Preview Newsletter
AM ACC 9/7/2018
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(ACC Mentioned) Retaliatory Tariffs on US Chem Exports to China Threaten $18bn in Economic Harm – ACC
Sep 6, 2018 | ICIS
By David Haydon
The $11bn worth of tariffs on US chemical exports enacted by China put almost $18bn in domestic activity at risk along with nearly 55,000 US jobs, the American Chemistry Council (ACC) said on Thursday. -
(ACC Mentioned) US Firms Warn Next Trade Salvo Will Give China Upper Hand
Sep 7, 2018 | Asia Times
By Christopher Scott
As resignation set in this week that the administration of US President Donald Trump will announce more steep import duties on Chinese goods, trade officials in Beijing stuck to a consistent script. -
(ACC Mentioned) Business Groups Urge Trump to Pull Back on China Tariffs
Sep 7, 2018 | Washington Examiner
By Sean Higgins
About 150 business trade groups signed a joint letter to U.S. Trade Representative Robert Lighthizer Thursday urging that the Trump administration not go ahead with planned tariffs on $200 billion worth of Chinese goods. -
(ACC Mentioned) Commentary: Trade War Intensifies as Round 3 Tariffs Get Closer
Sep 7, 2018 | ICIS
By Joseph Chang
As the third round of US-China tariffs looms, China finished plastics products will be in the crosshairs, along with additional US exports of commodity chemicals. -
(ACC Mentioned) ‘a Journalistic Embarrassment’: Kavanaugh Bashed Story by Veteran Beltway Journalist Mike Allen
Sep 6, 2018 | Washington Post
By Erik Wemple
In early November 2001, Mike Allen, then a reporter at The Post, sent an email to Anne Womack, assistant press secretary in the George W. Bush White House. -
(ACC Mentioned) Calls for More Regulation, Fast Action at First PFAS Hearing
Sep 7, 2018 | E&E Daily
By Courtney Columbus
Lawmakers on a House Energy and Commerce subcommittee waded into the controversy over contamination from per- and polyfluoroalkyl substances and questioned agency officials on efforts to address the toxins. -
(ACC Mentioned) Congress Wants EPA to More Quickly Regulate Unsafe Chemicals
Sep 6, 2018 | AP (In The Washington Post)
By Ellen Knickmeyer
Republican and Democratic lawmakers pressed the Environmental Protection Agency on Thursday to act faster to bring more of the country’s most hazardous industrial chemicals and substances under tighter regulation, saying agency action on the health risks was “bogged down.” -
Glyphosate Cancer Warning Case Halted in California (2)
Sep 7, 2018 | BNA Daily Environment Report
By Emily C. Dooley
A federal judge agreed Sept. 6 to delay a decision on whether California can require warning labels on herbicides such as Roundup until an appeals court rules in separate First Amendment cases challenging two other labeling laws in the state. -
EPA Seeks Six-Month Extension on Perchlorate Deadline
Sep 7, 2018 | Inside EPA
EPA is asking a federal judge to extend by six months its looming court-ordered deadline to propose first-time drinking water cleanup standards for the rocket fuel ingredient perchlorate, citing unanticipated delays in peer reviewing its underlying science... -
New Jersey Sets First Drinking Water Standard for PFNA
Sep 6, 2018 | Inside EPA
New Jersey has set the first-in-the-nation drinking water standard for the perfluorinated chemical perfluorononanoic acid, or PFNA, setting a stringent standard of 13 parts per trillion (ppt), according to the Philadelphia Inquirer. -
Monsanto Blocked by Judge From Seeing Activist-Group Records (2)
Sep 7, 2018 | BNA Daily Environment Report
By Chris Dolmetsch
Monsanto Co. was blocked by a New York judge from reviewing some internal documents of an activist group that campaigned to ban the company’s blockbuster herbicide, Roundup. -
Sherwin-Williams, ConAgra to Pay $409 Million in Lead Paint Case (1)
Sep 6, 2018 | BNA Daily Environment Report
By Emily C. Dooley
Seven counties and three cities in California will get $409 million to inspect and remove lead paint from more than 1 million homes. -
When Your Prescription Drug Is Tainted with a Chemical 'Used to Make Rocket Fuel'
Sep 7, 2018 | Los Angeles Times
By David Lazarus
Wayne Pearl, like millions of people with high blood pressure, takes the widely prescribed generic drug valsartan. -
House Passes Bill to Speed Up Small-Scale Natural Gas Exports
Sep 6, 2018 | BNA Daily Environment Report
By Rebecca Kern
A bill to speed the export of small amounts of liquefied natural gas to the Caribbean and Central and South America passed the House on Sept. 6 by a vote of 260-146. -
House Seeks to Grade EPA, Energy Agencies on Timeliness of Permits
Sep 6, 2018 | BNA Daily Environment Report
By Rebecca Kern
The EPA, Energy, and Interior departments and other agencies tasked with providing permits for energy infrastructure projects soon may be subject to a grading system to hold them more accountable for permitting delays. -
Committee Approves Petroleum Reserve Leasing Bill
Sep 6, 2018 | E&E News PM
By Sam Mintz
A House subcommittee approved a bill today that would allow the Department of Energy to lease excess storage space in the Strategic Petroleum Reserve. -
The E.P.A.’s Review of Mercury Rules Could Remake Its Methods for Valuing Human Life and Health
Sep 7, 2018 | New York Times
By Coral Davenport and Lisa Friedman
When writing environmental rules, one of the most important calculations involves weighing the financial costs against any gains in human life and health. The formulas are complex, but the bottom line is that reducing the emphasis on health makes it tougher to justify a rule. -
Exxon Mobil Exporting the Gulf Coast’s Petrochemical Boom
Sep 7, 2018 | Houston Chronicle
By Jordan Blum
Exxon Mobil is riding the petrochemical boom along the Texas Gulf Coast with massive, multibillion-dollar chemicals and plastics expansions in the Houston, Beaumont and Corpus Christi regions. -
(ACC Mentioned) Economists Paint Rosy Forecast for Trucking
Sep 6, 2018 | Transport Topics
By Daniel P. Bearth
Economists for trade associations representing manufacturing, construction and retail industries said during an industry conference here that they expect positive growth to continue for the remainder of 2018, with little chance of a downturn over the next year... -
Kavanaugh Dishes on Chevron, Environmental Law
Sep 7, 2018 | E&E Daily
By Ellen M. Gilmer
Environmental law is not the main event at Brett Kavanaugh's Supreme Court confirmation hearing this week. Far from it. -
EPA Floated, but Dropped, Plan to 'Decline' CO2 Rules in ACE Proposal
Sep 6, 2018 | Inside EPA
By Dawn Reeves
The Trump EPA in its draft proposal to replace the Obama-era Clean Power Plan (CPP) to cut utility sector greenhouse gases wanted to solicit comment on not regulating the sector's carbon dioxide emissions at all, according to newly released documents... -
Health Risk Dispute over EPA's ACE Rule Focuses on Regulatory Baseline
Sep 6, 2018 | Inside EPA
By Lee Logan
As criticism mounts over the health risks posed by the Trump EPA's proposal to replace the Obama-era Clean Power Plan (CPP) governing power plants' greenhouse gas emissions, a key difference between the two sides hinges on the rule's baseline and whether to compare the effects... -
Panel OKs Bill to Limit Reviews of Environmental Permits
Sep 6, 2018 | E&E News PM
By Nick Sobczyk
House Republicans today advanced a measure to limit legal challenges to environmental permits in a markup that devolved into partisan bickering over health care and President Trump. -
IG Recommends EPA Improve Citizen Science, Air Monitoring Management
Sep 6, 2018 | Inside EPA
By Stuart Parker
EPA's Inspector General (IG) in two new reports is calling on the agency to improve its management of scientific data by developing a comprehensive strategy for using “citizen science” data the public collects with personal monitors, and separately creating a quality control process... -
New Jersey, Virginia Move to Join Regional Carbon Trading in 2020
Sep 6, 2018 | BNA Daily Environment Report
By Gerald B. Silverman
New Jersey and Virginia are on track to join the Northeast’s carbon trading program in 2020, with final rules expected to be released later this year and adopted in 2019. -
Arkema Wants Harvey Chemical Suit Paused For Criminal Trial
Sep 6, 2018 | Law360
By Michael Phillis
Arkema Inc. and its CEO asked a Texas federal court to temporarily halt a civil case brought by first responders and residents who claimed they were harmed by the release of chemicals during Hurricane Harvey, saying that it should not proceed at the same time as a similar criminal case.
Industry and Association News
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Sep 6, 2018 | ICIS
By David Haydon
The $11bn worth of tariffs on US chemical exports enacted by China put almost $18bn in domestic activity at risk along with nearly 55,000 US jobs, the American Chemistry Council (ACC) said on Thursday.
The projected impacts cover both proposed tariffs and those already enacted. They are showcased in an economics report, which the ACC published along with comments once again urging the administration of US President Donald Trump to remove 1,505 chemicals and plastics products from the US' third proposed tariff list of imported goods.
An analysis by the National Association of Chemical Distributors (NACD) on the third round of tariffs showed US chemical distributors would face $1.277bn worth of cost increases if the Trump administration moves forward.
The ACC listed two possible scenarios moving foward:
-The baseline, where Chinese importers face challenges to find alternative sources for US products
-The worst case scenario, where Chinese customers readily adjust supply chains to substitute for goods from the US.Estimated losses for US chemicals and plastics exports to China would be equivalent to $1.6bn/year in the baseline, the ACC said. Under the worst case scenario, that number reaches $6.1bn/year.
“A trade war will neither achieve a more balanced trading relationship between the US and China nor advance the interests of the US economy, manufacturers and consumers,” ACC Director of International Trade Ed Brzytwa said. “We strongly urge the US government to avoid this action, rescind the tariffs currently in effect and therefore preempt additional retaliation by China.”
https://www.icis.com/resources/news/2018/09/06/10257555/retaliatory-tariffs-on-us-chem-exports-to-china-threaten-18bn-in-economic-harm-acc/
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(ACC Mentioned) US Firms Warn Next Trade Salvo Will Give China Upper Hand
Sep 7, 2018 | Asia Times
By Christopher Scott
As resignation set in this week that the administration of US President Donald Trump will announce more steep import duties on Chinese goods, trade officials in Beijing stuck to a consistent script.
“If the US ignores opposition from a majority of businesses in comments [submitted to the administration], and obstinately enacts any new tariff measures, China has no choice but to enact retaliatory measures,” Chinese Ministry of Commerce spokesman Gao Feng said on Thursday.
His response to reporters was apparently in reference to comments made by hundreds of American businesses over the past several weeks, pleading with US trade officials to back off what they warn is a destructive and indiscriminate trade policy. The administration could slap tariffs on an additional US$200 billion worth of Chinese goods as soon as this week, which would bring the total value of imports from China subject to taxes up to$250 billion.
On Thursday morning, a coalition of more than 150 trade groups wrote a letter to Washington’s top trade official, reiterating staunch opposition to the escalation, which, they stressed, would undermine the competitiveness of US companies. Paradoxically, the hastily crafted policy will also strengthen Chinese firms’ global edge, the letter argues.
“US companies capture the highest value of most global value chains, so a reduction in trade due to these tariffs will disproportionately harm US companies with less impact on their Chinese suppliers who assemble, finish, or package these products,” said the statement from the multi-industry association, which represented companies from virtually every sector of the economy.
“Once these tariffs go into effect, taking them down may not happen any time soon, as both sides harden their positions. Without any timeline for when these tariffs will be removed, the added costs and negative effects on American businesses, farms, and citizens will only compound over time,” the letter added.
Underlining the disproportionately negative impact the Trump administration’s policy will have on US companies, a report released on Thursday by the American Chemistry Council detailed how tariffs will accelerate Asian economic integration, to the detriment of US firms.
China has recently committed to eliminating or reducing trade barriers on more than 8,500 goods imported from trading partners in the Asia-Pacific region, the report noted, which will significantly reduce costs of inter-Asia-Pacific business.
“As the US has receded, China has stayed involved in trade negotiations with other partners, especially in the Asia-Pacific region. The US ability to lead and influence in the areas of non-tariff barriers to trade with China and the entire Asia-Pacific region has been diminished,” the authors argued.
Despite the unending barrage of opposition voiced from domestic businesses, the administration has stressed repeatedly a belief that the United States is in a position of strength and “holds all the cards,” as Trump has said.
Last week, in an interview with Bloomberg, Trump reiterated that view when asked about the possibility of announcing the new round of tariffs this week, though he stopped short of confirming that any decision would be made.
“I delayed my devaluations. Monetary, you know, on the monetary – the devaluations. My currency manipulations, and also my tariffs, for a period of a year, with China, because I wanted to get as much help as – as they could give us with respect to North Korea. That had an impact. So I delayed it,” Trump said of his China trade policy.
“But there came time when I couldn’t delay it any more because it’s too much money that they drain out of our country. Just too much money,” he continued, adding: “We’re a much stronger – we are a much stronger country. We are much stronger.”
While many economists have noted that the tariffs will have limited impact on China’s economic growth, the president, along with other officials in the White House, have often focused on the relative performance of US and Chinese equities markets. But an analysis published on Thursday by the Council on Foreign Relations shows that the tariffs have nothing to do with the disparate results. Chinese stock underperformance can largely be attributed to the ongoing crackdown on excess leverage:
The continued stock-market exuberance in the US is little consolation for the businesses that will bear the brunt of tariffs. For Beijing, the move could present an opportunity to achieve long-term goals, as the American Chemistry Council report notes:
“As the US administration continues to erect costly barriers to accessing global supply chains and foreign customer markets, the Chinese government is actively working towards directing industrial capacity expansions in their own domestic economy and eliminating tariff and other barriers to doing business with other (non-US) foreign partners.”
Following the conclusion on Thursday of a public comment period, the Trump administration had yet to make an official announcement on whether it will move forward on the new round of tariffs. It is still unclear whether the rate will be set at 10% as initially proposed or 25% as threatened more recently.
http://www.atimes.com/article/us-firms-warn-next-trade-salvo-will-give-china-upper-hand/
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(ACC Mentioned) Business Groups Urge Trump to Pull Back on China Tariffs
Sep 7, 2018 | Washington Examiner
By Sean Higgins
About 150 business trade groups signed a joint letter to U.S. Trade Representative Robert Lighthizer Thursday urging that the Trump administration not go ahead with planned tariffs on $200 billion worth of Chinese goods. The administration is reportedly planning on instituting them as early as next week.
"Continuing the tit-for-tat tariff escalation with China only serves to expand the harm to more U.S. economic interests, including farmers, families, businesses, and workers," the groups said in the letter. "Unilaterally imposing tariffs on hundreds of billions of dollars in goods invites retaliation and has not resulted in meaningful negotiations or concessions."
The groups said they agree that China's policies "have negatively impacted many U.S. companies," and so they support renegotiations in principle. They argued, however, that the administration's blunt-force approach of using "high levels of tariffs on Chinese products will continue to miss the mark." The negative impact will be particularly hard on small- to mid-sized businesses, they warned.
The signatories to the letter include the American Beverage Association, the American Chemistry Council, the National Restaurant Association, the National Retail Federation and the Retail Industry Leaders Association, among other groups.
Should the White House adopt the new tariffs, that would put the total amount of Chinese products facing new levies under the Trump administration at $250 billion. That's on top of broad-based tariffs of 25 percent on imported steel and 10 percent on aluminum, both of which are primarily directed at China. Beijing has responded by placing tariffs of between 5 and 25 percent on $60 billion worth of U.S goods to date.
The letter follows two week of public hearings at the U.S. Trade Representative's Office on the proposed tariffs during which many businesses opposed the tariffs while others pressed for exceptions for products that they import.
https://www.washingtonexaminer.com/policy/economy/business-groups-urge-trump-to-pull-back-on-china-tariffs
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(ACC Mentioned) Commentary: Trade War Intensifies as Round 3 Tariffs Get Closer
Sep 7, 2018 | ICIS
By Joseph Chang
As the third round of US-China tariffs looms, China finished plastics products will be in the crosshairs, along with additional US exports of commodity chemicals.
The third round of tariffs, which the US plans to put on an additional $200bn in Chinese imports, and China on $60bn of US imports, raises the stakes in chemicals and plastics. A consultation period in the US comes to an end on 6 September meaning President Trump is free to introduce them any time afterwards. China has threatened to respond to any new US moves on tariffs.
While the second round on $16bn in imports on both sides, in effect since 23 August, impacted around $2.0bn in US chemicals and plastics exports and $2.2bn in China’s, round three targets another $8.8bn in US exports of these products, and $16.3bn in China exports, according to the American Chemistry Council (ACC).
The US tariffs in the third round target China’s finished plastics products in particular. In round two, about $1.4bn in these exports were put under tariff. In round three, this jumps to $5.8bn, according to an ICIS analysis of 2017 US International Trade Commission (USITC) statistics.
Products under tariff in rounds two and three include everything from plastic tubes, pipes and hoses, plates, sheets, films, containers, bags and sacks, lids and caps, to wall and floor coverings, gloves and ponchos. This could diminish China’s overall demand for polymer resins.
If the third round of tariffs are implemented, the combined impact from rounds two and three on $7.2bn of finished plastics from China to the US will represent about 30% of US imports of these specific products under tariff, and 19% of US imports of all finished plastics products.
BULK CHEMICALS IMPACT
In the second round of China’s retaliatory tariffs, already in effect, the US bulk chemicals and polymers most impacted in terms of trade volumes to China are ethylene dichloride (EDC), styrene, high density polyethylene (HDPE), linear low density PE (LLDPE), monoethylene glycol (MEG) and polypropylene (PP), in that order, according to the ICIS Supply and Demand Database.
In contrast, the impact of US tariffs on China’s bulk chemicals and polymers exports to the US is minimal in the second round, at under 10,000 tonnes per product based on 2017 trade flows. This compares to US exports to China of 371,000 tonnes of EDC and almost 500,000 tonnes of HDPE and LLDPE combined last year.
In round three, US exports to China most impacted in terms of volume would be paraxylene (PX), ethylbenzene and methanol. But the overall impact on commodity chemicals would be less than in the second round.
For China bulk chemical exports to the US, the third round would be somewhat more impactful than the second round, but still relatively minimal. Notable products affected would include acrylic acid, acrylates, acetic acid, toluene diisocyanate (TDI) and vinyl acetate monomer (VAM).
Additional reporting by Al Greenwood and Fanny Zhang
https://www.icis.com/resources/news/2018/09/06/10257461/commentary-trade-war-intensifies-as-round-3-tariffs-get-closer/
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Sep 6, 2018 | Washington Post
By Erik Wemple
In early November 2001, Mike Allen, then a reporter at The Post, sent an email to Anne Womack, assistant press secretary in the George W. Bush White House. The subject line was classic Mike Allen: “problems? cell [redacted] chrs, m”. Attached to the email is what appeared to be a draft of a story on a Bush directive on presidential records:
The peek into the reporting methods of one of the Beltway’s most recognizable bylines comes via documents posted by the Senate Judiciary Committee on the Supreme Court nomination of Judge Brett M. Kavanaugh, who served in the second Bush administration — first in the counsel’s office and later as staff secretary.
So Kavanaugh cared a great deal about Bush’s order on the release of presidential records. As the documents show, Womack forwarded Allen’s email to Kavanaugh, who responded to Womack this way: “ridiculous; misses the boat on several fronts; a journalistic embarrassment.”
How Kavanaugh reached that assessment is unclear. The Erik Wemple Blog encourages some senator to ask him about the matter in the ongoing confirmation hearings that plaster cable news this week. In any case, the story — both the version in Allen’s email and a published version from Nov. 2, 2001, with George Lardner Jr. as a co-byline — quoted generously from folks who opposed the Bush move on paper. “This is a real monster,” Vanderbilt University historian Hugh Graham was quoted as saying in the article.
In an additional email, Kavanaugh conveyed a bit of federal-records humor: “And I hope this last email is quickly and freely released in 2021, 12 years after the President’s term in office ends.”
In another missive, Allen sent to Kavanaugh a draft story about a colleague:
And this:
We asked Allen about the reference to “apple martinis.” Was that a source meeting? We have yet to hear back.
As the New York Times’ Mark Leibovich documented years ago, Allen is an around-the-clock journalist, and he leaves behind an enormous electronic record. Sometimes the imprints are unflattering, as when Gawker’s J.K. Trotter caught him pledging positive coverage of Chelsea Clinton and busted him for allowing a Clinton aide to ghost-write a newsletter entry. And as the Erik Wemple Blog documented years ago, Allen, while author of Politico’s Playbook, planted soft references in the newsletter for advertisers. He now works for Axios.
As for his sharing of draft stories — that’s a controversial tactic that came to the fore of the journo-ethics world back in 2012, when a reporter with The Post was found to have shared a draft with officials at the University of Texas. The Erik Wemple Blog took a dovish stance on the practice at the time, which we’ve revised a touch since then. In any case, Anne Womack Kolton, the press aide who dealt with Allen and now serves as vice president for communications at the American Chemistry Council, tells the Erik Wemple Blog that Allen’s generosity with drafts wasn’t an “isolated” phenomenon. “It really was about trying to ensure the accuracy of what they were reporting, especially when discussing or reporting on complex, legal topics that aren’t front of mind for most reporters or readers,” she says.
Please, Senate judiciary committee members: Press Kavanaugh on the ethics of journalistic draft-sharing.
https://www.washingtonpost.com/blogs/erik-wemple/wp/2018/09/06/a-journalistic-embarrassment-kavanaugh-bashed-story-by-veteran-beltway-journalist-mike-allen/?utm_term=.79f343cdf610
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(ACC Mentioned) Calls for More Regulation, Fast Action at First PFAS Hearing
Sep 7, 2018 | E&E Daily
By Courtney Columbus
Lawmakers on a House Energy and Commerce subcommittee waded into the controversy over contamination from per- and polyfluoroalkyl substances and questioned agency officials on efforts to address the toxins.
It was the first congressional hearing on PFAS, the toxic group of industrial chemicals that have been used in a wide variety of products, including firefighting foam and nonstick products.
Energy and Commerce Committee ranking member Frank Pallone (D-N.J.) called for a "binding, enforceable and strong drinking water standard" for PFAS.
EPA released a lifetime health advisory of 70 parts per trillion for the PFAS chemicals perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) in 2016, but it isn't enforceable and has been criticized for being dangerously high.
Many of the Environment Subcommittee lawmakers pointed questions to Peter Grevatt, director of EPA's Office of Ground Water and Drinking Water. Grevatt repeatedly said the agency expects to complete a national PFAS management plan by the end of 2018.
That plan had been announced by ex-EPA Administrator Scott Pruitt at a summit in May. At the time, he said the plan would be done "by the fall of this year" (Greenwire, May 22).
Consideration of whether there should be a nationwide maximum contaminant level for PFOA and PFOS will be part of the plan, as well as beginning to consider designating those two chemicals as hazardous substances, Grevatt said.
The agency is also working on draft toxicity values for GenX — a replacement chemical for PFOS and PFOA — and perfluorobutane sulfonic acid, known as PFBS.
"We're very close" to releasing a draft GenX toxicity value, Grevatt said. GenX has shown up in drinking water in North Carolina.
"We expect in the coming weeks to have that available in draft for public review and comment," he said, though he didn't provide a specific date. A draft toxicity value for PFBS should also be out "in the coming weeks," he added.
And groundwater cleanup recommendations for sites contaminated with PFOA and PFOS are currently going through interagency review, Grevatt said.
Emily Donovan, a North Carolina resident and co-founder of Clean Cape Fear, grew emotional during her testimony as she called for a national human exposure study on all PFAS, not just the most widely known ones. The water where she lives has been contaminated with GenX and other PFAS.
"We need to get these nasty toxins out of our drinking water," she said.
In a statement, the American Chemistry Council said it supports efforts to stop products that contain PFOS and PFOA from being imported and that "sound science" should be used when setting standards for PFAS.
"Our industry supports a process based on the best available science to determine, as appropriate, maximum contaminant levels and contaminated site clean-up levels for PFOS and PFOA," the statement said.
'DOD must step up' — Tonko
Subcommittee ranking member Paul Tonko (D-N.Y.) called for those who have caused PFAS contamination to be held responsible for its cleanup. PFAS has often been traced to Department of Defense installations in communities, he said. It has also been used at airports and industrial sites.
"DOD must step up and make it right," Tonko said. "Ultimately, we must hold polluters accountable to clean up and make the communities and families that have suffered from this pollution whole again."
Maureen Sullivan, deputy assistant secretary of Defense for environment, touted the Pentagon's research and testing efforts and the steps the agency is taking to address PFAS contamination. She also downplayed DOD's role as a PFAS polluter.
"These substances are ubiquitous in many industrial and consumer products because they increase a product's resistance to heat, stains, water, and grease. As such, they are not uniquely attributable to Department of Defense activities," Sullivan said in her written statement.
DOD is also looking for an alternative firefighting foam that meets its standards and doesn't contain fluorine, she told lawmakers.Other bills, TSCA, secret science
Rep. Fred Upton (R-Mich.) said he hopes to introduce a new bill on PFAS as soon as next week.
Other bipartisan bills were introduced last month. A measure by Sen. Debbie Stabenow (D-Mich.) would mandate a nationwide survey of PFAS contamination by the U.S. Geological Survey. Another Stabenow bill calls for federal agencies to work with states on PFAS cleanup efforts (Greenwire, Aug. 24).
Pallone also asked for a hearing on implementation of Toxic Substances Control Act reforms, a proposal that subcommittee Chairman John Shimkus (R-Ill.) said is "going to be doable."
"I think both sides are kind of frustrated with the process, and my frustration is a surprise in some of the areas," Shimkus said. "I think we'll do our best to try to find some time to do that. As one of our signature accomplishments, we'd hate to see it bogged down in implementation," he said, referring to TSCA.
Democratic members of the Energy and Commerce Committee last week repeated their request for a hearing on the legislation signed in 2016 (E&E Daily, Sept. 4).
In another aside, Rep. Jerry McNerney (D-Calif.) asked Grevatt several questions about the controversial "secret science" proposal released by EPA earlier this year.
When asked whether he agreed with the provision that would prohibit the use of studies that include private medical information, Grevatt said: "This issue is under careful consideration by the agency. We're thinking through the public comments that we've received on the transparency rule, and that process continues."
The first Senate hearing on PFAS is scheduled for Sept. 26 (E&E Daily, Aug. 24).
https://www.eenews.net/eedaily/2018/09/07/stories/1060096173
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(ACC Mentioned) Congress Wants EPA to More Quickly Regulate Unsafe Chemicals
Sep 6, 2018 | AP (In The Washington Post)
By Ellen Knickmeyer
Republican and Democratic lawmakers pressed the Environmental Protection Agency on Thursday to act faster to bring more of the country’s most hazardous industrial chemicals and substances under tighter regulation, saying agency action on the health risks was “bogged down.”
The hearing by a House environment subcommittee focused on one of the biggest rapidly emerging health threats to public water systems, a family of widely used industrial coatings now linked to some cancers and to development problems in children, among other health risks.
House members told an EPA official at the hearing about constituents, towns and states scrambling to deal with the discovery of dangerous amounts of the compounds, called perfluoroalkyl and polyfluoroalkyl substances, or PFAS.
A federal toxicology agency’s finding that some of the compounds were dangerous at much lower doses than previously thought led the Trump administration’s EPA to schedule public hearings. But the EPA has declined to say when it might make a decision on whether to declare some of the substances hazardous or otherwise regulate them.
“What is the timeline?” asked Republican Rep. Tom Upton of Michigan, who spoke of one community in his state ordered not to drink its contaminated water for nearly a month this summer.
Upton also held up a previously unreleased report on water tests showing groundwater from a military base at another Michigan city, Battle Creek, bore PFAS levels up to 757 times higher than the EPA’s current, advisory-only health maximum.
“How do we create that sense of urgency?” Rep. Debbie Dingell, a Michigan Democrat, asked Peter Grevatt, head of the EPA’s office of drinking water. “PFAS in Michigan is scaring people more than the Flint water crisis.”
Industries have used the compounds for decades to make nonstick and grease- and water-repellent items.
Testing and peer-reviewed studies of tens of thousands of people in the Ohio River Valley exposed to high levels of a PFAS once used in making Teflon found a probable link with kidney and testicular cancer, ulcerative colitis, thyroid disease, hypertension in pregnant women and high cholesterol.
Other recent studies point to immune problems in children, among other problems.
Two varieties of the compounds are no longer in active production in the United States, and the EPA says it will have a proposal ready by the end of the year on how the agency might deal with those.
Grevatt outlined some of the steps under consideration, such as formally declaring the two versions of the compounds as hazardous substances. But he said he did not consider the compounds “the No. 1 challenge we face.”
Tens of thousands of other versions of PFAS exist, some of them in wide use.
Jon Corley of the American Chemistry Council said in a statement Thursday that those versions have been “well studied and undergone rigorous regulatory review.” However, Andrew Gillespie, associate director of the EPA’s National Exposure Research Laboratory, told The Associated Press earlier this year that the agency had not yet carried out adequate reviews to be able to provide “any strong guidance” on risks of the PFAS that U.S. companies are using now.
Who in authority “can tell me if the 16 mystery PFAS I found in the tap water at my children’s public school are safe to drink?” North Carolina resident Emily Donovan asked lawmakers at the hearing Thursday. She lives near Cape Fear, where discharges from chemical plants are blamed for high levels of a PFAS known as GenX.
The EPA has said it expects to complete some toxicology work on GenX this month.
More broadly, the subcommittee’s Republican chairman, Rep. John Shimkus of Illinois, joined Democrats in faulting the EPA for its handling of 2016 legislation that lawmakers had intended to speed up the agency’s long-stalled action on countless other hazardous substances.
Environmental groups, Democratic lawmakers and others accuse Trump’s EPA, which includes a former executive of the American Chemistry Council trade group at the agency’s chemicals office and which has sought to curb regulation that it sees as burdensome to business, of undermining the 2016 act.
EPA action on it was “bogged down,” Shimkus said, saying he would try to arrange a subcommittee hearing on it.
“The whole intent was to get through a process where you don’t have things like this,” Shimkus said after the hearing, referring to the emerging PFAS crisis.
“We have a brand-new law that we want administered,” he said.
https://www.washingtonpost.com/politics/federal_government/congress-wants-epa-to-more-quickly-regulate-unsafe-chemicals/2018/09/06/389e8f60-b21a-11e8-8b53-50116768e499_story.html?utm_term=.9338cfcd5d98
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Glyphosate Cancer Warning Case Halted in California (2)
Sep 7, 2018 | BNA Daily Environment Report
By Emily C. Dooley
A federal judge agreed Sept. 6 to delay a decision on whether California can require warning labels on herbicides such as Roundup until an appeals court rules in separate First Amendment cases challenging two other labeling laws in the state.
Efforts by state and local governments to warn consumers of possible harmful effects of certain products, whether they are herbicides or sugary drinks or mobile phones, have brushed up against claims by producers that doing so infringes on their First Amendment rights of freedom of speech.
California under its Proposition 65 regulations wants to require labels warning consumers that certain herbicides with the ingredient glyphosate can cause cancer, but Monsanto Co., the manufacturer of Roundup, as well as the National Association of Wheat Growers and other organizations dispute those claims.
They argue that California’s listing of glyphosate as a carcinogen and the warning requirement violate the First Amendment by compelling them to make false, misleading, and highly controversial statements about their products.
District Court Judge William Shubb approved a request by California’s Attorney General Xavier Becerra to stall proceedings until two other cases are resolved.
In one case, the American Beverage Association is challenging San Francisco’s requirement that sugary beverages have labels warning of the potential for obesity, diabetes, and tooth decay. In the other, CTIA, the wireless trade association, is suing over Berkeley’s effort to require mobile phone retailers to warn that phone use could cause excessive radiation exposure. Both are in the U.S. Court of Appeals for the Ninth Circuit.
The National Association of Wheat Growers, which is the lead plaintiff, opposed the ruling.
“Agriculture is under siege with California’s Prop 65, which is endangering the livelihood of growers all over America and driving up costs for everyone,” association Chief Executive Officer Chandler Goule said in a statement to Bloomberg Environment Sept. 6. “The State of California is trying to delay the outcome of this case at the expense of American growers.”
A Becerra spokeswoman said in a statement the office is pleased with the decision and hopeful the Ninth Circuit rulings in the two other cases “will provide greater clarity and support for requiring a warning for glyphosate.”
‘Clarify the Law’In a hearing Sept. 4, Deputy Attorney General Heather Leslie said the two other cases needed to be resolved as they would affect health and safety actions.
“We should wait and let the Ninth Circuit clarify the law,” she said.
Latham & Watkins attorney Richard P. Bress, who represents the plaintiffs, said the delay in the case would cause farmers and others to be uncertain about what seeds to plant and other decisions. “The cost here is the cost of uncertainty,” he told the judge.
Whether glyphosate causes cancer is up for debate. The Environmental Protection Agency reviewed and approved it for use and the European Food Safety Authority said in 2015 that the herbicide wasn’t carcinogenic.
But that same year the World Health Organization’s International Agency for Research on Cancer said it was. And last month, a civil jury in California Superior Court in San Francisco awarded $289 million to a former school groundskeeper who routinely used Monsanto’s Ranger Pro and has terminal blood cancer, which he blamed on his exposure to the herbicide.
California seized on the World Health Organization’s report and in July 2017 added glyphosate to its Proposition 65 list, which requires warning labels on products if they pose a cancer risk.
The state was sued last November under claims that the warning labels would create a “misleading and controversial message,” according to court documents.
In February, Shubb issued a preliminary injunction barring the state from requiring the labels. In July, Becerra asked the court to delay the case until the other First Amendment cases are resolved.
Goule pointed out the injunction on labels still stands. “Every regulatory body in the world that has reviewed glyphosate has found it safe for use and we believe we will ultimately win this case when the judge issues a final opinion,” he said in a statement.
The case is N.A. of Wheat Growers v Zeise, E.D. Cal., No. 17-2401, 9/6/18.
(Adds comments from the state attorney general's office. )
https://news.bloombergenvironment.com/environment-and-energy/glyphosate-cancer-warning-case-halted-in-california-2
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EPA Seeks Six-Month Extension on Perchlorate Deadline
Sep 7, 2018 | Inside EPA
EPA is asking a federal judge to extend by six months its looming court-ordered deadline to propose first-time drinking water cleanup standards for the rocket fuel ingredient perchlorate, citing unanticipated delays in peer reviewing its underlying science, though environmentalists who won the deadline “have not consented” to the agency's request.
The agency filed a motion and supporting documents Aug. 30 seeking to “extend the deadline to publish a proposed [maximum contaminant level goal (MCLG)] and [national proposed drinking water rule (NPDWR)] by six months -- from October 31, 2018, to April 30, 2019.”
The agency's request seeks to extend a deadline the agency agreed to in a 2016 settlement with the Natural Resources Defense Council (NRDC), which had sued the agency over its missed statutory deadline.
But NRDC “has not consented to this extension,” EPA's Aug. 30 memo supporting its motion to modify the agreed-to deadlines states.
The agency Sept. 4 filed a motion requesting “expedited consideration” of its motion. Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York has yet to rule on EPA's motions.
NRDC had sued EPA in February 2016, arguing that the agency had missed a statutory deadline for proposing an MCLG, following former Administrator Lisa Jackson's 2011 determination that perchlorate should be regulated.
As approved by Ramos, the settlement requires EPA to propose an MCLG -- the health-based goal for a contaminant in drinking water -- as well as proposing an NPDWR -- a standard based on the MCLG as well as cost and technical feasibility.
EPA's request for an extension is not the first time the agency has been unable to meet the schedule. EPA had to explain to the court last fall that it missed an October 2017 deadline to complete the peer review process for an essential biologically based dose-response (BBDR) model.
“Due to the complexity of unanticipated revisions to the BBDR model that were recommended by the first peer review panel. . . . Although time-consuming, EPA concluded that following these recommendations would result in a more scientifically rigorous model," EPA told the court last October.
Once again, the agency is pointing to its efforts to peer review the model as the reason for its delay. In a declarationattached to EPA's motion, Eric Burneson, chief of the Standards and Risk Management Division within EPA's Office of Groundwater and Drinking Water, explains that the two-step peer review of the BBDR model took six months longer than EPA anticipated when it reached the settlement with NRDC.
Burneson explains that EPA anticipated a one-month response time to peer review comments because the model's components have previously been reviewed by various journals. But revisions suggested by the first peer review committees took five months to complete, and the second round of peer review resulted in an additional month's delay, Burneson writes.
BBDR model has resulted in a series of delays since EPA's Science Advisory Board in 2013 recommended for the first time that EPA use such an approach rather than a traditional algebraic model for informing a drinking water standard. EPA's efforts to update the model, and to respond to peer review of it, have led to considerable delays in proposing a drinking water standard, but SAB deemed the approach the best available science, as SDWA requires.
https://insideepa.com/daily-feed/epa-seeks-six-month-extension-perchlorate-deadline
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New Jersey Sets First Drinking Water Standard for PFNA
Sep 6, 2018 | Inside EPA
New Jersey has set the first-in-the-nation drinking water standard for the perfluorinated chemical perfluorononanoic acid, or PFNA, setting a stringent standard of 13 parts per trillion (ppt), according to the Philadelphia Inquirer.
The new rule amends New Jersey's Safe Drinking Water Act by setting the 13 ppt maximum contaminant level (MCL) for PFNAs, which will take effect in 2019, the report says.
The state's action adds to calls from federal lawmakers for EPA to develop a health advisory for the substance.
PFNA is one among the many per- and polyfluoroalkyl substances (PFAS), a group of chemicals that have been detected in a growing number of areas, given its widespread and myriad uses in non-stick, waterproofing, stain-resistant applications as well as in firefighting foams used at military and civilian airports.
PFNA was one of four PFAS chemicals included in a recently released draft assessment by the Agency for Toxic Substances Disease Registry (ATSDR) -- an assessment delayed by concerns within the Trump administrationover its risk estimates. As first reported by Inside EPA, those concerns stemmed from the fact that ATSDR's risk estimates for two of the chemicals -- perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) -- were stricter than estimates EPA had generated for the same chemicals.
Despite growing concerns, EPA is struggling to determine how to address the substances. A top agency water official recently questioned whether setting an MCL for PFOA would be effective given an EPA survey showing its limited presence in drinking water utilities.
States have urged EPA to quickly assess and act on the chemicals, with some states, such as New Jersey, taking their own actions.
But other states are concerned that such regulations “could divert resources from other drinking water issues and impose unwarranted costs on water systems,” according to a letter the Environmental Council of States (ECOS) sent to EPA's water chief David Ross last May.
The letter highlighted states' split over whether they should await EPA drinking water standards -- which could be many years in the making -- or plow forward with separate and at times varying state standards.
Some federal lawmakers have urged EPA to act. In a July 17 letter, Reps. Fred Upton (R-MI), Dan Kildee (D-MI) and other lawmakers from Michigan and Pennsylvania, called on acting EPA Administrator Andrew Wheeler to craft health advisory levels for PFNA and the other chemical ATSDR identified in its draft toxicological profile -- perfluorohexane sulfonic acid, or PFHxS -- “that are also potentially associated with health issues.” They add, “If warranted, the EPA should move to create health advisories for these additional chemicals.”
They also urged Wheeler to review the final version of ATSDR's toxicological profile and “as appropriate, act immediately to adjust the health advisory levels for PFOS and PFOA,” given the potential serious health effects from these substances.
New Jersey's first-in-the-nation action “aligns with Gov. [Phil] Murphy's [(D)] much more aggressive environmental policies compared with the [former Gov. Chris] Christie [(R)] administration, which declined to take up the issue,” the Inquirer says. “Environmental groups have long sought such regulation.”
PFNA was first detected in the Delaware River watershed in 2010, the story cites the Delaware Riverkeeper Network as saying, in a groundwater well in Paulsboro, NJ, near a Solvay plastics manufacturing plant.
https://insideepa.com/daily-feed/new-jersey-sets-first-drinking-water-standard-pfna
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Monsanto Blocked by Judge From Seeing Activist-Group Records (2)
Sep 7, 2018 | BNA Daily Environment Report
By Chris Dolmetsch
Monsanto Co. was blocked by a New York judge from reviewing some internal documents of an activist group that campaigned to ban the company’s blockbuster herbicide, Roundup.
Monsanto, which was acquired by Bayer AG for $63 billion in June, sought the documents in connection with a St. Louis lawsuit by two Illinois men who say they developed non-Hodgkin lymphoma as a result of exposure to Roundup. Avaaz, based in New York, said it has no connection to the case. The company said the group conducted its campaign against Roundup in conjunction with the plaintiffs’ lawyers.
At a hearing Sept. 6, State Supreme Court Justice Shlomo Hagler said the company’s request was “entirely overbroad,” would require production of an untold number of documents, and generate little useful information. The decision brought immediate applause from about a dozen Avaaz supporters in the courtroom dressed in white shirts imprinted with the group’s name.
“This subpoena would have the ultimate chilling effect” on Avaaz, Hagler said. “It would discourage those individuals to take part in a movement they believe is just and right.”
Avaaz has been involved in efforts to ban the chemical used in the herbicide, glyphosate, including in the European Union, which agreed in 2017 to keep it on the market for another five years. Bayer estimates it faces at least 8,700 lawsuits over Roundup, and the number could rise after a California jury awarded $289 million in August to a groundskeeper who said he contracted cancer from using Roundup.
Bayer said Sept. 5 it has set aside money to fund its legal defense.
“Turning Avaaz’s records over to Monsanto would be like turning the records of the Brady Campaign to Prevent Gun Violence over to Smith & Wesson,” Avaaz said in a court filing, adding that the company’s request would require production of millions of documents, including internal strategy memos and correspondence with experts and scientists.
Not Relevant
Avaaz said it has never communicated with the two Illinois men in the case and that its work against glyphosate is not relevant to Monsanto’s defense.
Monsanto, which denies that exposure to Roundup products can cause non-Hodgkin lymphoma and other serious illnesses, sought 10 different categories of documents, including communications with public relations firms, government agencies, and attorneys relating to or referring to Monsanto, glyphosate and herbicides containing the chemical.
“We sought information about plaintiffs’ coordinated lobbying effort with Avaaz on EU regulatory decisions because they cite these regulations as evidence in their case,” said Charla Lord, a Bayer spokeswoman. “Regardless of today’s ruling, we will continue to vigorously defend glyphosate, which has a more than 40-year history of safe use and is an essential tool for sustainable agriculture.”
Courts have turned aside similar attempts by Monsanto to obtain documents, according to Avaaz. In California, a judge quashed a subpoena sent to a scientist who helped draft a 2015 report that concluded that glyphosate is potentially carcinogenic to humans, the group said.
“It’s unbelievable, but we beat back Monsanto and won in court,” Avaaz’s Deputy Director Emma Ruby-Sachs said in a statement. “Not only are we safe from this legal attack, but the judge even told Monsanto that what they were doing was anti-democratic and an attempt to ’chill’ the voices of our members, and the voices of citizens engaged in lobbying everywhere.”
Regulated Chemical
Monsanto argued in court documents that claims that glyphosate causes cancer, as well as Avaaz’s campaign against the chemical, “stand in stark contrast” to decisions made by regulatory agencies around the world since Roundup was released in 1974.
Monsanto says that Avaaz is “not merely a bystander” to the St. Louis case. The group coordinated with the plaintiffs’ lawyers to bring the men to Brussels to speak about their experiences before the EU. Monsanto says it is not seeking documents that are unrelated to glyphosate and isn’t demanding personal information about Avaaz’s members or donors.
The case is Avaaz Found. v Monsanto Co., N.Y. Super. Ct., No. 151653/2018, 9/6/18.
https://news.bloombergenvironment.com/environment-and-energy/monsanto-blocked-by-judge-from-seeing-activist-group-records-2
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Sherwin-Williams, ConAgra to Pay $409 Million in Lead Paint Case (1)
Sep 6, 2018 | BNA Daily Environment Report
By Emily C. Dooley
Seven counties and three cities in California will get $409 million to inspect and remove lead paint from more than 1 million homes.
A California court ordered ConAgra Grocery Products Co. LLC, NL Industries Inc., and The Sherwin-Williams Co. to pay the money to support lead-abatement efforts in Alameda, Los Angeles, Monterey, San Francisico, San Mateo, Solano, and Ventura counties, as well as in Oakland, San Diego, and San Francisco.
It is the largest and only successful lead-paint public nuisance case argued thus far in the U.S. A similar case in Rhode Island was overturned on appeal, said Wes Stewart, vice president of technical assistance and legal services for Green & Healthy Homes Initiative.
“We’re hopeful the courts will uphold the judgment,” Stewart told Bloomberg Environment Sept. 6.
The award covers a small portion of need in the U.S., he said. It would cost an estimated $12.5 billion over five years to remediate the most at-risk American homes—1.1 million low-income residences built before 1978 with children younger than 6.
“This is a small part of what is needed for primary prevention,” Stewart said.
The Sept. 4 order by the California Superior Court splits the award into $142 million for inspections and $267 million for remediation.
ConAgra and Sherwin-Williams earlier this year filed separate requests with the U.S. Supreme Court to review the case. Santa Clara County filed a motion last month opposing the request, which is still pending.
Santa Clara County filed the public nuisance lawsuit in 2000, saying lead-based paint in homes was a public health crisis and manufacturers or distributors should be liable for promoting their use.
In 2014, the court ordered the three companies to pay $1.15 billion into a fund to cover costs of removing lead paint in homes built before 1981. The companies appealed.
Appeal Results
The state Court of Appeals in 2017 limited the fund to covering remediation at homes built before 1951 and ordered the Superior Court to recalculate the amount.
“We’re very pleased that California courts finally held [paint manufacturers] accountable,” Santa Clara Chief Assistant County Counsel Greta Hansen told Bloomberg Environment Sept. 6.
Sherwin-Williams, ConAgra, and NL Industries didn’t immediately respond to Bloomberg Environment for comment. Santa Clara County also didn’t immediately respond to a request for comment.
Plaintiffs sought $730 million for the fund and defendants argued for $409 million, said attorney Justin T. Berger, who represents Santa Clara and other counties with the Burlingame firm Cotchett, Pitre & McCarthy LLP.
“This remains an incredible victory for the people of California and will allow many thousands of our children to be protected from the perils of lead poisoning,” Berger told Bloomberg Environment Sept. 5.
Separately, NL Industries in May agreed to pay a $60.1 million settlement. At the time, the company said it wasn’t admitting guilt, but instead preferred to spend the money on public health programs, not litigation.That settlement is under review, Hansen said.
The case is California v. Atlantic Richfield Co., Cal. Super. Ct., No. 1-00-CV-788657, 9/4/18.
(Updates story to include comment from the Green & Healthy Homes Initiative and Santa Clara County and Supreme Court filings. )
https://news.bloombergenvironment.com/environment-and-energy/sherwin-williams-conagra-to-pay-409-million-in-lead-paint-case-1
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When Your Prescription Drug Is Tainted with a Chemical 'Used to Make Rocket Fuel'
Sep 7, 2018 | Los Angeles Times
By David Lazarus
Wayne Pearl, like millions of people with high blood pressure, takes the widely prescribed generic drug valsartan.
So it was with more than a little concern that he recently learned the Chinese supplier of the drug’s active ingredient for years had been hiding the fact that its product was contaminated with a carcinogenic material once found in rocket fuel.
If that was the whole story, it would be sufficient to spark worry among all Americans about the safety and reliability of the pharmaceutical supply chain. But it gets even worse.
Pearl, 65, a Westlake Village resident, discovered that when the generic valsartan that cost him $8 a month was imperiled, his choice was to switch to a name-brand alternative costing — wait for it — nearly $300 monthly.
That led Pearl to forgo treatment for several weeks until his doctor could find a generic med that contained a different active ingredient.
There’s so much to be miffed about here, I hardly know where to begin.
Oh, I forgot to mention: Pearl isn’t exactly a bystander when it comes to the pharmaceutical business. He spent about 25 years with the Thousand Oaks biotech firm Amgen, including stints as vice president of manufacturing and vice president of operations. He currently works as an industry consultant.
“It’s all about money,” he told me. “It’s all about manufacturing for the cheapest amount possible.”
I asked Pearl if he was surprised to have been exposed to a potentially tainted med.
“No,” he replied. “I’m not surprised at all.”
The Food and Drug Administration announced in July and August the voluntary recall of a number of prescription drugs containing valsartan.
“This recall is due to an impurity, N-nitrosodimethylamine (NDMA), which was found in the recalled products,” the agency said with a breathtaking blandness.
According to the federal government’s Agency for Toxic Substances and Disease Registry, NDMA “is a yellow liquid which has no distinct odor.” It was “used to make rocket fuel, but this use was stopped after unusually high levels of this compound were found in air, water and soil samples collected near a rocket fuel manufacturing plant.”
“NDMA is very harmful to the liver of animals and humans,” it says. “People who were intentionally poisoned on one or several occasions with unknown levels of NDMA in beverage or food died of severe liver damage accompanied by internal bleeding.”
It adds that “when rats, mice, hamsters and other animals ate food, drank water or breathed air containing lower levels of NDMA for periods more than several weeks, liver cancer and lung cancer as well as non-cancerous liver damage occurred.”
So, yeah, not something you want in your medicine.
In its recall notice, the FDA said the tainted NDMA came from Zhejiang Huahai Pharmaceuticals in Linhai, China. European regulators say the company may have known about the contamination as early as 2012 and continued selling the ingredient worldwide to generic drug manufacturers.
“We have carefully assessed the valsartan-containing medications sold in the United States, and we’ve found that the valsartan sold by these specific companies does not meet our safety standards,” Dr. Janet Woodcock, director of the FDA’s Center for Drug Evaluation and Research, said in a statement.
The thing is, staying on top of drug safety is an increasingly challenging issue as medication supply chains traverse the globe, with many ingredients originating in far-flung plants throughout the developing world.
The FDA estimates that 80% of the active ingredients in drugs found in U.S. pharmacies originate abroad, with the main producers of these ingredients in China and India.
Joel Hay, a professor of pharmaceutical economics at USC, said the FDA just doesn’t have the funding or manpower to adequately monitor drug factories worldwide.
In the case of valsartan, the FDA didn’t act until 22 other countries announced their own recalls.
“Certainly it is the FDA’s responsibility to monitor the safety of these production facilities and the produced drugs,” Hay said. “There isn’t much we can do except get Congress to pass bigger FDA budgets.”
Ivo Abraham, a professor of pharmacy practice at the University of Arizona, agreed that it’s relatively easy for contaminated drugs to slip past regulators.
“It’s just not possible to enforce high standards to the extent we would like them enforced,” he said.
To a certain degree, patients have no recourse but to trust and hope for the best. It’s not like you should stop taking prescribed medications.
Still, I advise doing the occasional search for news regarding either the brand name of any regularly taken drug or its active ingredient (which will be on the label). That’s the best way to stay on top of any announcements.
“Patients have to be advocates for their own health and know that they must contact their providers for answers,” said Luba Ketsler, a healthcare economist at the University of Texas at Dallas. “That’s a big problem — people not asking or not understanding even what to ask.”
Switching from a generic to a name-brand drug may be safer — the big drug companies have more resources for quality control — but, as Pearl found, there’s a cost attached. Why an $8 generic would equate to a $300 name-brand version, however, is a mystery.
Moreover, many insurers may not cover the name-brand drug, leaving you on the hook for the entire cost. Make sure you speak with your doctor and insurance company before any change.
Here’s a thought: How about a requirement that drug companies provide full transparency if not on labels then online? Let people know the sourcing of all active ingredients, including both the manufacturer and country of origin.
This may be too much information for many patients. But for some, including myself, it would be a very helpful way to be an informed consumer, which is exactly what the drug industry says they want us to be.
Pearl told me you’ll never be able to prevent problems like this valsartan thing from cropping up, not the way the global drug business operates. Such issues are inevitable, he said.
So the more sunlight the better.
http://www.latimes.com/business/lazarus/la-fi-lazarus-contaminated-prescription-drugs-20180907-story.html
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House Passes Bill to Speed Up Small-Scale Natural Gas Exports
Sep 6, 2018 | BNA Daily Environment Report
By Rebecca Kern
A bill to speed the export of small amounts of liquefied natural gas to the Caribbean and Central and South America passed the House on Sept. 6 by a vote of 260-146.
The measure would codify an existing regulation that the Energy Department finalized in July that would speed up the approval for companies seeking to export up to 0.14 billion cubic feet a day of LNG. The rule applies only to facilities that don’t require an environmental impact statement or environmental assessment under the National Environmental Policy Act, according to the final rule (RIN 1901-AB43).
The Ensuring Small Scale LNG Certainty and Access Act (H.R. 4606), sponsored by Rep. Bill Johnson (R-Ohio), passed. The bill has a companion in the Senate, S. 1981, sponsored by Sen. Bill Cassidy (R-La.), which still is awaiting a Senate floor vote.
“H.R. 4606 will better allow our domestic providers the opportunity to provide a stable source of U.S. energy to countries currently reliant on Venezuelan fuel oil which has been used to gain influence in countries in the Caribbean, Central, and South America,” Johnson said during House floor remarks Sept. 5.
Rep. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce Committee, said there wasn’t enough public participation in the approval process. He offered an amendment that sought to insert an opportunity for hearing and public input in the approval process. The amendment failed on the House floor, 176-227.
Rep. Diana DeGette (D-Colo.) also offered an amendment—which failed on the floor, 195-210—that would have required export applications to show that the natural gas was produced using techniques to minimize methane emissions from leaks or venting.
The bill is backed by the Center for Liquefied Natural Gas, which represents natural gas producers, shippers, and terminal operators.
https://news.bloombergenvironment.com/environment-and-energy/house-passes-bill-to-speed-up-small-scale-natural-gas-exports
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House Seeks to Grade EPA, Energy Agencies on Timeliness of Permits
Sep 6, 2018 | BNA Daily Environment Report
By Rebecca Kern
The EPA, Energy, and Interior departments and other agencies tasked with providing permits for energy infrastructure projects soon may be subject to a grading system to hold them more accountable for permitting delays.
The House Oversight Subcommittee on Interior, Energy, and Environment is asking the Government Accountability Office to grade the efficiency of federal agencies in charge of issuing permits for major energy infrastructure projects, including natural gas pipelines, liquefied natural gas terminals, and electrical lines. Some of these federal permits can take eight to 10 years to complete, House members said.
But GAO officials say that agencies’ inconsistent reporting, and infrastructure developers’ incomplete applications, complicate speeding up reviews.
Energy and Environment FocusSubcommittee Chair Rep. Greg Gianforte (R-Mont.) directed the GAO in an Aug. 21 letter to pattern an energy agency scorecard grading system on one GAO currently uses for agencies modernizing information technology.
“The idea is to adopt best practices that other agencies are already adopting,” Gianforte told Bloomberg Environment after a Sept. 6 joint subcommittee hearing on addressing federal permitting delays.
Gianforte wants these grades to be applied to the agencies within the subcommittee’s jurisdiction. Those agencies include the Environmental Protection Agency, Energy Department, Federal Energy Regulatory Commission, and the Interior and Agriculture Departments.
After the GAO gives the grades, the subcommittee would hold the agencies accountable for poor performance by requiring them to present improvement plans to Congress, he said.
Faster Service, Fewer Costs
“We want to make the government more efficient and more responsive to permit applicants, while protecting the environmental protections that we all agree we need,” he said.
The Aug. 21 letter also expresses concerns about “preventing project costs from escalating.”
However, a current challenge to GAO’s tracking of the efficiency of permitting is the lack of reporting from certain agencies. Some agencies don’t routinely provide information on when they receive applications and incomplete applications by companies can pause the reviews, Frank Rusco, director of GAO’s Natural Resources and Environment division, said during the hearing.
But Rusco pointed to one agency on top of its game in the permitting department: FERC, which issues permits for interstate natural gas pipelines and LNG terminals. He said this agency has largely been on track with its LNG permitting reviews.
Judiciary Approves Permitting Bill
Separately on Sept. 6, the House Judiciary Committee approved on a 13-11 vote a bill (H.R. 5468), which seeks to speed up the agency review times for infrastructure by setting timelines after which a federal permit can’t be litigated in court.
The bill’s sponsor, Rep. Tom Marino (R-Pa.), described the legislation as providing an incentive for agencies to conduct reviews within sensible time frames.
But Rep. Jerrold Nadler (D-N.Y.), the Judiciary Committee’s ranking Democrat, denounced the bill as “yet one more attempt by the Republican majority to favor powerful developers over those who wish to see proper environmental protections in place before major construction projects begin.”
Nadler predicted the bill is “destined to go nowhere.”
https://news.bloombergenvironment.com/environment-and-energy/house-seeks-to-grade-epa-energy-agencies-on-timeliness-of-permits
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Committee Approves Petroleum Reserve Leasing Bill
Sep 6, 2018 | E&E News PM
By Sam Mintz
A House subcommittee approved a bill today that would allow the Department of Energy to lease excess storage space in the Strategic Petroleum Reserve.
H.R. 6511, a bipartisan bill from Rep. Joe Barton (R-Texas), would allow DOE to create a program for the leasing of SPR facilities and storage capacity to both foreign governments and commercial entities.
The SPR will have about 300 million barrels of unused storage space by the end of fiscal 2027, because of congressionally mandated sales of crude oil.
DOE is finalizing a study on the ideal size and use of the SPR, but in the meantime backers of the bill say a leasing program would attract investment in improving the reserve's facilities and operations.
Rep. Fred Upton (R-Mich.), chairman of the Energy and Commerce Subcommittee on Energy, called the bill a "sensible, innovative solution" yesterday.
The panel approved the legislation by voice vote, advancing it for consideration by the full committee. Democrats are supportive, including subcommittee ranking member Rep. Bobby Rush (D-Ill.), who is a co-sponsor.
https://www.eenews.net/eenewspm/2018/09/06/stories/1060096105
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The E.P.A.’s Review of Mercury Rules Could Remake Its Methods for Valuing Human Life and Health
Sep 7, 2018 | New York Times
By Coral Davenport and Lisa Friedman
When writing environmental rules, one of the most important calculations involves weighing the financial costs against any gains in human life and health. The formulas are complex, but the bottom line is that reducing the emphasis on health makes it tougher to justify a rule.
Last week the Trump administration took a crucial step toward de-emphasizing the life and health benefits in this calculus when the Environmental Protection Agency said it would rethink a major regulation that restricts mercury emissions by coal-burning power plants.
The 2011 mercury rule — based on decades of research showing that mercury damages the brain, lungs and fetal health — is among the costliest but most effective clean-air policies put forth by the Environmental Protection Agency. Utilities estimate they have spent $18 billion installing clean-air technology, and mercury pollution has fallen by nearly 70 percent.
Modifying the rule could have an impact far beyond any immediate concerns about the release of toxic mercury into the air and water. In fact, the re-evaluation fits into a far-reaching administration strategy to loosen environmental rules affecting countless other industries for years to come by adjusting the factors used to judge the benefits to human health that the rule has brought.
“This goes way beyond just weakening the mercury rule,” said Alan Krupnick, an economist at Resources for the Future, a nonpartisan Washington research organization. “This is part of a change that would give the Trump administration a way to more easily justify loosening many other pollution regulations, such as rules on smog, and rules on climate-change pollution.”
For example, Mr. Krupnick and other experts said, tweaking the formulas could also make it easier for the E.P.A. to justify its separate proposal last month to replace the Clean Power Plan, an Obama-era rule that was designed to cut global-warming emissions from power plants.
The electric utilities that operate the nation’s coal-fired plants, and thus are heavily affected by the mercury rule, are urging the administration to leave the rule alone. They have already spent billions of dollars to become compliant, the utilities say, so changes are of little benefit to them.
“It’s in our rearview mirror, so we want to stick with what we’ve done,” said Shannon Brushe, a spokeswoman for Duke Energy, one of the nation’s largest utilities. “We want to be able to plan our investments for the future, but if they change the rules, that becomes difficult.”
The E.P.A. has said it is reviewing whether the rule is “appropriate and necessary.” That’s legal shorthand, based on a 2015 Supreme Court decision, for assessing whether the costs of compliance outweigh the benefits: The court found that the agency must assess industry’s compliance costs in determining whether a regulation is appropriate and necessary, but kept the rule in place. The. E.P.A. under the Trump administration asked a federal appeals court to delay the rule while it decides whether to continue to defend it in court.
Because of that, according to conservative groups that have welcomed the review, a loosening of the mercury rule would fit into a broader effort to fundamentally change the agency’s formulas for its cost-benefit reviews.
This past June, Scott Pruitt, who was the E.P.A.’s administrator at the time, called for a new way of calculating the costs and benefits of environmental regulations. “Many have complained that the previous administration inflated the benefits and underestimated the costs of its regulations through questionable cost-benefit analysis,” he said at the time. Under Andrew L. Wheeler, who became the E.P.A.’s acting administrator when Mr. Pruitt stepped down in July amid scandals, the agency is still considering an overhaul.
Nicolas Loris, an economist with the Heritage Foundation, a conservative think tank that has championed President Trump’s environmental deregulatory agenda, said that rewriting the mercury rule by placing different values on the health costs of mercury pollution could help end what he called the E.P.A.’s “egregious abuse” of the way it measures winners and losers. “This could be part of a broader approach,” he said.
Public health advocates say that the reformulation of the mercury rule, along with efforts to limit the type of scientific studies the E.P.A. will allow to inform its understanding of how pollution affects human health, will weaken the agency’s ability to write new pollution standards in the future. “All of this is leading up to a real sea change in the way this agency, which is supposed to be a public health and environment agency, thinks about the value of reducing air pollution from coal plants,” said Ann Weeks, senior counsel for the Clean Air Task Force, an environmental group.
The mercury rule, she said, “is where the rubber hits the road.”
John Konkus, a spokesman for the E.P.A., said that the agency “knows these issues are of importance to the regulated community and the public at large and is committed to a thoughtful and transparent regulatory process in addressing them.”
The calculations that the E.P.A. conducts for every major new air or water regulation lie at the philosophical heart of the agency’s work. And its process for that analysis has long been in industry’s cross hairs.
That’s because the agency has long counted not just the direct health benefits of pulling a certain pollutant out of the atmosphere, but also what are called the “co-benefits” that occur when, as a result, other toxins are also reduced.
For example, in the case of the mercury rule, the Obama administration found between $4 million to $6 million in health benefits directly from curbing mercury. But it further justified the regulation by citing an additional $80 billion in health benefits a year by, among other things, preventing as many as 11,000 premature deaths. Those savings come from a reduction in particulate matter linked to heart and lung disease that also occurs when cutting mercury emissions.
Mr. Konkus, the E.P.A. spokesman, said last week, “One of a number of issues E.P.A. is assessing in the context of the appropriate and necessary analysis is whether and how to account for co-benefits.”
A powerful array of business groups including the United States Chamber of Commerce, the National Association of Home Builders and leaders in the coal industry say the E.P.A. has for too long ignored or downplayed in its formulas the costs of regulations to their businesses.
One of the fiercest critics is Robert E. Murray, the C.E.O. of Murray Energy Corp., who has donated to Mr. Trump’s inauguration fund, and has served as a chief counselor to the president on his efforts to revive the nation’s flagging coal industry. Mr. Murray helped underwrite lawsuits that Republican attorneys general and industry groups brought against the mercury rule. He cited its repeal as one of his top priorities in letters last year to cabinet heads.
Mr. Murray is also a former lobbying client of Mr. Wheeler, the current acting administrator of the E.P.A. who joined the agency after spending nearly a decade as the coal executive’s top attorney.
Mr. Konkus said that Mr. Wheeler did not work on the mercury issue when he served a lobbyist for Mr. Murray, and said Mr. Wheeler did not lobby the agency at all in the two years before joining in April. Mr. Wheeler signed a statement in which he recused himself from working with former clients, including Murray Energy, until April 2020.
“For years E.P.A. has inconsistently analyzed the costs and benefits of its regulations, adding speculative and ill-defined benefits while ignoring important costs,” Mr. Murray’s company argued this year to the agency, asking for the E.P.A. to “avoid overstating the benefits of its regulations and understating their costs.”
For Phil Smith, a spokesman for the United Mine Workers, reworking the E.P.A.’s formula is far from academic. He blames the mercury rule’s high costs for the loss of about 2,000 jobs in the coal industry and criticized the cost-benefit metrics used by the E.P.A. for not giving enough weight to the real-world costs of miners losing jobs.
“People have lost their health care benefits, people have lost their dental benefits and there’s a cost to that too,” Mr. Smith said.
But in Evansville, Ind., where President Trump campaigned Thursday and relayed that he ran into nine coal miners “crying out of happiness” over his aid to the industry, there is also deep fear that E.P.A.’s changes will make health consequences worse. Evansville is within 30 miles of four particularly large plants that produce millions of tons of toxic air pollution annually.
“Everywhere you look it’s just coal-fired power plants,” said Mary Lyn Stoll, an environmental activist and philosophy professor at University of Southern Indiana. “They want to stop doing something the government was doing to protect people.”
Utilities, meanwhile, are expressing concern that they spent millions of dollars unnecessarily, hurting their bottom lines and costing customers higher electric bills.
“The lion’s share of the cost was one-time investments to technology to capture mercury pollution,” said Dallas Burtraw, an expert in the electric utility industry at Resources for the Future, a nonpartisan Washington research organization. “Now the money has been spent. Companies aren’t going to get it back.”
While Duke Energy initially opposed the mercury regulation before it was put into effect in 2011, the company has since complied with it at plants like the Cayuga station, a coal-fired power generator in west Indiana that lights up about one million homes. In 2013, Duke spent about $400 million and hired about 300 construction workers to install a 200-foot tall unit made of chemical-coated steel plates, which captures mercury and converts it into a different substance, which is then removed by chemical “scrubbers” already present in the plant.
American Electric Power, an Ohio-based electric utility that generates power in 11 states, spent $388.4 million to install similar technology at a plant in Cason, Tex. Mercury pollution at the plant has since gone down 90 percent, said Melissa McHenry, a spokeswoman for the company, in an email.
“Although we disagreed with provisions of the rule when it was being promulgated, our controls are in place and compliance is being achieved,” Ms. McHenry wrote. “We have worked with our state regulatory commissions to recover costs for the investments made for compliance. We believe a disruption in the mercury program at this point is not needed.”
https://www.nytimes.com/2018/09/07/climate/epa-mercury-life-cost-benefit.html?rref=collection%2Fsectioncollection%2Fscience
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Exxon Mobil Exporting the Gulf Coast’s Petrochemical Boom
Sep 7, 2018 | Houston Chronicle
By Jordan Blum
Exxon Mobil is riding the petrochemical boom along the Texas Gulf Coast with massive, multibillion-dollar chemicals and plastics expansions in the Houston, Beaumont and Corpus Christi regions.
All this growth is driven by the shale boom and the surplus of cheap natural gas liquids that serve as petrochemical feedstock, giving U.S. chemical makers a cost advantage over their international rivals.
So what’s next up for Exxon Mobil? China.
Exxon Mobil said last week it’s planning to build a multibillion-dollar chemicals and plastics complex in the south of China in Guangdong province.
While building in the United States still has advantages, most of the world’s petrochemical demand growth is expected to come from Asia, especially in China, where emerging middle classes are demanding more consumer products, invevitably made from or packaged in plastic. So why not build there and cut out most of the transportation costs?
The project, which also would include a liquefied natural gas import terminal, is slated for completion in 2023. That means that Texas shale gas could still be used to manufacture the plastics, albeit in China.
A second wave petrochemical boom is taking root along the U.S. Gulf Coast, but other major expansions are ongoing in the Middle East and Asia, according to a new report from the analytics firm GlobalData. China and the U.S. are almost even with about $52 billion each in planned petrochemical investments from 2017 to 2026, GlobalData estimates. Chinese companies such as China Petrochemical, Zhejiang Petrochemical and Wanhua Chemical are leading much of that growth.
Exxon Mobil is now joining the fray in China. While Exxon already has a massive Asian petrochemical presence in Singapore, the company only has a small foothold — for now — in China with investments in some projects and a recently completed expansion of Exxon’s research center in Shanghai.
Timing is everything
Mired in protests and lawsuits, Houston pipeline giant Kinder Morgan sold its Canadian Trans Mountain oil pipeline expansion just in time.
In the end of May, the Canadian government agreed to purchase the pipeline from Kinder Morgan for nearly $3.5 billion after Kinder Morgan threatened to scrap the project over the incessant bickering of federal and provinicial official. But just days prior to the sale being finalized last week, a Canadian federal appeals court ordered the project to stop and for the Canadian government to redo its initial environmental review.
Needless to say, the legal wrangling will continue, but Kinder Morgan can walk away with billions of dollar and focus on its as pipeline projects in Texas. The company is now weighing whether to sell its other Canadian assets.
Canada, meanwhile, is investing in Texas pipelines as well. The Canadian pension fund, called OMERS, recently agreed to pay $1.4 billion to buy a 50 percent stake in the BridgeTex oil pipeline that runs hundreds of miles from West Texas’ Permian Basin to Houston. Houston’s Plains All American Pipeline and Oklahoma’s Magellan Midstream will combine to own the remaining 50 percent.
That’s a lot of pipeline activity, eh?
https://www.houstonchronicle.com/business/article/Exxon-Mobil-exporting-the-Gulf-Coast-s-13211035.php
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(ACC Mentioned) Economists Paint Rosy Forecast for Trucking
Sep 6, 2018 | Transport Topics
By Daniel P. Bearth
Economists for trade associations representing manufacturing, construction and retail industries said during an industry conference here that they expect positive growth to continue for the remainder of 2018, with little chance of a downturn over the next year or so despite the threat of increasing trade tensions, rising interest rates and higher costs.
For trucking, that means a continuation of strong demand for freight hauling and a business environment marked by tight capacity and favorable rates.
Bob Costello, chief economist for American Trucking Associations and host for the ATA Economic Summit, held Sept. 5-6, provided his own, more modest, forecast for a slowdown in growth as benefits from federal tax cuts wear off while consumer and business spending levels off.
“This could be the peak,” Costello said in reference to estimates for growth in the U.S. Gross Domestic Product of more than 3% in the second quarter of 2018. “Next year could be closer to 2%.”
Still, Costello said he sees nothing that could derail the current economic expansion, which is already the longest in modern times.
Other speakers also made the case for continued economic growth.
“Our members are really happy,” said Chad Moutray, chief economist for the National Association of Manufacturers, who noted that 95.1% of member firms surveyed in the second quarter of 2018 were optimistic about their business. That positive outlook is driven by increased demand for manufactured products, reduced taxes and regulatory changes.
A surge in U.S. energy production is another factor driving growth in manufacturing, Moutray said.
Production of low-cost natural gas from fracking activities is driving growth in production of petrochemicals and is expected to generate demand for 1.8 million additional chemical shipments over the next two years, said Emily Sanchez, director of economics and data analytics for the American Chemistry Council.
“Companies are using the U.S. as platform to export to the rest of the world,” Sanchez noted.
Timothy Gill, chief economist for the American Iron and Steel Institute, said he expects U.S. steel production to increase 4% this year, helped by the imposition of tariffs on foreign-made steel.
Increased spending on highways and bridges could boost further demand for steel, but Gill noted that it’s still unclear how much money will be available from public and private sources to fund infrastructure projects.
Automotive production has remained strong, said Patrick Manzi, senior economist for the National Automobile Dealers Association, which forecasts sales of 17 million new vehicles in 2018, down slightly from the peak of 17.5 million units in 2016. He expects sales to dip to 16.7 million in 2019 and 16.6 million in 2020 as higher prices and interest rates lift vehicle prices. Tariffs on imported cars also could negatively impact sales and employment in the automotive sector, he said.
Construction has been an economic bright spot in the past year, and contractors are struggling to hire enough skilled workers to keep up with demand for commercial and residential projects, said Ken Simonson, chief economist for the Associated General Contractors of America.
Overall, Simonson said he expects a 3% increase in nonresidential construction spending in 2018, led by transportation and lodging projects.
“It’s been a roller coaster,” Simonson said of the construction sector since the recession in 2008-09.
Regarding residential building, Robert Dietz, senior vice president and chief economist for the National Association of Home Builders, said he expects demand to increase for single-family homes as more people leave rental units. The trend faces headwinds, however, as increases in home prices and interest rates make home purchases less affordable.
Retail represents freight haulers’ largest sector and there are signs that growth is accelerating here as well, according to representatives from the U.S. Chamber of Commerce, National Retail Federation and Consumer Technology Association.
“Since 2016, retail has grown faster than the rate of GDP,” said Katherine Cullen, director of industry and consumer insights for NRF, adding that retail sales in 2018 will increase at least 4.5%.
Shawn DuBravac, chief economist for the Consumer Technology Association, said e-commerce’s share of retail sales is continuing to climb. He estimated 15.8% of retail purchases will be made online in 2018 and will reach 21% in 2022.
The shift has consequences for trucking. “When you reach the 20% threshold, companies begin to structure their operations around it,” DuBravac noted. “We’ve seen it in electronics already.”
For trucking, Costello said he expects tight capacity to persist despite record orders for new equipment. And while tractor purchases are overwhelmingly for replacement, not expansion, Costello noted that recent data show some increase in company-owned equipment offset by a decline in the number of owner-operator tractors in service.
Part of the explanation for these divergent trends, Costello said, is that some owner-operators are crossing over to become company drivers, attracted perhaps by higher pay and new equipment.
ATA also released its long-term freight forecast, projecting a 35.6% increase in tonnage from 16 billion tons in 2018 to 21.7 billion tons in 2029.
Revenue associated with truck transport is projected at $759 billion in 2018 and reaching $1.02 trillion by 2024, an increase of 4.9% per year on average.
Total truck tonnage hit 10.77 billion tons in 2017, the highest level on record and was up 26.4% from the low in 2009.
Over the next decade, freight tonnage is projected to grow 41.1% to 21.7 billion tons and freight transportation revenue is forecast to grow 91.4% to $1.69 trillion.
https://www.ttnews.com/articles/economists-paint-rosy-forecast-trucking
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Kavanaugh Dishes on Chevron, Environmental Law
Sep 7, 2018 | E&E Daily
By Ellen M. Gilmer
Environmental law is not the main event at Brett Kavanaugh's Supreme Court confirmation hearing this week. Far from it.
Members of the Senate Judiciary Committee have instead spent long days quarreling about disclosure of Kavanaugh's full paper trail and grilling the nominee on whether he would shield President Trump from future investigations or prosecution.
Sen. Richard Blumenthal (D-Conn.) told Kavanaugh that "there will always be an asterisk by your name." Sen. Lindsey Graham (R-S.C.) responded that Democrats are just in denial about the results of the 2016 election: "If you want to pick judges, you've got to win."
Still, senators found time to question Kavanaugh on the heap of judicial opinions he's issued during the past 12 years while sitting on the U.S. Court of Appeals for the District of Columbia Circuit.
The judge has a robust record on environmental and administrative law issues and is expected to tilt the Supreme Court further to the right if confirmed.
Committee members went back and forth with Kavanaugh for hours yesterday and Wednesday, shifting between hot topics such as cameras in the courtroom to wonky ones, such as the propriety of nationwide injunctions.
Here's what we learned on some key issues during the week.
Agency deference
Kavanaugh's views on deference to agencies came up repeatedly during this week's confirmation hearing. He has broad experience in the administrative law issue from his time on the D.C. Circuit.
Several Republican senators wanted Kavanaugh's thoughts on Chevron deference, a standard named for a 1984 Supreme Court case that directs judges to defer to an agency's reasonable interpretation of ambiguous law. Conservatives have long criticized the doctrine for, in their view, giving too much power to the executive branch.
Kavanaugh noted his own frustration with Chevron this week, arguing that agencies sometimes abuse the system by imagining new authority from an old law and then claiming they're entitled to deference. He said it's difficult for judges to fairly and consistently assess when statutes are truly ambiguous.
He stopped short of calling for an outright end to Chevron, however, noting that it's useful for assessing regulations when Congress has given agencies flexible directions for enforcement. But environmentalists are still concerned he'll work to sink the standard, which Justice Neil Gorsuch has also panned.
"By overturning the Chevron doctrine, Judge Kavanaugh would vastly expand the courts' power to overturn federal agencies' efforts to protect the public from polluters and big corporations," the Sierra Club said this week.
Sen. Amy Klobuchar (D-Minn.) said she was concerned judges would substitute their own judgment for that of experts in environmental and worker safety standards if Chevron were set aside.
Kavanaugh responded last night by pointing out a number of cases deferring to agencies on technical issues, including one in which he upheld emissions limits set under the National Ambient Air Quality Standards.
"I understand what you're saying about people affected by the rules, and in each of the cases I've written, I've tried to make that clear," he said. "Ultimately my approach to statutory interpretation is rooted in respect for Congress."
The Chevron standard, which originated in Clean Air Act litigation, remains critical to environmental law today. Under both Republican and Democratic administrations, EPA and other agencies routinely ask courts to uphold various regulations by deferring to their judgment.
Senators also asked Kavanaugh to discuss an exception to Chevron and related deference standards. Under the "major questions" doctrine, courts have held that Congress must have spoken clearly on an issue for an agency to take an action that has major economic or social impacts.
Kavanaugh explained his approach in an exchange with Sen. Mike Crapo (R-Idaho) yesterday.
"You look at the number of people affected," he said, "the amount of money involved, the kind of attention it's received in Congress, the kind of attention it's received in the public, and you make a judgment based on that whether this is the kind of rule as Justice [Stephen] Breyer first explained that's really filling a smaller interstices of a statute or is a big social or economic decision."
The doctrine arose in litigation of the Clean Power Plan two years ago and is often cited by challengers to various environmental regulations (Energywire, Sept. 6).
Clean Air Act
Kavanaugh rattled off a list of Clean Air Act cases to defend his environmental record earlier in the week.
In a friendly exchange with Sen. Orrin Hatch (R-Utah), Kavanaugh highlighted his decisions affirming EPA standards for particulate matter, a regulation for steam generating units and California emissions limits, among others.
He repeated many of the examples during questions from Sen. Mazie Hirono (D-Hawaii), who was more skeptical of his pattern.
In each of the cases, Kavanaugh sided with environmental groups or upheld an environmental protection. Critics note, however, that several of the decisions were narrow or straightforward. In at least one case, the court actually ruled against environmental lawyers on three of their four claims.
The upshot is that environmentalists remain highly skeptical of Kavanaugh's record. They sent out a cascade of press statements denouncing the judge's case history this week, noting that he has ruled against them on several key issues and has often questioned EPA's authority to issue various regulations (E&E Daily, Sept. 6).
Many environmental lawyers already view the Supreme Court as an unfriendly venue and that Kavanaugh's appointment to the bench would take it further to the right.
Endangered species
Kavanaugh turned to two Endangered Species Act cases to tout his views on property rights.
Both cases dealt with critical habitat designations for protected species: the San Diego fairy shrimp in California and northern spotted owl. The Fish and Wildlife Service proposed to designate broad swaths of land as critical habitat for both species.
In the shrimp case, he rolled back the FWS designation; in the owl case, he affirmed that a council of lumber companies had standing to challenge the agency's decision. Center for Biological Diversity attorney Bill Snape called the shrimp decision an example of Kavanaugh ignoring agency expertise to reach a desired outcome.
"Bottom line: he thinks he knows better than agency experts," he said in an email. "His alleged devotion to statutory text is only when he agrees with the statute."
The Supreme Court will hear a critical habitat case on its first day back in session on Oct. 1. Snape said Kavanaugh's portfolio of wildlife cases suggests "one would be a fool to think that Kavanaugh wouldn't seek to weaken ESA critical habitat on October 1."
Kavanaugh pointed to his critical habitat cases as examples of his respect for property owners.
"I was just applying the statute as I saw it, but I was trying to do it in a way that understood the concerns of landowners," he said Wednesday.
In a separate exchange with Crapo, the Idaho Republican, Kavanaugh committed to working to understand issues specific to public lands in the West.
"It's not my job, of course, as a judge to make the policy decisions for those land or environmental regulations," Kavanaugh said, "but it is my job to police the boundaries of what you have set forth in the statutes and to make sure that the executive is not unilaterally rewriting the law or going beyond what's been authorized by Congress."
'A fighting chance'
Meanwhile, Democrats on the Senate Environment and Public Works Committee braved 93 degree temperatures outside the Capitol to denounce Kavanaugh's environmental record.
"Among his nearly 300 opinions, there may be no area of law where he poses, I think, a greater threat than his views on the environment," said EPW Committee ranking member Tom Carper (D-Del.).
While acknowledging that defeating the nomination may be an uphill fight, Carper noted that the environmental positions advocated by Trump's first pick to lead EPA's chemical office, Michael Dourson, and Kathleen Hartnett White, who was tapped last year to run the White House Council on Environmental Quality, eventually forced both nominees to withdraw after it became clear that there wasn't sufficient support among Senate Republicans to confirm either.
"Michael Dourson and Kathleen Hartnett White were rejected because they embraced a handful of environmental positions that were deal-breakers for Republican senators," Carper said.
"Sadly, Judge Kavanaugh's environmental record is a compilation of the very worst of those same extreme positions," he continued. "I believe that when the American people and the senators with whom we serve fully understand what's at stake, then we have a fighting chance to stop this nomination."
Sen. Susan Collins (R-Maine), considered a potential swing vote on Kavanaugh, told reporters yesterday that she would spend the weekend reviewing the confirmation hearing before deciding whether to support him.
Reporters Geof Koss and George Cahlink contributed.
https://www.eenews.net/eedaily/2018/09/07/stories/1060096189
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EPA Floated, but Dropped, Plan to 'Decline' CO2 Rules in ACE Proposal
Sep 6, 2018 | Inside EPA
By Dawn Reeves
The Trump EPA in its draft proposal to replace the Obama-era Clean Power Plan (CPP) to cut utility sector greenhouse gases wanted to solicit comment on not regulating the sector's carbon dioxide emissions at all, according to newly released documents, though Trump officials ultimately dropped that possibility in the final proposal.
Although the agency dropped the idea, it nevertheless raises the prospect that administration officials may still be seeking to avoid CO2 rules under the Clean Air Act -- even though this may open the door to facilities facing common law claims for their emissions that would otherwise be preempted by EPA rules.
An Aug. 16 document -- which outlines EPA's response to a red-lined version of its then-draft proposed “Affordable Clean Energy” (ACE) rule -- includes a paragraph in which EPA floated an option where it would not regulate power plants' CO2 emissions under the rule.
Specifically, the since-deleted rule text reads: “In consideration of these ongoing and projected power sector trends and a resulting decline in power sector CO2 emissions, EPA is soliciting comment on whether it would be appropriate -- as an alternative to replacing the CPP (once repealed) -- to decline to regulate CO2 emissions at this time.”
The scrapped text added that EPA analyzed Energy Information Administration (EIA) projections “since the release of original proposed CPP and found that in a number of cases changes in power sector result in CO2 emission reductions at a faster rate than projected even a few years ago when the CPP was promulgated. Given the uncertainties associated with long-term emission projections, EPA also notes that in some cases CO2 emissions increase over time, and solicits comments on the applicability of those alternative results.”
The paragraph was ultimately deleted during White House Office of Management & Budget (OMB) interagency review, though it is not clear who directed the change.
Just five days later, EPA's Aug. 21 ACE proposal said only that it is “soliciting comment on whether and how to consider such trends in developing CO2 emission guidelines for the power sector.”
The Aug. 16 version also includes comments from EPA noting that “the preamble has been tweaked to solicit comment on whether and how to consider the overall trends in regulating CO2 for the power sector,” but the agency did not ask OMB to explicitly allow it to include language on not regulating CO2 from coal plants, which are the only type of plants covered by ACE. The CPP included natural gas-fired power plants as well.
EPA in its reply does address some of the EIA projections that include power sector GHG emissions possibly rising, while noting uncertainties associated with many of them. EPA adds, “The specifics of the EIA scenarios are not necessarily germane here in context of when we have a high level of certainty that these trends will continue.”
The decision to drop language considering not regulating CO2 is just one of the many changes made during interagency review of the plan. EPA added to the rulemaking docket Aug. 31 a host of versions of its draft proposal and regulatory impact analysis (RIA), including OMB and other agency comments.
Climate Risks
For example, a July 23 red-lined version of the RIA shows that EPA originally included language warning about the dire impacts of climate change -- provisions that were ultimately significantly watered down.
Citing the National Research Council, the draft RIA said, “Emissions of CO2 from the burning of fossil fuels have ushered in a new epoch where human activities will largely determine the evolution of Earth’s climate. Because CO2 in the atmosphere is long lived, it can effectively lock Earth and future generations into a range of impacts, some of which could become very severe. Therefore, emission reduction choices made today matter in determining impacts experienced not just over the next few decades, but in the coming centuries and millennia.”
Under the heading “Health and Welfare Impacts from Climate Change,” the draft RIA also noted that since EPA issued its GHG endangerment finding in 2009, the “climate has continued to change, with new records being set for a number of climate indicators such as global average surface temperatures, Arctic sea ice retreat, CO2 concentrations and sea level rise. Additionally, a number of major scientific assessments have been released that . . . strengthen the case that GHGs endanger public health and welfare both for current and future generations.”
The proposed Aug. 21 RIA substitutes that with a section called “Climate Change Impacts,” which says, “In 2009, EPA Administrator found that elevated concentrations of [GHGs] in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare. It is these adverse impacts that necessitate EPA regulation of GHGs from EGU sources. Since 2009, other science assessments suggest accelerating trends.”
The title of this section also drops the word “scientific” from the proposed version's “Legal, Scientific and Economic Basis for this rulemaking.” The proposed language now details the “Legal and Economic Basis for this rulemaking.”
The Environmental Defense Fund (EDF) first noted the administration's decision to drop the climate warnings from the documents, saying in a Sept. 5 release that the change appears intended to allow EPA to “scrap the [CPP] and replace it with a vastly weaker program that would substantially increase climate pollution.'”
EDF's Tomas Carbonell said in the statement that the language changes “raise serious questions about why EPA removed fundamental information about climate science from a proposed rule that deals specifically with climate pollution. This administration has a long history of attempting to censor the science underpinning our most important health and environmental protections, and this seems to be an egregious example of that. Climate change is a clear and present danger to all Americans and ignoring it is not an option.”
Another possibly significant change in the RIA, according to the newly released documents, regards a description of whether the ACE plan would repeal or replace the CPP.
The earlier version of the preamble originally said EPA was taking “four distinct actions” including, “This action is proposed as an alternative to the proposed repeal of the CPP.”
EPA last fall proposed a direct repeal of the Obama EPA rule and at the end of 2017 issued an advance notice of proposed rulemaking (ANPR) to seek comment on a possible replacement. EPA has not yet finalized the proposed repeal and considers the ACE proposal the next step after the ANPR.
In contrast to the draft, the publicly released preamble says EPA is proposing “three distinct actions,” including that it is “proposing to replace the [CPP] with revised emissions guidelines [ACE] that inform the development, submittal and implementation of state plans to reduce GHGs from” coal plants. It describes the proposal as “consistent with the interpretation described in the proposed repeal of the CPP,” but does not suggest the rulemaking would take the place of the repeal proposal, or that EPA will continue to advance the repeal.
If finalized, the repeal measure could face a legal challenge apart from litigation over the stringency of any replacement. Litigation over the original CPP remains on hold in the U.S. Court of Appeals for the District of Columbia Circuit.
Interagency Comments
Also posted to the docket are a number of summaries of interagency comments that strongly criticize EPA for replacing the CPP with a weaker, narrower version.
For example, a July 25 summary of interagency comments quoted an un-named agency charging that the ACE plan imposes inflexible regulatory requirements, shifting away from market-driven policies, such as those contained in the CPP, that have been shown to reduce compliance costs.
“For the last 40 years, EPA has increasingly used market forces to ease the regulatory compliance burden and ultimately reduced costs to consumers. This proposal moves in the opposite direction,” the comment says. “Requiring states to establish performance standards for [heat rate input] on a unit-by-unit basis based on a 'range of unit-specific factors' is the antithesis of allowing firms flexibility in deciding how to comply. Imposing individually tailored restraints outlined by a federal body fails to utilize half a century’s worth of industry and professional knowledge that has allowed for massive reductions in the price of electricity for American corporations and citizens.”
One environmentalist points to that comment as significant, as well as general back-and-forth about the negative social costs of the rule. EPA acknowledges these costs in its RIA, including that ACE would bring more adverse health effects including as many as 1,400 more premature deaths, and little to no GHG reductions.
The source also says the interagency comments are “confirmation . . . that EPA is not setting a national standard but leaving it up to the states to set standards based on a [best system of emissions reduction (BSER)] that is very limited, and chosen by the agency, but the agency has not set a standard based on its preferred BSER. The back and forth also clarifies that compliance dates are fluid and enforcement is standardless.”
The July 25 summary also includes a comment that it is “Not clear what standard EPA is proposing,” and that it is “Not clear how EPA proposes to enforce” the rule.
An Aug. 7 summary notes that the proposal seeks comment on a “range [of] topics that the agency previously requested comment on” for the CPP, the ANPR and again now, without including “any new technical analysis that reflects that EPA has reviewed and understands” the prior comments. If EPA finalizes this proposal it “should at some point summarize and acknowledge original comments that are relevant.”
An Aug. 15 document includes a comment that only imposing heat-rate standards will lead to unnecessarily high compliance costs as older coal plants are not retired when it is economically efficient to do so.
None of the summaries identify the agencies making the comments.
https://insideepa.com/daily-news/epa-floated-dropped-plan-decline-co2-rules-ace-proposal
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Health Risk Dispute over EPA's ACE Rule Focuses on Regulatory Baseline
Sep 6, 2018 | Inside EPA
By Lee Logan
As criticism mounts over the health risks posed by the Trump EPA's proposal to replace the Obama-era Clean Power Plan (CPP) governing power plants' greenhouse gas emissions, a key difference between the two sides hinges on the rule's baseline and whether to compare the effects of the new “Affordable Clean Energy” (ACE) rule to the CPP's.
Trump EPA officials are downplaying agency findings that the proposed ACE rule will cause significant health risks compared to the CPP, arguing it is unfair to compare the new plan to the prior rule because the CPP was never fully implemented after it was stayed by the Supreme Court.
However, opponents say that EPA must compare its new rule to the CPP that it would replace, because the Obama-era rule remains in the Code of Federal Regulations and was never vacated by a court.
While sparring between the agency and its critics on the cost-benefit analysis is a technical dispute, it is already playing out in public debate over the rule.
Shortly after EPA unveiled its ACE proposal last month, opponents of the rule began citing the agency's findings in its regulatory impact analysis (RIA) that the plan could cause up to 1,400 more premature deaths from air pollution each year by 2030, compared with the CPP, as well as a host of other negative health and economic impacts.
Such criticisms are already driving legal arguments. If ACE is finalized, EPA will “face enormous legal hurdles because it will have to explain why it is exercising its discretion to pick a legal interpretation that causes so much harm,” Ricky Revesz, dean emeritus of New York University's law school, told reporters on an Aug. 21 call.
Pressed on this point, acting Administrator Andrew Wheeler told an event in Kentucky that the proposal would not roll back bedrock air quality standards.
“The air quality is 73 percent cleaner than in the 1970s,” he said, according to a local media report. “The regulations that got us to that point are still in effect. They'll still be in effect tomorrow. They'll still be in effect next year. Those are the health-based air standards. Nothing has been done to impact those.”
Wheeler acknowledged that the ACE rule would not cut as many GHGs compared to the CPP, but said that the Supreme Court stay of the Obama-era rule meant it “never actually went into effect.”
Agency officials say the ACE rule is focused solely on GHGs, and that they can rely on robust air regulations, including the national ambient air quality standards (NAAQS) program, to limit harm from conventional air pollutants such as sulfur dioxide (SO2), nitrogen oxides (NOx) and particulate matter (PM).
“We’re not dealing with SO2. We’re not dealing with NOx. We’re not dealing with particulate matter,” EPA air chief William Wehrum told reporters when the ACE plan was released Aug. 21. “We have abundant legal authority to deal with those other pollutants directly, and we have very aggressive programs in place that directly target emissions of those pollutants. So our view is, if we want to regulate PM, we regulate PM straight up. If we want to regulate SO2, we regulate SO2 straight up.”
Similarly, Jason Hayes of the conservative Mackinac Center for Public Policy argues in a Sept. 4 op-ed in The Hillthat concern about the ACE rule's health risks “fails because it is based in counterfactual speculation about the benefits of a rule that was stayed by the Supreme Court and is not being enforced today.”
“To promote the notion that [the CPP] is saving lives today is to engage in fantasy,” he adds.
Litigation History
The U.S. Court of Appeals for the District of Columbia Circuit heard marathon oral arguments on the merits of the CPP in September 2016 but has never issued a ruling. It has paused the litigation for a year and a half as Trump officials complete their efforts to revise the regulation.
The CPP briefly took effect when it was finalized in October 2015, though the rule at that point focused only on states developing compliance plans. It would not have imposed GHG limits until 2022.
The high court halted implementation in February 2016 when it issued its stay on a 5-4 vote, an unprecedented move because the lower court had not yet finished its review of the measure. The stay remains in effect.
But the rule technically remains on the books, which CPP supporters argue means it cannot be ignored.
Even EPA's RIA for the proposal includes the CPP in its “baseline” -- implicitly acknowledging that the rule is part of the set of current policies from which to judge the ACE rule's effects.
The RIA also includes an “alternative” baseline that looked at “a world without the CPP,” arguing that there “may be interest” in this comparison and that including it is consistent with White House guidance on cost-benefit reviews.
Opponents have seized on the 1,400 premature deaths statistic in public messaging against the ACE proposal, arguing that in addition to cutting far fewer GHGs compared with the CPP, it would also harm public health.
The RIA actually includes a range of potential adverse health effects, with the findings varying depending on three “illustrative” compliance scenarios and risk estimates from several epidemiology studies.
The analysis finds that two of the three compliance scenarios would result in between 470-1,400 additional premature deaths in 2030 from increased PM pollution, based on a risk estimate from the so-called “Six Cities” study conducted by Harvard University.
A separate risk estimate based on the so-called “American Cancer Society cohort” results in a premature death increase of 280-550 in the same time period.
Premature deaths related to ozone pollution would increase by as few as eight per year or as many as 230, the analysis finds.
The health impacts are a component of EPA's broader findings that the ACE proposal's annual “net benefits” would be between $2.3 billion and $6.4 billion lower compared with implementing the CPP standards, when using a 3 percent discount rate.
Cumulatively, the agency finds that its plan would reduce “net benefits” by up to $76 billion through 2037.
'Will Kill People'
Regardless of the particular scenarios, the 1,400 premature deaths figure has gained traction among ACE critics and has been widely reported.
It also appears to be a potent talking point for environmentalists and others who say the Trump administration is shirking its duty to aggressively combat climate change.
For example, an Aug. 28-31 poll of 1,964 registered voters conducted by Politico and Morning Consult found that 45 percent of respondents were more likely to oppose the plan after being told the premature deaths figure, while only 22 percent were more likely to support the policy.
At an Aug. 21 press conference, Senate Democrats and environmentalists repeatedly cited the figure in an effort to boost public opposition to the proposal.
The rule will “knowingly [cause] as many as 1,400 premature deaths. Think about what that means,” Georges Benjamin, executive director of the American Public Health Association, said at the event. “We have a public health agency, the Environmental Protection Agency, which is purposefully promoting a plan which they know will kill people. That's medical malpractice. That's public health malpractice.”
Benjamin also cited a range of other increased health effects, such as asthma attacks, heart attacks and missed school days, contrasting those harms with Obama administration projections that its CPP rule would improve air pollution-related health across a range of metrics.
https://insideepa.com/weekly-focus/health-risk-dispute-over-epas-ace-rule-focuses-regulatory-baseline
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Panel OKs Bill to Limit Reviews of Environmental Permits
Sep 6, 2018 | E&E News PM
By Nick Sobczyk
House Republicans today advanced a measure to limit legal challenges to environmental permits in a markup that devolved into partisan bickering over health care and President Trump.
The House Judiciary Committee passed H.R. 5468, the "Permitting Litigation Efficiency Act," on a 13-11 vote.
Though Congress has failed to advance the kind of sweeping infrastructure legislation once promised by Trump, the bill would mirror a proposal laid out in the White House infrastructure plan released early this year.
The measure, from Rep. Tom Marino (R-Pa.), would shorten a permit's judicial review period for certain projects to 180 days.
Currently, it is six years for most National Environmental Policy Act decisions, meaning a fully funded project could theoretically be blocked long after approval.
The president proposed a similar limit on judicial review as part of the infrastructure plan the White House released in February.
The bill would also allow the courts to require a bond of up to $5 million from the party challenging the permit to account for the costs of delay.
Ahead of the vote, lawmakers rehashed old partisan fights about the reasons for long permitting times and the high costs for infrastructure and fell into arguments about Trump's tweets and the Affordable Care Act.
Democrats said lack of federal investment is to blame for decaying infrastructure, while Republicans argued projects are delayed by inefficient permitting and excessive litigation.
Marino said the bill is a "straightforward" and "fair" response to long reviews. He noted the measure would extend and strengthen reforms passed as part of the Fixing America's Surface Transportation Act of 2015.
Ranking member Jerrold Nadler (D-N.Y.) called the measure "another deregulatory bill destined to go nowhere" and decried the "draconian" provisions in the bill.
"This legislation is yet one more attempt by the majority to favor powerful developers over those who wish to see proper environmental protections in place before major construction projects begin," he said.
https://www.eenews.net/eenewspm/2018/09/06/stories/1060096107
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IG Recommends EPA Improve Citizen Science, Air Monitoring Management
Sep 6, 2018 | Inside EPA
By Stuart Parker
EPA's Inspector General (IG) in two new reports is calling on the agency to improve its management of scientific data by developing a comprehensive strategy for using “citizen science” data the public collects with personal monitors, and separately creating a quality control process to manage upgrades to air quality computer modeling.
In response to the studies released on Sept. 5, EPA says it agrees with the recommendations and will craft a “more formal” citizen science strategy, and improve its management of emissions models.
The first report describes an inconsistent EPA approach to using citizen science, which is gathering and analysis of data by private citizens or organizations. In the environmental policy realm, such data includes air and water quality sampling, and observation of wild animal and plant species, among other activities.
However, the agency lacks a plan for using the data and has also shown some reluctance to use it in decisionmaking, for example rejecting two equity petitions that relied in part on such data. Environmentalists at the time said the rejections signal the agency is refusing to accept the research.
A proliferation of new technology and citizen science projects has presented EPA with the opportunity to gather much new data, but problems with data quality still hamper the agency's use of such information. The agency's National Advisory Council for Environmental Policy and Technology (NACEPT) has called on EPA to improve its management of citizen science. In 2015, the Obama White House called on federal agencies to develop strategies to make use of citizen science. Yet EPA still lacks a comprehensive strategy, the IG says.
“Although citizen science is carried out throughout the EPA, the agency has not developed controls necessary to manage citizen science agencywide, including a clear vision and objectives for using results,” the IG says. “EPA staff identified barriers to effectively using citizen science results -- including lack of a comprehensive vision and support/resources from senior management, and lack of understanding and buy-in for citizen science -- that exist because EPA leadership has not developed a strategy for citizen science.”
The IG recommends that EPA: “establish a strategic vision and objectives for managing the use of citizen science” that identifies linkage to the agency’s strategic goals, roles and responsibilities for implementation, and resources to maintain and build upon existing agency expertise.
EPA should also “through appropriate EPA offices, direct completion of an assessment to identify the data management requirements for using citizen science data and an action plan for addressing those requirements, including those on sharing and using data, data format/standards, and data testing/validation,” the report says.
In addition, EPA should finalize its “Draft Quality Assurance Handbook for Citizen Science,” the IG says.
Acting agency Administrator Andrew Wheeler in his Aug. 10 response letter, included in the final IG report, writes that that the agency concurs with the recommendations.
He says EPA “will establish an agencywide work group to establish a more formal strategic vision and objectives for managing the use of citizen science,” which will be guided by the NACEPT recommendations. “We expect interim workgroup products by December 31, 2019, and final products by December 31, 2020,” Wheeler says.
Air Quality Modeling
In the second report, also released Sept. 5, the IG urges EPA to improve its management of upgrades and fixes to agency-sanctioned air quality modeling systems.
“Although the agency has prepared guidance on the recommended procedures for reviewing the development and evaluation of new air quality dispersion models, similar guidance is not available for model revisions. The development of standard operating procedures (SOPs) and quality assurance project plans (QAPPs) or equivalent documents for model revisions could assure consistent application of quality assurance and quality control activities,” the IG says.
The IG focuses on EPA's AERMOD modeling platform, which the agency uses for many regulatory purposes to project dispersion of air pollution from sources such as power plants. The model is hugely important, but also subject to frequent revisions that could be better managed, the IG says.
EPA again agrees to implement the IG's recommendations, which include: developing standard operating procedures for the review and approval process for revising preferred air quality dispersion models; developing a quality assurance project plan or equivalent documents describing the results of systematic planning before developing a new air quality dispersion model or undertaking any significant revisions in the future to existing preferred air quality dispersion models; and revising the Office of Air Quality Planning and Standards’ Quality Management Plan to state whether the agency is developing quality assurance project plans or equivalent documents to meet EPA Quality System requirements for developing or revising preferred air quality dispersion models.
The agency further agrees to the IG's recommendation to “train the Air Quality Modeling Group staff concerning the standard operating procedures of preferred air quality dispersion model review and approval and EPA Quality System requirements.”
https://insideepa.com/daily-news/ig-recommends-epa-improve-citizen-science-air-monitoring-management
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New Jersey, Virginia Move to Join Regional Carbon Trading in 2020
Sep 6, 2018 | BNA Daily Environment Report
By Gerald B. Silverman
New Jersey and Virginia are on track to join the Northeast’s carbon trading program in 2020, with final rules expected to be released later this year and adopted in 2019.
Both states are in discussions with the Regional Greenhouse Gas Initiative on the details of linking up with the nine-state cap-and-trade program, state environmental regulators said Sept. 6 at a conference.
Chris Bast, deputy director of the Virginia Department of Environmental Quality, said RGGI is like an interstate highway, and Virginia and New Jersey need to figure out how to merge onto it. He likened Virginia to an 18-wheeler because the state would be the second-largest state in the program, after New York, as measured by carbon emissions.
The addition of New Jersey and Virginia to RGGI would expand the total emissions covered by the program by about 60 percent. New Jersey’s electric power sector had carbon emissions of 18 million metric tons in 2015, and Virginia’s power sector generated 34 million tons of carbon emissions in 2016.
An estimated 33 power plants would be covered in Virginia, and 39 in New Jersey.
The conference was sponsored by the Nicholas Institute for Environmental Policy Solutions at Duke University, the Georgetown Climate Center at Georgetown Law in Washington, and Resources for the Future, a nonprofit research center in Washington.
https://news.bloombergenvironment.com/environment-and-energy/new-jersey-virginia-move-to-join-regional-carbon-trading-in-2020
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Arkema Wants Harvey Chemical Suit Paused For Criminal Trial
Sep 6, 2018 | Law360
By Michael Phillis
Arkema Inc. and its CEO asked a Texas federal court to temporarily halt a civil case brought by first responders and residents who claimed they were harmed by the release of chemicals during Hurricane Harvey, saying that it should not proceed at the same time as a similar criminal case.
Arkema CEO Richard Rowe and the company said Wednesday that an early August indictment by a Texas grand jury included nearly identical allegations as those contained in the civil case. If both of the cases are allowed to move forward simultaneously, however, it will make it difficult for them to put forward an adequate defense.
According to the motion for a stay, a trial in the criminal case was requested for early 2019 — a period of time that will come soon enough to prevent any harm against the first responders and individuals who alleged they suffered from the chemical release at the company's facility in Crosby, Texas.
"Not only do the prosecutor and plaintiffs allege the same wrongful conduct arising from the same events, the criminal and civil cases are striking similar because they involve the same alleged harm to the very same individuals: in this case, Christy Graves, Steve Schreiber and David Klozik," the motion said, adding that "a stay is warranted if the two proceedings involve similar issues and arise out of the same event."
The early August indictment of the company, Rowe and plant manager Leslie Comardelle accused them of being responsible for the release of a toxic cloud when flood waters from the August 2017 deluge knocked out the plant's power.
The Harris County district attorney's office said the release put residents and first responders at risk of injury. Chemicals at the plant were flammable and had to be kept frozen so they wouldn't burst into flames, according to prosecutors. When the plant lost power, the chemicals exploded, causing a fire in the plant and releasing a cloud of toxic chemicals, according to the indictment and civil suit.
According to the stay motion, forcing both proceedings to move forward could "undermine a defendant's rights, including the privilege against self-incrimination." The filing says more than 30 employees at the company were "identified as targets of possible prosecution" by the district attorney's office. Some were called in before a grand jury, where they invoked their Fifth Amendment right not to testify, according to the motion.
"Given the status of the criminal proceedings, if any of these individuals are deposed by plaintiffs in this civil case … such individuals will likely assert their Fifth Amendment privilege against self-incrimination, which will significantly prejudice Arkema and Mr. Rowe," the filing said.
The filing added that the plaintiffs won't be harmed by a stay and that the request will conserve judicial resources.
Rowe would be harmed if the request isn't granted, the motion said.
"Mr. Rowe is individually jeopardized because he faces parallel civil allegations and criminal prosecution and, absent a stay, will be forced to choose between two extremely prejudicial options: assert his Fifth Amendment privilege in this litigation and suffer possible adverse inferences to his own defense in this case, or testify in this litigation and waive his Fifth Amendment right," the filing said.
When the indictment was announced, Arkema said it was "outrageous" in light of findings from the U.S. Chemical Safety and Hazard Investigation Board that the company met all requirements for flood planning, saying there were no requirements that could have prevented the incident in the face of unexpected flooding.
Representatives for Arkema and the plaintiffs did not immediately return requests for comment late Thursday.
Arkema and Rowe are represented by Thomas Birsic and J. Nicholas Ranjan of K&L Gates LLP and Rusty Hardin and Derek Hollingsworth of Rusty Hardin & Associates LLP and Michael L. Brem of Schirrmeister Diaz-Arrastia Brem LLP.
The plaintiffs are represented by Kimberley M. Spurlock and Misty A. Hataway-Cone of Spurlock & Associates PC and Muhammad S. Aziz of Abraham Watkins Nichols Sorrels Agosto & Aziz.
The case is Christy Graves et al. v. Arkema Inc. et al., case number 4:17-cv-03068, in the U.S. District Court for the Southern District of Texas, Houston Division.
--Additional reporting by Mike Curley. Editing by Nicole Bleier.https://www.law360.com/articles/1080328/arkema-wants-harvey-chemical-suit-paused-for-criminal-trial
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