Preview Newsletter
AM ACC 5/2/2018
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(ACC Mentioned) Cornell Saw Pet Bottle Commercialization, Expansion of Recycling Programs
May 2, 2018 | Plastics News
By Bill Bregar
David Cornell had a front-row seat in the early years of PET bottle development and plastics recycling. -
Two Top Pruitt Aides Leave EPA Amid Scrutiny on Ethics, Spending
May 1, 2018 | BNA Daily Environment Report
By Jennifer A. Dlouhy
Two top aides are leaving the Environmental Protection Agency amid intensifying scrutiny of Administrator Scott Pruitt’s spending and travel. -
New EPA Science Regulation: A Trojan Horse That Hurts Public Health
May 1, 2018 | Environmental Defense Fund
By Dr. Ananya Roy and Dr. Elena Craft
Last week, embattled EPA Administrator Scott Pruitt rushed to propose a new rule that may prevent EPA from using certain scientific studies in its decisions. -
(ACC Mentioned) Expecting EPA Hurdles, NRDC Makes Case for Suit on 'New' Chemicals Plan
May 2, 2018 | Inside EPA
By Dave Reynolds
Anticipating procedural challenges from EPA, environmentalists are making the case that an appellate court should consider the merits of their litigation challenging the agency's framework for reviewing new chemicals, charging the policy has the effect of a legislative rule... -
Citizens Urge Court to Back PFAS Monitoring Suit, Citing RCRA Authority
May 1, 2018 | Inside EPA
By Lara Beaven
Residents living near contaminated military sites in Pennsylvania are urging a federal appellate court to require the Navy to fund medical monitoring of their exposure to perfluorinated compounds, charging during recent arguments that the Resource Conservation & Recovery Act's... -
J&J Talc Cases Can Be Heard in Chicago, Judge Rules
May 2, 2018 | Chemical Watch
By Julie Miller
An attempt to sue cosmetics giant Johnson & Johnson in Chicago, by adding pharmacy chain Walgreens to the list of defendants, has been successful. -
EU Notifies WTO of Proposed Amendment to Cosmetics Regulation
May 2, 2018 | Chemical Watch
The European Union has notified the WTO of its draft Regulation, amending Annex V of the cosmetics Regulation to prohibit the use of sodium o-phenylphenate, potassium o-phenylphenate and MEA o-phenylphenate as a preservative. -
Drillers’ Wastewater Gets EPA Eye; More Disposal Options Coming? (1)
May 1, 2018 | BNA Daily Environment Report
By Amena H. Saiyid
Oil and gas companies may be able to discharge fracking and conventional drilling wastewater into local waterways nationwide if they can show the EPA they have systems to adequately treat it. -
Pennsylvania Natural Gas Tax Plan to Smother Growth: Industry
May 2, 2018 | BNA Daily Environment Report
By Leslie A. Pappas
Pennsylvania Gov. Tom Wolf (D) is calling for a tax on natural-gas extraction, but an energy industry official says it should go the way of previous failed efforts to obtain money from gas exploration. -
At OTC, It’s No Longer Just Drill, Baby, Drill
May 1, 2018 | Houston Chronicle
By L.M. Sixel and Ryan Maye Handy
The Offshore Technology Conference is not just about drill, baby, drill anymore. -
New Vulnerability Found in Systems Used in Electric, Gas Industries
May 2, 2018 | The Hill - Cybersecurity
By Morgan Chalfant
Researchers have discovered a new vulnerability in technology widely used to operate critical services such as oil and electric systems that they warn hackers could exploit. -
EPA Relies on Air Law Waivers to Reduce Ozone Nonattainment Findings
May 2, 2018 | Inside EPA
By Stuart Parker
EPA is touting a reduction in the number of areas of the country designated as out of attainment with the agency's 2015 ozone national ambient air quality standard (NAAQS), relying on Clean Air Act waivers for emissions associated with natural “background” ozone... -
51 Areas in Country Don’t Meet 2015 Ozone Standards, EPA Says
May 1, 2018 | BNA Daily Environment Report
By Jennifer Lu
Fifty-one areas in the country don’t meet 2015 ozone standards, the EPA announced May 1. -
Greens Jeer as Epa About-Faces on Wis. Smog
May 1, 2018 | E&E News PM
By Sean Reilly
Environmental and public health groups today questioned EPA's reversal of a Clean Air Act compliance decision tied to a hot-button Wisconsin manufacturing project. -
Environmentalists Seek Boiler MACT Ruling Rehearing to Limit Exemption
May 1, 2018 | Inside EPA
By Stuart Parker
Environmentalists are asking a federal appeals court to rehear its ruling that upheld a policy exempting boilers from numeric air toxics limits in favor of weaker “work practice” standards, challenging the court's finding that EPA reasonably exempted boilers... -
Air Pollution Kills 7 Million People a Year, WHO Reports
May 2, 2018 | BNA Daily Environment Report
By Jeremy Hodges
Toxic levels of pollution led to the early deaths of an estimated 7 million people annually, according to a new World Health Organization report.
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(ACC Mentioned) Cornell Saw Pet Bottle Commercialization, Expansion of Recycling Programs
May 2, 2018 | Plastics News
By Bill Bregar
David Cornell had a front-row seat in the early years of PET bottle development and plastics recycling.
Now, Cornell is going into the Plastics Hall of Fame.
He was the longtime technical director for the Association of Plastic Recyclers and had a 28-year career at Eastman Chemical Co. in Kingsport, where he still makes his home. He runs a consulting firm, DD Cornell Associates LLC.
Cornell, 72, remembers the Garbage Barge of the late 1980s, searching for a home for New York's trash. He's an expert on life-cycle analysis. He palled around with famous garbologist William Rathje, an archeologist who dug through trash, proving that nothing degrades in a landfill.
"He was highly flamboyant. He would show up to give a talk in Levi's and a sports coat. He was a showman," Cornell said.
Cornell was on the scene in the first days of recycling. He was nominated to the Plastics Hall of Fame by Edward Socci, director of beverage packaging research and development for PepsiCo Inc.
"Dave Cornell is one of the giants of the plastics recycling industry," Socci wrote in his nomination. "Through his leadership, dedication, compassion and long service to the plastics recycling industry, Dave Cornell put the 'small town' of plastics squarely on the map."
His efforts "helped to create the framework and arguments in support of plastics recycling," Socci said.
But in high school, Cornell was more interested in metallurgy and then got into biology. He got a grant from the National Science Foundation for a summer study of ecology at Denison University in Ohio.
He attended the University of Delaware, earning bachelor's degrees in math and chemical engineering in 1969. He got a job at GE Aviation near Cincinnati as a materials engineer working on performance data and failure analysis for aircraft parts, including fire-protective coatings.
While at GE, he earned a master's degree in materials science from the University of Cincinnati. He did a paper on the polymer polyoxymethylene (POM). Another project, on PET, led to a connection the professor had at Eastman Kodak Co. in Rochester, N.Y., and its Tennessee Eastman Co. in Kingsport.
Cornell went to Eastman in 1973, becoming a PET pilot plant supervisor. He was put in charge of commercialization of the polyester business. He also held marketing and technical services positions.
PET was developed for polyester fiber. It would be several years before PET bottles came out.
Monsanto Co. created the first plastic soft drink bottle, from acrylonitrile, Lopac resin, in 1975. The Cycle-Safe bottle held 32 ounces. Cornell said there was intense competition between Coke and Pepsi to come up with large bottles, and glass was not a good option.
"What they concluded was big bottles mean more sales. If we can sell more big bottles, we move more gallons," he said.
Coke and Pepsi demanded a one-year shelf life. Acrylonitrile passed that test. But then the Food and Drug Administration banned the material for bottles.
DuPont got active in PET for soda bottles. But Cornell said DuPont planned to both sell the resin and make its own bottles, competing with customers. DuPont ended up canceling the project.
"The world starts to turn. And it's now free-for-all time," he said.
Coke and Pepsi looked at vinyl and polyethylene, but those resins did not have the barrier properties needed for carbonated beverages, Cornell said.
That left PET. The soft drink giants did some testing and found out they didn't really need a one-year shelf life.
"So over time, and this was the late 70s, the shelf-life requirement changed," he said.
PET was cheaper than glass and optically clear. Cornell said the shorter shelf life prompted soft drink makers to streamline their distribution and get to market quicker.
"So, PET forced the beverage companies to make money," he said.
Soon, two-liter PET bottles were on grocery store shelves.
At the same time, the U.S. polyester fiber business was under attack as clothing production moved to Asia. Eastman officials asked: "So what are we going to do with all this polyester polymer capacity? Because it sounds like the party is closing down," Cornell said.
Eastman started a PET reactor line in 1978, making green PET for 7Up. Cornell said it quickly sold out.
"The business was just growing by leaps and bounds," he said.
Cornell was the production manager over a group that made the polymers. He led development and commercialization efforts to define specific resin formulations and manufacturing processes for making bottles, according to the Plastics Hall of Fame nomination.
The industry began to look at recycling in the late 1970s and early 1980s, according to Cornell.
"It became obvious that we were going to have an issue coming down the road about recycling," he said.
Oregon imposed the first bottle-deposit law in 1973. Michigan's started in 1978.
In 1987, the Garbage Barge grabbed headlines as it wandered the seas carrying more than 3,100 tons of trash from New York, searching for a home. The idea was to ship the trash to North Carolina, but officials there turned it back.
Rutgers University started its Center for Plastics Recycling Research, and Cornell was a founding member, rating project proposals for funding and advising the center on technical and business realities.
Then came multimillion-dollar advertising campaigns by industry groups like the Council for Solid Waste Solutions, which tried to counter an anti-plastic sentiment in some parts of the country that led to product bans. Cornell served on the technical committee.
Eastman was a founding member of the National Association for Plastic Container Recycling in 1987, and Cornell played a key technical role. The Association of Plastic Recyclers started about that same time.
In 1994, APR created the post of technical director, and named Cornell to the position. APR members were small independent entrepreneurs who were fierce competitors.
"These are guys who hock their wife's engagement rings to pay for the power bill. They're dreamers on one hand, and hard-headed as can be on the other. They are owner-operators," he said.
He held that position at APR until he stepped back in 2015 to spend more time at home caring for his family.
The big resin companies also tried to make money in recycling. Most failed.
PET, by far the most-recycled plastic, has a built-in market in the carpet industry. But Cornell knew early on that technologies would be needed to recycle PET bottles, so he patented and developed systems for sorting dissimilar plastics and routes to chemically recycle PET
"We can take the polymer apart, and reassemble the raw materials and remake it," he said.
He holds 15 patents in plastics, plastics recycling and other areas.
Cornell worked at Eastman until being asked to take early retirement in a corporate downsizing in 2000.
Cornell played a big role in plastics recycling at a critical time for the industry, according to the Plastics Hall of Fame submission: "Prior to Dave's engagement, plastics were seen by many as an environmental blight, unworthy of public support. Plastics recycling was considered an impediment to the growth of the plastics industry. Through Dave's efforts, plastics recycling is now a mainstream commercial activity, helping to improve the health of the overall plastics industry and dramatically improving the industry's environmental impacts."
Cornell said people were jumping into recycling in the early days. The plastic lumber industry took off, but many of the companies ended up failing.
He recites what he calls his "standard speech" when they asked him for advice: "Where are you going to get the raw material, first question. Second question, what are you going to make? Third question, do you have the process that gets the stuff you collect into the stuff you want to make? Fourth, do you have enough money to both build your plant and operate your plant?
"I've sung that song hundreds of times," Cornell said.
He said a good example is polystyrene foam, which suffers from very light weight and low density.
"You've got to have value to drive recycling. Recycling isn't a charity. If I can't make money, I'm not doing it," he said.
Cornell led the creation of the APR Design Guide for plastics recycling and numerous testing protocols for plastic packaging recyclability.
Another major achievement: working with the Society of the Plastics Industry Inc. to provide the Food and Drug Administration with guidelines for recycled plastics in food-contact packaging. That helped set the stage for FDA letters of nonobjection.
Cornell was also at the forefront of the movement toward lifecycle analysis — highly detailed studies of every impact of a product, including the carbon footprint from things like production and transportation, recycling, consumer use, waste management, and water and energy consumption. "You have to do it if you want to get a holistic picture," he said.
In 1990, Cornell participated in a major weeklong workshop in Vermont with leaders from government, industry, environmental and other disciplines to hammer out guidelines for how do lifecycle analyses. The result was a book called "A Technical Framework for Life-cycle Assessment.
He has also been active in plastics recycling issues at ASTM International and the National Academy of Sciences.
Cornell analyzes data and writes the annual report on U.S. bottle recycling, a widely quoted document from APR and the American Chemistry Council. "My job is, first of all, to question the numbers to make sure they are consistent. I want to see trends. We do sanity checks. We do quality control," he said.
More than a dozen plastics recycling leaders endorsed Cornell for the Plastics Hall of Fame. APR President Steve Alexander called him "arguably one of the most influential voices in the history of the plastics recycling industry." His protocols and standards for recycling testing and design serve as the foundation of the industry, he said.
"He stands with the short list of industry giants in establishing, nurturing and guiding the industry from development stage to its role today as a key contributor to sustainability and circular economy efforts worldwide," Alexander said.
http://www.plasticsnews.com/article/20180501/NEWS/180509990/cornell-saw-pet-bottle-commercialization-expansion-of-recycling-programs
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Two Top Pruitt Aides Leave EPA Amid Scrutiny on Ethics, Spending
May 1, 2018 | BNA Daily Environment Report
By Jennifer A. Dlouhy
Two top aides are leaving the Environmental Protection Agency amid intensifying scrutiny of Administrator Scott Pruitt’s spending and travel.
The departures include Albert “Kell” Kelly, the top EPA adviser on Superfund cleanups, and former Secret Service agent Pasquale “Nino” Perrotta, who led Pruitt’s security detail. Their exit follows the resignation of longtime Pruitt ally Samantha Dravis last month.
Even as Kelly visited contaminated Superfund sites across the country and pushed for swifter cleanups, he was dogged by his history in the banking sector.
Kelly, a former chairman of Oklahoma-based SpiritBank, was banned from banking and fined $125,000 last year by the Federal Deposit Insurance Corporation under an agreement in which he neither admitted nor denied wrongdoing. Kelly has said the action stemmed from a single transaction in 2010.
Kelly has made “a tremendous impact on EPA’s Superfund program,” Pruitt said in an emailed statement, noting Kelly’s chairmanship of a Superfund Task Force that made recommendations for expediting cleanups and paring their costs.
“Kell has made a point to visit dozens of Superfund sites across the country and has met directly with impacted citizens, community groups and responsible parties,” Pruitt said.
Perrotta RetiringPerrotta is retiring from his job as the lead agent in charge of Pruitt’s protective detail, after serving four administrators at the EPA.
A former Secret Service agent who used to investigate loan sharks and mobsters, Perrotta is at the center of a series of controversial security moves at the EPA, including the decision to protect Pruitt around the clock, install biometric locks at the agency, sweep the administrator’s office for surveillance devices and install a $43,000 soundproof phone booth there.
The House Oversight and Government Reform Committee is set to conduct a transcribed interview of Perrotta on May 2, part of the panel’s probe into spending, travel and Pruitt’s unorthodox rental of a Capitol Hill condominium.
Democratic senators also have questioned whether Perrotta used his position at the agency to influence the awarding of an EPA contract to one of his business partners. At issue is a contract Edwin Steinmetz Associates secured to search Pruitt’s office for surveillance devices. Steinmetz is the vice president of technical surveillance countermeasures at Perrotta’s Maryland-based consulting firm.
Perrotta had been planning to retire but he is leaving earlier than expected; his self-published memoir “Dual Mission” notes that his time as a federal agent “will soon be over.“
Pruitt praised Perrotta for “selflessly” serving the American people for nearly a quarter century. “His hard work and dedication will be missed by all those who worked with him. I want to thank him for his service and wish him the very best in retirement,” Pruitt said in an emailed statement.
Pruitt has drawn fire—and at least 10 formal investigations—for frequent travel to his home state of Oklahoma, questionable spending decisions at the EPA, raises for two top aides over White House objections and allegations that some employees were sidelined after questioning his decisions.
“The exodus of Pruitt’s closest aides shows just how toxic his reign at EPA has become,” said Rep. Don Beyer (D-Va.). “The EPA needs new leadership from public servants committed to its mission of protecting the environment and putting Americans’ public health first.“
https://news.bloombergenvironment.com/environment-and-energy/two-top-pruitt-aides-leave-epa-amid-scrutiny-on-ethics-spending
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New EPA Science Regulation: A Trojan Horse That Hurts Public Health
May 1, 2018 | Environmental Defense Fund
By Dr. Ananya Roy and Dr. Elena Craft
Last week, embattled EPA Administrator Scott Pruitt rushed to propose a new rule that may prevent EPA from using certain scientific studies in its decisions. He was in such a rush that he didn’t even wait for the White House Office of Management and Budget to complete its review of the proposal before releasing it. The rule was published yesterday in the Federal Register, marking the start of a 30 day public comment period.
Though touted as a measure for transparency, the proposed policy includes a carefully worded loophole[1] that would enable politically driven decisions on what science is used to support critical safety standards. It would hamper public health protections by allowing the agency’s political leadership to select studies that benefit its agenda and ignore those that don’t, opening the door to industry interests and secrecy.
Our colleague Richard Denison explained in a blog post last week how this policy might be used to decimate toxic chemicals safeguards at EPA. Here, we focus on what this deeply destructive proposal would mean for clean air and health.
Simply put, this rule will cripple EPA’s ability to protect the public from air pollution.
Outdoor air pollution is associated with reductions in lung growth[2] and development of asthma[3] in children and heart attacks and strokes in adults[4]. In America, air pollution continues to cause premature mortality accounting for more than 100,000 premature deaths per year, but we’ve made important progress—particle pollution deaths are down to 28 per 100,000 people, from 48 per 100,000 in just 1990—thanks to concerted efforts over decades to set and implement air pollution standards under the Clean Air Act. These efforts have proven to be an incredible public health investment, bringing $30 worth of benefits for every $1 spent.
The Clean Air Act requires that the EPA administrator set air pollution standards that “are requisite to protect the public health” with “an adequate margin of safety” and “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health.” With Pruitt’s proposed changes allowing him to limit the kind of science that can be used for decision making, the very process for setting these life-saving air pollution standards is now at risk.
What’s the role of science in the current process for setting air pollution standards?
Under the law, EPA is required to periodically review national air quality standards for key air pollutants such as smog, soot, and lead. The review process starts with a comprehensive assessment of all available science on the health effects of air pollution. The assessment must include an evaluation of the extent to which air pollution causes premature death and disease and how the risk of disease or death changes in response to different levels of air pollution. This “dose response analysis” is a critical component of assessing and quantifying the current impact of air pollution on the American population and the benefits of maintaining or strengthening current air quality standards. Yet Pruitt’s proposal would restrict the science that can inform this key public health question and subjects it to political influence.
How will the proposed policy affect this process?
Pruitt’s new proposal would allow political appointees at EPA to prevent EPA scientists from using the very data that has underpinned our nation’s air quality standards and helped drive significant improvements in public health. The regulation would require public health researchers to make study data public if they want results to be considered in policy formulation, but this would often be in conflict with existing privacy laws.
For example, the American Cancer Society Cancer Prevention Study II tracked air pollution exposure and personal medical histories of nearly 670,000 people for more than two decades to understand the exact risk of air pollution on death and the results of this study underpin critical components of decision making with respect to national air quality standards. The dataset for this study contains sensitive personal information, such as information on poverty, smoking, and personal health. This raises obvious privacy concerns. Meanwhile, public disclosure of this sensitive information would not add to the integrity of the analysis: the American Cancer Society study has been subjected to many rounds of independent reanalysis and each time the results of the study have stood up and are also consistent with findings from many other studies.
An analysis of a similar bill introduced in 2015 by the Congressional Budget Office estimated that EPA would likely reduce by half the number of studies it relies on in developing policies and regulations because of the conflict with existing privacy regulations, burden, and cost of complying with the law. Without a complete pool of all scientific evidence and objective criteria for deciding which studies should inform the magnitude of the impact of air pollution, decision making could be skewed toward inferior studies.
These threats are only exacerbated by the unaccountable discretion the proposal would give the EPA Administrator to issue exemptions from the policy on a case-by-case basis. This opens the door to allowing the Administrator to selectively choose studies driven by industry interests or political considerations rather than best available science. The current EPA, for example, could choose to rely on industry evidence of low harm to justify weakening air pollution standards that help protect public health.
Pruitt is putting politics before health
No one should be fooled by Scott Pruitt’s facetious interest in transparency and objective decision making. One only has to look at his track record of attacking public health protections and myriad ongoing investigations into his unethical behavior, industry connections, and profligate spending to determine where his interests lie. Pruitt and political appointees at the agency have shown disdain towards the fundamental mission of the EPA – protecting the health and well-being of the American people and the environment. This proposed policy threatens decades of progress made under both Republican and Democratic administrations to protect Americans from air pollution using data driven decision making – which is why it is so important for Americans to oppose this new anti-science policy during the public comment process.
[1]See proposed rule Strengthening Transparency in Regulatory Science. Section 30.9 “The proposed rule includes a provision allowing the Administrator to exempt significant regulatory decisions on a case-by-case basis if he or she determines that compliance is impracticable…”
[2] Gauderman, W. James, et al. "Association of improved air quality with lung development in children." New England Journal of Medicine 372.10 (2015): 905-913.
[3] Khreis, Haneen, et al. "Exposure to traffic-related air pollution and risk of development of childhood asthma: A systematic review and meta-analysis." Environment international 100 (2017): 1-31.
[4] Scheers, Hans, et al. "Long-term exposure to particulate matter air pollution is a risk factor for stroke: meta-analytical evidence." Stroke 46.11 (2015): 3058-3066.
http://blogs.edf.org/health/2018/05/01/new-epa-science-regulation-a-trojan-horse-that-hurts-public-health/
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(ACC Mentioned) Expecting EPA Hurdles, NRDC Makes Case for Suit on 'New' Chemicals Plan
May 2, 2018 | Inside EPA
By Dave Reynolds
Anticipating procedural challenges from EPA, environmentalists are making the case that an appellate court should consider the merits of their litigation challenging the agency's framework for reviewing new chemicals, charging the policy has the effect of a legislative rule, was issued without following proper rulemaking procedure, and should be vacated.
In a May 1 opening brief in the case, Natural Resources Defense Council (NRDC) v. EPA, petitioners argue that EPA's Nov. 7 framework for reviewing new chemicals is a “binding change in the law” that was issued in violation of Administrative Procedure Act (APA) requirements to seek public comment when crafting final rules.
“The Framework Rule is a legislative rule that EPA could adopt only through the process prescribed by the APA,” NRDC and intervenors Safer Chemicals Healthy Families (SCHF) say. “'A legislative rule modifies or adds to a legal norm,' and 'creates new rights or imposes new obligations on regulated parties or narrowly limits administrative discretion.'”
Environmentalists also argue that the agency's framework for reviewing new chemicals violates the plain language of the revised Toxic Substances Control Act (TSCA) by dropping the law's requirement for the agency to issue enforceable orders addressing potential risks from exposure from reasonably foreseeable uses of a new substance.
At issue is EPA's framework for how it will review and regulate new chemicals -- those that are not on the TSCA inventory -- under the new law.
The policy seeks to implement requirements under TSCA section 5, including that EPA make a definitive finding regarding the safety of each new chemical that it reviews and approves in a premanufacture notice (PMN). The law also requires that EPA consider "reasonably foreseeable" uses -- such as uses of the chemical that are not included in a PMN application but could occur once a chemical is added to the TSCA inventory.
Because PMNs apply to specific uses, agency officials had also planned to write some voluntary consent orders, using authority in section 5(e) of the new law, under which manufacturers agreed to limits on “new” chemical uses or additional environmental safety and health testing until the agency finalized significant new use rules (SNURs), formal regulations that can require lengthy notice-and-comment rulemakings.
But the framework EPA is currently implementing dropped use of the orders, as EPA officials argued that it was time-consuming and slowed approval of the substances.
EPA sought comment through Jan. 20 on its “New Chemicals Decision-Making Framework” after it had already begun implementing the policy, and it is unclear whether EPA will publicly respond to the input received.
But NRDC and other advocacy groups have long opposed the Trump administration's plan to drop use of enforcable orders as an interim step in regulating new substances, charging it is unlawful. In January, NRDC filed suit in the U.S. Court of Appeals for the 2nd Circuit.
In a Feb. 26 order, the court granted requests to intervene from the SCHF, the American Chemistry Council and the National Association of Manufacturers.
While EPA has not yet responded, industry attorneys have suggested that the lawsuit may fail on procedural grounds because the framework is not a final agency action issued through rulemaking.
Anticipating such challenges, NRDC argues in its opening brief that the new chemicals review framework is essentially a final rule issued without following proper rulemaking procedures and should be vacated.
They also contend that the framework's approach of forgoing enforceable orders as an interim step to regulating chemicals violates TSCA.
“The Framework Rule modifies a legal norm established by TSCA by granting EPA discretion to approve the unrestricted manufacture of new chemical substances in circumstances where the statute itself forbids it,” the groups say.
“A decision to implement a regulatory process that departs from the governing statute is the sort of “binding change in the law” that can be accomplished (if at all) only through notice and comment rulemaking.”
https://insideepa.com/daily-news/expecting-epa-hurdles-nrdc-makes-case-suit-new-chemicals-plan
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Citizens Urge Court to Back PFAS Monitoring Suit, Citing RCRA Authority
May 1, 2018 | Inside EPA
By Lara Beaven
Residents living near contaminated military sites in Pennsylvania are urging a federal appellate court to require the Navy to fund medical monitoring of their exposure to perfluorinated compounds, charging during recent arguments that the Resource Conservation & Recovery Act's (RCRA) allows them to bypass the service's sovereign immunity and other defenses.
Plaintiffs in the consolidated appeal Kristen Giovanni, et al., and Dorothy Palmer, et al. v. Navy, pending before the U.S. Court of Appeals for the 3rd Circuit, face two legal hurdles in obtaining a trust fund financed by the Navy and administered by a third party to cover health monitoring -- convincing the 3rd Circuit that such monitoring would not violate the Superfund law's bar on challenges to cleanup actions and is covered by federal waste laws' waivers of sovereign immunity.
The residents were exposed to two per- and polyfluoroakyl substances (PFAS) -- perfluorooctanoic acid and perfluorooctane sulfonate -- that have been linked to several latent and serious diseases, including cancer.
The residents are asking the 3rd Circuit to overturn decisions from the U.S. District Court for the Eastern District of Pennsylvania, which dismissed their cases as being prohibited under section 113(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Superfund law, which bars pre-enforcement judicial review of cleanup decisions.
During April 26 oral argument before a three-judge panel of the 3rd Circuit, at least one of the judges appeared to back the plaintiffs' arguments that medical monitoring is not prohibited under section 113(h), a position the 9th Circuit has already taken.
“How is this monitoring going to interfere with an ongoing response action? I don't see it,” Judge Stephanos Bibas asked Justice Department attorney Jeffrey Beelaert, who was representing the Navy, according to a recording of the argument posted on the 3rd Circuit's website.
Beelaert replied in part that under CERCLA, Congress contemplated health surveillance to be conducted by the Agency for Toxic Substances and Disease Registry (ATSDR). The issue with what the plaintiffs are seeking is not just that it would interfere with ongoing cleanup actions at the sites, which are on the Superfund National Priorities List (NPL), but also that courts have said “you cannot dictate certain actions to the federal government,” he said.
After further questioning from the judges on “how is it in any way affecting the EPA, the ATSDR, the Navy, in whatever they're doing, to say, put some money in a fund so there can be monitoring for these people,” Beelaert said that even if the court concludes the suits are not barred by section 133(h), the plaintiffs still have to overcome the sovereign immunity issue.
“The waiver of sovereign immunity under CERCLA and RCRA does not cover, does not allow them to come in to court to get money from the government to set up this fund,” Beelaert said.
Pennsylvania Law
Because the plaintiffs are seeking injuctive relief under the Pennsylvania Hazardous Sites Cleanup Act (HSCA), one of the Navy's key arguments relies on a 1999 Pennsylvania Supreme Court ruling in O’Neal v. Army, which Beelaert said found that if there is a waiver of sovereign immunity in HSCA, the waiver is found in CERCLA. The CERCLA waiver allows plaintiffs to bring claims under state law but not if the sites are on the NPL.
But the plaintiffs argued in their reply brief that “Pennsylvania’s HSCA falls squarely within the RCRA federal facilities provision and that provision unequivocally waives sovereign immunity for the Appellants’ claims.”
During oral argument, Beelaert tried to distinguish RCRA as a disposal statute from CERCLA as a cleanup statute and said, “All the cases the plaintiffs have cited in their reply briefs that this [RCRA] waiver should somehow apply, all of those involved state laws that were disposal laws. They were not cleanup laws.”
One of the judges asked, “Are you saying that these kinds of private suits have not been allowed anywhere in the country?”
“I am unaware of a case that was brought under a hazardous cleanup act similar to Pennsylvania's that was modeled under CERCLA, where a court said you can look to RCRA, a separate waiver of sovereign immunity, and not CERCLA's waiver of sovereign immunity, which the Pennsylvania state courts have held,” Beelaert said.
The cases the plaintiffs cite “all involve state disposal laws in very different circumstances from what is at issue here in these cases,” he said.
But during rebuttal, Mark Cuker, the attorney for the Giovanni plaintiffs, argued O'Neal should not be used to say the RCRA sovereign immunity waiver does not apply to cases like this because it does not address the issue directly. The ruling only discusses CERCLA and does not mention RCRA, Cuker said.
Instead, Cuker said, the court should look to “two cases we cited in . . . our reply brief, which are private cost recovery actions brought under state, let's call them mini-CERCLA, laws -- one in Rhode Island and one in Washington -- where the courts held the RCRA waiver applied and allowed the action to go forward against the federal government.”
“Those cases explicitly looked at the RCRA waiver and said it applied. O'Neal just doesnt.”
In Charter Int’l Oil Co. v. United States, a 1996 ruling from the District of Rhode Island, an oil company sought relief under Rhode Island’s Hazardous Waste Management Act for the cost of cleaning up a contaminated piece of property previously owned by the government. The district court held that the drafters of RCRA section 6001 “explicitly intended to waive sovereign immunity for past actions of the federal government that violate state hazardous and solid waste laws.”
Likewise, in Crowley Marine Services, Inc. v. Fednav, a 1995 ruling from the Eastern District of Washington, the court held that RCRA waived sovereign immunity for liability for private cost recovery under Washington’s Hazardous Waste Management Act, the brief says.
https://insideepa.com/daily-news/citizens-urge-court-back-pfas-monitoring-suit-citing-rcra-authority
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J&J Talc Cases Can Be Heard in Chicago, Judge Rules
May 2, 2018 | Chemical Watch
By Julie Miller
An attempt to sue cosmetics giant Johnson & Johnson in Chicago, by adding pharmacy chain Walgreens to the list of defendants, has been successful.
A federal judge has ruled that the addition of Walgreens – which is headquartered in a suburb of the city – as a defendant allows plaintiffs to sue J&J in a local court.
The tactical victory affects five among thousands of pending lawsuits that claim J&J’s talc-containing products caused cancer. It could also encourage other plaintiffs to go that route.
US District Judge Jorge L Alonso agreed with J&J that adding the drugstore chain to the lawsuits was "an apparent attempt" to sue in a venue that in the plaintiff's attorney's view might be more favourably disposed towards their clients. With the pharmacist's legal home being in Illinois, adding them to the suit creates jurisdiction for the state's courts.
However, Judge Alonso said J&J failed to meet the required standard of showing that the claim against Walgreens was "utterly groundless".
The cases were originally filed in Cook County – which contains Chicago – in March 2017.
Other cases
In the most recent talc verdict, J&J and supplier Imerys Talc were ordered to pay $117m in damages to a man who claimed talc products caused him to develop mesothelioma.
Juries in other states have handed down multimillion dollar awards in cases linking genital talc use to ovarian cancer, but this was the first to find for a plaintiff alleging injuries due to asbestos contamination.
A group of talc cases being tried in Missouri turn substantially on another jurisdictional question, as they involve plaintiffs from other states who chose to file suit in presumed friendly courts. The legal ground beneath those cases shifted in June 2017, after the US Supreme Court found in an unrelated case that state courts have limited authority to hear claims involving injuries, and parties, with no geographical tie to their jurisdiction.
https://chemicalwatch.com/66451/jj-talc-cases-can-be-heard-in-chicago-judge-rules
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EU Notifies WTO of Proposed Amendment to Cosmetics Regulation
May 2, 2018 | Chemical Watch
The European Union has notified the WTO of its draft Regulation, amending Annex V of the cosmetics Regulation to prohibit the use of sodium o-phenylphenate, potassium o-phenylphenate and MEA o-phenylphenate as a preservative.
The WTO consultation will run 30 days from the 24 April notification date.
The European Commission ran a public consultation on the ban last year.
https://chemicalwatch.com/66442/eu-notifies-wto-of-proposed-amendment-to-cosmetics-regulation
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Drillers’ Wastewater Gets EPA Eye; More Disposal Options Coming? (1)
May 1, 2018 | BNA Daily Environment Report
By Amena H. Saiyid
Oil and gas companies may be able to discharge fracking and conventional drilling wastewater into local waterways nationwide if they can show the EPA they have systems to adequately treat it.
But first, the Environmental Protection Agency wants to study how oil and gas companies, such as CononcoPhillips, manage their wastewater to see if it can be done safely, according to a Federal Register notice that the agency plans to publish May 2.
Drillers that operate west of the 98th meridian, including those with operations in oil-rich Midland and Lubbock, Texas, are already allowed to discharge their treated wastewater into local waters only if it is reused for irrigation or to support wildlife.
Produced water, as the wastewater generated through extraction of the fossil fuels is called, can also be reused by oil and gas operations for drilling or hydraulic fracturing. The most commonly used disposal option in most parts of the country is to inject the wastewater into deep underground wells.
Nearly 900 Billion GallonsOil and gas operations on land including the controversial practice of fracking generate about 890 billion gallons, or 21.2 billion barrels, each year, according to the Groundwater Protection Council’s 2015 study of produced water volumes and management practices.
The Independent Petroleum Association of America is pleased that the EPA is conducting this study because it said the agency will discover that treated wastewater from oil and gas operations can be reused to meet agricultural demand in some U.S. areas, Lee Fuller, the association’s executive vice president, told Bloomberg Environment.
“We have been encouraging the EPA to pursue the study because it will identify the technologies that are being used to treat the wastewater from these operations, open up potential beneficial uses in some parts of the country and also open the notion of allowing direct discharges,” Fuller said.
In a preliminary plan from June 2016, the EPA sought public comment on the volumes and the pollution content of the wastewater the oil and gas producers were sending to public wastewater treatment plants. But then the agency decided to ban the companies from sending their discharges to these utilities out of concern that the briney mixture of chemicals and other components could interfere with the treatment process. This move displeased the oil and gas industry because Fuller said the EPA didn’t even consider alternative options for managing wastewater from fracking operations.
At that time, EPA also had indicated its plan to continue studying wastewater sent to centralized waste treatment facilities, which are commercial sites permitted under the Clean Water Act for treating oil and gas wastewater before discharging it into rivers and streams.
EPA Plans OutreachThe planned study is part of the EPA’s 2016 effluent guidelines program plan, which the Clean Water Act requires the EPA to update every two years. The plan spells out which industries will require new technology-based limits for wastewater pollutants and which are in need of revision.
For the oil and gas study study, EPA said it will reach out to the oil and gas companies that currently comply with these federal limits in their water pollution permits.
The nonprofit Environmental Defense Fund said it agrees there is room for research—on more than treatment options—to understand what’s in the produced water, how to assess whether treatment technologies are effective at removing concerning pollutants, and what the health or environmental risks of exposure these might pose.
“As EPA and other stakeholders begin to more seriously consider expanding management strategies like releasing these complex fluids into our ecosystems, my hope would be that we err on the side of caution given the unknowns at hand,” Nichole Saunders, an Environmental Defense Fund attorney, told Bloomberg Environment.
(Updated with additional reporting)
https://news.bloombergenvironment.com/environment-and-energy/drillers-wastewater-gets-epa-eye-more-disposal-options-coming-1
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Pennsylvania Natural Gas Tax Plan to Smother Growth: Industry
May 2, 2018 | BNA Daily Environment Report
By Leslie A. Pappas
Pennsylvania Gov. Tom Wolf (D) is calling for a tax on natural-gas extraction, but an energy industry official says it should go the way of previous failed efforts to obtain money from gas exploration.
The governor and a bipartisan group of lawmakers vowed at an April 30 news conference to work together to pass the tax. They said Pennsylvania is the nation’s only gas-producing state without a natural gas extraction tax, which other oil- and gas-producing states have used to help fix roads and build schools.
The most recent proposal would not change the state’s “impact fee,” a fee paid per well that primarily benefits counties where the wells are drilled, Wolf said.
But the proposed tax would smother growth in the energy sector, raise energy costs for consumers, and destroy jobs, Marcellus Shale Coalition president David Spigelmyer said in a statement.
“Pennsylvania already has a natural gas tax that has generated nearly $1.5 billion in new revenue for our state,” Spigelmyer said, referring to revenues from the impact fee.
‘Common Sense’ Levy
S.B. 1000 and companion bill H.B. 2253 would create a common sense, reasonable tax that would give Pennsylvanians their fair share of the revenue from the natural gas that is being extracted through hydraulic fracturing of the state’s Marcellus Shale, Wolf said. A text of the bills was not immediately available.
In his proposed 2018-19 Governor’s Executive Budget, Wolf called for a tax ranging from 4 cents to 7 cents per thousand cubic feet of natural gas, depending on the market price for natural gas.
Under the new proposal, the effective tax rate on natural gas would be 4 percent, keeping Pennsylvania “in a very competitive position” compared with other states, State Sen. John T. Yudichak, a Democrat representing Carbon and Luzerne Counties, said at the news conference.
“The majority of Pennsylvanians want to see a fair severance tax brought forward,” State Rep. Bernie O’Neill (R), serving Bucks County, said at the news conference.
A March 2016 Franklin & Marshall College poll showed 73 percent of respondents supported taxing companies that extract and sell natural gas, while 22 percent opposed it and 5 percent didn’t know. The poll had a margin of error of plus or minus 3.3 percentage points.
https://news.bloombergenvironment.com/environment-and-energy/pennsylvania-natural-gas-tax-plan-to-smother-growth-industry
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At OTC, It’s No Longer Just Drill, Baby, Drill
May 1, 2018 | Houston Chronicle
By L.M. Sixel and Ryan Maye Handy
The Offshore Technology Conference is not just about drill, baby, drill anymore.
After 50 years, the conference has found a growing place for green energy, putting an unprecedented spotlight on renewable technologies, particularly offshore wind farms that are spreading throughout Europe and beginning to gain traction in the United States. OTC — which has devoted its programs to drilling oil faster, better and cheaper — this year is holding not one, but three separate sessions on alternative energy, while the conference chairman, Wafik Beydoun, is highlighting the need for the oil and gas industry to diversify into cleaner forms of energy as governments around the world move to slow global warming.
“We have to adapt,” said Beydoun, an executive at the French oil major Total.
The increasing interest in renewable energy at OTC is part of growing recognition by the oil and gas companies that concerns about climate change are all but certain to transform their business. Consumers are buying electric vehicles, companies are investing in energy efficiency and clean power, and some 200 nations are taking steps to lower greenhouse gas emissions to meet the goals of the Paris climate agreement.
Already, the world’s biggest oil companies, including Exxon Mobil, Royal Dutch Shell and BP, are spending of billions of dollars on wind, solar, biofuels and other alternative energy sources as both their investors and customers ask for more renewables, industry leaders said during a panel discussion ths week. “There is a good business reason,” said Ernest Moniz, the secretary of energy under President Barack Obama.
Against that backdrop, OTC is jumping on board. For much of the past half-century, OTC has drawn energy companies from around the world to learn about engineering marvels and technological advances that would allow them to explore in ever deeper waters. But this year, OTC brought together a high level group of CEOs, including the chief executives of the European oil majors Statoil and Total, to discuss how to harness alternative energy. Another conference session will address advances in floating wind turbines while yet another will focus on the status of the offshore wind energy.
Offshore wind has gained particular interest because developing the projects is similar to engineering offshore oil and gas platforms, oil and gas executives said. Statoil, a Norwegian company, has emerged as a pioneer in offshore wind farms and, most recently, floating wind turbine facilities that can be built even farther offshore where the winds are stronger. Statoil has invested $2.6 billion in renewables over the past five years.
“We are the biggest offshore operator in the oil and gas space. We have all the marine engineering and logistics competence. All the people who run these wind projects come from oil and gas,” said Statoil CEO Eldar Sætre. “We can switch employees between oil and gas and offshore wind. That has given us an immense starting point.”
Total, meanwhile, is getting requests from shareholders to put more resources in renewable energy, said its CEO, Patrick Pouyanne. Total last year spent nearly $300 million to buy a stake in a European renewable energy company to expand its investment in solar and wind energy. While Total has no offshore wind projects, analysts have said such developments would make sense for Total, which, like Statoil, has extensive offshore oil and gas drilling projects.
“We want to be socially responsible,” Pouyanne told an OTC audience on Monday.
When it comes to offshore wind development, the United States lags Europe, where renewable industries have incubated for 30 years. In the United States, the spread of offshore wind has hit several barriers, according to executives with DNV GL, a Norwegian research and consulting firm that works with energy companies.
The capacity of some U.S. ports in the Northeast, where the nation’s first offshore wind farm is located, is limited and can’t accommodate the scale of the offshore wind equipment. Europe has managed the problem by creating super ports that serve as hubs for projects across several regions and countries. But the idea of a super port that can serve projects in the waters of multiple states has not gained traction in the United States, where local officials and governments want to protect and grow jobs in their own ports, according to DNV GL.
That has contributed to higher costs in the United States, where building an offshore wind farm costs between 25 and 27 cents per kilowatt hour of capacity compared to 5 cents in Europe, according to DNV GL. Development of offshore wind projects in the U.S. has also been hampered by the Jones Act, which limits the vessels that can transport equipment between U.S. ports.
All of this helps explain why offshore wind is only beginning to gain attention and space at OTC, said Frank Ketelaars, director of region Americas at DNV GL. “It will get there,” he said, “ but it will take time.”
Gulf Island Fabricators agrees. The Houston company, which builds foundations for offshore wind turbines, sends employees to OTC, but it doesn’t rent a booth to promote its products and raise visibility among potential customers. “I think that in the future we may,” said David Schorlemer, executive vice president and chief financial officer.
In the meantime, the wind industry isn’t waiting for OTC. Last year, Renewable Energy World, a website that collects news and research about alternative energy, sponsored a two-day conference in Houston designed to attract offshore oil and gas drillers to build wind projects offshore. It has scheduled another conference for September.
Jordan Blum contributed to this report.
https://www.houstonchronicle.com/business/article/At-OTC-it-s-no-longer-just-drill-baby-drill-12879876.php
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New Vulnerability Found in Systems Used in Electric, Gas Industries
May 2, 2018 | The Hill - Cybersecurity
By Morgan Chalfant
Researchers have discovered a new vulnerability in technology widely used to operate critical services such as oil and electric systems that they warn hackers could exploit.
The vulnerability, disclosed Wednesday by cybersecurity firm Tenable, impacts two applications used to program industrial control systems powering critical infrastructure in the United States and elsewhere.
Tenable publicly disclosed the vulnerability after reporting it to Schneider Electric, an international energy management company headquartered in France that produced the applications.
Schneider Electric has already issued patches for the affected systems.
Researchers say that exploiting the vulnerability successfully could give hackers complete control of the underlying system and allow them to move laterally through the network.
A hacker could theoretically gain access to the human-machine interface (HMI) —technology used by an individual to control the industrial system — and potentially shut down or disrupt operations.
“An attacker can completely take over the machine that is being used to program the component of the industrial control system,” said Dave Cole, chief product officer at Tenable. “There’s any of a number of ways that this could be used for industrial espionage or even destruction.”
The vulnerability affects InduSoft Web Studio, an automation tool used to develop HMI and supervisory control and data acquisition (SCADA) systems, as well as InTouch Machine Edition, a scalable HMI software.
The tools are widely used to design industrial control systems used in the manufacturing, oil and gas, water and solar power industries.
Cole told The Hill that Tenable has seen no real-world evidence of hackers leveraging the vulnerability, but would not rule out the possibility that it has been used in attacks.
The revelation comes amid heightened scrutiny of vulnerabilities that could impact critical infrastructure, after U.S. officials divulged efforts by Russian hackers to target the U.S. energy sector.
U.S. officials revealed in March that hackers backed by the Russian government staged a multi-year cyber campaign against targets in the U.S. energy, nuclear and water industries.
In some cases, hackers gained access to energy sector networks and moved laterally to collect information on Industrial Control Systems and SCADA systems.
http://thehill.com/policy/cybersecurity/385663-new-vulnerability-found-in-systems-used-in-electric-gas-industries
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EPA Relies on Air Law Waivers to Reduce Ozone Nonattainment Findings
May 2, 2018 | Inside EPA
By Stuart Parker
EPA is touting a reduction in the number of areas of the country designated as out of attainment with the agency's 2015 ozone national ambient air quality standard (NAAQS), relying on Clean Air Act waivers for emissions associated with natural “background” ozone and “exceptional events” such as wildfires to explain the reduction.
The agency issued the latest round of designations for the 2015 ozone standard of 70 parts per billion (ppb) on April 30 as required by a court order, and publicly announced them May 1. EPA designates 51 areas of the country in 22 states and the District of Columbia as nonattainment for the standard, which the Obama EPA tightened from the previous 2008 ozone standard of 75 ppb.
States with nonattainment areas must craft plans to impose tougher pollution controls on industry in those zones than elsewhere, or face the ultimate sanction of losing federal highway funds. EPA's issuance of the nonattainment designations allows states to begin crafting those state implementation plans (SIPs).
The issuance of all area designations was due Oct. 1 under an initial Clean Air Act deadline, but the Trump administration delayed releasing the findings because it said it wanted to reconsider the decision to tighten the NAAQS. Environmentalists and Democratic states sued to force implementation of the standard, and following a legal battle and court order against EPA, the agency is now issuing belated designations under a binding schedule.
EPA's decision relies heavily on the contested use of emissions data associated with naturally occurring or foreign-sourced background levels of ozone and air pollution from exceptional events that are impossible to regulate. The air law allows states to claim that emissions associated with either is to blame for their nonattainment status, and to make the case that they would be in attainment but for that pollution. Critics of the waivers say it allows states to unfairly avoid nonattainment status, but the Trump administration is signaling its willingness to grant the exemptions broadly.
EPA has pledged to ease states' use of regulatory exemptions that facilitate NAAQS compliance, most notably in a memo on streamlining the NAAQS-setting and implementation process signed by President Donald Trump.
“In identifying these areas, the Agency acknowledges the role played by background ozone that is outside the control of state and tribal air agencies. These designations also reflect the exclusion of certain data due to 'exceptional events,'” EPA says in a statement announcing the designations.
“Compared to designations issued in 2012 for the 2008 standards, there are more than 10 percent fewer counties being designated 'nonattainment' for the more stringent 2015 standards,” EPA says.
Almost all areas outside of California that are designated nonattainment are classified in “marginal” nonattainment, the least serious classification. Such areas have three years to attain the NAAQS and need not submit nonattainment SIPs. An exception is the greater New York City area comprising parts of New York, New Jersey and Connecticut, which is classified in “moderate” nonattainment. The states involved must therefore craft a nonattainment SIP and they have six years to attain the NAAQS.
Ozone Reductions
The agency touts improvements in air quality and reductions in ozone levels since 1990. “Ozone levels have dropped by more than 20 percent since 1990. Emissions of ozone precursors have fallen even more dramatically since 2000, with nitrogen oxide emissions down more than 50 percent and volatile organic compound emissions down more than 20 percent.”
EPA in a fact sheet confirms that the designations will take effect 60 days following their forthcoming publication in the Federal Register. This will result in a further delay of more than two months in starting the three-year clock for states to submit SIPs to EPA showing how their nonattainment areas will comply.
It also pushes back by the same margin the applicability of air permit requirements under the nonattainment new source review (NNSR) program. Applicants seeking permits for new or modified industrial facilities in nonattainment areas must obtain NSR permits showing they will not cause or contribute to NAAQS violations through increased air pollution. Plants in such areas must seek offsets from other sources if they intend to emit more air pollution.
Applicants with new or modified facilities seeking permits in areas classified attainment or unclassifiable must also demonstrate they will not cause NAAQS violations under the tougher new standard.
U.S. District Court for the Northern District of California Judge Haywood S. Gilliam in his March 12 order setting deadlines for issuance of the designations declined to issue an order sought by several Democratic states to make the ozone designations effective immediately upon promulgation.
In his opinion in California v. Pruitt and related litigation, Gilliam instead accepted EPA air chief William Wehrum's commitment to make the designations effective within 30 to 60 days of promulgation.
States that challenged EPA in the suit were California, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington, joined by the District of Columbia.
Similar litigation brought by states and environmentalists in the U.S. Court of Appeals for the District of Columbia Circuit remains on hold pending the outcome of the designations process, with a status report due to the court by EPA May 15. In that case, American Lung Association v. EPA, states and environmentalists challenged EPA's original decision to delay all designations by one year until Oct. 1, 2018, a decision the agency subsequently reversed. --
https://insideepa.com/daily-news/epa-relies-air-law-waivers-reduce-ozone-nonattainment-findings
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51 Areas in Country Don’t Meet 2015 Ozone Standards, EPA Says
May 1, 2018 | BNA Daily Environment Report
By Jennifer Lu
Fifty-one areas in the country don’t meet 2015 ozone standards, the EPA announced May 1.
This includes counties in Indiana and Wisconsin that the states had asked the Environmental Protection Agency to reconsider as meeting ozone standards.
The EPA also granted California’s request that six nonattainment areas be voluntarily reclassified into a more severe ozone classification that requires additional pollution controls for sources.
This means all regions except San Antonio know how their air quality stacks up against national standards, and the extent to which air agencies need to control pollution from sources including coal-fired power plants, factories, and vehicles.
The EPA tightened national limits for ground-level ozone to 70 parts per billion down from 75 parts per billion in October 2015. The agency said in November 2017 which areas in the country meet 2015 ozone standards in some 2,646 counties but withheld naming the areas that didn’t meet the standards.
Ozone forms when nitrogen oxides and volatile organic compounds—both air pollutants formed when fossil fuels are burned—react in the presence of sunlight. Even at low levels, ozone can cause respiratory problems, especially in children, people with asthma, and older adults.
Under the original timeline for rolling out the new standard, the EPA was supposed to designate and classify all air districts of the U.S. as either meeting or violating national standards by October 2017.
This would have given states a year to work on and submit plans for controlling in-state ozone formation and curb the pollutants from wafting downwind into neighboring states.
But the EPA blew past its October deadline for setting which areas violated national air quality standards for ozone, prompting environmental groups and states represented by environmental law firm Earthjustice to sue the EPA in the U.S. District Court for the Northern District of California in December.
The judge ruled in March that the EPA failed its statutory duty to make designations on time. In addition, the court said the agency had until April 30 to officially say which areas outside of San Antonio didn’t meet the the 2015 ozone standards.
The agency said it finalized the list April 30, even though the classifications weren’t publicized until May 1.
https://news.bloombergenvironment.com/environment-and-energy/51-areas-in-country-dont-meet-2015-ozone-standards-epa-says
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Greens Jeer as Epa About-Faces on Wis. Smog
May 1, 2018 | E&E News PM
By Sean Reilly
This article was updated at 6:02 p.m. EDT.
Environmental and public health groups today questioned EPA's reversal of a Clean Air Act compliance decision tied to a hot-button Wisconsin manufacturing project.
"Political stink bomb here," the Natural Resources Defense Council's clean air director, John Walke, said on Twitter after EPA released its decision to designate three counties in southeastern Wisconsin in attainment for its 2015 ground-level ozone standard of 70 parts per billion (Greenwire, May 1).
One of those counties, Racine, is the future home of a Foxconn Technology Group manufacturing complex that has become a pet priority of Gov. Scott Walker (R), and the other two are nearby (E&E News PM, April 27).
Last year, EPA had recommended that all three be designated nonattainment, a step that could require Foxconn to spend more on pollution controls. In his Twitter post, Walke cited EPA technical data that showed the average ozone levels in Racine County from 2014 to 2016 were 74 parts per billion, higher than the EPA limit.
At Clean Wisconsin, an environmental group, spokesman Jon Drewsen said in a statement that "ozone alert days" are a regular occurrence in the state's southeast.
While EPA had "a real opportunity" to limit ozone in the region, he said, "they chose otherwise, and that's disappointing" because area residents are "the ones who have to deal with the consequences of facing the increased risk of illness and needing to stay inside when ozone levels get too high."
"There's certainly reason to be concerned" about the impact on public health, Paul Billings, senior vice president for advocacy at the American Lung Association, said in an interview.
The Wisconsin attainment decisions were among dozens released today by EPA in response to a court-ordered deadline.
Overall, the total number of nonattainment designations for 51 areas in 22 states and the District of Columbia were only slightly lower than what EPA had proposed last year.
Many of those areas, such as Baltimore, Los Angeles and Louisville, Ky., are still out of compliance with the 2008 standard of 75 ppb, so the latest listings came as no surprise. But in this instance, EPA also appears to have narrowed the size of the nonattainment zones in some metro areas, Billing said, a step that could limit "the ability and opportunity" to reduce pollution.
Ground-level ozone, the main ingredient in smog, is formed by the reaction of nitrogen oxides and volatile organic compounds in sunshine. It's been linked to asthma attacks in children and worsened breathing problems in people with chronic respiratory disease.
In 2015, EPA tightened the standard from 75 to 70 ppb on the grounds that the stricter limit was needed to adequately protect the public in light of added research on ozone's health effects.
The planned Foxconn complex, which will make consumer electronics and imaging equipment, is supposed to eventually employ thousands of people.
Walker's administration, which had strongly opposed a nonattainment designation for the area, lured the company to the state with an incentives package valued at around $4 billion.
An analysis by Clean Wisconsin, based on the company's permit applications, concluded that the complex also has the potential to be the fourth largest emitter of volatile organic compounds in the state, and would also release tons of nitrogen oxides and fine particulates.
A Walker spokeswoman referred a request for comment to the governor's Twitter feed. There, Walker said this afternoon that Wisconsin has cut emissions of those ozone-forming pollutants in half since 2002. "We are working with the @EPA to implement a plan that continues to look out for the best interest of Wisconsin," he added.
Representatives of the National Association of Manufacturers, a trade group that's particularly involved in ozone issues, didn't immediately reply to phone and email messages seeking comment on the broader round of attainment decisions.
The designations, which were statutorily due last October, will take effect 60 days after they are published in the Federal Register. States will then have varying amounts of time to come into compliance, depending on EPA's assessment of the severity of their ozone problems.
The only remaining area awaiting a final attainment designation is an eight-county parcel in and around San Antonio. Under a federal judge's ruling resulting from lawsuits brought by Democratic-led states and environmental groups, EPA must make that decision by July 17.
The designations released today "advanced a critical, initial step in the clean-up of dangerous ground-level ozone," Earthjustice attorney Seth Johnson, who represented some of the plaintiffs in that litigation, said in a statement.
But with EPA Administrator Scott Pruitt's "record of delay and pro-polluter giveaways well established," Johnson added, "we will review today's announcement and continue to push for swift and robust implementation of these life-saving protections."
https://www.eenews.net/eenewspm/2018/05/01/stories/1060080587
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Environmentalists Seek Boiler MACT Ruling Rehearing to Limit Exemption
May 1, 2018 | Inside EPA
By Stuart Parker
Environmentalists are asking a federal appeals court to rehear its ruling that upheld a policy exempting boilers from numeric air toxics limits in favor of weaker “work practice” standards, challenging the court's finding that EPA reasonably exempted boilers from strict limits and asking it to remand what they see as an unlawful policy to the agency.
Sierra Club, Environmental Integrity Project, Clean Air Council and others filed an April 30 petition asking a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to reconsider the work practice standards part of its recent ruling on the boiler air rule in Sierra Club, et al. v. EPA, et al. They argue that the court's decision misstates the environmentalists' arguments in the case, and want the panel to reconsider the ruling on that issue.
The court in its March 16 unanimous decision written by Judge Nina Pillard on behalf of Judges Judith Rogers and Sri Srinivasan addressed some lingering challenges to the agency's boiler maximum achievable control technology (MACT), which the Obama EPA first issued in 2011 but has faced years of litigation and agency revisions.
The current case largely focused on challenges to the work practice standards and separately EPA's use of limits on carbon monoxide (CO) as a “surrogate” for air toxics emissions limits.
Although the court has previously accepted use of CO as a surrogate, Pillard found that EPA had failed to explain why its use of a CO threshold of 130 parts per million (ppm) is appropriate to determine whether any further air toxics emissions are present. Below this level of CO, EPA assumes no further reductions in toxics are possible.
Environmentalists challenged this assumption as flawed, seeking individual emissions limits of the toxics involved. Pillard found EPA had failed to justify the threshold and remanded it to the agency for further explanation.
Although the ruling is a win for environmentalists on the challenge to the use of CO as a surrogate for reducing toxic emissions, the court sided with EPA's decision to allow boiler operators to rely on work practice standards instead of numeric emissions limits during periods of boiler startup and shutdown.
Work practice standards include such measures as using “clean” fuel with low emissions -- typically natural gas -- until emissions controls are up to operating temperatures and functional. Boiler operators have to use clean fuels where possible and engage emissions controls as soon as possible and no later than four hours after startup. Similar exemptions apply during boiler shutdown. EPA's work practices allow a combination of clean fuels and primary fuels to be burned until controls are operational.
Pillard in her opinion wrote, “startup and shutdown work practice standards are permissible because, consistent with the Clean Air Act, they reasonably approximate what the best performing boilers can achieve."
Rehearing Request
Environmentalists in their petition say the court “found that the 'premise' of Sierra Club’s challenge to EPA’s work practice authority was that EPA may not set work practice requirements instead of numeric emission standards 'unless EPA makes boiler-specific impracticability determinations,'” but argue this misstates their position.
“Sierra Club never argued that EPA needs to make boiler-specific impracticability determinations or any other kind of determination for every single source,” the environmentalists say.
Rather, the group argues that EPA may grant the use of work practice standards only if it makes such a determination for “a particular class of sources,” according to the petition.
Further, “the entire boilers category is plainly not a 'particular class of sources' that is unable to measure emissions during the extended startup period,” and EPA never made the case that it is. Therefore, EPA exceeded its statutory authority, the groups argue.
Should environmentalists succeed in forcing EPA to revise its work practice standards, or better justify them, EPA may be more restricted in its ability to provide work practices as a compliance alternative for an entire source category, should it judge this necessary for another industry sector. Similar work practices apply for electric utility boilers under EPA's mercury and air toxics standards rule.
Sierra Club further says that EPA's rule fails to mandate use of clean fuels throughout startup or shutdown, even though it is technically feasible, and therefore the rule is insufficiently tough to meet air law stringency requirements.
“Sierra Club clearly identified the use of clean fuels as an alternative control measure that would yield additional emission reductions,” but EPA and the court disregarded this argument, the group says. “Nowhere in the record did EPA ever find or even suggest that boilers cannot use clean fuels throughout the startup period.”
Further, on boiler shutdown, “EPA’s rule requires the use of clean fuels during shutdown only if a boiler voluntarily switches to a fuel other than its primary fuel. A boiler can continue burning its primary fuel during shutdown,” Sierra Club says, seeking remand to the agency of the startup and shutdown work practice standards.
https://insideepa.com/daily-news/environmentalists-seek-boiler-mact-ruling-rehearing-limit-exemption
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Air Pollution Kills 7 Million People a Year, WHO Reports
May 2, 2018 | BNA Daily Environment Report
By Jeremy Hodges
Toxic levels of pollution led to the early deaths of an estimated 7 million people annually, according to a new World Health Organization report.
Nine of 10 people around the world are exposed to dangerously high levels of pollutants that can lead to cancer and cardiovascular diseases, according to the study, which drew off the most-recent 2016 data. Air pollution levels were the highest in the eastern Mediterranean and southeast Asia, where in some areas airborne toxics were five times WHO limits and disproportionately affected the poor and most vulnerable.
It’s not just the air outdoors in polluted cities that poses a danger to public health. About 3 billion people are breathing deadly fumes from domestic cooking stoves and fires, according to the Geneva-based agency. Household air pollution caused an estimated 3.8 million deaths in 2016.
“Air pollution threatens us all, but the poorest and most marginalized people bear the brunt of the burden,” said WHO Director General Tedros Adhanom Ghebreyesus. “If we don’t take urgent action on air pollution, we will never come close to achieving sustainable development.”
The least-polluted air tends to be found in more developed, richer countries whose governments have taken steps to tackle what British lawmakers previously called a “national health emergency.“
Air pollution across the U.K. is linked to around 40,000 early deaths each year and is draining 20 billion pounds ($27.5 billion) a year from the economy. The country’s shutdown of coal-fired power plants as part of its transition to a low-carbon economy drove air pollution to record lows in 2016.
https://news.bloombergenvironment.com/environment-and-energy/airpollutionkills-7-million-people-a-year-who-reports
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