Preview Newsletter
ACC AM 31/08/18
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(ACC Mentioned) PP Prices Rise 2 Cents in August
Aug 30, 2018 | Plastics News
By Frank Esposito
After pausing to catch their breath in July, North American PP prices have been on the move since Aug. 1, increasing an average of 2 cents per pound. -
(ACC Mentioned) Trump to Appoint New Head of EPA Chemical Safety Office
Aug 31, 2018 | Chemical Watch
By Kelly Franklin
US President Donald Trump plans to appoint EPA regional administrator Alexandra Dapolito Dunn to head the agency's Office of Chemical Safety and Pollution Prevention (OCSPP), the Washington Post reported. -
(ACC Mentioned) Region 1 Chief Expected to Be Tapped as Top Toxics Nominee
Aug 30, 2018 | Inside EPA
EPA's Region 1 Administrator Alexandra Dunn will soon be nominated to serve as the agency's toxics chief, two sources have told the Washington Post, putting the agency toxics office on a path to having a Senate confirmed nominee as it works to implement the revised Toxic Substances Control Act (TSCA). -
Trump to Tap Current EPA Official for Chemical Safety Office: Report
Aug 31, 2018 | The Hill - E2 Wire
By Miranda Green
President Trump is set to nominate a current Environmental Protection Agency (EPA) official widely viewed as a political centrist to lead the organization's chemical safety office, the Washington Post reported on Thursday. -
Sherwin-Williams’ Strategy to Line Billions of Food Cans: Hire Skeptics
Aug 30, 2018 | BNA Daily Environment Report
By Pat Rizzuto
Coatings manufacturer Valspar wanted to develop a new food can lining that didn’t raise health concerns, so it took the unusual step of asking environmental and safety advocacy groups for their advice. -
(ACC Mentioned) D.C. Circuit Schedules Oral Argument in TCSA Inventory Suit
Aug 30, 2018 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has scheduled oral argument for Oct. 12 to hear environmentalists' challenge over the Trump EPA's final rule implementing Congress' 2016 changes to the Toxic Substances Control Act (TSCA) and how it governs the inventory of existing chemicals. -
Flame-Retardant Ban Heads to California Governor
Aug 30, 2018 | BNA Daily Environment Report
By Joyce E. Cutler
A bill that would ban toxic flame retardants above certain limits in children’s home furnishings, foam mattresses, and furniture is heading to the California governor’s desk. -
PODCAST: The Pentagon’s $2 Billion Contamination Problem
Aug 30, 2018 | BNA Daily Environment Report
By David Schultz
There’s a new contamination problem people are calling “the new asbestos.” -
House to Hold First Hearing on PFAS
Aug 31, 2018 | PoliticoPro - Whiteboard
By Annie Snider
A House Energy and Commerce Committee subpanel will hold the first congressional hearing on contamination from nonstick chemicals next week. -
Action on PFAS Pollution Broadens
Aug 30, 2018 | Chemical & Engineering News
Local, state, and federal responses to per- and polyfluoroalkyl substance (PFAS) pollution are growing in the U.S. -
Bayer’s Weed-Killing Future Targeted in Appeal of EPA Approvals
Aug 30, 2018 | BNA Daily Environment Report
By Joel Rosenblatt and Lydia Mulvany
When it comes to killing weeds, Bayer AG’s crop chemical XtendiMax has become a powerful new tool for American farmers. -
Lead Tap Water Testing Bill for Calif. Day Cares Clears Legislature
Aug 31, 2018 | BNA Daily Environment Report
By Emily C. Dooley
California would expand its lead testing program for drinking water at schools to include 10,000 licensed child care centers under a bill cleared Aug. 30 by the state’s Legislature. -
Appellate Judges Query Moving PCB Tort Case From State To Federal Court
Aug 30, 2018 | Inside EPA
By Suzanne Yohannan
Appellate judges are raising questions about efforts by Monsanto to move state tort litigation seeking damages and cleanup costs from polychlorinated biphenyl (PCB) contamination from state to federal court, especially the company's claim that because federal officials controlled the PCBs the company produced, the case belongs in federal court. -
California Slams Door on Trump Plan for Offshore Drilling
Aug 30, 2018 | BNA Daily Environment Report
By Emily C. Dooley
California isn’t going along with Trump administration plans to allow oil and gas drilling off coastal waters. -
Arizona Renewables Push Survives State Supreme Court Challenge (1)
Aug 30, 2018 | BNA Daily Environment Report
By Brenna Goth
A measure to require Arizona utilities to produce more electricity from sources like wind and solar will go to voters after the state Supreme Court denied requests to kick it off the ballot. -
How Energy Companies Set Off Earthquakes Miles Away from Their Waste Dumps
Aug 30, 2018 | The Washington Post
By Ben Guarino
Each day across the United States, 2 billion gallons of fossil-fuel-industry wastewater flies through thousands of underground tubes. -
Energy Industry Appears to Have Dodged a Bullet with Trump's Mexico Deal
Aug 31, 2018 | Washington Examiner
By Josh Siegel
The energy industry is relieved that a new Trump administration trade deal with Mexico appears to keep alive booming exports of oil and natural gas to America’s southern neighbor. -
The Oil Export Boom
Aug 31, 2018 | The Wall Street Journal - Opinion
When George W. Bush signed legislation in 2007 to subsidize and mandate the production of biofuels, he cited the urgent need to liberate America from “long-term” dependence on “oil from foreign lands.” -
EQT’s Mountain Valley Pipe Clears Another Major Legal Hurdle
Aug 31, 2018 | BNA Daily Environment Report
By Rachel Adams-Heard
EQT Midstream Partners LP’s Mountain Valley natural gas pipeline cleared another major legal hurdle when a U.S. appeals court lifted a hold on a crucial permit for the $3.7 billion project. -
Canadian Court Blocks Trans Mountain Pipeline Project
Aug 31, 2018 | The Wall Street Journal
By Kim Mackrael and Paul Vieira
A Canadian appeals court on Thursday annulled regulatory approval of the Trans Mountain pipeline expansion project, dealing a stinging blow to the country’s Liberal government after it agreed to purchase the corridor from Kinder Morgan Inc. in a multibillion-dollar deal. -
(ACC Mentioned) Why Being “OSHA Legal” Isn’t Enough
Aug 30, 2018 | EHS Today
By Michael Pardus
When it comes to chemical exposure protection for employees and downstream users, companies must be compliant with Occupational Safety and Health Administration (OSHA) regulations. -
Utilities Enhance Cyber Sharing With Electricity Analysis Center
Aug 30, 2018 | BNA Daily Environment Report
By Rebecca Kern
An industry information-sharing program on cyber and physical security threats has seen voluntary reports of those threats rise 15 percent over the last year. -
OmniTRAX-Affiliated Illinois Railway and Chicago Rail Link Receive Federal Grant for Positive Train Control Implementation
Aug 30, 2018 | American Journal of Transportation
OmniTRAX, Inc., one of the largest privately held transportation service companies in North America and an affiliate of The Broe Group, is pleased to announce the Chicago Rail Link, LLC (CRL) and Illinois Railway, LLC (IR) were awarded a grant by the Federal Railroad Administration (FRA) for the deployment of Positive Train Control (PTC) technology on the two lines. -
Trump Eases US Methane Rules as Colorado Says State’s Work
Aug 31, 2018 | AP (In The Washington Post)
By Dan Elliott
The Trump administration is rolling back some U.S. regulations on climate-changing methane pollution, calling them expensive and burdensome, but Colorado says its rules are working — and they have industry support. -
California Clears Bill to Reduce Refrigerant Emissions
Aug 31, 2018 | BNA Daily Environment Report
By Emily C. Dooley
California would solidify plans to remove refrigerants that are a potent greenhouse gas from the marketplace and help businesses cover costs of the transition, under a bill heading to the governor. -
D.C. Circuit Revives Suit Over MATS 'Startup-Shutdown' Provisions
Aug 30, 2018 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has revived a long-dormant lawsuit challenging the startup and shutdown provisions of its power plant mercury and air toxics standards (MATS), returning the suit to active status just as the Trump EPA is poised to reconsider the threshold cost-benefit analysis underpinning MATS, and possibly the rule itself. -
EAB Judges Wrestle With Mandating Battery Storage As Gas Utility BACT
Aug 30, 2018 | Inside EPA
By Stuart Parker
EPA Environmental Appeals Board (EAB) judges at Aug. 30 oral argument wrestled with the extent to which the Clean Air Act requires permit applicants to apply novel emissions controls to satisfy best available control technology (BACT) mandates, with environmentalists seeking to establish battery power storage as BACT for a gas-fired power plant. -
EPA Plans Update To CWA 401 Program But Faces Strong State Pushback
Aug 30, 2018 | Inside EPA
By Dave Reynolds
EPA is launching an effort to revise its Clean Water Act (CWA) section 401 program that governs states' approval of federally permitted pipelines and other projects, but is facing major pushback from state regulators, including at least one GOP official, who question the need for changes and oppose any diminution of their power. -
U.K. Considers Doubling Levy on Plastic Bags to Tackle Waste
Aug 30, 2018 | BNA Daily Environment Report
By Alex Morales
The U.K. is proposing to double the mandatory charge for single-use plastic bags dispensed by retailers to 10 pence (13 cents).
Industry and Association News
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(ACC Mentioned) PP Prices Rise 2 Cents in August
Aug 30, 2018 | Plastics News
By Frank Esposito
After pausing to catch their breath in July, North American PP prices have been on the move since Aug. 1, increasing an average of 2 cents per pound.
The increase was the result of higher prices for polymer-grade propylene monomer, according to sources contacted by Plastics News. Regional PP prices were flat in July after surging 8 cents per pound in June and moving up 7 cents in May.
PP prices in the region now are up a net of 13 cents per pound for the year. Total price volatility for the material — including all increase and decreases — has reached 42 cents per pound.
North American PP sales were down more than 1 percent through July, according to the American Chemistry Council. A 0.4 percent decline in domestic sales was worsened by a decline of almost 31 percent in export sales.
Some domestic PP end markets have fared well in spite of the overall decline. Sales of PP into oriented film were up more than 17 percent for the seven-month period. Sales of the materials into injection molded caps and closures grew more than 5 percent.
http://www.plasticsnews.com/article/20180830/NEWS/180839989/pp-prices-rise-2-cents-in-august
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(ACC Mentioned) Trump to Appoint New Head of EPA Chemical Safety Office
Aug 31, 2018 | Chemical Watch
By Kelly Franklin
US President Donald Trump plans to appoint EPA regional administrator Alexandra Dapolito Dunn to head the agency's Office of Chemical Safety and Pollution Prevention (OCSPP), the Washington Post reported.
Ms Dunn's nomination would mark the administration's second effort to fill the vacant leadership role at the agency office charged with managing TSCA.
Ms Dunn is an EPA regional administrator to the New England area (region 1). Previously, she was executive director and general counsel to the Environmental Council of States (Ecos), a non-profit association of US state environmental commissioners.
According to the nonprofit Environmental Law Institute, she has more than 20 years of experience in environmental law and policy, with particular expertise in water quality issues.
She has worked as counsel for associations representing clean water agencies and administrators, and served as counsel for the American Chemistry Council in the late 1990s.
In contrast to Mr Trump's previous pick to head up the OCSPP, toxicologist Michael Dourson, the Washington Post describes Ms Dunn as a "centrist".
Dr Dourson's ties to the chemical industry were heavily criticised during the nomination process and he ultimately withdrew his nomination in December 2017. Several Senate Republicans had signalled they would not confirm his appointment, and The New York Times published hundreds of pages of emails detailing his relationship with the industry.
The OCSPP assistant administrator role has stood vacant for more than a year, after acting head Wendy Cleland-Hamnett retired last year.
Charlotte Bertrand is the office's acting principal deputy assistant administrator, with Nancy Beck serving as the deputy assistant administrator.
Once officially appointed, Ms Dunn will need to be confirmed by the US Senate.
https://chemicalwatch.com/70002/trump-to-appoint-new-head-of-epa-chemical-safety-office
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(ACC Mentioned) Region 1 Chief Expected to Be Tapped as Top Toxics Nominee
Aug 30, 2018 | Inside EPA
EPA's Region 1 Administrator Alexandra Dunn will soon be nominated to serve as the agency's toxics chief, two sources have told the Washington Post, putting the agency toxics office on a path to having a Senate confirmed nominee as it works to implement the revised Toxic Substances Control Act (TSCA).
According to the Post, President Donald Trump plans to nominate Dunn, “a centrist to head the EPA’s Chemical Safety and Pollution Prevention Office [OSCPP], according to two individuals briefed on the decision who spoke on the condition of anonymity because it is not yet public.”
The move is a departure from Trump's first nominee for the post. Michael Dourson, a former EPA toxicologist who runs a non-profit risk assessment consulting group, removed his name from consideration last December after both of North Carolina's Republican senators and Sen. Susan Collins (R-ME) indicated they would not support his nomination.
Unlike Dourson, Dunn appears headed for confirmation as she is already winning support from at least one former Obama administration official. “She’s a consummate professional with a longstanding commitment to environmental protection and cooperative federalism, and a deep understanding of the importance of sound federal regulation,” Amanda Leiter, who served in several environmental posts in the the Obama administration and also worked alongside Dunn at American University's law school, told the paper.
Dunn has led EPA Region 1 since last November, when the agency announced that she would be overseeing the six New England states. Now, she appears bound from EPA's Boston offices back to Washington, D.C. headquarters to lead the agency's OCSPP, which oversees the toxics office and the pesticides office.
The toxics office has been particularly active in the Trump administration, as it works to meet the myriad deadlines outlined in Congress' 2016 re-write of TSCA, giving EPA more authority and more responsibilities.
The choice of an environmental lawyer to serve as assistant administrator of OCSPP made sense to some observers, who told Inside EPA as such last year, noting the scientific credentials of the office's deputy administrator, Nancy Beck, a toxicologist.
Beck, who worked for the American Chemistry Council before her appointment to EPA last year, is viewed by many as the Trump EPA's scientist.
Environmentalists have also challenged all of the final rules the Trump EPA finalized last yet to implement the new TSCA, leaving EPA to defend suits in multiple appellate courts.
Prior to joining EPA, Dunn was executive director of the Environmental Council of the States. Before that, she led the Association of Clean Water Administrators. She has written on topics such as community advocacy and environmental justice, and taught at Catholic University's law school and Pace University as well as American.
Dunn's experience extends to toxics, however. Last month, told a regional forum that EPA may be willing to take interim steps to address per- and polyfluoroalkyl substances (PFAS) before the agency completes work on four action items former Administrator Scott Pruitt announced. At the June 26 closing session of the two-day forum in Exeter, NH, Dunn said she heard community members call for interim actions beyond items the agency has already pledged to take on PFAS, though she did not commit to any specific measures.
“Once our eyes” are open to the situation and concerns regarding PFAS contamination, "you can't really close them and not act," Dunn said, according to a recording of the session released by a citizens coalition.
https://insideepa.com/daily-feed/region-1-chief-expected-be-tapped-top-toxics-nominee
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Trump to Tap Current EPA Official for Chemical Safety Office: Report
Aug 31, 2018 | The Hill - E2 Wire
By Miranda Green
President Trump is set to nominate a current Environmental Protection Agency (EPA) official widely viewed as a political centrist to lead the organization's chemical safety office, the Washington Post reported on Thursday.
Trump is expected to soon announce the nomination of Alexandra Dapolito Dunn to head the agency's Chemical Safety and Pollution Prevention Office, according to the Post. Dunn currently serves as EPA Region 1 Administrator, whose duties span six states in New England.
Nominated to head the region in November, Dunn previously worked for a number of nonpartisan environmental groups including as executive director and general counsel for the Environmental Council of States and work at the Association of Clean Water Administrators.
Her nomination will replace that of Michael Dourson, who in December withdrew his name from consideration for the post after three Republican lawmakers voiced their opposition to his appointment.
Dourson has a history working for a number of the chemical companies that he would have been tasked with regulating under the EPA job. His previous work as a toxicologist included consulting with the chemical industry. A nonprofit consulting group he founded produced research for chemical companies that often showed there were few human health risks associated with their products, The Post reported.
Dunn's nomination would likely offer a less eyebrow-raising alternative as the EPA continues to weather criticism over its weakening of a number of environmental regulations including on chemicals. EPA in early August met a rash of criticism over a June proposal that environmentalists feared would lead to the import or manufacturing of asbestos-- a substance tied to causing cancer.
It led to a firestorm, with news stories, denunciations and well-known figures like Chelsea Clinton and Sen. Brian Schatz (D-Hawaii) charging that the EPA is opening the door to asbestos — something the agency strongly refutes.
The EPA has yet to finalize an initial risk evaluation of ten chemicals, including asbestos.
http://thehill.com/policy/energy-environment/404408-trumps-new-epa-chemical-safety-nominee-likely-to-draw-less
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Sherwin-Williams’ Strategy to Line Billions of Food Cans: Hire Skeptics
Aug 30, 2018 | BNA Daily Environment Report
By Pat Rizzuto
Coatings manufacturer Valspar wanted to develop a new food can lining that didn’t raise health concerns, so it took the unusual step of asking environmental and safety advocacy groups for their advice.
The company shared its information on alternatives, asked advocates to recommend more studies, used scientists they recommended to conduct those studies, and allowed those researchers to independently publish their views—all in a nod to a changing marketplace with many voices on product safety.
Valspar, bought by Sherwin-Williams in 2017, also hired skeptical scientists long critical of the chemical the company was trying to replace. The skeptics maintained that bisphenol-A (BPA), which perturbs estrogen, harmed people’s health and development. The chemical forms a barrier inside food and beverage cans to prevent metal corrosion and breakages.
“It was just so different for a company to come to us and say: `We think this is good. What do we have to do to have you believe us?,’” Lauren Heine, co-executive director of Northwest Green Chemistry, told Bloomberg Environment. Failure Is Welcome
“It was incumbent upon us—in order to be successful commercially—to fail early,” Tom Mallen, global director for packaging and regulatory affairs at Sherwin-Williams, told Bloomberg Environment.
“If we were going to hit a brick wall,” the company wanted to do it early, he said.
It sought to avoid years of research and development only to learn of problems right before market launch, Mallen said.
Valspar didn’t hit a brick wall. Instead, after a decade of research, in 2016 it launched valPure®, a line of non-BPA epoxy can coatings. ValPure was used in more than 50 billion cans by 2017, Sherwin Williams said in its 2017 Corporate Social Responsibility Report.
The new coatings have been approved for use in more than 30 countries, including North America and Europe, with nods from regulatory agencies such as the Food and Drug Administration, Environmental Protection Agency, Dutch G4, and Health Canada, Flavio Marchi, vice-president of global marketing at Sherwin-Williams, told Bloomberg Environment in an email.
The company doesn’t share sales details about any specific product line, but the packaging group has grown more than 11 percent, Chief Executive Officer John G. Morikis said during a July 24 earnings call. Replacing the Market Behemoth
BPA substitutes have to serve a lot of needs given the market demand. Can manufacturers produced 417 billion cans in 2017, according to Bloomberg Intelligence.
Food and beverage manufacturers need a variety of can lining formulations to meet the ever-changing types of products that are canned, Robert Budway, president of the Can Manufacturers Institute, told Bloomberg Environment.
Energy drinks and the popular fermented tea called Kombucha are just two examples of new types of canned products, he said. But the linings extend beyond food and beverages to encompass paints and many other consumer products.
Bisphenol-A based epoxy resins dominated the can lining market for decades, because they protect thousands of beverages and foods—including highly acidic ones—from direct contact with metal surfaces, Budway said. Can manufacturers “stand with” the FDA’s conclusion that BPA is safe when used as approved, Budway said.
That view is shared by most regulators around the world, even though, effective Sept. 6, a European Commission regulation will reduce the amount of BPA that can leach into food and beverages from packaging.
Sherwin-Williams agrees BPA is safe when used as regulators have permitted, Mallen said.Consumer Interst High
Yet, a BPA supply chain disruption in the 1990s prompted Valspar to explore potential substitutes, he said. That initial effort didn’t work, but in the late 2000s, Valspar resumed its research and development into a non-BPA lining.
By then, consumers were interested in substitutes that would not raise the types of health concerns some critics associated with BPA, he said.
Valspar was motivated to invest extra time and energy into its can linings, Tom Neltner, chemicals policy director at the Environmental Defense Fund told Bloomberg Environment.
“There’s a lot of metal cans out there. This is not a niche market,” he said. “That made it worthwhile for Valspar to not only find an alternative, but to do it right.”
Many “regrettable substitutes” have reached the market after chemical manufacturers offered alternatives for a chemical of concern only to find out that researchers then say the substitutes may cause similar or worse health problems than the original chemical, Neltner said.
“From my perspective, if a company that is looking at the long term and wants to put a product on the market that won’t be under scrutiny in a few years, Valspar’s example is a good one for other companies to follow,” he said.Health Concerns
By the late 2000s a growing number of academic studies found low doses of BPA could mimic, block, or alter how estrogen—a critical hormone—affects the body. Such chemicals often are called “endocrine disruptors,” as tiny amounts of hormones such as estrogen regulate the body’s development and reproduction.
Disturbing those hormones might boost people’s risk of getting cancer, contribute to behavioral and developmental problems, and promote obesity, among other concerns, experimental animal studies suggested. But other studies, including ones conducted by the FDA, have not found negative health effects from low doses of BPA.Market Shift
The market has changed, however, Mallen and Budway said.
Shoppers, retailers, and food and beverage companies all have been asking for BPA alternatives, prompting the industry to move away from potential endocrine disrupting chemicals, Budway said. Ninety percent of food and beverage cans now carry linings made with chemicals other than BPA, according to a 2018 Can Manufacturers Institute survey.
Akzo Nobel N.V., Dow Chemical Co., Eastman Chemical Co., and PPG Industries Inc. are among the companies that have developed polyester and other alternative can linings they say do not contain BPA or at least don’t intentionally add it.
The valPure V70 can linings, however, are the only epoxy coatings that do not contain BPA in the industry, according to Sherwin-Williams’ 2017 Annual Report. Valspar’s purchase added more than 50 patents for non-BPA formulations to meet the growing demand for various formulations, the company said.
But scientists with environmental health organizations told Bloomberg Environment that what distinguishes valPure was the approach to outside engagement the firm used in its research and development.
“No other companies have approached us to talk about their research,” Lisa Y. Lefferts, senior scientist with the Center for Science in the Public Interest, told Bloomberg Environment.
While neither she nor any of the other environmental health group staff contacted by Bloomberg Environment endorsed valPure, they all echoed a sentiment Lefferts voiced.
Valspar took a “hands off” approach when it invited scientists critical of BPA to test its products and allowed them to publish whatever results they found, she said. The company also shared its own studies to an unusual extent, Lefferts and others said. Compliance Necessary, Not Sufficient
Valspar sought out the perspectives of the FDA, the Environmental Protection Agency, environmental health groups, and scientists the environmental groups recommended. It became clear by the late 2000s that “our industry was in a new era,” Mallen said. Complying with regulations was “clearly necessary, but no longer sufficient,” he said.
Valspar also screened hundreds of potential substitutes to distinguish those that had the potential to act like estrogen and those that did not, he said. Additional research followed on dozens of candidates.
It finally settled on a new process to make non-BPA epoxy coatings, involving a chemical called tetramethyl bisphenol F (TMBPF), which is in the bisphenol family but does not act like estrogen, Mallen said. TMBPF is created during—not added to—the process, and then reacted out, he said. The final epoxy is “absolutely BPF and BPA free,” he added.
Bisphenol F and bisphenol S—chemicals some companies have substituted for BPA—have raised health concerns similar to BPA, Lefferts said.
“There’s no good reason to think they’re any safer than BPA,” she said.
Yet, research on Valspar’s alternative has been promising, she said, citing a study by a team that included Ana M. Soto, a Tufts University scientist with long-standing concerns about BPA, and Maricel V. Maffini, an independent consultant for food-contact materials who previously worked at the Natural Resources Defense Council and Pew Charitable Trusts. ‘Safety by Design’
The safety research underlying valPure exceeds anything that the FDA would require, Maffini told Bloomberg Environment.
The “Safety by Design” process Sherwin-Williams employs when developing new products seeks out the views of academics, research institutes, and consumer advocacy organizations to obtain multiple perspectives, Marchi said.
“They gave us a solid foundation upon which to build scientific evidence and develop a technology with market sustainability,” he said. Customers’ Questions
The additional research spurred by these consultations added several years to the typical five-to-seven-year period spent developing a new product, Mallen said. It took a total of about 10 years to develop the valPure line, he said.
“But when we have our conversations with our customers, they’re keenly interested in the research, the path we’re taking, and who’s actively helping us get over the hurdles,” Mallen said.
“Safety, performance, cost, and supply,” are the primary topics Sherwin-Williams’ customers want to talk about when they discuss the company’s valPure line, Marchi said.
https://bnanews.bna.com/environment-and-energy/sherwin-williams-strategy-to-line-billions-of-food-cans-hire-skeptics?context=landing&limit=40&tab=news
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(ACC Mentioned) D.C. Circuit Schedules Oral Argument in TCSA Inventory Suit
Aug 30, 2018 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has scheduled oral argument for Oct. 12 to hear environmentalists' challenge over the Trump EPA's final rule implementing Congress' 2016 changes to the Toxic Substances Control Act (TSCA) and how it governs the inventory of existing chemicals.
The argument, announced in an Aug. 29 D.C. Circuit order, appears to be the first among several pending lawsuits environmentalists filed over EPA rules to implement the revised TSCA -- although agency critics recently dropped a 2nd Circuit challenge to a draft EPA framework for evaluating the risks of new chemicals that industry seeks to bring to market. The 2nd Circuit dismissed that suit Aug. 29 at the request of environmentalist petitioners.
Still-pending suits target rules EPA issued in 2017 that establish a framework for reviewing existing chemicals, as required by reforms to the original TSCA. Existing chemicals are those that were on the market before the 1976 TSCA was enacted, and they were largely grandfathered from the original law. The TSCA inventory delineates existing chemicals from new chemicals, which undergo EPA review before they can enter the market.
In the inventory suit, the Environmental Defense Fund (EDF) claims that confidential business information (CBI) provisions EPA added to its rule violate both TSCA and the Administrative Procedure Act. EDF seeks partial vacaturand remand for the agency to bolster the rule's disclosure requirements that group says received short shrift in favor of overly-broad protections for industry claims of CBI.
“In promulgating the final rule, EPA repeatedly violated the statutory text and erred in favor of concealment instead of disclosure,” a March 6 EDF brief says. “The resulting rule will not disclose some information that EDF would otherwise use to learn more about chemicals and their uses, exposures, and health and environmental effects.”
EDF targets Trump administration changes to the final rule, arguing that the Obama-era proposed version included upward of two dozen questions for evaluating claims to keep a chemical identity or other data confidential. The final version narrowed the criteria to roughly a half dozen more general questions, the brief says.
EPA, in its reply brief filed last May, argues EDF lacks standing to sue because it will not be injured be the inventory rule, and that the update is “reasonable” and within the statute. The agency says its “decision was required by the statute, which mandates EPA to 'require any manufacturer or processor of a chemical substance on the confidential portion of the [TSCA Inventory] that seeks to maintain an existing claim for protection against disclosure of the specific chemical identity' to submit such request when submitting their notice of activity. . . . Even if the statute were ambiguous on this point, EPA’s interpretation is reasonable and entitled to deference.”
Further, EPA argued in the same brief that EDF lacks standing to “challenge EPA’s substantiation questions because it has not shown that the removal of one substantiation question will make any difference in EPA’s ultimate merits determination on a confidentiality claim” and “has shown no risk of imminent injury.”
The American Chemistry Council trade group has intervened on EPA's behalf to defend the inventory rule.
https://insideepa.com/daily-feed/dc-circuit-schedules-oral-argument-tcsa-inventory-suit
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Flame-Retardant Ban Heads to California Governor
Aug 30, 2018 | BNA Daily Environment Report
By Joyce E. Cutler
A bill that would ban toxic flame retardants above certain limits in children’s home furnishings, foam mattresses, and furniture is heading to the California governor’s desk.
Assembly Bill 2889 prohibits after Jan. 1, 2020, selling products that contain flame-retardant chemicals at levels above 1,000 parts per million. The bill also prohibits a custom upholsterer from using replacement components that contain flame retardant chemicals at levels above 1,000 parts per million.
A.B. 2889 is the latest effort targeting the lingering chemicals advocates contend cause more health problems as toxics that are released during combustion are inhaled, particularly by firefighters. The Assembly voted Aug. 29 to concur in Senate amendments, sending the bill to Gov. Jerry Brown (D).
Flame-retardant chemicals are used in a significant minority of the products covered by the bill, including upholstered furniture, certain children’s products, and mattress foam, “even though they are not needed for fire safety,” Avinash Kar, a senior attorney with the Natural Resources Defense Council, told Bloomberg Environment. NRDC is one of the organizations backing the bill, along with the California Professional Firefighters, and the Center for Environmental Health.
“The bill will end that practice and eliminate those exposures. That’s even more important because these chemicals are persistent and remain in the environment for long after,” Kar said. Given the size and influence of the California market, “We think California is taking a big step forward to protect firefighters and kids.”
The California Manufacturers & Technology Association, whose members include DowDuPont Inc., and the California Retailers Association, whose members include Costco Wholesale Inc., Macy’s Inc., and Home Depot Inc., opposed the bill. The International Sleep Products Association, which represent mattress manufacturers, has said it is neutral on the bill after amendments were made to it.Headed to Brown’s Desk
A.B. 2998 passed the Senate on a 29-9 vote. Brown has until Sept. 30 to sign or veto the bill along with hundreds of others that are clearing the Legislature in the last days of the session.
Bill author Assemblymember Richard Bloom (D) called the bill “the most comprehensive statewide ban on flame retardant chemicals in the country.”
“California’s leadership will play a critical role in reversing the decades-long, unnecessary use of these chemicals in household products,” Bloom said in a statement emailed to Bloomberg Environment.
Flame retardants are added to plastic, foam, textiles, and other constituents and products to slow or prevent the start or growth of fire, a legislative analysis said. The bill covers any chemical for which a functional use is to resist or inhibit the spread of fire.
Human exposure occurs mainly through inhalation or ingestion of contaminated dust, which enters households and the environment when foam treated with such chemicals in upholstered furniture and other products breaks down and escapes the product, the analysis said. Food and water contaminated with flame retardants is another source of exposure.
Two recent studies by the state Department of Toxic Substances Control scientists showed a decline of flame retardants following a phaseout, the legislative analysis said.
California in 2003 banned two types of polybrominated diphenyl ethers over concerns of the hazards the chemicals posed, especially to breast-fed infants.
The Consumer Product Safety Commission kicked off a science review Aug. 9 on whether a group of flame retardants should be examined together as the commission decides whether to ban the chemicals in children’s toys and other products.San Francisco Model
Advocates were building on momentum started by San Francisco last year when the city enacted a law banning the sale of upholstered furniture and children’s products treated with chemical retardants, Kar said by phone.
The San Francisco prohibitions apply to products with electrical or electronic components while the state bill does not.
Maine this year banned the sale of upholstered furniture containing more than 0.1 percent of a flame-retardant chemical or containing more than a 0.1 percent mixture that include such chemicals.
https://bnanews.bna.com/environment-and-energy/flame-retardant-ban-heads-to-california-governor?context=landing&limit=40&tab=news
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PODCAST: The Pentagon’s $2 Billion Contamination Problem
Aug 30, 2018 | BNA Daily Environment Report
By David Schultz
There’s a new contamination problem people are calling “the new asbestos.” It’s per- and polyfluoroalkyl substances, more commonly known as PFAS.
PFAS have been linked to numerous health problems, and cities and towns across the country have been finding them in their water supplies—especially towns around military bases.
Why? Because PFAS was commonly used in firefighting foam that was sprayed liberally on tarmacs and airstrips.
Maureen Sullivan is the Pentagon’s point person for addressing this mushrooming problem. She said the cost of cleaning up PFAS contamination could exceed $2 billion and take a generation to complete.
You can listen to our conversation with Sullivan here. We spoke to Sullivan at the annual conference of the Environmental Council of the States in Stowe, Vt. Visit our website for earlier episodes of our podcast, Parts Per Billion, from the ECOS conference.
You can subscribe to Parts Per Billion via iTunes or on SoundCloud.
https://bnanews.bna.com/environment-and-energy/podcast-the-pentagons-2-billion-contamination-problem?context=landing&limit=40&tab=news
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House to Hold First Hearing on PFAS
Aug 31, 2018 | PoliticoPro - Whiteboard
By Annie Snider
A House Energy and Commerce Committee subpanel will hold the first congressional hearing on contamination from nonstick chemicals next week.
Rep. John Shimkus' (R-Ill.) Subcommittee on Environment will hold the hearing, entitled “Perfluorinated Chemicals in the Environment: An Update on the Response to Contamination and Challenges Presented," on Thursday, Sept. 6. The committee has not announced witnesses.
The hearing comes on the heels of a series of EPA community meetings held around the country this summer as the agency works on an "action plan" for the class of chemicals. The chemicals are found in 99.7 percent of Americans' blood and an increasing number of drinking water supplies, including in Shimkus' state. The most studied chemical in the class, PFOA, has been linked with kidney and testicular cancer, thyroid problems and preeclampsia, among other ailments. None are currently regulated in drinking water, although EPA has begun the process of evaluating whether the two best-understood chemicals should be.
“Every family deserves to know the truth about what is going on regarding PFAS. It has been in the news and there is too little information about the health risks and ways to address it in the environment,” Shimkus said in a statement. “With all the questions about PFAS exposure impacts swirling around, it’s critical that we investigate the facts, the real risks, and what it takes to protect the public and clean up the contamination."
WHAT'S NEXT: The hearing will take place Thursday, Sept. 6, 2018 at 10:00 a.m. A Senate Homeland Security and Government Affairs Committee subpanel has a similar hearing scheduled later in the month.
https://subscriber.politicopro.com/energy/whiteboard
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Action on PFAS Pollution Broadens
Aug 30, 2018 | Chemical & Engineering News
Local, state, and federal responses to per- and polyfluoroalkyl substance (PFAS) pollution are growing in the U.S. These persistent, synthetic compounds, some of which are linked to cancer and other health problems, are increasingly being detected in drinking water supplies.
Chemours is cutting its air emissions of fluoroethers from its facility in Fayetteville, N.C., the company reported to state regulators recently. At the direction of regulators, Chemours installed carbon adsorption technology in May at two units at the plant. The equipment is capturing about 99% of the emissions of hexafluoropropylene oxide dimer acid, which is closely related to Chemours’s GenX surfactant. The dimer acid and other PFASs taint the Cape Fear River, residential wells, lakes, rainfall, and sediments in southeastern North Carolina, and some of this contamination was traced to Chemours’s air emissions.
Meanwhile, tap water in Parchment, Mich., was declared safe to drink in late August. Parchment, which was under a state of emergency, stopped drawing from its PFAS-contaminated wells, connected to the nearby Kalamazoo drinking water system, and flushed distribution pipes.
The pollution leached from landfills containing paper mill waste, state officials say. Some paper mills use PFASs to coat paper and make it grease resistant for food use, the Environmental Defense Fund, an advocacy group, says. San Francisco’s mayor has approved a city ordinance that, as of Jan. 1, 2020, will ban single-use food containers made with PFASs.
From the nation’s capital, a new document from EPA’s Office of Research & Development lays out the pros and cons of available technology to filter PFASs out of water. Those methods employ activated carbon adsorption, anion exchange resins, or high-pressure membranes used for nanofiltration or reverse osmosis.
And senators introduced bipartisan legislation (S. 3382) that would direct the U.S. Geological Survey to conduct nationwide sampling of water and soil for PFASs. The bill would allot a total of $45 million from 2019 to 2023 for this work. Congress will hold hearings Sept. 6 and Sept. 26 on PFAS contamination.
https://cen.acs.org/environment/pollution/Action-PFAS-pollution-broadens/96/i35
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Bayer’s Weed-Killing Future Targeted in Appeal of EPA Approvals
Aug 30, 2018 | BNA Daily Environment Report
By Joel Rosenblatt and Lydia Mulvany
When it comes to killing weeds, Bayer AG’s crop chemical XtendiMax has become a powerful new tool for American farmers. But environmental groups say U.S. regulators ignored warnings about the herbicide’s main ingredient, dicamba, when they permitted its use in 2016.
A federal appeals court in Seattle was asked Aug. 29 to overturn the Environmental Protection Agency approval after the unintended destruction of millions of acres of crops not treated with XtendiMax, from wine grapes and peach orchards to vegetables and soybeans. Bayer inherited XtendiMax when it acquired Monsanto Co. for $66 billion in June, and dicamba-based products are key to its growth strategy for herbicides and genetically modified seeds.
Groups including The Center for Food Safety allege the EPA violated federal law by ignoring evidence from officials in various states that the chemical easily drifted onto untreated crops. In 2017, among soybean farms alone, 3.6 million acres of non-resistant crops were damaged, according to Kevin Bradley, a professor of plant sciences at the University of Missouri. After about 2,700 complaints last year, the EPA required a more detailed product label, mandatory application training, and more rigorous record keeping.
“It’s around in a massive way that’s not getting reported,” said Steve Smith, the director of agriculture at Orestes, Ind.-based Red Gold Tomatoes, the largest privately held tomato processor.
“When I drive around the countryside, trees around fields are really showing damage, and that’s not showing up in anybody’s numbers,” said Smith, who is a member of Save Our Crops Coalition, which wasn’t party to the lawsuit. “Everyone had training, so no one can say education is the issue. It’s the product.”
At the hearing Aug. 29, the environmental groups asked the appeals court to invalidate the EPA’s 2016 approval of XtendiMax to make sales illegal.
Many American farmers—especially those who grow corn and soybeans, the two biggest U.S. crops—have become increasingly dependent upon herbicides and seeds that are genetically modified to produced plants that can withstand the chemicals. Monsanto developed the blockbuster weedkiller Roundup in the 1970s, but its effectiveness has waned in recent years as some weeds grew resistant to the active ingredient, glyphosate.
Dicamba-based products are intended to combat the new superweeds, and more are coming. Seeds are being designed with resistance to five or six chemicals. Bayer Chief Executive Officer Werner Baumann, in an Aug. 23 call with analysts, described the glyphosate-dicamba combination, called the Roundup Ready Xtend Crop System, as “our next-generation weed-control system.“Regulating Chemicals
The EPA regulates pesticides and herbicides, which have to be registered with the agency. While permits are reviewed at least every 15 years, the EPA registered new formulations of dicamba for a two-year period to allow the agency to change the registration, if necessary.
The challenge with dicamba is that the chemical can vaporize after it’s applied, which means the air can blow it onto untreated plants nearby. That’s forced some farmers to buy the products defensively, according to the lawsuit. Bradley, the Missouri weed scientist, has said growers will have no choice but to buy seeds with Xtend technology to protect themselves if their neighbors are using the products.
“Bayer wants to double-down on this treadmill where we’re going to have more and more toxic pesticides and cocktails,” said George Kimbrell, the legal director at the Center for Food Safety. Dicamba’s drift problem is “not something farmers can address with label measures,” he said.Field Studies
At the Aug. 29 hearing, Judge William A. Fletcher was critical of the EPA’s 2016 decision, which was based on just two “real world” field studies. One was in Georgia and the other was in Texas, where the data was withheld, he said.
“The only data we have is from one of those two fields,” Fletcher said. “Is that enough? That doesn’t strike me as very much given the great danger that everybody knew dicamba posed to post-emergent fields. It turns out, of course, that the danger was there.“
Brett Grosko, EPA’s lawyer, said that the studies were “sufficient under the standards” and that the court must “allow the EPA to decide” what the best available science is.
Monsanto filed briefs supporting the EPA’s decision-making, arguing farmers need new tools to combat weeds that have grown resistant to Roundup and by 2012 covered more than 60 million acres of U.S. farmland.
“Dicamba-based herbicides have a 50-year history of safe use, when applied according to label directions, and we are confident the government’s exhaustive assessment will prevail,” the company said in an emailed statement.Expiring Registration
The court fight comes as the EPA’s approval of dicamba formulations expires Nov. 9, and Bayer expects a renewal decision before then.
Bayer says farmers are adopting its new seeds and herbicide in record numbers. Dicamba-resistant soybeans were planted on 42 million acres in 2018, double the year-earlier total and almost half of the U.S. total of 89.6 million acres, the company said. For cotton, the total was 8 million acres of the 13.5 million acres farmers planted this season.
“We are confident that, in working closely with the EPA, a satisfactory solution for the farmers will be achieved,” Bayer CEO Baumann said on the Aug. 23 call with investors.
The case is Nat’l Family Farm Coal. v. EPA, 9th Cir., No. 17-70196, argued 8/29/18.
https://bnanews.bna.com/environment-and-energy/bayers-weed-killing-future-targeted-in-appeal-of-epa-approvals?context=landing&limit=40&tab=news
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Lead Tap Water Testing Bill for Calif. Day Cares Clears Legislature
Aug 31, 2018 | BNA Daily Environment Report
By Emily C. Dooley
California would expand its lead testing program for drinking water at schools to include 10,000 licensed child care centers under a bill cleared Aug. 30 by the state’s Legislature.
If the bill is signed into law, California will become the eighth state to mandate that child care centers test for unsafe levels of lead, which can cause developmental delays, speech and language problems, and nervous system damage in children.
The bill, authored by Assemblyman Christopher Holden (D) and Assemblywoman Lorena Gonzalez Fletcher (D), would require the California Department of Social Services to work with the State Water Resources Control Board to adopt the lead testing regulations. A.B. 2370 passed the Senate on a 39-0 vote, and the Assembly concurred Aug. 30 with Senate amendments, voting 66-0 to send the bill to Gov. Jerry Brown (D).
Licensed day care centers built before 2010 will have to test for lead between January 2020 and January 2023 and then every five years. If elevated lead levels are detected, the centers must notify parents, stop using water fixtures, and provide other sources of safe drinking water. The state can temporarily suspend licenses for centers that do not comply.
The measure also requires the state water board to post test results online and provide grants for both testing and removal actions.
About 10,000 day care centers serving 700,000 children would be affected, said Susan Little, a senior advocate with the Environmental Working Group, which backsthe bill.
A 2017 state law requires water systems that serve schools with buildings constructed before 2010 test drinking water for lead by July 2019.Few Exceedances
As of June, about 30 percent of the state’s 10,000 public schools have been sampled for the metal. Less than one percent have exceeded the action level of 15 parts per billion, according to the State Water Resources Control Board.
“We must expand lead testing to child care facilities because we know younger children absorb more lead and there is no cure to the harm it causes,” according to a senate analysis of the bill.
A federal task force published a strategy in 2000 to eliminate childhood lead poisoning by 2010 but that benchmark was never met. Treating diseases caused by lead exposure in children costs an estimated $43.4 billion annually, according to the Office of Lead Hazard Control and Healthy Homes in the U.S. Department of Housing and Urban Development.
Children are typically exposed to the toxic metal through lead-based paint and dust, but infants who are fed formula are equally exposed through water.
Child care centers are more likely than schools to have lead service lines delivering water because they use less. Lead tubing is heavy and the piping required to meet the higher demand of schools weighs too much for it to have been broadly used, said Lindsay McCormick, project manager for the Environmental Defense Fund’s chemicals and health program.
“We haven’t seen very many states take on this issue so we certainly appreciate any that do take on this leadership,” McCormick told Bloomberg Environment.
Connecticut, Illinois, New Hampshire, New Jersey, Oregon, Rhode Island, and Washington state also require testing of day care centers.
—With assistance from Joyce E. Cutler.
https://bnanews.bna.com/environment-and-energy/lead-tap-water-testing-bill-for-calif-day-cares-clears-legislature?context=landing&limit=40&tab=news
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Appellate Judges Query Moving PCB Tort Case From State To Federal Court
Aug 30, 2018 | Inside EPA
By Suzanne Yohannan
Appellate judges are raising questions about efforts by Monsanto to move state tort litigation seeking damages and cleanup costs from polychlorinated biphenyl (PCB) contamination from state to federal court, especially the company's claim that because federal officials controlled the PCBs the company produced, the case belongs in federal court.
During Aug. 29 oral argument, Judge William Fletcher of the U.S. Court of Appeals for the 9th Circuit, noted that Monsanto would need to “show a fair amount of direct control and direction by the government,” and signaled his doubts that the government told Monsanto to conceal risks or directed improper disposal.
At issue at this stage of the case, State of Washington v. Monsanto Company, et al., is whether the precedent-setting damages case should be heard in state or federal court.
The case, the first of what is likely to be several state suits against Monsanto -- the sole manufacturer of PCBs in the United States from 1935-1979 -- for damages and cleanup costs for potentially hundreds of sites contaminated with PCBs.
The move to file tort litigation against a manufacturer of a product for environmental damages due to releases during and after the product's use is novel but follows similar actions taken in recent years by cities along the West Coast.
The suit alleges that PCBs have contaminated a multitude of waterbodies in the state, and says Washington has expended significant funds to identify and lower sources of PCBs entering and contaminating public natural resources.
In the appellate case, Monsanto is appealing a federal district court decision that ruled King County Superior Court, a state court, has jurisdiction. Monsanto fears if the suit is allowed to remain in state court, the state will gain a “home court advantage,” according to a brief it filed in the case.
The company is arguing in part that the case belongs in federal court because it produced PCBs for the federal government and its military contractors. On appeal is whether the federal-officer removal statute applies in this case, although the court is reviewing the case de novo.
The appeal stems from a district court's July 2017 ruling that found the company's federal-officer removal argument does not apply because the second element of a test set up by the appellate court failed to be satisfied.
That element required a "causal nexus" between a plaintiff's claims and the actions the defendant took pursuant to a federal officer's direction. The lower court found, "Monsanto has failed to show that it produced PCBs -- and then deliberately concealed their toxicity -- 'pursuant to a federal officer's direction.'"
Many states are watching the outcome. Eight states earlier this year filed an amicus brief backing Washington's bid to keep its suit in state court, saying they wanted to “protect their right to pursue, in their own state courts, state-law claims to enforce state environmental laws against national corporations.”
But some industry parties are also closely following the litigation. They are hoping to use any damage awards Washington and other states may win to offset cleanup liability they may face at high-profile Superfund sites, such as the Lower Duwamish Waterway Superfund site, WA, and the Portland Harbor Superfund site, OR, both of which involve massive Comprehensive Environmental Response, Compensation & Liability Act cases with billions of dollars in cleanup costs.
'Gives Me Pause'
During the Aug. 29 arguments, Fletcher of the 9th Circuit expressed doubts about Monsanto's argument though he also allowed that he was unsure about whether the government directed the design of PCB products.
“The one thing that gives me pause” is the argument made by Monsanto about defective design, Fletcher said during the arguments, asking Washington Deputy Solicitor General Anne Egeler to respond. “Why was there insufficient government control about design,” because it sounds as if there was a fair amount of specification by the government as to these PCBs?
Egeler responded that there was no government specification and contended that Monsanto has misconstrued the record. She said the government never became involved with how PCBs were manufactured, and that these were off-the-shelf products. She gave the example of the government approving the PCB aroclor for use in electrical wire but said it did not require the chemical's use and took no acts of control or guidance regarding the substance's manufacture.
Judge M. Margaret McKeown also pressed Egeler on the matter, framing Monsanto's argument as the government directing the company that it needs these products and that they must meet certain specifications, and therefore it was indirectly controlling manufacturing. “What is your response to that?” she asked.
Egeler pointed to the U.S. Supreme Court's 1988 decision in Boyle v. Technologies Corp., saying under that court's analysis, “that exact scenario fails.” She said that in that case, the United States noted that for example if the military bought stock helicopters and a lawsuit were brought over a failed ejection system, then the federal-officer removal statute would not be appropriate because the purchase did not involve federal control or guidance. That is the same in this case, she said.
She added that while Monsanto has shown that a small percentage of its product was sold to the federal government, “that does not meet the test applied by the U.S. Supreme Court and consistently applied by this court” in other cases. In every one of those cases, the court has required evidence of control, she said.
Meanwhile, Fletcher repeatedly asked the Monsanto attorney to show how the government directed or controlled Monsanto in concealing the dangers of PCBs, or controlled improper disposal. He noted that the complaint by Washington is that Monsanto concealed the dangers of PCBs and improperly disposed of them.
“Did the government direct or control either of those actions: the concealment of the dangers, or the disposition, or the improper disposition?” he asked.
Monsanto attorney Anne Voigts responded that that is just one claim raised in the complaint, pointing to others including defective design. She went on to say how the government specified particular PCBs.
But Fletcher went back to his original question, saying he was unsure Voigts had answered it.
She responded that with regard to the failure to warn claim, there is not an event in which the federal government instructed Monsanto not to warn people. But she contended that there is ample evidence showing the company warning the government and third parties of the risks of PCBs.
Fletcher responded that that is a factual question, but it is not a question as to whether the government directed them to do so.
Improper Disposal
As to disposal, Voigts pointed to the federal government's improper disposal, for instance, a spill in the Duwamish River, WA, when the government dropped a transformer, and the fact that the Puget Sound Naval shipyard is a Superfund site.
But during his questioning of the Washington state attorney, Fletcher indicated he was not convinced on the government's involvement in the failure to warn and improper disposal claims. “I have no difficulty accepting that the claim of failure to warn is not removable because that would be the government directing Monsanto to conceal the risks,” he said.
And he added that he does not think the claim of improper disposal is removable “because I don't see that the government was directing Monsanto to dispose of improperly. And I include within that then the negligence claim.”
During the rebuttal, Fletcher asked Voigts to respond to his question about government control of the design of PCBs.
Voigts told the court to look at the specifications in the context of all the documents, where the government repeatedly said there were no substitutions for PCBs. While there might have been variation in the particular percentages, there was none in terms of what they could use, she said. There was no alternative that could comply with the requirements the government gave, she said. She said this was not a case of purchasing an item off-the-shelf, where there is discretion by the producer.
McKeown though responded that if one is producing a helicopter, the specifications are very specific, such as to the type of alloy, “and this seems a far cry from that.”
Voigts disagreed, saying if the court looks, for example, at the requirements the government needed, such as how flame resistant a product needed to be, it shows all those requirements could only be met by the PCBs specified.
McKeown also asked Voigts to cite her best support for saying Monsanto acted under the government's direction.
Voigts pointed to Sawyer v. Foster Wheeler, LLC, a 2017 decision by the 4th Circuit that ruled federal, not state courts, have jurisdiction in a mesothelioma case in part due to the federal-officer removal provision, according to a summary.
Voigts said in that litigation, the court looked at the products created for the government, pursuant to specifications, finding that it was an example of federal-officer removal. She added that that particularly applies here, because the products were made for the national defense.
During oral argument, Voigts also pointed to letters she said directed Monsanto to produce PCBs.
McKeown responded, “I think the letters, just in rough form, . . . those are your best evidence compared to all the other” items, adding that would get the company to the “acting under."
Voigts agreed, contending it also meets the “causal connection” requirement.
https://insideepa.com/daily-news/appellate-judges-query-moving-pcb-tort-case-state-federal-court
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California Slams Door on Trump Plan for Offshore Drilling
Aug 30, 2018 | BNA Daily Environment Report
By Emily C. Dooley
California isn’t going along with Trump administration plans to allow oil and gas drilling off coastal waters.
Two bills, AB 1775 and SB 834, make it harder for federal energy projects to proceed. SB 834 passed the Senate, 28-7, Aug. 29 while AB 1775 passed the day before on a 26-9 vote. The bills now head to Gov. Jerry Brown (D) along with hundreds of other bills before the session ends Aug. 31.
The bills would prohibit the State Lands Commission or local trustees from signing new leases or permissions to build new oil- and gas-related infrastructure on state tidal and submerged lands if related to federal leases on the Outer Continental Shelf issued after Jan. 1, 2018. No Moratorium
An Outer Continental Shelf lease has not been issued since the mid-1980s and the current federal five-year plan that runs from 2017 to 2022 had none planned for California. But in January, the Trump administration announced it would lift the Obama-era moratorium and reopened the current leasing plan, including in California locations.
Both bills sought to ensure that if one stalled in the process, there would be another option to move the legislation forward, Kerry Townsend Jacob, communications director for Assemblyman Al Muratsuchi (D), wrote in an email to Bloomberg Environment Aug. 28.
“The bills are a response to the federal administration’s departure from a longstanding policy and commitment not to expand offshore oil and gas exploration and production off of California’s coast,” Jacob wrote.
More than 80 civic, environmental, and municipal groups support the bill, including Audubon California, League of California Cities, Surfrider Foundation, and The Nature Conservancy.
But the California Chamber of Commerce, California Independent Petroleum Association, California Manufacturers & Technology Association, Western States Petroleum Association, and other groups opposed the bills. Santa Barbara Spill
In 2015, a pipeline ruptured spilling nearly 140,000 gallons of heavy crude along the Santa Barbara County coastline. Thousands of gallons got into a storm culvert and fouled nine miles of coastline. The bill analysis points to that most recent spill and other ones as reasons to restrict new offshore projects.
“Please fight back,” Muratsuchi, one of the bill authors, said during a floor session Aug. 27. “Protect our beautiful coasts.”
The Western States Petroleum Association said the commission already has the jurisdiction and authority to deny petroleum leases on state lands.
The bills, the group argue, could force “unintended environmental and fiscal consequences by avoiding the use of safer pipelines to transport oil, potential revenue losses, and litigation expense,” according to a Senate analysis of the bill.
https://bnanews.bna.com/environment-and-energy/california-slams-door-on-trump-plan-for-offshore-drilling?context=landing&limit=40&tab=news
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Arizona Renewables Push Survives State Supreme Court Challenge (1)
Aug 30, 2018 | BNA Daily Environment Report
By Brenna Goth
A measure to require Arizona utilities to produce more electricity from sources like wind and solar will go to voters after the state Supreme Court denied requests to kick it off the ballot.
The Clean Energy for a Healthy Arizona measure, backed by billionaire activist Tom Steyer’s climate advocacy group, would require regulated utilities to generate half their energy from renewable resources by 2030.
The high court’s decision is a blow to Arizona Public Service Co., the state’s largest utility. The utility and its parent company, Pinnacle West Capital Corp., have for months condemned the plan as energy policy pushed by an outsider.
Arizona Public Service worked with the Legislature earlier this year to pass a law that limits penalties for violating the new renewable energy mandates if they pass at the ballot box. The lawsuit, brought by Pinnacle West-funded Arizonans for Affordable Electricity, argued most of the signatures qualifying the measure for the ballot were invalid.
The state Supreme Court agreed with a trial court that the measure can proceed to voters. ‘Nail in the Coffin’ for Utility
Clean-energy backers praised the decision as proof the utility is wasting money fighting the measure. More than $19 million is in play from both supporters and opponents as of mid-August, according to campaign-finance reports.
“This ruling is the final nail in the coffin of APS’s failed strategy to deny Arizonans a choice on clean renewable energy,” DJ Quinlan, spokesperson for the Clean Energy for a Healthy Arizona campaign, said in a statement.
Opponents of the clean-energy measure knew the court challenge would be “an uphill fight,” Matthew Benson, spokesman for Arizonans for Affordable Electricity, said in a statement. He said the group’s focus will shift to educating voters about the initiative’s impacts.
The clean-energy campaign easily surpassed the roughly 226,000 signatures needed to make the ballot. The lawsuit, though, argued most of those came from people not registered to vote or were collected improperly, among other allegations.
Hundreds of signature gatherers appeared at a trial in Phoenix earlier this month to testify after the plaintiffs subpoenaed them. A superior court judge invalidated some signatures but let the ballot measure proceed.
The case is Leach v. Reagan, Ariz., No. CV-18-0230-AP/EL, 8/29/18.
(Updates with comments from Clean Energy for a Healthy Arizona and Arizonans for Affordable Electricity)
https://bnanews.bna.com/environment-and-energy/arizona-renewables-push-survives-state-supreme-court-challenge-1?context=landing&limit=40&tab=news
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How Energy Companies Set Off Earthquakes Miles Away from Their Waste Dumps
Aug 30, 2018 | The Washington Post
By Ben Guarino
Each day across the United States, 2 billion gallons of fossil-fuel-industry wastewater flies through thousands of underground tubes. The injection wells descend into porous rock, filling gaps with brine and chemicals that are the result of extracting oil and gas from the ground. The goal of the wells is for the wastewater to be out of sight, out of drinking water and out of harm’s way.
Except the wells can cause earthquakes. In some cases, the quakes begin as far as 15 miles from the wells. In a new study in the journal Science, scientists describe for the first time how earthquakes can be triggered so far away from the wells. An efficient practice by the oil and gas industry is creating a ripple effect far beyond its drilling locations.
Geologists have linked injection wells to quakes, with findings based on years of observation. Human-made earthquakes, though most are moderate in size, put 1 in 50 people in the United States at risk, according to a recent U.S. Geological Survey analysis. Wastewater injection wells are concentrated in Oklahoma, Texas, California and Kansas, according to the Environmental Protection Agency.
“Induced earthquakes are becoming more and more of an issue in central and the eastern U.S.,” said University of California at Santa Cruz seismologist Thomas Goebel. In 2011, an injection well in Oklahoma was responsible for a magnitude-5.6 earthquake that damaged a highway, shook buildings and generated a dozen aftershocks.
To figure out how there could be such a distance between well and earthquake, Goebel, along with fellow UC-Santa Cruz earthquake expert Emily Brodsky, sifted through quakes triggered by dozens of waste injection sites in several states as well as in Australia and Europe. (There are so many wells in Oklahoma they could not link an individual well to the surrounding earthquakes.)
Industrial techniques such as hydraulic fracturing, or fracking, shove water underground to force oil and gas out of shale deposits. Most induced earthquakes are not a result of fracking itself but wastewater generated at the oil and gas wells. Some of that water can be reused or treated. The rest is buried in wells.
Earthquakes occur when a crack underground — a fault — pulls apart. A few decades ago, when scientists were beginning to understand that humans could generate earthquakes, the idea was “you put water directly into the fault,” Brodsky said. It was assumed water would pry apart the fault, like a hydraulic jack lifting a car, triggering a quake.
But that theory could not explain the quakes that happen miles from the wells.
The study authors were able to identify two types of earthquakes triggered by wastewater wells, having everything to do with what kind of rock the water is being injected into.
One kind of earthquake formed close to the injection well but stopped abruptly at about a half-mile from the site, Goebel said. If a well dumped its wastewater into rigid bedrock, earthquakes occurred within a close distance. There, pressure from water that spilled into a fault triggered the earthquake.
The other kind had a “very long-distance tail” — the quakes could appear far from the well, with the triggers petering out only after several miles. This occurred if a well dumped its wastewater into softer sedimentary rock. This was a result of what the researchers called "poro-elasticity."
In this diagram of an injection operation, the blue and red areas represent the spatial footprint of an injection into bedrock (blue) or the overlying sedimentary layer (red). The graphs below show the corresponding earthquake probabilities as a function of distance from the well. (Goebel and Brodsky/Science)Unlike solid bedrock, sedimentary rocks have lots of holes, like a sponge. Because sedimentary rock is more permeable than bedrock, it makes sense to dispose of fluid there — more holes mean more space for wastewater.
But the new study suggests energy companies are injecting waste into the wrong place to avoid earthquakes. Sedimentary rocks are not completely rigid. They’re squishy. They deform. Wastewater might not shove open a fault in the squishy rocks, Brodsky said, but as the ground fills with water “it also pushes on the surrounding rocks.”
Goebel likened it to stepping on a latex balloon sitting in a cardboard box. The balloon bulges outward, and as it does, it presses against the walls of the box. Likewise, as the rock bulges, it can nudge faults far from the injection well. The result: seismic action at a distance.
MIT earth scientist Bradford Hager, who described this research as a “really good empirical study,” said this report convincingly described the two ways humans trigger earthquakes, through pressure or poro-elasticity in rocks. But he was less convinced that the roles of sedimentary rock and bedrock could be so neatly divided. In some cases, pressure might trigger earthquakes in sedimentary rock, whereas poro-elasticity could play a role in bedrock.
Still, he said, this kind of work is begging to find its way into “regulatory behaviors.”
Brodsky anticipates that “there will be some resistance to this” research. “Multibillion-dollar industries are, you know, not rapid to change,” she said.
Meanwhile, Goebel said, the scientists are running small-scale laboratory experiments to further examine how the earthquake triggering mechanism works.
https://www.washingtonpost.com/science/2018/08/30/how-energies-companies-set-off-earthquakes-miles-away-their-waste-dumps/?utm_term=.e36fb9fb6b93
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Energy Industry Appears to Have Dodged a Bullet with Trump's Mexico Deal
Aug 31, 2018 | Washington Examiner
By Josh Siegel
The energy industry is relieved that a new Trump administration trade deal with Mexico appears to keep alive booming exports of oil and natural gas to America’s southern neighbor.
While details are sparse about the new deal – which is absent Canada for now – energy stakeholders have seen enough to breath easy, after some feared President Trump could tear up the North American Free Trade Agreement that has helped make Mexico the largest export market for U.S. oil, transportation fuel, and natural gas.
“For the energy sector, there was never really a huge amount of positive stuff that could come out of this,” said Sarah Ladislaw, senior vice president and director of the Energy and National Security program at the Center for Strategic and International Studies. “This was about making sure a whole lot of bad things didn’t happen. Protecting that free trade status with Mexico given how much we are trading is a win and a benefit for the Trump administration.”The Trump White House in review: Week 82Watch Full Screen to Skip Ads
NAFTA, implemented in 1993, contains few energy-specific provisions. NAFTA allowed for the U.S., Mexico, and Canada to pay nothing on most goods that cross borders between them, including energy products.
Energy experts told the Washington Examiner the new trade deal appeared to maintain the “zero tariff” status for energy products, although the countries have not released final language as they continue negotiating with Canada to make a trilateral deal.
“The key thing is that if Mexico adopts the language of free trade in energy products, that will provide some certainty in gasoline and natural gas trade, where the U.S supplies over 50 percent of Mexico’s respective consumption,” said Carlos Pascual, the former U.S. ambassador to Mexico from 2009 to 2011. “U.S. suppliers are anxious, as are Mexican importers.”
The preliminary Mexico-U.S. trade deal the two countries announced this week focused mostly on auto manufacturing rules, not energy.
But the possibility of the deal unraveling, coupled with a proposed rule change that could have hampered U.S. energy investments in Mexico and Canada, had some industry officials nervous.
The American Petroleum Institute, the largest oil and natural gas trade group, expressed satisfaction this week after Trump administration officials said they had preserved investor protections for existing energy projects in Mexico, according to reporting by S&P Global Platts.
API had been " gravely concerned" that U.S. Trade Representative Robert Lighthizer would succeed in his push to eliminate NAFTA’s Investor-State Dispute Settlement process, which allows a business to take legal action through third-party arbitration if a foreign government harms the company’s investment in that country.
Critics of the process say the settlement provision encourages U.S. companies to invest internationally and move jobs overseas.
The protections matter to all types of industries, but especially energy, because investments usually require substantial time to bear fruit, such as the process of exploring, and then producing crude oil in the Gulf of Mexico.
“If what is reported is true, this agreement is a net positive for the U.S. oil and gas industry, said David Goldwyn, an international energy consultant who served as the State Department’s special envoy and coordinator for international energy affairs from 2009 to 2011. “It is positive for gas exports. It is positive for the protection of U.S. investments already committed to Mexico. There is nothing there that they [the oil and gas industry] don't like so far.”
Industry officials became more fearful of potential backsliding on positive energy trade with Mexico after the country elected leftist Andres Manuel Lopez Obrador as president. His campaign rhetoric suggested he could look to reign in constitutional reforms from 2013 that opened Mexico's formerly nationalized energy industry to foreign investment.
The current government of President Enrique Pena Nieto, which enacted the energy reforms, had sought to reach a trade deal with the U.S. before Lopez Obrador enters office in December.
Some reports have said the Trump administration and Pena Nieto wanted to enshrine those changes into the the new trade agreement.
But experts say that wasn’t realistic, since they were reforms written into Mexico’s constitution, and that issue does not appear to have been part of the new trade deal.
The White House and Office of the U.S. Trade Representative did not provide a response to questions seeking clarity from the Washington Examiner.
Lopez Obrador, for his part, told local reporters that the new trade deal had ensured Mexico’s energy "sovereignty."
Experts say Lopez Obrador does not seem to want to roll back the reforms entirely. Mexico has already awarded more than 100 oil exploration and production contracts to private companies, and Lopez Obrador has said he will respect existing private sector deals unless he finds evidence of corruption.
He has also said he would invest billions in state oil company Pemex, and suspend new auctions to foreigners.
“Obrador seems to be saying he won't reverse the constitutional changes and won’t try to change the law,” Goldwyn said. “He just won't put anything on offer. And that is completely within his control. It's a kind of clever way of getting where he wants to go.”ADVERTISEMENT
One of Lopez Obrador's other promises – to ban fracking – may even benefit the U.S., though Mexico already has slim prospects to produce its own gas.
“If he stops fracking, it means he will buy more natural gas from the U.S., so that doesn’t disadvantage the U.S.,” Goldwyn said.
https://www.washingtonexaminer.com/policy/energy/energy-industry-appears-to-have-dodged-a-bullet-with-trumps-mexico-deal
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Aug 31, 2018 | The Wall Street Journal - Opinion
When George W. Bush signed legislation in 2007 to subsidize and mandate the production of biofuels, he cited the urgent need to liberate America from “long-term” dependence on “oil from foreign lands.” Turns out there was an easier, much less expensive way: drill, baby, drill.
The Energy Information Administration announced this month that the port district of Houston-Galveston began exporting more crude oil than it imported for the first time. Houston-Galveston exports in April surpassed imports by 15,000 barrels a day, and by May the difference had grown to 470,000 barrels a day. That port district handles more than half of all U.S. crude exports, which hit a record of two million barrels a day in May.
The export boom is testament to U.S. ingenuity that has driven rapid advances in hydraulic fracturing and horizontal drilling, especially in shale rock. The breakthroughs have lowered drilling costs and put Texas’s Permian Basin at the center of an oil-and-gas drilling revolution that will next year see the state producing more oil than either Iraq or Iran.
Washington also gets credit for removing regulatory hurdles like the oil export ban. Republican leaders in Congress took flak in 2015 for agreeing to extend green-energy subsidies for a few years in return for Barack Obama’s signature on a statutory end to the 40-year-old export ban.
Some conservative pressure groups derided the policy trade as a sellout while liberals complained that ending the ban would serve Big Oil. The real beneficiaries are workers, investors and the overall economy, as well as greater flexibility in foreign policy as the U.S. is less vulnerable to authoritarian oil exporters.
The U.S. is unlikely to be a net oil exporter soon, since American refineries require heavy crude from abroad. Shale drillers produce lighter grades. But the gap between imports and exports shrank in 2017 to a 24-year low of 6.8 million barrels a day from more than nine million in 2012. The lesson is that American invention and entrepreneurship remain indomitable—when government gets out of the way.
https://www.wsj.com/articles/the-oil-export-boom-1535670283?mod=searchresults&page=1&pos=1
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EQT’s Mountain Valley Pipe Clears Another Major Legal Hurdle
Aug 31, 2018 | BNA Daily Environment Report
By Rachel Adams-Heard
EQT Midstream Partners LP’s Mountain Valley natural gas pipeline cleared another major legal hurdle when a U.S. appeals court lifted a hold on a crucial permit for the $3.7 billion project.
The decision allows the company to resume construction under certain water crossings and follows a separate order from federal regulators that granted permission to restart most work on the 303-mile pipeline.
The developments mean EQT Midstream and its partners can “return approximately 1,000 workers who have been suspended from their duties on the project,” the company said in a statement Aug. 30.
EQT Midstream still sees the project entering full-service in the fourth quarter of next year, roughly a year past its original timeline.
While the latest court action is one in a “string of fortunate events,” the permit in question is still under judicial review, Washington Analysis LLC analyst Rob Rains said. Oral arguments are set for Sept. 28, and the permit “remains vulnerable to being overturned” toward the end of the year, he said.
A slew of other stay requests and construction injunctions also remain as threats for Mountain Valley, ClearView Energy analysts said in a note to clients. If those requests are denied and federal agencies are able to address outstanding issues identified by the court, an in-service date in late 2019 “appears to remain in reach,” analysts said.
The U.S. Court of Appeals for the Fourth Circuit in June granted a request for a stay brought by environmental groups including the Sierra Club. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
Those groups said EQT Midstream and its partners failed to control erosion when building parts of the gas pipeline across waterways.
About a month later, the same court vacated two separate permits for the project. That decision led the Federal Energy Regulatory Commission to temporarily halt work on the project.
Mountain Valley is a joint venture of EQT Midstream, NextEra Energy Inc., Consolidated Edison Inc., WGL Holdings Inc., and RGC Resources Inc.
https://bnanews.bna.com/environment-and-energy/eqts-mountain-valley-pipe-clears-another-major-legal-hurdle?context=landing&limit=40&tab=news
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Canadian Court Blocks Trans Mountain Pipeline Project
Aug 31, 2018 | The Wall Street Journal
By Kim Mackrael and Paul Vieira
A Canadian appeals court on Thursday annulled regulatory approval of the Trans Mountain pipeline expansion project, dealing a stinging blow to the country’s Liberal government after it agreed to purchase the corridor from Kinder Morgan Inc. in a multibillion-dollar deal.
The court ruling is the latest impediment in a yearslong, politically fraught effort to expand the amount of landlocked crude oil that can be moved from the province of Alberta to the Pacific Coast, where it can be loaded on tankers and transported to faster-growing economies in Asia. The bulk of Canadian crude is shipped to the U.S.
Canadian Finance Minister Bill Morneau said Thursday the court ruling doesn’t change the government’s plan to buy the Trans Mountain project for 4.5 billion Canadian dollars (US$3.5 billion). He said the deal, which was first announced in May, could close as early as Friday.
“As a government, we can manage risks that, in these particular circumstances, would have been difficult for any private-sector company to bear,” Mr. Morneau said. He added that the government intends to sell the project to a private-sector buyer in the future.
The Trans Mountain project, which envisages nearly tripling the amount of western Canadian crude moved along the corridor, has faced stiff opposition in Canada’s westernmost province of British Columbia, where environmentalists, indigenous groups and lawmakers say it puts the country’s pristine Pacific coastline at risk.
The government has argued the project is vital for the country’s economic future because it would alleviate a bottleneck in oil transportation that has made it difficult to get Canadian crude to offshore markets.
The unanimous decision, from three judges on Canada’s Federal Court of Appeal, found an approval order issued by Prime Minister Justin Trudeau in November 2016 was flawed and must be reviewed. Kinder Morgan said Thursday that, because of the ruling, it is taking steps to suspend construction on the 710-mile pipeline expansion, less than a week after the project began.
In its decision, the court said Canada failed to adequately consult with indigenous groups on the pipeline project and relied on a study that didn’t fully consider the impact of increased oil-tanker traffic on the environment. Canadian law requires the government to consult and accommodate indigenous groups on developments that might adversely affect them. The court said Canada needs to do additional consultations with indigenous groups.
The court decision was in response to lawsuits filed by indigenous groups, environmental advocates and local British Columbia governments looking to overturn Canada’s regulatory approval.
Canada failed “to engage, dialogue meaningfully, and grapple with the real concerns of the indigenous applicants so as to explore possible accommodation of those concerns,” the appeals court said.
Chief Maureen Thomas of the Tsleil-Waututh Nation, one of the applicants in the court case, said the decision justifies their yearslong fight. “We have made it clear that this project represented a risk too great to accept, and the rejection of these permits today is a big win for everyone who loves this coast and this inlet.”
Greenpeace campaigner Rachel Rye Butler said the court decision was a “major win” for indigenous groups and the environment. “It’s time to pull the plug on this project once and for all,” she said.
The decision is a blow to Mr. Trudeau, who has made stronger environmental protections and reconciliation with indigenous groups central tenets of his government’s mandate.
As it happens, the court decision emerged on the same day Kinder Morgan shareholders approved the sale of the pipeline to Canada’s government during a vote at a special meeting Thursday.
Share prices of Canadian oil producers declined Thursday as investors considered the implications of the appeals-court decision. “Any further delays to this important project will only serve to harm the Canadian economy by limiting access to global markets for the country’s oil exports and depriving governments of additional tax and royalty revenues,” said Al Reid, general counsel for Calgary-based oil producer Cenovus Energy Inc. Cenovus shares fell 2% in Toronto on Thursday.
The court’s decision “is a material negative, if not a death blow” for the pipeline project’s success, GMP FirstEnergy analyst Ian Gillies said. The federal government will have a harder time selling the project as a result of the court’s ruling, he said, and any timeline for construction that was previously established is now obsolete.
The court’s decision indicated Canada’s energy regulator, the National Energy Board, has to review its earlier recommendation to cabinet that Trans Mountain should proceed. Cabinet could specify the terms and conditions, and time frame, for a new review.
https://www.wsj.com/articles/canadian-court-blocks-trans-mountain-pipeline-project-1535642624?mod=searchresults&page=1&pos=3
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(ACC Mentioned) Why Being “OSHA Legal” Isn’t Enough
Aug 30, 2018 | EHS Today
By Michael Pardus
When it comes to chemical exposure protection for employees and downstream users, companies must be compliant with Occupational Safety and Health Administration (OSHA) regulations. In 1970, OSHA created permissible exposure limits (PELs) that remain the rule of law to this day, though knowledge regarding exposure and toxicity has continued to evolve since then.
Disregarding that knowledge means legal compliance is not the same as protecting your company, employees and downstream users. Staying “OSHA legal” is no longer enough. Going beyond compliance is how you create a safer standard of care and protect your bottom line. But how exactly do you go beyond compliance? For starters, you look beyond OSHA regulations.EPA & OSHA: Overlapping Jurisdictions?
While the Environmental Protection Agency (EPA) and OSHA have different purposes, their jurisdictions can seem to overlap when it comes to workplace exposure. Even though EPA has a broader reach, their guidelines do not nullify OSHA regulations when it comes to workplace compliance. But the lines can seem blurry, and using only OSHA regulations is not enough.
EPA’s Toxic Substances Control Act (TSCA) includes rules that are wide-reaching and go far beyond workplace chemical exposure. TSCA has occupational exposure limits (OELs) that are more current—and “stricter”—than OSHA’s PELs. Additionally, there are now new amendments in the mix as a result of EPA’s Principles for TSCA Reform, which aim to “reauthorize and significantly strengthen” the effectiveness of TSCA. These developments point to potential regulatory shifts.Could EPA Consultation Lead to OSHA Updates?
OSHA itself recognizes that its PELs, many of which are based on Threshold Limit Values (TLVs) from 1968 or earlier, are woefully outdated. Until they update their PELs, OSHA continues to provide additional updated chemical information to employers who want to adopt more protective and preemptive measures voluntarily.
In efforts to help create more up-to-date regulations, EPA is consulting with OSHA. Additionally, OSHA is partnering with the American Chemistry Council (ACC) to look for more ways to ensure workplace safety. At ACC’s Global Chemical Regulations Conference (GlobalChem) this year, OSHA’s Directorate of Standards and Guidance director William Perry touched on the OSHA/EPA consultation. Perry noted that EPA has consulted with OSHA about some chemical reviews, but he said he is “not sure how active” the consultation will be over the long run.
The result of the consultation with EPA may be that OSHA adopts those stricter TSCA rules while still maintaining their workplace authority. Your best bet is to be proactive and keep your eyes glued to the road ahead. Adopt TSCA’s recommendations now to provide the best standard of care because it’s better for enterprise-wide risk management.Be Proactive with Compliance
Forward-thinking companies know that merely complying with OSHA’s 40-year-old standards puts their investments—including worker and downstream user safety—at risk. When stricter rules exist, legal compliance tends to flow toward them, so it’s important to be proactive.
EPA’s OELs under TSCA create a new benchmark to which safety compliance stakeholders may want to adhere. Whether or not EPA’s OELs become the OSHA rule of law in the future, it’s wise to use them as a guide for chemical substances handled in the workplace.Proactive Steps: Monitor, Assess and Then Plan
How do you ensure you’re taking the right proactive steps to go beyond compliance? Start with constantly monitoring compliance trends. Create processes that help to ensure you’re alerted the moment there’s a whiff of a potential global chemical manufacturing trend. Technology can help, though only in concert with boots-on-the-ground monitoring efforts.
With constant monitoring comes continuous assessment—it’s the only path to productive planning and strategizing. If you monitor, assess and then plan, you’re more likely to avoid stopped production due to a chemical that “suddenly” can’t be used any longer. More importantly, you can be on top of an employee chemical exposure issue before it becomes a serious problem.Improve your Standard of Care with Voluntary Guidelines
EPA and OSHA are not the only organizations creating chemical exposure limits. There are other sets of voluntary guidelines that many EHS professionals follow. While these are not legally enforceable rules, many businesses use them because they can help to ensure a standard of care that goes way beyond compliance.
A popular set of guidelines comes from the American Conference of Governmental Industrial Hygienists (ACGIH), which updates its TLVs every year. ACGIH is an 80-year-old scientific organization devoted to advancing occupational and environmental health. Many companies use their TLVs as a tool to continually improve their standard of care, which in turn protects a company and boosts its bottom line.
There’s also the National Institute of Occupational Safety & Health (NIOSH). NIOSH, established by the Occupational Safety and Health Act of 1970, collects new knowledge with the aim of developing best practices. Like ACGIH, NIOSH guidelines are entirely voluntary. Unlike ACGIH, NIOSH depends on government funding, which can lag, and therefore, hinder their Recommended Exposure Limit (REL) updates. However, NIOSH still provides EHS professionals with guidance for a higher level of worker and downstream user protection than OSHA PELs alone.
These two organizations have well-recognized criteria for their guidelines, and many manufacturing organizations use their recommendations to go beyond compliance.Developing Appropriate OELs
Regardless of official regulations, manufacturing organizations need to establish their own OELs. But in today’s world, it’s easy to lose sight of reasonable OEL expectations for your circumstances. Companies must navigate non-legally binding TSCA guidelines along with mandatory OSHA regulations, plus recommendations from ACGIH and NIOSH. There’s no clear roadmap for the territory beyond compliance.
While OSHA’s PELs are the only official legal standards, it’s still crucial to consider the other more conservative recommendations. Do what’s right for your business. Keep in mind that some recommendations from industrial hygienists don't consider systems thinking and may not work from a business continuity and risk management standpoint. Understanding your organization’s risk tolerance and risk competence is paramount when developing OELs.
For example, ACGIH could make a recommendation that would add two more steps to your production line, which would slow down manufacturing significantly—eating away at bottom-line dollars. The ACGIH could have excellent reasons for their recommendation, but how would it fit into your organization’s risk management plan? Is it worth it to slow down production and take a hit to the bottom line, especially if it’s not OSHA-mandated?
When creating OELs for your company, there are a few things to consider:
● Your company’s risk tolerance (and risk competence): all OELs should revolve around overall risk management policies.
● Worker and downstream user population size: are you at risk of exposing 100 workers or 100,000?
● New OELs EPA is currently developing under TSCA; at the very least, stay in the loop with where the EPA is heading.
● New use restrictions for existing chemicals; make sure old processes reflect new ideas.
● Analogous EPA OELs that apply to new compounds; if you want to use a new compound that is not yet covered by a use rule, there may be OEL data for an analogous substance that’s appropriate.
While federal agencies decide new occupational exposure regulations, it’s crucial to stay informed about all developing rules and trends to remain compliant. It’s also vital to take proactive steps to look beyond EPA and OSHA for guidelines that will better protect your organization.
Most importantly, stay vigilant about reviewing and developing your own OELs. Going beyond compliance will improve your standard of care and keep you ahead of the workplace safety curve. Big businesses now require more transparency from their suppliers, and that’s only going to increase in future years. You don’t want to play catch-up.
Michael Pardus is a technical expert at Haley & Aldrich Inc., a consulting company specializing in underground engineering, environmental science and management consulting. He has 30 years of experience in industrial operations and environmental consulting, enterprise resilience and governance, EHS compliance, and regulatory affairs.
https://www.ehstoday.com/industrial-hygiene/why-being-osha-legal-isn-t-enough
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Utilities Enhance Cyber Sharing With Electricity Analysis Center
Aug 30, 2018 | BNA Daily Environment Report
By Rebecca Kern
An industry information-sharing program on cyber and physical security threats has seen voluntary reports of those threats rise 15 percent over the last year.
The increase is tied in part to a program encouraging more cyber threat sharing with the Electricity Information Sharing and Analysis Center, Bill Lawrence, the center’s director, told Bloomberg Environment. The center—known as E-ISAC—gathers and analyzes voluntary reports of cyber and physical threats, from attributable sources as well as anonymous ones, to help the electric industry prepare for and respond to those threats.
The initiative is one of a number of programs aimed at helping industries understand cyber threats. Security officers from 16 public and privately owned utilities around the U.S. will have traveled to the E-ISAC in Washington, D.C., by the end of 2018 to participate in meetings with the center to learn how cybersecurity information is shared on a national level.
“It is more of a bottom-up thing to help facilitate information sharing and increase the trust level between E-ISAC and industry, and to get a much better understanding of what’s being done,” Randy Crissman, vice president for technical compliance at New York Power Authority who helped establish the program in January, told Bloomberg Environment.
U.S. electric utilities are hit by millions of attempted cyber intrusions a day. While a successful cyberattack hasn’t shut down the U.S. power grid, the number of attempts to turn off electric power sources, such as natural gas pipelines, is increasing.
The E-ISAC shares anonymous reports widely to the industry and to other government agencies, including the Energy Department and the Department of Homeland Security.
The center is operated by the North American Electric Reliability Corp., a non-government, nonprofit organization that oversees the reliability and resiliency of the bulk power system in the U.S., Canada and parts of Mexico.
Building Trust
Josh Kretchman, a security operations supervisor at the Sacramento Municipal Utility District, who participated in a May meeting, and Mikhail Falkovich, the director of information security at ConEdison, who sent a staffer to it, told Bloomberg Environment that the program helped open lines of better communication with the Electricity Information Sharing and Analysis Center.
“If you see each other face to face, you’re much more likely to pick up a phone call from that person, rather than if you only speak on the phone,” Falkovich said.
Next year, E-ISAC plans to hold engagement meetings every other month with a cross-sector of municipal, cooperatives and investor-owned utilities, in the U.S., Canada and Mexico.
The E-ISAC also manages the Cybersecurity Risk Information Sharing Program (CRISP), a public-private partnership co-funded by the Energy Department and industry to help share threat information.
https://bnanews.bna.com/environment-and-energy/utilities-enhance-cyber-sharing-with-electricity-analysis-center?context=landing&limit=40&tab=news
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Aug 30, 2018 | American Journal of Transportation
OmniTRAX, Inc., one of the largest privately held transportation service companies in North America and an affiliate of The Broe Group, is pleased to announce the Chicago Rail Link, LLC (CRL) and Illinois Railway, LLC (IR) were awarded a grant by the Federal Railroad Administration (FRA) for the deployment of Positive Train Control (PTC) technology on the two lines. Under the FRA’s Consolidated Rail Infrastructure and Safety Improvements Grant Program, the CRL and IR will receive funds representing 70 percent of the PTC implementation costs.
The CRL and IR are required to deploy PTC on five locomotives they operate because their freight trains run on two of the busiest commuter corridors on Metra, the Chicago area’s passenger rail line. Specifically, CRL and IR must deploy PTC to maintain freight connectivity for customers on CRL between Mokena and Gresham and on the IR between Aurora and Eola.
“OmniTRAX is passionate about safety and putting PTC technology on the CRL and IR will make two of the safest short line railroads in the country even safer. The grant will allow scarce capital to be spent on targeted track upgrades and other safety and efficiency enhancements,” said Kevin Shuba, CEO of OmniTRAX.
“Our focus on safety and customer service is enhanced by the partnerships we have with strong and effective transportation policy leaders in Springfield and Washington. In addition to the support of Senators Duckworth and Durbin, Illinois Transportation Secretary Randall Blankenhorn was also an early and strong supporter of this safety improvement grant.”
Both US Senators Durbin and Duckworth strongly backed the grant and are gratified to see it awarded to the OmniTRAX -affiliated rail lines.
“Implementing PTC is vitally important to ensuring that our railroads have the highest level of safety for millions of riders and workers in Illinois and around the country,” Sen. Dick Durbin said. “Implementing PTC saves lives. With Chicago being the largest hub in the railroad industry, Senator Duckworth and I will continue working to ensure that our rail agencies have the federal resources needed to ensure safe and reliable transportation.”https://www.ajot.com/news/omnitrax-affiliated-illinois-railway-and-chicago-rail-link-receive-federal-grant-for-positive-train-control-implementation
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Trump Eases US Methane Rules as Colorado Says State’s Work
Aug 31, 2018 | AP (In The Washington Post)
By Dan Elliott
The Trump administration is rolling back some U.S. regulations on climate-changing methane pollution, calling them expensive and burdensome, but Colorado says its rules are working — and they have industry support.
Energy companies have found and repaired about 73,000 methane leaks since 2015 under a state-required oil field inspection program, according to the Colorado Air Pollution Control Division. The number of leaks fell by 52 percent, from more than 36,000 in 2015 to about 17,250 in 2017, according a state report released last week.
Neither the government nor industry groups could say how much methane has been kept out of the atmosphere when the leaks were fixed, citing the complexity of factors involved.
But state officials said the sharp decline in the number of leaks shows Colorado is succeeding.
“We’re just really encouraged by what we’re seeing with this program and with the industry as a whole,” said Mark McMillan, a manager in the state air pollution agency.
Methane is the primary component of natural gas. It is also a greenhouse gas, contributing to global warming by trapping heat in the Earth’s atmosphere.
Colorado, the fifth-largest natural gas producer in the nation, started requiring energy companies to regularly inspect oil field equipment for leaks in 2014. The program is designed to reduce releases of methane and volatile organic compounds, or VOCs, which are also components of natural gas.
Under the right conditions — which are often present in Denver and Colorado’s Front Range urban corridor — VOCs turn into ground-level ozone. Ozone, the main component of smog, can aggravate asthma and contribute to early deaths from respiratory disease.
Environmental and industry groups agreed Colorado’s program is working, with some reservations.
“It’s good to see that the number of leaks is lower than it was back when the program started. But it’s not time to celebrate yet,” said David McCabe, a senior scientist with the Clean Air Task Force, an environmental group.
Colorado’s oil and gas industry is still releasing a lot of methane and VOCs, he said.
The American Petroleum Institute supports Colorado’s rules, spokesman Reid Porter said. The state’s success reflects a broad industry effort to reduce methane releases, he said.
The Obama administration imposed two sets of nationwide rules designed to reduce methane leaks and waste in the oil and gas industry, one by the Environmental Protection Agency and one by the Interior Department.
The EPA rules applied to new oil field facilities. The Interior Department rules applied to new and existing facilities on federal and Native American land.
The Trump administration is in the process of rolling back both sets of rules. The administration called the Interior Department regulations burdensome and said they cost more than they were worth. Officials said removing the EPA rule would save energy companies up to $16 million over 14 years.
Energy companies also have argued they are already working to reduce leaks of methane, a product they can sell.
Tracee Bentley, head of the Colorado Petroleum Council, which is affiliated with the American Petroleum Institute, said the Interior Department and EPA rules are redundant.
“Two sets of regulations, two agencies, guarantees duplicative and costly overlap,” she said.
The regulation would be better left to the states, Bentley said.
“I think that the states know best, and honestly, every state is different,” she said.
Joel Minor, an attorney for Earthjustice in Denver, said the success of Colorado’s rules shows that uniform nationwide regulations laid down by the federal government are workable and necessary.
“The oil and gas industry is still doing very well in our state,” Minor said. “I think that just shows how cost-effective the regulations are.”
But no state can single-handedly protect its air because wind currents carry pollution across borders, he said.
“For any one state to have clean air, it requires all states to have clean air,” Minor said.
The Colorado program relies on oil and gas companies to report their inspections and results, although the state makes its own unannounced inspections using infrared cameras that can detect methane leaks.
The state does not expect to report its results late this year or next, but the inspections have shown a decline in leaks that reflects what companies reported, said Jeremy Neustifter, an air quality planner with the Colorado Department of Public Health and Environment.
https://www.washingtonpost.com/business/trump-eases-us-methane-rules-as-colorado-says-states-work/2018/08/31/fea6f254-acdb-11e8-9a7d-cd30504ff902_story.html?utm_term=.da7b61bb9fd7
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California Clears Bill to Reduce Refrigerant Emissions
Aug 31, 2018 | BNA Daily Environment Report
By Emily C. Dooley
California would solidify plans to remove refrigerants that are a potent greenhouse gas from the marketplace and help businesses cover costs of the transition, under a bill heading to the governor.
The state has a target of cutting hydrofluorocarbon (HFC) emissions by 40 percent by 2030. Much of that goal would have been met by nationwide restrictions that the Environmental Protection Agency established. However, those reductions were struck down the U.S. Court of Appeals for the District of Columbia Circuit in its 2017 decision in Mexichem Fluor Inc. v. EPA.
California’s bill would impose those restrictions statewide. The Senate concurred Aug. 30 in Assembly amendments to SB 1013, sending the bill to Gov. Jerry Brown (D), who has until Sept. 30 to sign or veto the measure.
Hydrofluorocarbons “are the fastest growing source of greenhouse gas emissions, and the vacated EPA rules leave uncertainty in the marketplace,” according to a state Senate analysis of the bill, which was authored by Sen. Ricardo Lara (D). “Alternative refrigerants are currently available and California has the opportunity to step in and ensure we meet the state’s [hydrofluorocarbon] targets and greenhouse gas goals.”
The measure would affect fluorinated gases used in refrigeration, air-conditioning equipment, foam expansion agents, aerosol propellants, solvents, and fire suppressants. Supermarkets with large refrigeration systems, cold storage facilities, and residential refrigerators would be regulated.
The measure directs the California Air Resources Board to create a Fluorinated Gases Emission Reduction Incentive Program to encourage new refrigerant technologies. A fund to reduce greenhouse gas emissions would be available if later enacted by the legislature.
The bill also tells the California Energy Commission to evaluate the energy efficiency of alternative refrigerants.
Arkema SA, the Association of Home Appliance Manufacturers, California Chamber of Commerce, the Dow Chemical Co., and Mexichem opposed the legislation, according to a Senate analysis of the bill.
Arkema and Mexichem had brought the lawsuit against the EPA rules.
—With assistance from Joyce E. Cutler.
https://bnanews.bna.com/environment-and-energy/california-clears-bill-to-reduce-refrigerant-emissions?context=landing&limit=40&tab=news
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D.C. Circuit Revives Suit Over MATS 'Startup-Shutdown' Provisions
Aug 30, 2018 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has revived a long-dormant lawsuit challenging the startup and shutdown provisions of its power plant mercury and air toxics standards (MATS), returning the suit to active status just as the Trump EPA is poised to reconsider the threshold cost-benefit analysis underpinning MATS, and possibly the rule itself.
In an Aug. 27 order, the court granted a joint request from the agency and its challengers in Chesapeake Climate Action Network, et al. v. EPA to return the delayed case to active status, and directed parties to the consolidated litigation to file motions for briefing format and schedules by Sept. 10.
The case consolidates challenges by environmentalists to an April 2016 EPA rule in which the agency reconsidered certain aspects of the 2011 MATS related to startup and shutdown of utility boilers. The suit combines environmentalists' original lawsuit against that rule with another they brought against EPA's refusal to administratively reconsider the provisions again.
Environmental groups including Environmental Integrity Project and Sierra Club say that EPA should not have allowed plants up to four hours of startup time when they can apply “work practices” to limit emissions, rather than stringent numeric emissions limits, among other complaints.
Utility industry groups such as the Utility Air Regulatory Group, meanwhile, are defending EPA's work practice standards. They are also arguing that the agency's requirements are overly tough, for example with respect to particulate matter work practice monitoring requirements, and recordkeeping and reporting requirements for periods of startup and shutdown.
The suit returns as the agency appears close to formally reconsidering the underlying finding that the MATS rule is “appropriate and necessary” to regulate air toxics from the sector, as Inside EPA first reported on Aug. 24. The reconsideration could either undo the entire MATS or help justify changes to weaken various provisions of the rule, which might address some of the work practices at issue in Chesapeake Climate Action Network.
Environmentalists are criticizing the potential rollback of MATS, with the Environmental Defense Fund (EDF) warning that it could lead to increased human health risks. “Of all the wantonly destructive things the Trump administration has done to our environmental protections, this could turn out to be the worst,” said Mandy Warner, EDF’s senior manager of climate and air policy, in an Aug. 29 statement.
MATS is “already in place protecting our families from deadly pollution. Power plants have already installed cost-effective pollution controls. But the Trump administration is considering gutting these established and successful protections, for no particular reason, and putting the lives and health of babies at risk,” she said.
In other litigation, the D.C. Circuit has now addressed similar boiler startup and shutdown issues in the context of industrial, commercial and institutional boilers, accepting EPA's four-hour startup period in that sector but remanding some aspects of the industrial boiler rule to the agency, such as a limit on carbon monoxide emissions that EPA used as a “surrogate” for air toxics emissions. The court has also previously remanded several of the agency's numeric emissions limits for major industrial boilers for being too weak.
https://insideepa.com/daily-feed/dc-circuit-revives-suit-over-mats-startup-shutdown-provisions
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EAB Judges Wrestle With Mandating Battery Storage As Gas Utility BACT
Aug 30, 2018 | Inside EPA
By Stuart Parker
EPA Environmental Appeals Board (EAB) judges at Aug. 30 oral argument wrestled with the extent to which the Clean Air Act requires permit applicants to apply novel emissions controls to satisfy best available control technology (BACT) mandates, with environmentalists seeking to establish battery power storage as BACT for a gas-fired power plant.
The judges heard argument in In re: Palmdale Energy LLC, Palmdale Energy Project, in which the Center for Biological Diversity (CBD) and three other environmental groups claim that EPA Region 9 was wrong to reject use of batteries at the Palmdale Energy Project, a combined-cycle gas plant being built in the City of Palmdale, CA. Environmentalists argue that batteries could provide a required boost in power at times of peak demand, but the agency instead allowed the company to use “duct burners” to provide the power boost by increasing heat and steam production.
During argument, the three judges hearing the case acknowledged the hurdles that environmentalists must clear in order to force use of batteries, but gave little indication of how they will rule.
As the permitting authority for the project, EPA Region 9 -- which covers the Pacific Southwest -- rejected mandating battery storage as BACT for the gas-fired Palmdale facility on multiple grounds, including technical feasibility, cost and environmental performance of the technology.
But CBD claims that the region violated the Clean Air Act by not considering batteries, which would be less-polluting than duct burners. If the group succeeds in forcing use of batteries as BACT, it would have major implications for other power plants by setting a potential precedent for mandating the technology in permits.
Prevention of significant deterioration (PSD) permits, such as that issued by Region 9 for Palmdale, are required for major new projects or modifications of existing plants in areas meeting national ambient air quality standards (NAAQS). Related New Source Review permits are required for such projects in areas violating the NAAQS.
At argument, Judges Kathie Stein, Aaron Avila and Mary Kay Lynch pressed CBD attorney Robert Ukeiley and EPA on how far regulators should go in requiring novel methods in BACT.
“We think that the duct burners should not exist and should be completely replaced with batteries,” Ukeiley said. Duct burners allow gas-fired power plants to quickly increase their power output to meet high electric demand, by generating additional heat and steam in a plant's heat recovery system.
Batteries are now economically competitive and offer the same or better “end functionality” as duct burners, Ukeiley said. Duct burners can only operate when the plant's main gas turbine is operating, unlike batteries which can be used at any time, he argued. Further, use of the duct burners is time-limited by regulators, he said.
Technology Configuration
Stein and Lynch pressed Ukeiley on whether he could identify other combined-cycle gas plants employing batteries instead of duct burners, and he conceded that he could not.
The particular configuration of technologies necessary would be new, but the technologies themselves are not, and there is no impediment to using the suggested configuration, Ukeiley suggested.
Stein asked Ukeiley, “Why was it an error for [Region 9] not to anticipate this configuration?”
Ukeiley replied that BACT is intended to be “technology-forcing,” and the use of batteries with combined cycle gas plants would amount to a technology transfer that EPA should at least consider in a full BACT analysis. In this case, EPA Region 9 declined such an analysis, finding the duct burners to be sufficient. Without consideration of new technology combinations, BACT cannot be considered “best,” he said.
Avila questioned whether this approach would contradict the requirement that BACT be “available,” and noted that Region 9 rejected environmentalists' petition over the PSD permit on multiple grounds.
The judges then pressed John Krallman, an attorney with EPA's Office of General Counsel, on why EPA rejected use of batteries as BACT in the permit issued to Palmdale.
“The cost of these kind of batteries is just too high” for the “massive” batteries required to be considered cost-effective, said Krallman. “No facility is configured like this."
Krallman argued that the batteries would not meet the “business needs” of the plant, but conceded that EPA is not arguing that the use of batteries is physically impossible, and that duct burners would in all likelihood be used only for peaking power when the main gas turbine is operating.
But Stein said, “the technology transfer idea is clearly part and parcel of the BACT analysis,” pressing Krallman on the scope of the BACT analysis air regulators are required to undertake.
Avila then asked Krallman on whether EPA has a duty to consider possible control technologies in a BACT analysis.
Krallman replied that permit writers do not have to consider every possible configuration of control technologies. The air emissions saved by using batteries over duct burners are only of the order of 1.5 percent, he said, and “this really isn't a large change.” BACT at the plant applies to nitrogen oxides and carbon monoxide emissions.
'Redefine The Source'
EPA is not arguing in this case that the use of batteries would impermissibly “redefine the source.” EAB has previously accepted such an argument in order to reject use of batteries as BACT.
In a 2016 decision, the board denied Sierra Club's petition for review of the PSD permit issued by Maricopa County, AZ, to an expansion of the generating power of the Ocotillo Power Plant in Tempe, AZ, operated by Arizona Public Services Company.
The project involved construction of five new gas turbines on the site, and Sierra Club again claimed that battery storage could serve to reduce the gas burned at the plant. But Maricopa County found this would constitute an unlawful redefinition of the source, and EAB agreed.
At argument in the Palmdale case, Ukeiley and Lynch debated a key claim in CBD's case, that EPA overestimated the costs of battery technology by assuming that the power plant would have to buy power from the electric grid at retail prices to charge the battery, when in fact it could buy at lower wholesale prices.
CBD said in briefing that EPA committed a “clear error of law” when it assumed that the plant would have to purchase electricity to charge a battery system at retail rates rather than wholesale rates. This is because Federal Energy Regulatory Commission (FERC) Order 841 “mandates that batteries energy storage facilities be allowed to purchase electricity from the grid at wholesale rates,” CBD says.
Ukeiley told Lynch that contrary to her belief, FERC Order 841 is now in effect.
Emissions Evaluation
Meanwhile, the judges appeared skeptical of CBD's claims that EPA failed to properly evaluate air emissions from the Air Force's Plant 42, an airfield and manufacturing facility adjacent to the planned power plant. Plant 42 is host to facilities operated by military equipment manufacturers, and sees frequent activity from military aircraft.
CBD argues that EPA discounted the military aircraft emissions, by assuming wrongly that studies of large commercial airports showing minimal air pollution impacts are an appropriate proxy for considering the impact of Air Force aircraft.
Environmentalists dispute EPA's exclusion of certain Plant 42 sources from the Palmdale plant's air quality impacts analysis on the grounds that the plant is off-limits to the public and therefore not considered “ambient air."
But Stein said, “isn't this a highly technical area?” and if so, “why shouldn't we just defer” to EPA.
Ukeiley answered that “they get no discretion” where EPA's methodology is in dispute, rather than merely EPA's calculations.
EPA Assistant Regional Counsel Julie Walters, from the agency's Region 9, said that EPA's assumptions about aircraft emissions affecting the Palmdale project are “very conservative,” and that other sources of emissions such as cars and trains are much more significant.
https://insideepa.com/daily-news/eab-judges-wrestle-mandating-battery-storage-gas-utility-bact
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EPA Plans Update To CWA 401 Program But Faces Strong State Pushback
Aug 30, 2018 | Inside EPA
By Dave Reynolds
EPA is launching an effort to revise its Clean Water Act (CWA) section 401 program that governs states' approval of federally permitted pipelines and other projects, but is facing major pushback from state regulators, including at least one GOP official, who question the need for changes and oppose any diminution of their power.
David Ross, assistant administrator for EPA's Office of Water, told the Environmental Council of the States (ECOS) Fall Meeting here Aug. 29 that EPA is considering revising the 401 process, including clarifying the timeliness and scope of state reviews, and raised the possibility of new guidance or rulemaking.
Ross said that while industry concerns, outdated rules, and incomplete EPA guidance suggest an update to 401 rules may be necessary, EPA wants state input about what approach to take to any future 401 modernization.
“What do you need from this agency,” he asked. “Updated guidance? Do we need a rulemaking? Is everything fine?”
But some state officials indicated that no changes are needed and raised concerns that any EPA action could undercut state authority.
John Linc Stine, commissioner of the Minnesota Pollution Control Agency (MCPA), said that state devotes less than one full-time staff member to 401 reviews and yet has not received a complaint on its 401 process in the last seven years.
Section 401 of the CWA gives states authority to review federal actions for any adverse water quality impacts and impose conditions, including blocking projects, to address potential concerns.
Amid a natural gas production boom, some states, like New York, have used their 401 powers to block construction of new pipelines approved by the Federal Energy Regulatory Commission (FERC), prompting broad concerns from industry groups and GOP lawmakers.
They have been pushing a series of legislative fixes that would limit when and how states can impose water quality conditions on federal permits, claiming some states have abused the 401 authority.
But the bills have drawn widespread opposition from Democrats and top state officials. In letters to House and Senate leaders earlier this month, governors, attorneys general and state regulators from both parties urged lawmakers to drop plans to amend the law.
State officials now say they are awaiting a new version of a pending Senate bill that they hope will include a series of changes that will make the measure more palatable. Among the key changes they are seeking is an amendment that would strip language from the bill limiting states' oversight to “discharges” from federal projects while preserving their current oversight of federal “activities.”
But even before states' calls to drop the legislation, some former FERC officials who now represent energy companies have said that administrative rather than legislative changes might best address their concerns that states are improperly blocking projects by denying 401 certification.
“I think more leadership out of the executive branch from EPA with clear guidance to the states when implementing their delegated authorities is welcome,” J. Curtis Moffett, a former FERC legal adviser who is now vice president and general counsel for Kinder Morgan, the pipeline company, told a Senate hearing last month.
State 401 Reviews
While Ross' remarks to ECOS suggest that EPA is picking up the energy industry calls for administrative changes, state regulators from Republican and Democratic-led states questioned the need for any changes, arguing that they have not received complaints and blaming companies' failure to provide necessary information for delays.
Ben Grumbles, secretary of the Maryland Department of the Environment and a former EPA water chief in the Bush administration, argued that states' CWA 401 authority is critical to ongoing efforts to protect the Chesapeake Bay.
Grumbles pressed Ross for EPA's stance on the Senate Republicans' bill, calling it “clearly an effort in the Congress to dilute the authority of states under the 401 process.”
And Catherine McCabe, commissioner of the New Jersey Department of Environmental Protection and a senior EPA official during the Obama administration, told Ross that if the Trump administration wants to speed the 401 process it should stop FERC from paying short shrift to citizens' concerns, which draws pushback and spurs delays.
“FERC is basically rubber-stamping the issue of public need,” McCabe said. “If you can show a contract they don't even consider public need and this enrages citizens,” leading to clashes and legal fights, she said.
She also argued that delays occur because pipeline companies fail to provide information necessary to support state reviews. Shawn Garvin, secretary of the Delaware Department of Natural Resources and Environmental Control who was also a top official in the Obama EPA, backed that concern.
But regulators from other states noted that concerns with the 401 process have arisen.
For example, Larry Hartig, commissioner of the Alaska Department of Environmental Conservation, said that environmentalists are pressing his agency to dramatically expand the scope of 401 reviews in the state, and that EPA's 2010 draft guidance lacks sufficient clarity, leaving the door open to attacks on state agency's processes.
“There has to be some happy medium,” Hartig said. “As we search for that, if we go too far, we could throw the baby out with the bathwater and states could lose a lot of rights here.”
Keith Kawaoka, deputy director for environmental health at the Hawaii State Department of Health said that industry concerns about slow reviews prompted the state agency, along with EPA and Army Corps of Engineers officials, to conduct a Lean process improvement analysis of the 401 review process.
Many states are using Lean management tools to improve efficiency, an effort the Trump administration has backed.
Kawaoka said that the exercise yielded standard operating procedures (SOPs) for each agency's role in the process and that implementing those changes has alleviated concerns about the timeliness of reviews.
In response to states' criticism, Ross said that outdated rules and guidance, along with industry concerns about the speed and scope of states' reviews, suggest a rethinking of the process is warranted. Ross said he was surprised that many states devote few employees to 401 reviews, and suggested an analysis of staffing and work flow might be worthwhile.
He told Grumbles that while EPA does not lobby, the agency would provide any technical support that lawmakers request.
Ross also asked Kawaoka for a copy of the SOPs, saying EPA could learn form Hawaii's experience.
And in response to McCabe's arguments that companies are failing to provide adequate or timely data, Ross said that available and adequate information are matters of perspective, and that generally, states and federal agencies should seek to better clarify up front the information that they will need from companies to support agency reviews.
Ross also cited other “questions I have been hearing, what's the scope of review under the water quality statute,” and added that EPA is seeking to hear a variety of concerns before advancing any changes. “As I gather information, the goal is to try and identify what we should be looking at.”
https://insideepa.com/daily-news/epa-plans-update-cwa-401-program-faces-strong-state-pushback
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U.K. Considers Doubling Levy on Plastic Bags to Tackle Waste
Aug 30, 2018 | BNA Daily Environment Report
By Alex Morales
The U.K. is proposing to double the mandatory charge for single-use plastic bags dispensed by retailers to 10 pence (13 cents).
The introduction in 2015 of a 5 pence charge on plastic bags handed out by large retailers cut usage by the seven biggest supermarket chains by 86 percent. Now ministers want to include small- and medium-sized retailers, which currently hand out more than 3 billion bags a year.
The new measures will be subject to a consultation later this year, Prime Minister Theresa May’s office said Aug. 30 in a statement as she visited the United Nations Environment Program in Nairobi, Kenya.
“The charge on plastic bags in supermarkets and big retailers has demonstrated the difference we can achieve by making small changes to our everyday habits,” May said.War on Avoidable Waste
May announced a so-called war on plastics this year, seeking to eliminate “avoidable” waste by 2042. The government banned the use of plastic microbeads in cosmetics, and also plans to bar the sale of plastic straws, stirrers, and Q-tips. Ministers also are exploring the introduction of a deposit return program to boost recycling rates for plastic bottles.
On Aug. 30, May also pledged 250,000 pounds to help Nairobi host a conference on oceans in November as part of a range of initiatives to tackle marine pollution.
“With over 12 million tonnes of plastic making their way into our oceans each year, plastic pollution is one of the biggest challenges facing the environment today,” May said. “But marine litter is a global problem, and cleaning up our seas and oceans requires a global effort.”
https://bnanews.bna.com/environment-and-energy/uk-considers-doubling-levy-on-plastic-bags-to-tackle-waste?context=landing&limit=40&tab=news
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