of studies that are subject to judicial review, cut public participation and put a hard deadline on completing such reviews.
The draft permitting plan includes curbs on NEPA, the Clean Water Act (CWA) and Clean Air Act that Democrats and environmentalists are already staunchly opposing, signaling uncertainty about how many of the proposals would make it into any final bill.
And while President Donald Trump in his Jan. 30 State of the Union (SOTU) address called for a bill “that generates at least $1.5 trillion,” the White House has been vague about how much of that would be federal money.
Democrats -- who would be required to provide at least nine votes in the Senate to pass a major infrastructure bill -- have also aired concerns that the plan might not provide adequate federal funds for the massive build-out it seeks.
NEPA is a procedural law that requires federal agencies to assess and mitigate the environmental impacts of major federal actions, such as approving pipelines, highways, airports and bridges. EPA does not conduct NEPA reviews on its own but analyzes and rates other agencies' reviews. In some cases, it can veto projects based on a poor rating.
Conservatives have long criticized the law as a tool for groups to hold up projects and some are seeking its repeal, but NEPA supporters say that reviews can sometimes take too long due to a shortage of qualified staff, and that a lack of funding is most often responsible for slowing projects, not NEPA reviews.
Some of the NEPA streamlining proposals in the draft White House plan, which is expected to be finalized and sent to Congress this month, include “creating a new 'One Agency, One Decision' structure” that would eliminate “redundancies” by removing multiple reviews by multiple agencies; delegating more responsibilities to states; reexamining certain judicial review standards for quick resolution of issues; setting review deadlines; and requiring only “feasible alternatives” be considered.
It also would direct the White House Council on Environmental Quality (CEQ) to issue rules to streamline the NEPA process.
Further, it seeks to take away EPA's Clean Air Act authority to review and rate other agencies' NEPA reviews, a step that would require an amendment to the air law. The draft says the agency's review “adds an extra step to the environmental review process which can cause delays without increasing protection to the environment. . . . This extra review is no longer necessary, given that Federal agencies have gained significant NEPA experience since this law was enacted.”
It would also expand categorical exclusions from NEPA by allowing any agency to use an exclusion developed by another agency, and would authorize federal agencies to accept funding from non-federal entities to support environmental and permitting reviews.
Water Law Changes
The White House plan also includes specific changes to other EPA authorities that would require CWA amendments, including removing the agency's ability to veto a section 404 dredge-and-fill permit, which is issued by the Army Corps of Engineers; and eliminate duplication in section 404 and section 408 processes addressing changes to civil works projects.
Further, it would create an appeals process for state CWA section 401 decisions. Currently states can determine whether an interstate project will impair state water quality and refuse to issue a clean water certificate. There are ongoing court fights on this issue now, with the Federal Energy Regulatory Commission (FERC) in one case arguing that New York waived its authority by failing to deny a certificate for a natural gas pipeline within a one-year time period. North Carolina had been pushing back on another pipeline project but last month granted a 401 certificate.
Also, the draft plan seeks to “stabilize utility investments by lengthening the term” of permits under EPA's CWA National Pollutant Discharge Elimination System and allowing automatic renewals.
And finally, it seeks exempt all categorical exclusions from judicial review and to limit judicial injunctions stopping projects from proceeding during a court challenge to “only in exceptional circumstances,” because of the “unpredictability” injunctions create.
When Trump discussed his $1.5 trillion infrastructure plan during the Jan. 30 SOTU, he did not include many of these details, and also omitted how it would be paid for. He simply called out the need to “rebuild our crumbling infrastructure,” though he also noted that the median time to complete an environmental review of a complex highway project “is at least seven years.”
Trump also said that any infrastructure bill must “streamline the permitting and approval process, getting it down to no more than two years, and perhaps even one.”
Trip Pollard of the Southern Environmental Law Center says Trump's speech did not offer “much more other than the misleading talking points about it taking 10 years to get a permit,” but the general tone of the speech and the leaked permitting document shows a serious effort to weaken major NEPA provisions.
“In that document there are so many terrible ideas it's hard to know where to begin,” he says, adding he is especially concerned about new limits on judicial review for expanded categorical exclusions, more delegation to states and scrapping EPA's reviewing, rating and veto powers.
Pollard says Trump's effort to limit reviews to two years, or even one, is “not realistic” for complicated projects and says it would result in “curtailing analysis that is only likely to lead to poorer decisions and also open them up to more legal challenges,” provided judicial review limitations do not extend beyond categorical exclusions, which are supposed to be issued for simple projects.
Also, he points to a Trump adviser who recently suggested that the federal funding share of the $1.5 trillion package could be limited to $200 billion, and that some of that could be re-directed transit and rail funding, rather than new money.
The Natural Resources Defense Council's Scott Slesinger sought to stress the critical importance of NEPA in Jan. 30 testimony to a House energy panel, arguing the law “protects our health, our homes and our environment” and was signed by President Richard Nixon to address concerns from communities who felt their views were ignored when the interstate highway system was built. “In many cases, NEPA gives citizens their only opportunity to voice concerns about a federal project's impact on their community,” he said.
'Onerous' Requirements
Trump's infrastructure remarks during the SOTU drew applause from GOP lawmakers, including House Natural Resources Committee Chairman Rob Bishop (R-UT). “President Trump understands that we must modernize onerous and duplicative federal permitting requirements for any infrastructure package to succeed. I look forward to working with his administration on targeted streamlining of the NEPA process to get infrastructure projects off the ground quickly in a less costly manner,” he said.
Industry groups such as the Natural Gas Supply Association are also praising the plan, noting that the average permit time for a gas pipeline, is “an unnecessarily long four years.”
However, Jan. 30 analysis from the consulting group ClearView Energy Partners says Trump's effort to streamline permitting across executive branch agencies has “potential to succeed” but may not survive all-but-guaranteed environmentalist legal challenges. The group also expects “resistance” to a NEPA streamlining legislative package, “especially in a 51-49 Senate (read: the President needs Democrats). An infrastructure package sweetened with enough federal spending to persuade Democrats to sign on to fixed-duration NEPA reviews seems unlikely to pass muster with GOP fiscal hawks.”
Rep. Raul Grijalva (D-AZ), ranking member on the natural resources committee, blasted Trump's infrastructure plan as “a tunnel back to the gilded age” and said it is “a push to weaken or eliminate a wide swath of environmental standards in the name of infrastructure development.” He added it also “shows the president cares about making rich corporations happy more than Americans' health, incomes or quality of life.”
And Christy Goldfuss, a former Obama CEQ chair now at the Center for American Progress, wrote a Jan. 28 articlewarning that the plan will gut environmental protections to benefit corporate polluters.
“As detailed in the leaked proposal, the Trump administration’s plan would require fundamental changes to no fewer than 10 bedrock environmental laws that protect the nation’s clean air, clean water, wildlife, and national parks. The plan would hollow out [NEPA]. . . . The Trump administration proposes significant changes to the Clean Air Act and Clean Water Act to make it easier for corporations to break ground and avoid inconvenient air and water quality protections. The proposal even includes some mystifying provisions, such as one to give Secretary of the Interior Ryan Zinke unilateral authority to site natural gas pipelines in national parks.”
https://insideepa.com/daily-news/trump-permitting-plan-would-dramatically-weaken-nepa-shorten-reviews

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Trump Says He's Best at Killing Rules. Is That True?

Feb 1, 2018 | E&E Climatewire

By Zack Colman

The story of President Trump's energy policy centers on removing regulations. He says he's good at it — even the best.
"We have eliminated more regulations in our first year than any administration in history," Trump said in his first State of the Union address (Climatewire, Jan. 31).
That's not necessarily true. But in some ways, it's not necessarily false.
While Trump took credit for a number of economic gains and claimed victory in bureaucratic battles, officials from prior administrations said the heavy lifting is just beginning. Year one marked the easy, achievable goals. Years two, three and four are about making them stick.
"If the claim is that he slowed the pace of new regulations, yes, I think that's something that is true. But I do think the hard work is ahead for actually changing, modifying or eliminating existing regulations," said Susan Dudley, who ran the Office of Information and Regulatory Affairs under President George W. Bush. "I think this administration has been more focused on removing regulations than any president except possibly for [Ronald] Reagan. So whether they're effective at that still takes time."
Trump is often hyperbolic. On energy, that trait manifests itself when he declares major policy squabbles squelched before they're truly done. Simply put: There's a long, legal process for undoing a regulation, let alone issuing a new one. Rather, Trump has mostly halted regulations, dashed those that were left unfinished by President Obama and reversed executive orders.
Energy and environmental agencies have been the administration's prime targets for regulatory removal, according to the regulatory agenda filed this fall.
The Interior and Agriculture departments saw the third-most deregulatory actions — 43 — in Trump's first year, followed by U.S. EPA at 41, according to a study by George Washington University's Regulatory Studies Center, which Dudley leads. The Transportation Department topped the list at 83 — which includes some provisions to streamline environmental reviews — followed by the Department of Health and Human Services with 54.
But starting a rollback is not the same as finishing one. Think of some of the big-ticket items that Trump usually rattles off in his energy-centric speeches. Trump repeatedly says the United States exited the Paris climate accord, but it cannot leave the pact until Nov. 4, 2020. The Clean Power Plan is not dead; EPA Administrator Scott Pruitt said yesterday that he will issue a weaker replacement.
"Most of the hard work is still left to do. Where there are things that they can do essentially with a stroke of a pen, they've done quite a bit," said Jeff Holmstead, who ran the EPA air office under Bush. "They'll have a lot to do, and I think they are quite honestly behind schedule. But they do seem to really be hitting their stride now."
Career staff is compiling the data and analysis to justify those moves. Writing new executive orders, to rescind Obama's old ones, are a thing of the past. Putting those directives into action is what consumes the days of the federal bureaucracy, which Trump has either intentionally or inadvertently hollowed.
"The people in charge of the federal energy and environmental agencies don't always trust the career staff. It took longer for this administration to staff up," said Jason Bordoff, a climate and energy adviser to Obama who is now at Columbia University. "It's going to create personnel and manpower problems for this administration to push its deregulatory agenda items over the finish line."
Though Trump's claim about nixing more regulations than any other president might not be entirely accurate — the modern regulatory state has grown with time, complicating comparisons — his team has figured out ways to regulate less than others. One way it achieves that is by issuing fewer rules. Those it does approve are finalized slowly. Together, that has the effect of squeezing the constellation of regulations into a tighter ball.
Trump's administration has decidedly slowed new regulations and used stringent budgetary measures and cost-benefit analyses to support its actions, Dudley said. Critics have found fault with the calculations, often claiming that they assign too little environmental or health benefits from regulations, or none at all. But Dudley said the moves are defensible.
Trump officials are also lightening the regulatory load — while not necessarily killing regulations — through discretionary leeway possessed by every administration.
Interior Secretary Ryan Zinke has ordered more lease sales for oil and gas production and faster approval for drilling. At the same time, he has not requested correspondingly more money for site visits and monitoring. Pruitt has sought far fewer financial penalties for violating environmental rules than his predecessors, reports have shown.
Those examples are not transformational changes. Doing that would require legislation or regulation. But agencies can seize these options to accomplish near-term objectives and capitalize on an agenda.
"I do think there's a real sense that the kind of heavy-handed government that we saw during the Obama years just is not around," said Holmstead, who is now at Bracewell LLP.
Much of the focus has been on EPA, where Pruitt has proved a deft field general, said Jody Freeman, another Obama climate adviser. After a delayed start, he's now staffed up with political pros and EPA veterans familiar with the rules they're tasked with changing or undoing.
Pruitt hasn't made a major misstep to rival Zinke's reportedly unilateral removal of Florida from Interior's draft five-year offshore drilling plan, which carried the perception of delivering a political gift to a potential GOP Senate candidate, Florida Gov. Rick Scott. Same goes for Energy Secretary Rick Perry, whose proposal to subsidize coal and nuclear power plants smacked of favoritism for Trump friend and coal boss Robert Murray of Murray Energy Corp.
"Scott Pruitt has been among the most disciplined, so that's why people are really worried," said Freeman, who is now at Harvard Law School. "There's the contrast — Rick Perry over there shooting from the hip, and here's Scott Pruitt being careful."
Still, lawsuits await. If the Trump administration fumbles its deregulation approach, there's a chance the president's end-zone dance will be exposed as being premature. Already, some moves have backfired. The courts rejected EPA's suspension of a rule to regulate methane pollution.
"Whenever they've gotten sloppy, the courts have stopped them," Freeman said. "I'm watching to see the litigation. It's really trench warfare at the moment."
That, in the end, is where all these battles are likely to end up, just as they did under Obama. That will take attention to detail and patience from a president who relies on instinct and demands immediate results.
To get there, Trump will have to play by the very rules he wants to destroy.
"This is going to be a mud fight," said Mark Mills, an Office of Science and Technology Policy official under Reagan. "You have to go through a rulemaking process, and that just takes time. But a year from now, people are going to be surprised how quickly things have moved on this front."
https://www.eenews.net/climatewire/2018/02/01/stories/1060072577

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House Lawmakers Raise Pressure for CCS Tax Incentive

Feb 1, 2018 | E&E Greenwire

By Geof Koss

A bipartisan group of House lawmakers are pressing for a key carbon capture and sequestration (CCS) tax credit to be included in a tax extenders package that may move in the coming weeks.
Led by House Agriculture Chairman Mike Conaway (R-Texas), 43 members today urged House leaders to ensure the CCS bill (H.R. 3761) is included in an extenders bill.
The bill, sponsored by Conaway, revises the existing Section 45Q CCS tax break in a manner that "allows for greater financial certainty for carbon capture projects, boosts domestic energy production, reduces carbon emissions, and provides relief for our beleaguered coal and power industries."
"Due to long lead times for construction and development of these projects, the current structure of the credit has, in effect, all but rendered it expired," the lawmakers wrote to House leaders and the top members on the Ways and Means Committee. "This lack of certainty has deterred private investment and halted construction of new projects."
The Senate companion to Conaway's CCS bill was included in a broad tax extenders package that surfaced in December. That measure would extend a number of expired energy breaks, along with a key nuclear production tax credit and a host of renewable sources that were "orphaned" after being accidentally left out of a 2015 tax deal (E&E Daily, Dec. 21, 2017).
While supporters of that bill have been pushing for quick enactment by joining it with a must-pass continuing resolution, it was not included in the stopgap spending measure that ended last month's brief government shutdown.
Dozens of affected stakeholder groups last month revived their plea for quick enactment of the extenders package in a letter to leaders in both chambers.
"Extension of these tax provisions is not only consistent with sound economic and tax policy, but will also support jobs nationwide," wrote the Alliance to Save Energy, Business Council for Sustainable Energy, National Rural Electric Cooperative Association and others.
https://www.eenews.net/greenwire/2018/02/01/stories/1060072627

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EPA Defends Ozone NAAQS Designations Delay

Feb 1, 2018 | Inside EPA

EPA is again defending its delay in issuing designations for which parts of the country are meeting or violating federal ozone standards, saying that states and environmentalists' arguments in appellate and district court litigation over the delay are contradictory and that the appeals court litigation should be dismissed.
The agency last year extended by one year its Clean Air Act deadline to issue designations for the 2015 ozone national ambient air quality standard (NAAQS), from Oct. 1, 2017, to Oct. 1, 2018, only to rescind that decision in August. The agency has since insisted that litigation brought by states and environmentalists against the extension in the U.S. Court of Appeals for the District of Columbia Circuit is moot, and should be dismissed.
Meanwhile, EPA also missed the reinstated Oct. 1 deadline, issuing some designations in November and leaving the rest still outstanding. States and environmentalists brought suits in the U.S. District Court for the Northern District of California in response. In district court, petitioners also seek to force swift issuance of the remaining designations, which include all “nonattainment” designations that trigger tougher pollution control mandates.
In a Jan. 31 filing in the D.C. Circuit case, American Lung Association, et al. v. EPA, et al., the agency counters that its critics “cannot have it both ways -- they cannot contend in this Court that the deadline has been extended (and thus has not been missed by EPA), while at the same time asserting in the district court that EPA has missed the deadline and that the district court has jurisdiction to impose a remedy.”
EPA has said it aims to issue remaining designations by April 30, with the exception of those for eight counties in metropolitan San Antonio, which it anticipates issuing in August. Litigants in district court have sought to make the April 30 deadline legally binding. EPA admits that the district court has jurisdiction to fashion a remedy, but argues against a restrictive deadline.
“The question of the appropriate schedule and EPA’s justification for it will be resolved by the district court, and there is no reason or basis for this Court to address it,” EPA says.
Environmentalists recently said the agency's subsequent announcement of another delay until August warrants the D.C. Circuit imposing a hard deadline for issuing all the designations.
https://insideepa.com/daily-feed/epa-defends-ozone-naaqs-designations-delay

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Toxins Hit Poor, Minority Schoolchildren Hardest — Study

Feb 1, 2018 | E&E Greenwire

By Oliver Milman

Black, Hispanic and low-income public school students in the United States are disproportionately exposed to air pollution, a new study has found.
While black children account for 16 percent of the public school population, more than 25 percent of them attend schools most affected by air pollution, according to the study published in the journal Environmental Research.
In comparison, white children make up 52 percent of public school students but 28 percent of them attend the worst-affected schools.
The study looked at U.S. EPA and census data for nearly 90,000 public schools across the country. It also identified the five most polluted regions as New York, Chicago, Pittsburgh, and New Jersey's Jersey City and Camden.
"This could well be impacting an entire generation of our society," said University of Utah academic Sara Grineski, lead author of the study.
"We're only now realizing how toxins don't just affect the lungs but influence things like emotional development, autism, ADHD and mental health," Grineski said. "Socially marginalized populations are getting the worst exposure. When you look at the pattern, it's so pervasive that you have to call it an injustice and racism."
https://www.eenews.net/greenwire/2018/02/01/stories/1060072599

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