Preview Newsletter
AM ACC 10/3/2018
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(ACC Mentioned) U.S. Chemical Industry Reacts Positively to Revised Trade Pact with Canada, Mexico
Oct 2, 2018 | Chemical & Engineering News
By Glenn Hess
The new trade agreement among the U.S., Mexico, and Canada, unveiled by the White House on Oct. 1, is a step in the right direction, according to an initial assessment by the American Chemistry Council (ACC), the U.S. chemical industry’s largest trade association and lobbying group. -
(ACC Mentioned) Protection of Confidential Data Is Essential, Groups Tell U.S. EPA
Oct 2, 2018 | Chemical & Engineering News
By Cheryl Hogue
Controversy churns around a proposal that would restrict the scientific information the U.S. Environmental Protection Agency relies on for regulations. Industry generally endorses the plan, while health and environmental advocates are attacking it. -
Environmentalists Say EPA's TSCA Guide Backs CBI Claims
Oct 2, 2018 | Inside EPA
On the eve of court arguments, environmentalists challenging the Trump EPA's rule for updating a chemical inventory under the revised toxics law say a decades-old guidance backs their claims that the rule includes overly-broad protections for industry claims... -
A Bad Move That Exposes Kids to Chemicals
Oct 2, 2018 | New York Times
By Philip J. Landrigan and Lynn R. Goldman
Last week, the leadership of the Environmental Protection Agency took aim at its own Office of Children’s Health Protection by placing its director, Dr. Ruth Etzel, a distinguished pediatrician and epidemiologist, on “administrative leave.” -
EPA Will Publish SNUR for Carbon Nanomaterial (Generic)
Oct 3, 2018 | Lexology
By Lynn L. Bergeson and Carla N. Hutton
The U.S. Environmental Protection Agency (EPA) is scheduled to publish on October 3, 2018, a direct final rule promulgating significant new use rules (SNUR) for 26 chemical substances, including carbon nanomaterial (generic), that were the subject of premanufacture notices (PMN). -
(ACC Mentioned) More Data Published from BPA Study; Results ‘Support the Safety of BPA’
Oct 2, 2018 | Food Safety News
More research has been released by the United States National Toxicology Program (NTP) as part of a landmark study on the safety of bisphenol A (BPA). -
INSIGHT: PFAS Challenges Remain at EPA for Wheeler
Oct 3, 2018 | BNA Daily Environment Report
By Matthew Thurlow, Russell Abell and Stephen Zemba
The Environmental Protection Agency and Acting Administrator Andrew Wheeler remain under pressure to formulate new cleanup and drinking water standards for per- and polyfluoroalkyl substances (PFAS). -
3rd Circuit Backs Precedent for Private PFAS Monitoring Under CERCLA
Oct 2, 2018 | BNA Daily Environment Report
By Lara Beaven
Setting a precedent, the U.S. Court of Appeals for the 3rd Circuit has partially reversed a district court decision and found medical monitoring of per- and polyfluoroakyl substances (PFAS) conducted by a private party at a contaminated Navy site... -
Michigan Response to Fluorochemical Contamination Irks Democrats
Oct 2, 2018 | BNA Daily Environment Report
By Alex Ebert
Two Democratic Michigan lawmakers are accusing state regulators of ignoring a 2012 report about the dangers of fluorochemicals in drinking water and are demanding an audit into the regulators’ lack of response to the reported contamination. -
Regulators Prepare Crackdown on Air and Water Emissions of GenX
Oct 3, 2018 | Carolina Press
By Vaughn Hagerty
A year after GenX-tainted wells triggered the first punitive measure against Chemours regarding its fluorochemical plant near Fayetteville, groundwater contamination and the air emissions believed responsible for it remain a focus of state regulators. -
(ACC Mentioned) Natural Gas Interests Look to FERC as Nuclear Subsidies Gain More Ground
Oct 2, 2018 | Natural Gas Intelligence
By Jamison Cocklin
Now that four courts in Illinois and New York have upheld subsidies for nuclear power plants, representatives of the natural gas interests battling them are looking to FERC for a prescription to counter the state programs and their effects on wholesale electricity markets. -
New NAFTA Drops Canadian Oil Export Supply Guarantee
Oct 2, 2018 | BNA Daily Environment Report
By Alex Nussbaum
Gushing oil at record levels means the U.S. apparently no longer needs to preserve Canada as its emergency crude supplier. -
Troubled $4.6 Billion Shale Pipe Hits New Snag With Court Order
Oct 3, 2018 | BNA Daily Environment Report
By Rachel Adams-Heard
A $4.6 billion shale gas pipeline that’s already been delayed by about a year is facing yet another setback after a court vacated a key permit. -
4th Circuit Blocks Construction of Mountain Valley Pipeline
Oct 2, 2018 | Inside EPA
The U.S. Court of Appeals for the 4th Circuit has vacated the Army Corps of Engineers' approval of a streamlined Clean Water Act (CWA) permit for the Mountain Valley Pipeline (MVP) in West Virginia, a move that blocks construction of the project along its entire route. -
Colorado Drilling Applications Surge Before Ballot Box Fight
Oct 2, 2018 | BNA Daily Environment Report
By Catherine Traywick
Colorado drillers are working to lock in future production amid rising crude prices and before a November vote that could curb oil and gas development in the state. -
Trump’s EPA Gives Up in Legal Fight Over Obama-Era Chemical Rules
Oct 2, 2018 | BNA Daily Environment Report
By Sam Pearson
EPA rules to improve the safety of chemical facilities could take effect as soon as this month after agency attorneys decided not to pursue more legal action. -
`Elevated Cancer Risk’ at Sterigenics Illinois Facility: State Regulators
Oct 2, 2018 | BNA Daily Environment Report
By Nick Lichtenberg
The Illinois EPA began an enforcement action against Sterigenics based on findings by the Agency for Toxic Substances & Disease Registry regarding emissions of ethylene oxide. -
DHS on Russian Grid Hackers: 'They Are Doing Research'
Oct 3, 2018 | E&E Energywire
By Blake Sobczak
A Russia-linked hacking campaign that targeted parts of the U.S. grid last year likely represented an effort to "prep the battlefield" for a more disruptive attack, U.S. Homeland Security Secretary Kirstjen Nielsen said yesterday. -
CSX Can’t End Claims Over Derailment, Fire, Evacuation
Oct 2, 2018 | BNA Daily Environment Report
By Peter Hayes
CSX Transportation Inc. failed to shake the bulk of class action claims by Pennsylvania residents forced from their homes by the derailment and subsequent fire of a train carrying hazardous materials. -
Toxic Air Pollution Will Rise With EPA Policy Move, California Says (1)
Oct 2, 2018 | BNA Daily Environment Report
By Amena H. Saiyid
Hazardous air pollution in California could double under an EPA policy relaxing standards for large industrial facilities that keep toxic emissions below a specified level, the state told a federal appeals court. -
EPA Slated to Defend CSAPR 'Update' Rule at D.C. Circuit Oral Argument
Oct 2, 2018 | Inside EPA
By Stuart Parker
EPA at Oct. 3 oral argument in the U.S. Court of Appeals for the District of Columbia Circuit is slated to defend the Obama-era “update” to the Cross-State Air Pollution Rule (CSAPR) emissions trading program, fighting East Coast states' and environmentalists' claims... -
Children's Health Language Deleted from Climate Rule
Oct 2, 2018 | E&E News PM
By Maxine Joselow
The White House scrubbed language about how climate change affects children's health from a draft EPA proposal on heat-trapping chemicals, new documents show. -
U.S. Doubles down on Science 'Uncertainties,' Fossil Fuels
Oct 3, 2018 | E&E Climatewire
By Jeam Chemnick
Top researchers are huddled with government officials in South Korea this week to confront the scientific consensus that maintaining a safe global climate will require immediate and aggressive action.
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(ACC Mentioned) U.S. Chemical Industry Reacts Positively to Revised Trade Pact with Canada, Mexico
Oct 2, 2018 | Chemical & Engineering News
By Glenn Hess
The new trade agreement among the U.S., Mexico, and Canada, unveiled by the White House on Oct. 1, is a step in the right direction, according to an initial assessment by the American Chemistry Council (ACC), the U.S. chemical industry’s largest trade association and lobbying group.
The U.S.-Mexico-Canada Agreement (USMCA) is an overhaul of the 24-year-old North American Free Trade Agreement (NAFTA), which underpins $1.2 trillion in total trade between the three countries.
The trilateral accord is critically important to U.S. chemical manufacturers because Canada and Mexico are the industry’s two largest export markets. Approximately 46,000 chemical industry jobs in the U.S. now depend on trade between the North American neighbors.
Although ACC and its member companies are still reviewing the provisions of the updated trade pact, the industry group says the agreement “appears to include several enhancements long sought-after by the U.S. chemical sector,” including greater regulatory cooperation.
For example, in addition to maintaining duty free trade for chemical products, ACC says the agreement extends to Mexico the risk- and science-based approach to chemical regulation adopted in the U.S. Toxic Substances Control Act and the Canadian Chemicals Management Plan.
“The USMCA makes it possible for the U.S., Canada, and Mexico to work together to establish a more efficient and more effective regulatory environment—one that supports a risk-based approach to protecting human health and the environment while supporting innovation, economic growth, and jobs,” ACC tells C&EN.
Industry officials say this North American approach to chemical regulation could serve as a model for other countries and regions around the world that are developing or updating their own chemical regulations.
Top 10 Canada and Mexico led the primary importers of U.S. chemicals in 2017. Note: Excludes pharmaceuticals. Source: American Chemistry Council
The United Steelworkers, which represents 30,000 chemical workers, says it’s too soon to judge the new deal’s impact on working people.
“In the area of workers’ rights, the draft text we have seen includes significant improvements over the existing NAFTA,” union president Leo W. Gerard says in a statement. “That is encouraging, but it is not yet enough.”
The impact of the deal must be measured not only by what is in the agreement, Gerard says, but also by what the three nations do to ensure that the provisions are effectively applied, monitored and enforced.
The new continental trade pact could end 16 years after it takes effect if the three partners do not agree to extend the deal. The U.S., Mexico, and Canada will review the agreement every six years, and if new concerns arise, they will have to negotiate a fix or face the threat of the deal eventually lapsing.
In all three countries, the new trade pact must be ratified by lawmakers. U.S. President Donald J. Trump says he intends to sign the USMCA in late November. It will then be submitted to Congress for approval, a step that could be complicated by the outcome of the fall congressional elections.
https://cen.acs.org/policy/trade/US-chemical-industry-reacts-positively/96/i40
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(ACC Mentioned) Protection of Confidential Data Is Essential, Groups Tell U.S. EPA
Oct 2, 2018 | Chemical & Engineering News
By Cheryl Hogue
Controversy churns around a proposal that would restrict the scientific information the U.S. Environmental Protection Agency relies on for regulations. Industry generally endorses the plan, while health and environmental advocates are attacking it. Yet these opposing factions, along with scientific groups, state regulators, and the U.S. National Academies of Sciences, Engineering & Medicine, agree on one point: They want EPA to continue using at least some types of confidential information without requiring public disclosure of raw data.
EPA’s proposal, released in April, would require the agency to use only data and scientific models that “are publicly available in a manner sufficient for independent validation.” This, the agency says, will increase transparency and boost public confidence in EPA’s decisions. If finalized, the plan will impact the agency’s health-based decisions on air, water, and soil pollution, as well as its safety evaluations of commercial chemicals and pesticides.
The agency received nearly 500,000 written comments on the proposal, an EPA spokesperson tells C&EN. Posted online, a quick glance through the comments shows they are mostly one or two sentences from individuals, often in identical wording, expressing simple support or opposition to the plan and are the results of advocacy group campaigns, as noted in the official docket of comments. The agency also received scores of responses offering detailed criticism or recommendations for changing the proposal.
In their comment, the National Academies’ presidents encourage the agency to seek expert guidance to revamp the plan. National Academies’ reports have generally recommended that scientific data and models used for regulation should be publicly available. But, the presidents warn, “overly stringent requirements for transparency may cause valid evidence to be discarded and thereby pose a threat to the credibility of regulatory science.”
The National Academies’ presidents are far from alone in their concerns. Strict requirements for publicly available data “might negatively impact the EPA’s ability to safeguard human and environmental health,” says a comment from the American Chemical Society, which publishes C&EN. Such limitations could also complicate the agency’s ability to comply with environmental laws, ACS says, since Congress wrote provisions into many statutes mandating that EPA use “best available science.”
Several commenters point out that EPA didn’t explain what deficiencies it is trying to solve through the plan. And the California Environmental Protection Agency says the proposal is based on “a fundamentally flawed assumption” that public availability of data determines its scientific merit.
Many commenters worry that the proposed change would stop EPA from relying on epidemiology studies to set environmental standards. Ten U.S. senators and, separately, a group of academics and officials from Harvard University point out that data from these studies, which involve medical patients, are protected under the 1996 Health Insurance Portability & Accountability Act.
In addition, federally funded research involving human subjects must abide by what’s called the Common Rule. Among other things, the Common Rule requires researchers to obtain informed consent of the research subjects, which typically involves promises of confidentiality, the Harvard group says.
Thus, requiring the agency to rely only on studies whose underlying data is publicly available “would bar EPA from considering many vital public health studies that are based on confidential patient information that cannot be legally or ethically disclosed,” the Environmental Defense Fund says. Yet such studies, the advocacy group says, “have been rigorously vetted using time-tested approaches that are widely accepted in the scientific community.”
Prohibiting the agency from considering public health studies, several commenters point out, would impede EPA efforts to address both known and emerging environmental risks. Such risks include contamination of drinking water with per- and polyfluorinated alkyl substances, the Harvard group and the Union of Concerned Scientists say. That’s because the agency would be forced to ignore published papers that link human exposure to one of these chemicals, perfluorooctanoic acid, to health effects such as high cholesterol, thyroid disease, and testicular cancer.
EPA’s plan would give industry more ammunition to fight environmental regulations, others say. “We view this proposal, and its requirement of making publically available data for ‘independent validation,’ simply as a means of providing industries concerned with various studies an opportunity to reanalyze data to reshape or recast conclusions drawn by researchers and subsequent peer reviews, and to allow EPA to censor important studies without justification,” say Minnesota’s Pollution Control Agency and the state’s Department of Health.
Industry is also concerned about the proposed data transparency requirement, although for a different reason. Companies want to ensure that the confidential business information (CBI) they supply to EPA remains under wraps. The National Mining Association and North American Metals Council say the proposal isn’t clear on how the requirement for publicly available data would apply to proprietary information that industry supplies to EPA.
The American Chemistry Council (ACC), which represents U.S. chemical manufacturers, points to health and safety data, such as toxicity studies on a commercial chemical, as an important example of CBI. A company that pays to generate this information doesn’t want to give its competitors an edge by making such data public, ACC writes. Except for registration of pesticides, EPA doesn’t routinely require companies to submit underlying data for health studies they provide to the agency.
ACC believes that publicly releasing a final study report while keeping the underlying data confidential “would, in most circumstances, be an effective way to make relevant information publicly available about studies and data EPA may rely on, but which must be protected,” the chemical industry group says. “In these situations, EPA can access the underlying data to confirm the methods, models, and approaches are based on validated procedures, accessible data, etc.”
The United Steelworkers union, which represents workers in some chemical plants, asks EPA to avoid creating a double standard for confidential scientific data. “While we support protections for justifiable claims of CBI, any requirements that EPA puts on research must be evenly applied,” the labor group says. “The agency should not provide a carve-out for industry data.”
n other comments, EPA received suggestions on ways to make human health data in epidemiology studies public while protecting patient confidentiality. For example, ACC cites examples of health care and Medicare claims data that are being unlinked from patient identification.
But many commenters say this practice is expensive. “It appears EPA will either have to spend millions of dollars to format data to make it publicly accessible or limit the total number of studies used to make regulatory decisions because of the costs associated with evaluating them,” the Alaska Departments of Environmental Conservation and Health & Social Services say.
The American Cancer Society, which sponsored one of the major particulate-matter health studies EPA has used for regulation, sees problems for researchers who want to provide useful and usable data to EPA. “We are not aware of any way to create a de-identified dataset that would protect the confidentiality of our participants and prevent re-identification, while at the same time provide sufficient detail to permit a true replication of our research studies of relevance to EPA,” the cancer society says.
As another alternative to publicly accessible data, the Texas Commission on Environmental Quality suggests EPA consider a formal request-and-approval process for qualified researchers to obtain access to protected data. This could apply to data kept confidential for business or patient privacy reasons.
In addition, EPA’s transparency proposal allows for exceptions so the agency could use studies that don’t have underlying data that is available publicly. Those exceptions could be made both ways: when some data do not meet the transparency criteria but nonetheless would prove helpful for making a regulatory decision, or when the agency wishes to rule out publicly available information for some reason.
“The true tone of this proposed rule will be set through exception determinations that either exclude certain evidence or justify using non-accessible data,” the Texas commission says. “Exceptions will also ensure that regulatory action continues to take place in the event that the EPA has a statutory requirement to make a decision using data that are not available (e.g., an older study for which the original dataset no longer exists) or cannot be released (e.g., confidential business information).”
However, the proposal would place authority for granting such exemptions in the hands of one person: EPA’s administrator, the person nominated by the president and confirmed by the Senate to head the agency. The Texas commission and other commenters flatly oppose empowering a single individual to make such decisions.
The National Association of Clean Air Agencies, a group of state regulators, says such a practice “would have the effect of interjecting the appearance of politics into what should be a fair and unbiased scientific assessment. It is an opportunity for arbitrary decision making and is insufficient to protect against the exclusion of relevant, valid scientific studies.”
The National Academies’ presidents say decisions about exemptions should be based on formal agency guidance and not according to criteria established by a single EPA employee. Instead, the agency can create a clear and systematic process for determining which studies warrant exemptions.
The Texas commission suggests the job of granting exemptions should be left to a third-party entity such as the agency’s Science Advisory Board. This independence, the commission explains, “provides greater trust that decisions were reasonable, objective, and unbiased.”
EPA will review the hundreds of thousands of comments through the autumn before determining “a timeline for a decision,” the agency spokesperson tells C&EN. Meanwhile, the agency’s Science Advisory Board, which was surprised by the proposal, in June formally asked to review it. Acting Administrator Andrew Wheeler hasn’t responded to the request yet.
https://cen.acs.org/policy/regulation/Protection-confidential-data-essential-groups/96/i40
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Environmentalists Say EPA's TSCA Guide Backs CBI Claims
Oct 2, 2018 | Inside EPA
On the eve of court arguments, environmentalists challenging the Trump EPA's rule for updating a chemical inventory under the revised toxics law say a decades-old guidance backs their claims that the rule includes overly-broad protections for industry claims of confidential business information (CBI) that is exempt from disclosure.
In an Oct. 2 supplemental authority notice to the U.S. Court of Appeals for the District of Columbia Circuit, the Environmental Defense Fund (EDF) argues that EPA's 1985 guidance on listing substances on the Toxic Substances Control Act (TSCA) inventory shows that the agency's past practice for listing chemicals prior to the June 2016 revised law backs EDF's claims that the new rule's data protections are overly-broad.
“In that Guidance, EPA stated that in the process of compiling the original TSCA Inventory, EPA denied confidentiality claims for specific chemical identity when another entity submitted information identifying the same chemical without any claim of confidentiality,” the letter says.
“That early practice supports the argument that EDF made that 'when one person ceases to treat information as confidential, then the information ceases to be secret and its protection for other persons can no longer be justified.'”
EDF also says that EPA statements in the case record suggest that the agency historically took a different approach, concealing the chemical identity even when a second submitter did not claim confidentiality.
Environmentalists lodged the letter 10 days before a D.C. Circuit panel is scheduled to hear Oct. 12 oral argument in the case, EDF v. EPA.
The argument will be the first among several pending lawsuits that environmentalists have filed over EPA rules to implement the revised TSCA.
In an Oct. 2 scheduling order, the D.C. Circuit says Judges Merrick Garland, Patricia Millett, and Harry Edwards will hear the case, and that each side will have 15 minutes for argument.
EDF is seeking partial vacatur and remand of the inventory rule for the agency to bolster disclosure requirements that the group says received short shrift in favor of overly-broad protections for industry claims of CBI.
While the Obama-era proposed version included upward of two dozen questions for evaluating claims to keep a chemical identity or other data confidential, the final version narrowed the criteria to roughly a half dozen more general questions, the brief says. EDF says the final rule violates both TSCA and the Administrative Procedure Act.
“In promulgating the final rule, EPA repeatedly violated the statutory text and erred in favor of concealment instead of disclosure,” a March 6 EDF brief says. “The resulting rule will not disclose some information that EDF would otherwise use to learn more about chemicals and their uses, exposures, and health and environmental effects.”
But EPA, in its reply brief filed last May, argues EDF lacks standing to sue because it will not be injured by the inventory rule, and that the update is “reasonable” and within the statute.
https://insideepa.com/daily-feed/environmentalists-say-epas-tsca-guide-backs-cbi-claims
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A Bad Move That Exposes Kids to Chemicals
Oct 2, 2018 | New York Times
By Philip J. Landrigan and Lynn R. Goldman
Last week, the leadership of the Environmental Protection Agency took aim at its own Office of Children’s Health Protection by placing its director, Dr. Ruth Etzel, a distinguished pediatrician and epidemiologist, on “administrative leave.”
At first glance, the action might look like mere bureaucratic shuffling, though the agency, while saying she was not facing disciplinary action, offered no explanation for the move.
But we worry that it signals one of two actions: closing the office, which has argued for tougher regulations on industrial pollutants, or minimizing its role in rule-making. For its part, the E.P.A. says children’s health programs are not in jeopardy. But there is no question that if Dr. Etzel is pushed aside, the chemical industry will benefit and America’s children will be harmed.
In 1993, the National Academy of Sciences reported that children and especially infants in the womb are profoundly different from adults in how they are harmed by exposure to pesticides and other chemicals. The academy’s Committee on Pesticides in the Diets of Infants and Children, of which one of us (Dr. Landrigan) was chairman, concluded that children are not merely little adults. They are uniquely sensitive and keeping them healthy requires special protections.
Exposure to even low levels of toxic chemicals during pregnancy and in the first years after birth can damage children’s brains and other developing organs, leading to increased risk of learning disabilities, A.D.H.D., dyslexia, autism and breathing and reproductive problems. Laws and regulations aimed at protecting adult health do not protect children. The academy committee urged that federal pesticide law be fundamentally restructured to shield infants in the womb and young children from chemical harm.
Since then, Congress has passed two laws that contain explicit provisions protecting children’s health. One of them, the Food Quality Protection Act of 1996, directed the E.P.A. to impose a child-protective safety benchmark in setting standards for pesticides used on food crops, a requirement that has reduced pesticide applications and led to the banning of several highly toxic chemicals.
The safeguards for children’s health embedded in these laws are much needed in the United States today. Air pollution remains a problem and will worsen if the Trump administration succeeds in increasing coal combustion and relaxing vehicle emission standards. More than 80,000 chemicals are being used in food packaging, clothing, building materials, furniture, carpets, cleaning products, cosmetics, toys and baby bottles. They are also widespread in the environment. Among children aged 1 to 5, for instance, some 500,000 are estimated to have elevated levels of lead in their blood.
Exposure to chemicals is linked to a wide array of pediatric diseases. Lead and mercury can cause brain damage with loss of intelligence. Polychlorinated biphenyls, or PCBs, are linked to reductions in children’s intelligence and alterations in behavior. Baby boys exposed in the womb to phthalates, a chemical used in plastics, are at risk of birth defects in their reproductive organs and behavioral abnormalities. Prenatal exposure to brominated flame retardants, used in electronics and furniture, is linked to I.Q. reduction and shortening of attention span.
Prenatal exposure to the insecticide chlorpyrifos is associated with reduced head circumference at birth, developmental delays and cognitive impairments. The regulatory story of this chemical is particularly instructive about the E.P.A. under President Trump. Last year, Scott Pruitt, the agency’s administrator at the time, declined to remove chlorpyrifos from the market despite the recommendation of the agency’s own scientists, based on health studies that suggested it was harming children. In August, a federal appeals court ordered the agency to ban the chemical.
To shield children from these hazards, the E.P.A. formed the Office of Children’s Health Protection in 1997, a year after passage of the Food Quality Protection Act. For more than two decades this office has played an outsize role in safeguarding children’s health. It has worked with teachers and school boards to improve air quality in schools. It helped push the E.P.A. to strengthen risk assessments for carcinogens. It educates pediatricians, obstetricians and parents about how to reduce infants’ chemical exposure.
It has also insisted that the E.P.A.’s plan for enforcing the 2016 Lautenberg Chemical Safety Act protect children’s health. That law requires, among its other mandates, a risk-based review of all chemicals in commerce. In recent months, the office has played a critical role in trying to protect children from atmospheric mercury emissions from coal-fired power plants as the Trump administration reconsiders an Obama-era rule regulating those discharges.
The Office of Children’s Health Protection plays a vital role in safeguarding America’s children — born and unborn — against toxic environmental hazards. It is a small but highly effective program that protects the health of all Americans by protecting the most vulnerable among us. Dismantling it could do irreparable harm.
Philip J. Landrigan is the director of the Global Public Health Initiative at Boston College. Lynn R. Goldman is the dean of the Milken Institute School of Public Health at George Washington University and a former assistant administrator at the E.P.A. for toxic substances.Sign up for Frank Bruni's newsletter
https://www.nytimes.com/2018/10/02/opinion/chemicals-epa-children-health.html
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EPA Will Publish SNUR for Carbon Nanomaterial (Generic)
Oct 3, 2018 | Lexology
By Lynn L. Bergeson and Carla N. Hutton
The U.S. Environmental Protection Agency (EPA) is scheduled to publish on October 3, 2018, a direct final rule promulgating significant new use rules (SNUR) for 26 chemical substances, including carbon nanomaterial (generic), that were the subject of premanufacture notices (PMN). The chemical substances are subject to orders issued by EPA pursuant to Sections 5(e) and 5(f) of the Toxic Substances Control Act (TSCA). The direct final rule requires persons who intend to manufacture (defined by statute to include import) or process any of the chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity. The required notification will initiate EPA’s evaluation of the intended use within the applicable review period. Persons may not commence manufacture or processing for the significant new use until EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken such actions as are required with that determination. The direct final rule will be effective 60 days after publication in the Federal Register. Written adverse comments on one or more of the SNURs must be received within 30 days of publication in the Federal Register. If EPA receives written adverse comments, it will withdraw the relevant sections of the direct final rule before its effective date. In addition to the direct final rule, EPA is scheduled to publish a proposed rule on October 3, 2018. Comments on the proposed rule are due 30 days after publication in the Federal Register.
According to the SNUR, the generic (non-confidential) use of carbon nanomaterial (generic) will be in printing applications. EPA states that it identified concerns for pulmonary toxicity and carcinogenicity based on analogy to carbon black. EPA issued an order under TSCA Sections 5(e)(1)(A)(i), based on a finding that the available information is insufficient to permit a reasoned evaluation of the human health and environmental effects of the PMN substance, and 5(e)(l)(A)(ii)(I), based on a finding that in the absence of sufficient information to permit a reasoned evaluation, the substance may present an unreasonable risk of injury to human health and the environment. The Order requires:
Submission to EPA of certain health testing and material characterization data before exceeding a specified confidential production volume;
Use of personal protective equipment (PPE) where there is a potential for dermal exposure; Use of a National Institute for Occupational Safety and Health (NIOSH) certified air purifying, tight-fitting full-face respirator equipped with N100, P-100, or R-100 filter with an Assigned Protection Factor (APF) of at least 50 where there is a potential for inhalation exposure;
No release of the PMN substance to surface waters;
Use of the PMN substance only for the confidential uses specified in the order;
Limiting the manufacture, processing, and use of the PMN substance to industrial uses;
No processing or use of the powder form of the PMN substance outside of the site of manufacture/processing; and
No processing or use of the PMN substance in the liquid resin form using an application method that generates a vapor, mist, or aerosol.
The SNUR designates as a “significant new use” the absence of these protective measures. EPA states that it has determined that “certain information about the health effects of the PMN substance may be potentially useful to characterize the effects of the PMN substance in support of a request by the PMN submitter to modify the Order, or if a manufacturer or processor is considering submitting a SNUN for a significant new use that will be designated by this SNUR.” EPA notes that the submitter has agreed not to exceed certain time limits without performing specific physical-chemical property tests and characterization and pulmonary effects testing. According to EPA, it also determined that the results of a carcinogenicity study would help characterize the potential health effects caused by the PMN substance. Although the order does not require this test, EPA states that the order’s restrictions “will remain in effect until the Order is modified or revoked by EPA based on submission of this or other relevant information.”
https://www.lexology.com/library/detail.aspx?g=304a8672-dda2-4850-805c-5a37902ed229
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(ACC Mentioned) More Data Published from BPA Study; Results ‘Support the Safety of BPA’
Oct 2, 2018 | Food Safety News
More research has been released by the United States National Toxicology Program (NTP) as part of a landmark study on the safety of bisphenol A (BPA).
The Consortium Linking Academic and Regulatory Insights on BPA Toxicity (CLARITY-BPA) program is studying a range of potential health effects from exposure to the chemical.
It was initiated by NTP, the National Institute of Environmental Health Sciences (NIEHS) and the National Center for Toxicological Research (NCTR) of the Food and Drug Administration (FDA) to provide data for regulatory decisions.
The draft CLARITY-BPA core study research report was reviewed by an external expert panel in April 2018 and the final version was released last week along with data from academic studies. A report integrating findings from the core study and grantee studies is expected in fall 2019.
BPA is used in the production of polycarbonate plastics such as water and infant bottles and epoxy resins which coat some metal food cans and bottle tops.
The American Chemistry Council (ACC) said the results support the safety of BPA.
“The final report on the CLARITY Core Study strongly supports recent statements from the U.S. FDA that BPA is safe at the very low levels to which people are typically exposed. The scope and magnitude of this study are unprecedented for BPA, and the results clearly show that BPA has very little potential to cause health effects, even when people are exposed to it throughout their lives,” said Steven G. Hentges, Polycarbonate/BPA Global Group of the ACC.
CLARITY-BPA has two components: A “core” guideline-compliant chronic study conducted at NCTR according to FDA Good Laboratory Practice (GLP) regulations and studies of various endpoints, by NIEHS-funded researchers at academic institutions using animals born to the same exposed pregnant rats as the core GLP study.
In February this year when the pre-peer reviewed draft report was released, the FDA said an initial review supports its position that currently authorized uses of BPA continue to be safe for consumers.
At the time, the Endocrine Society expressed disappointment at the FDA’s statement saying it was “premature to draw conclusions” based on one component of a two-part report.
Results from the CLARITY-BPA studies will also be used as part of the European Food Safety Authority’s re-evaluation of the chemical’s toxicity with results expected in 2020.
Last month, new rules that tightened restrictions on the use of BPA in food contact materials in the European Union entered into force.
https://www.foodsafetynews.com/2018/10/more-data-published-from-bpa-study-results-support-the-safety-of-bpa/
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INSIGHT: PFAS Challenges Remain at EPA for Wheeler
Oct 3, 2018 | BNA Daily Environment Report
By Matthew Thurlow, Russell Abell and Stephen Zemba
The Environmental Protection Agency and Acting Administrator Andrew Wheeler remain under pressure to formulate new cleanup and drinking water standards for per- and polyfluoroalkyl substances (PFAS). Unlike looming decisions to loosen or reverse other environmental standards, Wheeler could overturn Obama-era EPA guidance by tightening regulatory limits for PFAS.
Several states have issued lower PFAS limits and on June 20, the Agency for Toxic Substances and Disease Registry released a controversial draft reportindicating that minimal risk levels for certain PFAS chemicals should be seven to 10 times lower than the EPA’s reference dose. The EPA and the Department of Defense pushed to block or delay the release of the report, fearing that the report’s recommendations might cause what one Trump administration staffer called a “public relations nightmare,” according to emails released in response to a Freedom of Information Act request.
Following a nationwide “by invitation only” summit on PFAS in May, the EPA is working to improve its transparency through a series of cross-country public meetings with communities impacted by PFAS. As the ATSDR reviews public comments, the EPA faces increasing bipartisan calls from Congress to adopt stricter cleanup and drinking water standards for PFAS. Extremely low regulatory limits for PFAS could impose enormous long-term costs on municipal water users, industry, and state and local agencies.
Scientific evidence of health effects caused by PFAS is uncertain. Regulatory agencies are struggling to understand what, if any, negative human health consequences can be linked to low-level PFAS exposures. As an example, an expert panel in Australia recently found limited or no evidence for any link between PFAS exposure and human disease. Regardless of what the EPA decides to do about PFAS—and it may ultimately decide to do very little—it appears that states will continue to fill any perceived regulatory vacuum by quickly moving ahead with aggressive new cleanup standards.
Miracle Chemicals Lose Their LusterPFAS were widely used for decades in commercial and consumer products, including Teflon, Scotchgard, GORE-TEX, textiles, and carpets. The ubiquitous chemicals kept eggs from sticking to frying pans, lined microwave popcorn bags, sealed high-end jackets against the rain, and imparted stain resistance to carpets. But in the 1990s, traces of the chemicals were discovered in the blood of the U.S. population. Fast-forward 20-plus years, and despite manufacturers’ voluntary withdrawal of two of the most commonly used PFAS chemicals (PFOA and PFOS) from the U.S. market, PFAS have become a high-profile target of regulators, plaintiffs’ attorneys, and politicians across the country.
PFAS have been blamed for a variety of potentially negative human health issues ranging from elevated cholesterol to reproductive harm, developmental delays, and an increased risk of certain cancers. But the health data on PFAS remain decidedly murky. The results of studies in mice and rats have frequently not translated into similar observable effects in human health studies. Data establishing a causal link between PFAS and human health effects have been inconclusive, with many epidemiological studies showing correlations between PFAS exposure and health effects that can’t be reproduced in other studies. Recent health studies in Hoosick Falls, N.Y.; Merrimack, N.H.; Washington and Dakota counties in Minnesota; and Australia indicate that PFAS are either not carcinogenic, or at most don’t lead to additional cancers at detectable rates in small populations despite evidence of elevated PFAS exposure. But the earlier C8 panel studies in West Virginia/Ohio indicate there are potential links between PFOA exposure and high cholesterol, ulcerative colitis, thyroid disease, testicular and kidney cancer, and pregnancy-induced hypertension.
Based on the C8 studies and other evidence, the International Agency for Research on Cancer identified PFOA as “possibly carcinogenic,” placing it in the same hazard category IARC uses for coconut oil condensates, ginkgo biloba extract, and pickled vegetables. To put this in context, IARC has concluded that there is a greater [potential] carcinogenic hazard from drinking very hot beverages, working the night shift and eating red meat.
Although much of the media attention and litigation have focused on PFAS’s cancer risk, the EPA’s and the ATSDR’s proposed health standards are largely based on other potential health effects from PFAS exposure observed in laboratory animal studies, including reproductive, developmental, and immunotoxic risks. In some cases, the effects on animals are subtle and non-permanent, and even the authors of the studies don’t consider the effects to be adverse health outcomes.
Risk-Based Standards for PFASOn May 19, 2016, near the end of the Obama administration, the EPA set a 70 parts per trillion lifetime health advisory level for PFOA and PFOS in drinking water, which supplanted earlier short-term health advisories of 400 ppt and 200 ppt, respectively. Although this was not a substantial reduction, data from the sampling of large public water supplies indicated more than 6 million Americans consumed water with PFOA and PFOS above these new health advisory levels (from about 1 percent of the 4,920 public water systems sampled).
The EPA’s 70 ppt health advisory level for PFOA and PFOS is based on a number of conservative assumptions, including a very high amount of drinking water consumed by an individual per day (more than twice the established rate typically used in health advisories per EPA guidance) and a very high background exposure to PFAS (80 percent of total exposure, leaving only 20 percent of the allowable dose available for exposure through drinking water). Further, the health advisory was based on a study in which the offspring of mice exhibited delayed paw bone development and accelerated puberty in the male pups—effects that aren’t permanent and that many toxicologists would argue shouldn’t be used to develop human health standards. In short, the EPA was very conservative in setting the 70 ppt health advisory levels, with some independent scientists concluding the agency had probably been too conservative. There seemed little doubt at the time, and many experts continue to believe, that the EPA’s health advisory level for PFOA and PFOS was sufficiently conservative to protect against cancer risk and other adverse health effects.
But in its June 2018 Draft Toxicological Profile of PFAS, the ATSDR recommended minimal risk levels for PFOA and PFOS that are seven to 10 times lower than the EPA’s health advisory limit. ATSDR also proposed minimal risk levels for two additional PFAS (PFHxS and PFNA) not considered in the EPA’s health advisory. Like the EPA before it, ATSDR has made it clear that its recommendations are not intended to be cleanup or health effects standards. But even though the minimal risk levels aren’t intended to be used to develop regulatory limits, many states are likely to use them as the basis for new cleanup criteria. Several states, including New Hampshire, where two laws were passed in 2018 requiring the state to revisit its current PFAS cleanup level of 70 ppt, are facing intense public pressure to lower their PFAS standards.
ATSDR’s scientific approach in reaching its recommended standards for PFAS is arguably overprotective. First, many of the observed effects used as the basis of the minimal risk levels were subtle or transient health effects that may not be reliable bases for toxicity values. For instance, for PFOS and PFNA, the observed effect ATSDR used was “delayed eye opening” of rat offspring, which even the study’s authors stated was likely an insignificant and not adverse effect. ATSDR also used a modifying factor of 10 to address concerns for immunotoxic effects citing the concerns from previous research, but not observed or tested in the study. Finally, ATSDR adopted a safety factor of three to address differences between the animal and human systems and their response to PFAS, even though most studies have shown that humans are actually less responsive than rats to the activation of the protein (peroxisome proliferator-activated receptor-a (PPARa)) believed to influence PFAS toxicity.
Put simply, the minimal risk levels recommended by ATSDR don’t appear to be set at levels likely to differentiate human health impacts. If the minimal risk levels are overly protective—as they appear to be to many in the scientific community—the EPA, the ATSDR, and the states can still adopt less stringent standards that accomplish the vital goal of protecting human health while not encumbering municipal water providers, environmental agencies, and other responsible parties with unrealistic, and ultimately unhelpful, PFAS cleanup standards. At least one state (Texas) has done so. While there is some question as to what acceptable cleanup standards might be, the EPA’s 2014 short-term exposure standards for PFOS and PFOA may be more reasonable standards that are sufficiently protective of human health. It is important to note that at its recent PFAS summit, the EPA recently committed to classifying PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act. Unless the EPA develops a new risk-assessment process for PFAS, the remediation goal for PFOA and PFOS is likely to be about 400 ppt at most Superfund sites.
Fear, Uncertainty Drive Regulatory ProcessThe motivation to set PFAS cleanup standards at barely detectable concentrations stems in part from the commitment of the regulatory community to protect public health in the face of uncertainty. Although the body of scientific data suggests PFAS are toxic, studies have shown mixed and conflicting results, with some regulators concluding there is little or no evidence of negative human health impacts. An expert panel in Australia recently concluded “there is mostly limited, or in some cases no evidence, that human exposure to PFAS is linked with human disease,” and “there is no current evidence that suggests an increase in overall cancer risk.” But at the same time, the Australian panel was still not willing to declare PFAS exposure safe, noting that “even though the evidence for PFAS exposure and links to health effects is very weak and inconsistent, important health effects for individuals exposed to PFAS cannot be ruled out based on the current evidence.”
While the caution of regulators in the face of uncertainty is understandable, there is also a risk of overregulation of PFAS. If PFAS standards continue to be developed by the application of overly conservative assumptions to account for and protect against uncertainty, without regard to the probability of health impacts or the use of rigorous scientific analysis, debate, and consideration of the available data, the resulting standards could impose enormous cleanup costs with little or no benefit to human health. Further, such an approach will likely divert finite resources set aside to address other contaminants with clearly demonstrated adverse health effects. Finally, the approach of applying overly conservative assumptions to protect against uncertainty may generate unnecessary and extreme fear and concern in the general public when “safe” levels of exposure may already be even higher than the EPA’s current health advisory level.
Stricter Standards Drive Cleanup CostsA good example of the potential impact of instituting PFAS standards that are overly protective can be found in New Hampshire. The New Hampshire Department of Environmental Services has been an early leader in studying and regulating PFAS, their fate and transport in groundwater, and their impacts on drinking water supplies. Focusing on drinking water supplies near known or suspected potential sources of PFAS in the state, the Department of Environmental Services sampled more than 1,700 domestic drinking water wells for PFAS. A review of the data from 1,782 of these wells in July 2017 revealed that 12.8 percent (228 wells) had a detection of PFOA or PFOS above the state groundwater standard of 70 ppt. If compared with the short-term health advisory issued by the EPA in 2014 of 400 ppt and 200 ppt for PFOS and PFOA, respectively, only 1 percent (18) of the domestic drinking water wells were above these levels. Current treatment for drinking water wells is focused on granular activated carbon, which can range up to $5,000 per typical domestic well to install.
In the New Hampshire example, the difference in treatment system costs alone between 70 ppt and 400/200 ppt is estimated to be more than 10-fold. In this example, it would be $1.1 million to treat the wells above 70 ppt compared with $90,000 to treat the wells above 400/200 ppt. Considering this is only the cost of installing the treatment system at the drinking water wells, the cost of investigation, system maintenance and upkeep, and potentially remediating at a lower standard is even more significant.
The costs of PFAS cleanups may be even higher, as many states have already set cleanup limits below 70 ppt, and some environmental groups advocate for limits as low as 1 ppt. At regulatory limits that low, not only will there be tens of thousands of potential sites in the U.S.requiring cleanup, but the technologies needed for such cleanups, including reverse osmosis—the same process used in the desalinization and purification of sea water—may also be cost-prohibitive. Unfortunately, such cleanups of low-level PFAS contamination—without any demonstrable benefit to human health or the environment—are very much a possibility, as some concerned politicians and members of the public push for ever stricter regulation of PFAS.
Many of the costs of PFAS cleanups will inevitably be passed on to local communities and residents. But the greatest cost of overregulation of PFAS may very well be a lost-opportunity cost, as much-needed attention and money are diverted away from potentially more significant environmental problems.
Wheeler is likely to face significant bipartisan political pressure on PFAS, and he has his work cut out for him convincing skeptics in Congress, state agencies, and local communities that the EPA should follow the regulatory process and formulate standards for PFAS that are based on the best available science and risk analysis.
Matthew Thurlow is a partner at BakerHostetler in Washington, D.C., where he focuses his practice on environmental and toxic tort litigation.
Russell Abell, P.G., is a vice president at the consulting firm Sanborn Head & Associates, with more than 20 years of experience focusing on hydrogeology and fate and transport analysis.
Stephen Zemba, Ph.D., P.E. is a project director at the consulting firm Sanborn Head & Associates, with more than three decades of experience with health risk assessment.
The views expressed in this article are those of the authors and not necessarily those of BakerHostetler and Sanborn Head or their clients.
The opinions expressed here do not represent those of Bloomberg Environment, which welcomes other points of view.
https://www.bna.com/insight-pfas-challenges-n73014482945/
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3rd Circuit Backs Precedent for Private PFAS Monitoring Under CERCLA
Oct 2, 2018 | BNA Daily Environment Report
By Lara Beaven
Setting a precedent, the U.S. Court of Appeals for the 3rd Circuit has partially reversed a district court decision and found medical monitoring of per- and polyfluoroakyl substances (PFAS) conducted by a private party at a contaminated Navy site is a form of injunctive relief and is not prohibited by the Superfund law's bar on challenges to cleanup actions.
The ruling appears likely to bolster efforts by citizens living adjacent to sites contaminated with PFAS to require responsible parties to fund medical monitoring to ensure cleanups are protective in the long term and prevent adverse health effects associated with the ubiquitous contaminants.
But in an Oct. 2 ruling in Kristen Giovanni, et al., and Dorothy Palmer, et al. v. Navy, the majority of the three-judge panel agrees with the lower court that a health effects study the citizen appellants are seeking is not allowed under section 113(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) because it could interfere with the cleanup.
“In our view, the claim for a health assessment or health effects study is barred, as the District Court said, because it challenges ongoing cleanup efforts. But we will vacate and remand in part because we conclude that the medical monitoring claim is not a challenge under CERCLA and that it is not barred by sovereign immunity,” Judge Kent Jordan writes on behalf of himself and Judge Anthony Scirica.
Judge Stephanos Bibas filed a concurring opinion that reaches most of the same conclusions as the majority but disagrees with the reasoning to determine the Giovannis' and Palmers' claims are not barred by section 113(h).
“I do not know how district courts will untangle this web,” Bibas says of the majority's “holistic” approach to analyzing potential challenges to Superfund actions, which he says will lead to divergent results in different courts.
The ruling is significant because it adopts much of the 9th Circuit's reasoning in distinguishing between private medical monitoring and government health studies to determine which claims are not barred by section 113(h), thereby preventing a circuit split and limiting prospects of a Supreme Court appeal just as the justices are considering another case dealing with section 113 (h).
It is also significant because the 3rd Circuit includes Pennsylvania, New Jersey and Delaware -- states where PFAS contamination is a major concern -- so the court's ruling could open the door to other communities in those states seeking similar relief.
The ruling addresses combined appeals from residents living near Navy facilities in Pennsylvania who were exposed to two PFAS -- perfluorooctanoic acid and perfluorooctane sulfonate -- that have been linked to several latent and serious diseases, including cancer.
Last year, the U.S. District Court for the Eastern District of Pennsylvania ruled that it lacked jurisdiction to hear the plaintiffs' claims because section 113(h) bars judicial review of cleanup decisions.
The lower court agreed with the Navy that state law medical monitoring claims are disputes about who is responsible for contamination that should be dealt with after the site is cleaned up and that the claims constitute judicial interference that would hinder EPA's efforts to promptly remediate sites.
Holistic Approach
But the 3rd Circuit reaches a different conclusion, using a three-step “holistic approach that encompasses several considerations."
One is whether the relief sought can be classified as a “removal” or “remedial” step under CERCLA.
Another is whether the specific form of relief requested would compel the defendant to take some action or refrain from taking some action, or instead seeks to have the defendant pay for a third party to provide services.
And the third consideration is whether there is reason to think that a given request for relief will conflict with, impact, or otherwise interfere with the ongoing cleanup efforts.
Bibas takes issue with this approach and advocates for a bright-line test for determining whether a claim for relief constitutes a CERCLA challenge, relying on the D.C. Circuit's 2014 opinion in El Paso Natural Gas Company v. United States that focuses on the actions taken rather than the actors.
In a footnote, the majority agrees the El Paso opinion does provide a helpful way to conceptualize what a challenge is, but says that ruling “did not purport to set forth a single bright line test.”
“In laying out our analytical framework, we have relied on the collective experience of our own Court and our sister courts, including the D.C. Circuit in El Paso, to create an approach that we hope is sufficiently flexible to account for the myriad circumstances in which CERCLA litigation arises and yet clear enough to give useful guidance to district courts,” the footnote continues.
“We appreciate our colleague’s desire to simplify the 'challenge' analysis for the benefit of future litigants and courts, and we share that desire. But we think that a framework that relies on nothing but the word 'interfere' to inform future litigation -- a word that does not appear at all in the statutory text but rather emerged through case law -- will not be as helpful as our colleague believes,” the footnote concludes.
Under the first phase of the majority's analysis, it says the text of CERCLA does not easily support classifying private party medical monitoring as either a “removal” or a “remedial” action, and, consequently, it is not a response action.
The 3rd Circuit says this is supported by the 10th Circuit in Daigle v. Shell Oil Co. as well as the 9th Circuit in Price v. United States Navy.
While a general health study would also fall outside the definition of a removal action, the Giovannis and Palmers are not requesting a generic health study, the 3rd Circuit says. “Government-led health studies, unlike generic health studies conducted by private parties, are response actions deemed by Congress as necessary for evaluating the release or threatened release of hazardous substances.”
This distinction echoes the 9th Circuit's 1995 ruling in Hanford Downwinders Coalition, Inc. v. Dowdle, which the 3rd Circuit says provides a “persuasive” analysis. “We adopt it, with the conclusion that CERCLA distinguishes between private party medical monitoring activities and government-led health surveillance. Private party medical monitoring falls outside of the definition of response action, but government-led monitoring does not.”
Bibas, however, is unpersuaded by Hanford, saying “At root, I disagree that who does an action bears on whether that action meets CERCLA’s definitions of 'removal' or 'remedial.'”
“While Hanford relies on legislative history and remedial purpose, I would stick to the statutory text,” and find that both medical monitoring and health studies are allowed, Bibas says.
Form Of Relief
In the second step of analysis -- examining the form of relief requested -- the majority says payment for the costs of a private-party medical monitoring program does not appear to be a challenge under section 113(h) but a government-led health study would be because it “amounts to a demand that the Navy take on additional efforts related to cleaning up the contamination” at several Superfund sites.
“Although the facts in this case differ from those in Hanford, which involved an injunction compelling the [Agency for Toxic Substances and Disease Registry (ATSDR)] to implement a health surveillance program, the relief requested here is analogous because the government is being asked to conduct a response action that the ATSDR may still be contemplating,” the majority says.
In fact, ATSDR has provided funding for a pilot biomonitoring program for residents in Bucks and Montgomery Counties, where plaintiffs reside.
And on the final question of whether the request for relief will conflict with, impact, or otherwise interfere with an ongoing cleanup effort, the majority says “it seems unlikely that the Giovannis’ and Palmers’ requests for the costs of private party medical monitoring” will do so.
But “[t]the story is different for a government-led health study.”
The Palmers raised an additional argument that the cleanup activities at the Navy facilities were initiated under CERCLA section 120 rather than section 104, and therefore, the section 113(h) bar is inapplicable to their state-law claim. The Palmers relied on the 9th Circuit's 1995 ruling in Fort Ord Toxics Project v. California EPA, in which the 9th Circuit suggested that section 120 seems to provide authority separate from section 104.
The 3rd Circuit, however, agrees with the Navy that section 120 merely describes additional procedures unique to federal land, and does not confer any authority outside of that already granted in section 104. Adopting the Palmers' interpretation “would lead to the odd result that litigants could not challenge ongoing cleanup work at private facilities but they could run rampant with challenges to the same at federal Superfund sites.”
The Giovannis and Palmers also contended that the Navy has waived its sovereign immunity pursuant to section 6001(a) of the Resource Conservation and Recovery Act (RCRA) and pursuant to section 120(a)(1) of CERCLA. The Navy disagreed, and argued that there is no unequivocal waiver of its sovereign immunity.
“We think the Giovannis and Palmers have the better of the argument because section 6001(a) of RCRA unequivocally waives sovereign immunity to state law claims for injunctive relief,” the 3rd Circuit says.
“Because RCRA waives sovereign immunity to claims for injunctive relief, the Navy is not immune from suit for the costs of private party medical monitoring. Accordingly, those claims may proceed,” the majority concludes.
https://insideepa.com/daily-news/3rd-circuit-backs-precedent-private-pfas-monitoring-under-cercla
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Michigan Response to Fluorochemical Contamination Irks Democrats
Oct 2, 2018 | BNA Daily Environment Report
By Alex Ebert
Two Democratic Michigan lawmakers are accusing state regulators of ignoring a 2012 report about the dangers of fluorochemicals in drinking water and are demanding an audit into the regulators’ lack of response to the reported contamination.
State Reps. Winnie Brinks and Kevin Hertel say the Michigan Department of Environmental Quality (MDEQ) ignored warnings about fluorochemicals cited in an agency report for years.
Fluorochemicals are used in making heat- and stain-resistant consumer and industrial products and can affect the immune system, the thyroid, and contribute to cancer. There are an estimated 3,500 different compounds within the class of chemicals sometimes called per- and polyfluoroalkyl (PFAS) compounds.
The two Democrats said in an Oct. 2 news release they will seek a “performance audit” of the agency for its overall response to PFAS contamination as well as why actions weren’t taken.
The environment department faced criticism in July when local media company MLive obtained the report through a document request. Since then, Democrats have accused regulators of being slow to adopt report recommendations for testing and public outreach as well as addressing PFAS contamination at military and chemical plant sites across the state.
“A report sat virtually untouched for six years in blatant disregard for the health and safety of Michigan families and those families deserve better,” Hertel told Bloomberg Environment in an Oct. 2 email. “Since Republican legislators will not grant us a legislative hearing, an audit is our only option and it will help shed light on why this report was concealed.”
Democrats Allegations ‘False’A department spokesman rebutted the Democrats’ accusations about the report, titled “Michigan’s Contaminant Induced Human Health Crisis.”
“Allegations that the state ignored warnings about PFAS in 2012 are false,” spokesman Scott Dean told Bloomberg Environment in an Oct. 2 email. “The author of the 2012 report has since described it as ‘brain-storming’ and acknowledged that many of the recommendations in the report were not feasible or enforceable at the time given the lack of knowledge and regulation regarding PFAS.”
The department issued its first “do not eat” restrictions in 2012 for fish near a U.S. Air Force base that the report identified as a source of PFAS contamination, Dean said.Since then, the agency has done testing on surface waters and launched investigations into PFAS contamination at another military base and a closed Wolverine World Wide tannery.
https://news.bloombergenvironment.com/environment-and-energy/michigan-response-to-fluorochemical-contamination-irks-democrats
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Regulators Prepare Crackdown on Air and Water Emissions of GenX
Oct 3, 2018 | Carolina Press
By Vaughn Hagerty
A year after GenX-tainted wells triggered the first punitive measure against Chemours regarding its fluorochemical plant near Fayetteville, groundwater contamination and the air emissions believed responsible for it remain a focus of state regulators.
The N.C. Department of Environmental Quality expects to take major steps in October toward addressing both issues, spelled out in a draft of a revised air-quality permit governing Chemours’ operations incorporating new provisions restricting emissions to 1 percent or less of those in 2016.
At the same time, separate, ongoing investigations by the U.S. Justice Department, Environmental Protection Agency and the N.C. Attorney General’s Office also are targeting the chemical company.
A history of tainted groundwater
DEQ’s scrutiny of Chemours began in June 2017, several months after regulators learned GenX and a host of similar compounds turned up in the Cape Fear River and public water systems downstream serving hundreds of thousands of people.
Chemours makes GenX, a key ingredient in Teflon, at its Fayetteville Works plant on the Bladen-Cumberland county line. However, company officials said the GenX in the river was a byproduct of a separate manufacturing line, which had been discharging wastewater to the river since about 1980.
As DEQ scrambled to define the scope of the river contamination and stem those discharges, it also turned to other potential threats.
For years, chemicals similar to GenX have been found in groundwater beneath the 2,150-acre manufacturing site. For example, C8 — the substance GenX replaced and which has been linked to cancer and other serious health problems — showed up in monitoring wells in 2003, just months after its production began.
Within days of beginning the investigation into GenX, DEQ staff already had begun considering what was happening not just in the river but beneath the plant.
On Sept. 6, 2017, after water drawn from monitoring wells at the site tested positive for GenX, DEQ issued a notice of violation against Chemours.
Such violations may carry fines as high as $25,000. DEQ has not publicly announced a resolution and did not answer recent questions about its status.
Beginning to clear the air
DEQ has tied that groundwater contamination in large part to Chemours’ air emissions, which also have been blamed for tainting hundreds of private wells, some of them miles from the plant.
Of 823 wells tested, DEQ reported, GenX turned up in 603, including 164 at levels above the state’s provisional health goal of 140 parts per trillion. Several other fluorochemicals also have been found in many of the wells.
“In April, we had notified Chemours of our intent to reopen and modify their air-quality permit,” said Michael Abraczinskas, director of DEQ’s Division of Air Quality.
“In that letter, we required that they respond with a specific plan about how they were going to reduce the air emissions that were causing and contributing to groundwater issues off-site.
“When they responded on April 27, they for the first time publicly included a plan to install this thermal oxidizer at the facility that will significantly reduce the emissions profile at Chemours.”
The keystone of a planned $100 million pollution-reduction project, the thermal oxidizer uses tremendous heat to break apart the fluorochemicals. The company said construction should begin in October, with the full system online by the end of 2019.
Once in place, the thermal oxidizer and other components are “going to address the total emissions profile and reduce it by a significant percentage: 99 percent relative to a 2016 baseline and then 99.99 percent total reduction for volatile organic compounds and total PFAS emissions,” Abraczinskas said.
Volatile organic compounds are substances that easily become vapors or gases. Rubbing alcohol would be a common example. PFAS stands for per- and polyfluoroalkyl substances, the class of chemicals to which GenX belongs.
Abraczinskas said under the current schedule, a draft of the air-quality permit should be ready for public review by mid-October. The state plans to hold two public hearings on it, one near the plant and the other in Wilmington, though no dates have been set.
“That’ll put us on track to potentially take a final action of some sort on that permit application around the end of November or somewhere in that time frame,” Abraczinskas said.
In the meantime, Chemours has taken interim steps to whittle down its air pollution, including adding two carbon adsorption beds to scrub fluorochemicals from emissions.
“Those were installed and operational in late May,” Abraczinskas said.
“We’re already realizing an emissions reduction from a portion of the emissions of the facility, which is good news. Some of those initial tests have come back from the control technology that was put in place, and they’re very promising. They’re showing slightly greater removal efficiency than what was initially estimated prior to the testing that was done.”
DEQ also has left the door open for further interim pollution-reduction measures. The agency continues to consider options outlined in a potential court order the agency shared in June, along with more than 100 comments on it submitted by the public.
Some site preparation has begun for the thermal oxidizer, Chemours spokeswoman Lisa Randall said.
Randall said the plant, which shut down about a day ahead of Hurricane Florence’s arrival, weathered the storm with no damage. Full operations resumed Sept. 21.
On Sept. 18, “a gallon or less” of rainwater from the site leaked from an improperly closed seal on a tanker truck, which was transporting it for off-site disposal.
Randall said Chemours asked the company receiving the water to “collect a sample from this tanker truck. Both Chemours and NCDEQ will test the sample.”
Other probes continue, expand
As DEQ’s work proceeds, other state and federal agencies are looking into the operations of Chemours and DuPont, which owned the Fayetteville Works until 2015, when it created Chemours as a separate company. Here are updates of three of the most prominent of those:
U.S. Justice Department: DEQ announced in July 2017 it had been served by the U.S. Attorney’s Office for the Eastern District of North Carolina with a grand jury subpoena demanding several years’ worth of documents related to its work at the plant, from permits and inspection reports to staff notes and emails.
Asked last month about the status of its investigation, Eastern District spokeswoman Leslie S. Hiatt said, “Our office has no comment.”
Chemours and DuPont, however, have provided regular updates about its progress and expansion, detailed in financial reports to shareholders.
In its filing for the second quarter of 2018, Chemours wrote that it “is cooperating with a variety of ongoing inquiries and investigations from federal, state and local authorities, regulators and other governmental entities, including responding to federal grand jury subpoenas issued in connection with an ongoing investigation being conducted by the U.S. Attorney’s Office for the Eastern District of North Carolina and the Environment and Natural Resources Division of the U.S. Department of Justice.”
The Environment and Natural Resources Division “handles environmental and natural resources litigation on behalf of the United States,” according to information on its website.
“Nearly one-half of the division’s lawyers bring cases against those who violate the nation’s civil and criminal pollution-control laws.”
DuPont, now a part of DowDuPont, also updated shareholders in its second-quarter report.
“DuPont has been served with additional subpoenas relating to the same issue and, in the second quarter of 2018, received a subpoena expanding the scope to any PFCs (perfluorinated chemicals) discharged from the Fayetteville Works facility into the Cape Fear River,” the company wrote.
“It is possible that these ongoing inquiries and investigations, including the grand jury subpoena, could result in penalties or sanctions, or that additional litigation will be instituted against Chemours and/or DuPont.”
U.S. Environmental Protection Agency: On June 20, 2017, the same day Chemours first pledged to stop discharging wastewater containing GenX into the Cape Fear River, EPA announced it was looking into the company’s compliance with a consent order governing aspects of GenX manufacture.
Signed in 2009, the consent order laid out EPA’s concerns that GenX “will persist in the environment, could bioaccumulate and be toxic (“PBT”) to people, wild mammals and birds.” PBT refers to substances that persist in the environment, accumulate in the bodies of animals and are toxic.
To make GenX commercially under the consent order, DuPont and Chemours agreed to ensure that no more than 1 percent of any GenX resulting from its manufacture escaped into the environment.
The consent order, however, includes an exception to that and other restrictions for any GenX that is an unintended byproduct of unrelated production.
As it turned out, the company’s vinyl ether production line, rather than its GenX manufacture, was the chief source of GenX found by researchers in the Cape Fear and downstream public water systems, Chemours officials have said. That process created GenX as a byproduct, which was discharged into the river.
“The investigation into Chemours’ compliance with the provisions of the 2009 consent order is ongoing,” an EPA spokeswoman said last week. “EPA does not comment on ongoing investigations.”
N.C. Attorney General’s Office: State Attorney General Josh Stein said in July 2017 his office was looking into Chemours’ marketing of GenX.
“My office issued an investigative demand on Chemours about its chemical product GenX,” Stein wrote on his Facebook page.
“When something is marketed as sustainable, people think it’s safe. That’s never more important than when it is in their drinking water or the lining of the pots and pans they use to cook for their families. We need to know more about how Chemours markets GenX, its risks and its environmental sustainability — that’s what this action demands.”
Laura Brewer, a spokeswoman for Stein, said last month that after initially focusing on marketing-related matters, the investigation’s scope has turned to other aspects, such as “studies, research and analysis related to safety, sustainability, health risks, environmental risks, among others.”
“Currently,” Brewer said, “we have received thousands of documents in response to most of our requests, which are in the form of emails, marketing documents, brochures, safety data sheets, correspondence and research studies.
“That investigation is still ongoing. We will have more to share as it moves forward.”
https://carolinapublicpress.org/28228/regulators-prepare-crackdown-on-air-and-water-emissions-of-genx/
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(ACC Mentioned) Natural Gas Interests Look to FERC as Nuclear Subsidies Gain More Ground
Oct 2, 2018 | Natural Gas Intelligence
By Jamison Cocklin
Now that four courts in Illinois and New York have upheld subsidies for nuclear power plants, representatives of the natural gas interests battling them are looking to FERC for a prescription to counter the state programs and their effects on wholesale electricity markets.
Last month, federal appeals courts affirmed rulings that upheld zero emission credit (ZEC) programs adopted in 2016 to prop-up five nuclear facilities owned by Exelon Corp. in Illinois and New York. The courts found that challenges brought by the Electric Power Suppliers Association (EPSA) and several others failed to show how the subsidies are preempted by federal law or how they depress energy prices and put gas-fired facilities at a competitive disadvantage.
“Without these ZEC programs, as has happened to date, gas and renewables would increasingly gain market share,” EPSA CEO John Shelk told NGI. “That’s critical because it would be one thing if we had a growing market, we could do the old rising tide lifts all boats, everybody could gain. That’s not the case, we’ve got flat, arguably declining demand” for electricity.
“To the extent that these programs allow nuclear to gain share that they wouldn’t otherwise gain, it’s coming at somebody’s expense,” Shelk added.
Wholesale electricity prices are determined by an auction. Generation resources offer in a price at which they can supply a specific number of MW hours of power. A resource clears the market and contributes generation when it submits a successful bid in an auction. The cheapest resource will clear the market first, followed by the next cheapest and so on until demand is met.
Utilities or power producers that generate with coal or natural gas are required to purchase a certain number of credits from nuclear facilities that produce zero-emissions electricity. Under the ZEC programs, subsidized nuclear generators receive the value of their credits in addition to what they earn in the wholesale markets. Opponents argue that this allows them to bid below cost during auctions.
“What the courts have failed to do in two cases now puts the spotlight even more on” the Federal Energy Regulatory Commission, Shelk said. EPSA mainly represents independent gas-fired power generators, which are typically the single largest purchasers of natural gas in the country on any given day.
FERC in June narrowly rejected two proposals by PJM Interconnection to help the grid operator address state subsidies for uneconomic coal and nuclear power plants. In EPSA’s appeal to the U.S. Court of Appeals for the Seventh Circuit, FERC filed a brief concluding that the Illinois ZEC program does not interfere with interstate auctions and does not preempt federal laws. The Seventh Circuit leaned heavily on FERC’s position in upholding the subsidies.
The Commission has, however, acknowledged in the PJM proceeding that the wholesale market is threatened by subsidies.
“The courts are basically punting to FERC and saying, ‘okay, if you think there’s a problem then go fix it,’” Shelk said.
A coterie of groups, including PJM and EPSA, were expected to make filings at FERC on Tuesday with further suggestions on how to counterbalance the disruptive effects of subsidies on the market. PJM is the nation’s largest grid operator, serving 65 million people in all or parts of 13 states and the District of Columbia. Its footprint includes Illinois and shale-rich Ohio, Pennsylvania and West Virginia, where gas-fired power plants are proliferating.
“Power market participants need FERC to uphold and defend competitive market policies against state or federal subsidies designed to favor certain fuels,” said the Natural Gas Supply Association’s Pat Jagtiani, executive vice president. “These kinds of subsidies distort wholesale power markets and set a chain of events in motion that will erode cost savings and risk the ability of generators to finance new pipeline capacity and contract for existing firm capacity.
“While state subsidies are intended to preserve existing generation, in the long-run interfering with the operation of the competitive market will actually result in less, not more, generation.”
Merchant generators have faced stiff competition in the open market, but it has intensified with an increasingly diversified resource mix. In recent years, renewable sources have become more competitive and an abundance of low-cost natural gas has caused electricity prices to plummet, undermining coal and nuclear plants in the process.
The EIA said in July that gas-fired power plants would supply 37% of the nation’s electricity generation over the summer, near the record-high set in summer 2016. As the fuel has climbed the power stack, coal-fired plants have been retired and several nuclear facilities have stopped generating power.
The ZEC programs, and similar legislation that was recently signed into law in Connecticut and New Jersey, were designed to preserve the baseload electricity produced by nuclear facilities. Proponents argue that the credits better value the resiliency, consistency and smog-free attributes of nuclear facilities.
Nuclear Energy Institute spokesman Matthew Wald said without them, the facilities would have been forced off the grid.
“The courts, four of them, are essentially saying that it is within the purview of states, either legislatively or administratively, to make certain decisions,” he said. “States already make lots of decisions about their electricity systems.”
Wald pointed to renewable portfolio standards, which require a certain amount of electricity to be produced with “clean” energy, air pollution standards and even carbon pricing that states have advanced.
“Those have knocked some generators off the grid and raised prices for the survivors, but those are steps that affect the wholesale price, almost everything the government does affects price,” Wald said. “There’s more to life than price. If you look at price, you miss some of the benefits provided by some generators, not just nuclear, it’s clearly for wind and solar too.”
Wald said FERC can’t undo state programs, adding that while the Commission “has at times entertained proposals that would have the effect of counterweighting” them, it has not adopted any such proposals, and we’re glad they have not.”
It remains unclear how FERC might handle the subsidies. It’s working with stakeholders on a solution and is expected to have a decision on the PJM proceeding by January. PJM’s annual capacity auction, held each May, has been postponed until August in the meantime, Shelk said.
Complicating matters is a four-member Commission divided evenly between Republicans and Democrats that could stalemate on the issue. Richard Glick and Cheryl LaFleur, the two Democrats, have advocated for strong state authority over the power markets. Glick has went further to say that the Commission should not use its power to limit state efforts to address climate change.
Shelk also said EPSA would soon push FERC for a remedy to address the effect of subsidies on the New York Independent System Operator’s generation members. “FERC is going to be hard pressed to say it’s a problem in PJM but not New York,” he said. “So, I think down the road, there will be a similar proceeding in New York.”
In the meantime, EPSA has filed for a rehearing with the Seventh Circuit, arguing, among other things, that the court “misapprehended facts, arguments, and law regarding” certain aspects of its case. He said the organization could eventually file a petition for review at the U.S. Supreme Court.
The nuclear subsidies are also converging with other proposals and sea changes confronting the power markets. New York is currently considering a carbon pricing program that could conceivably invalidate the ZECs altogether if it were to price carbon in a way that applies to all fuels and not just one. The Trump administration continues to consider a more wide-ranging federal bailout for coal and nuclear facilities, as well.
"It's sort of been this multi-year reckoning of which direction are we going to go,” Shelk said. "There are certainly very high stakes involved for sure, and it certainly is very complicated. It can get very technical, but the reason why people are fighting so hard is because it's very consequential."
Other states in the region are taking notice. Ohio lawmakers have floated similar proposals for nuclear subsidies. And Exelon, which has helped wage a grassroots and public relations campaign on the ground in Pennsylvania, is expected to push lawmakers there to introduce nuclear subsidy legislation next year.
Steve Kratz, spokesman for Citizens Against a Nuclear Bailout, a group whose members include more than 20 organizations and companies, including the Marcellus Shale Coalition and the American Chemistry Council, said the state shouldn’t “follow in the footsteps of New York, Illinois and New Jersey” because the cost of any program could come at the expense of consumers. The state, he added, also produces more power than it needs, demonstrating that the grid is diverse and resilient enough.
http://www.naturalgasintel.com/articles/115983-natural-gas-interests-look-to-ferc-as-nuclear-subsidies-gain-more-ground
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New NAFTA Drops Canadian Oil Export Supply Guarantee
Oct 2, 2018 | BNA Daily Environment Report
By Alex Nussbaum
Gushing oil at record levels means the U.S. apparently no longer needs to preserve Canada as its emergency crude supplier.
Missing in the North American trade pact unveiled Oct. 1 is a provision from the old North American Free Trade Agreement requiring Canada to provide a percentage of its energy exports to its southern neighbor, according to industry experts who’ve reviewed the new pact.
The so-called proportionality clause, part of NAFTA’s Article 605, eliminated any restriction that would cut Canadian shipments below their three-year average. U.S. negotiators pushed for it in the 1994 trade pact after Canada approved a national energy program that prioritized domestic supply over exports, former Canadian Ambassador to the U.S. Derek Burney told the Financial Post newspaper in January.
The language stirred complaints among some Canadians about a loss of sovereignty over one of the nation’s most valuable resources. Now, with production booming on both sides of the border, the clause has died a quiet death. The American Petroleum Institute, the lobbying group for U.S. oil and gas companies, said Oct. 1 that preserving it was “not a priority.“
Surging oil shipments between the two countries “have been a product of current market forces, and we don’t see any reason why that wouldn’t continue,” Aaron Padilla, the group’s senior adviser for international policy, said by telephone.
https://news.bloombergenvironment.com/environment-and-energy/newnafta-dropscanadian-oil-export-supply-guarantee
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Troubled $4.6 Billion Shale Pipe Hits New Snag With Court Order
Oct 3, 2018 | BNA Daily Environment Report
By Rachel Adams-Heard
A $4.6 billion shale gas pipeline that’s already been delayed by about a year is facing yet another setback after a court vacated a key permit.
A U.S. appeals court voided a federal authorization for EQT Midstream Partners LP’s Mountain Valley conduit, designed to carry natural gas from the Marcellus basin in Appalachia—America’s biggest reservoir of the fuel—to Southeast markets.
The court sided with environmental groups, saying the Army Corps of Engineers wasn’t allowed to require a certain method for building across rivers after West Virginia had already imposed a special condition for that work.
The decision is “a huge blow to the project and a real surprise to us,” said Brandon Barnes, an analyst at Bloomberg Intelligence in Washington.
A spokeswoman for EQT Midstream didn’t immediately respond to a request for comment.
Mountain Valley has faced mounting legal and regulatory hurdles, which have pushed the project’s start date to the fourth quarter of 2019 from its original timeline a year earlier and forced the developer to raise cost estimates by almost $1 billion.
Other Eastern U.S. pipeline projects, including Dominion Energy Inc.’s Atlantic Coast line, have faced similar woes. The conduits would join several built in the region over the past few years as Marcellus drillers seek outlets for abundant shale supply.
The same court in late June issued a stay on a portion of the Army Corps’ permit, which was lifted on Aug. 29. Since the initial stay, EQT Corp. has seen its shares fall 21 percent.
The Federal Energy Regulatory Commission, which oversees state-crossing gas pipelines, is likely to halt all construction on the project in response to the court’s most recent order, Barnes said. Work on the pipeline was already ordered to stop for about a month after the U.S. Court of Appeals for the Fourth Circuit vacated permits from the Bureau of Land Management and Forest Service.
Mountain Valley would transport Appalachian shale gas 303 miles from northwestern West Virginia to southern Virginia. The project is a joint venture of EQT Midstream, NextEra Energy Inc., Consolidated Edison Inc., WGL Holdings Inc., and RGC Resources Inc.
https://news.bloombergenvironment.com/environment-and-energy/troubled-46-billion-shalepipehits-new-snag-with-court-order
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4th Circuit Blocks Construction of Mountain Valley Pipeline
Oct 2, 2018 | Inside EPA
The U.S. Court of Appeals for the 4th Circuit has vacated the Army Corps of Engineers' approval of a streamlined Clean Water Act (CWA) permit for the Mountain Valley Pipeline (MVP) in West Virginia, a move that blocks construction of the project along its entire route.
In an Oct. 2 per curiam decision in Sierra Club v. Army Corps of Engineers, the three-judge panel agreed with environmentalists that the Corps lacked the power to change one of the state's CWA construction requirements.
The decision follows Sept. 28 oral argument in the case where a three-judge panel questioned government lawyers about the scope of the Corps' authority to modify conditions West Virginia placed on the use of the streamlined permit, known as nationwide permit (NWP) 12.
“Exercising jurisdiction pursuant to 15 U.S.C. § 717r(d)(1), we conclude, for reasons to be more fully explained in a forthcoming opinion, that the Corps lacked authority to substitute the 'dry cut' requirement 'in lieu of' West Virginia’s 72-hour temporal restriction. Accordingly, we VACATE, in its entirety, the Corps’ verification of the Pipeline’s compliance with NWP 12,” the decision says.
The court notes that the Corps' CWA regulations, 30 CFR section 330.6(d), which discuss the use of individual permits along with NWPs for projects, says that “if any part of a project requires an individual permit, then 'the NWP does not apply and all portions of the project must be evaluated as part of the individual permit process.'”
The decision says the court reserves judgment on the parties' remaining arguments until a forthcoming opinion in the case is issued.
“Because the MVP’s certificate from the Federal Energy Regulatory Commission specifies that all necessary permits must be in place before the project can proceed anywhere, MVP must also halt work along its entire route,” Sierra Club says in an Oct. 2 statement.
When West Virginia issued its CWA section 401 certification for NWP 12, it included several additional conditions on the permit's use in the state, including requiring natural gas pipeline construction across streams to be completed in 72 hours.
But the Corps, in its verification that construction of MVP can proceed under the terms of NWP 12, said stream crossings must be conducted using a “dry cut” method, in which water is temporarily diverted around the construction site. The Corps argues this requirement is more restrictive, and therefore more environmentally protective, than the 72-hour construction limit, noting that West Virginia agrees with this conclusion.
Construction using the dry-cut method is expected to take four-to-six weeks to complete.
But during oral argument, Chief Judge Roger L. Gregory, quoting the musical Man of La Mancha, said, “Truth is a stubborn fact” and noted the 72-hour requirement in the 401 certification still exists.
The arguments in the suit, along with several others challenging the nearby Atlantic Coast Pipeline, highlight crucial tests that environmentalists and developers face as they square off over new natural gas infrastructure in the gas-rich Mid-Atlantic region.
https://insideepa.com/daily-feed/4th-circuit-blocks-construction-mountain-valley-pipeline
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Colorado Drilling Applications Surge Before Ballot Box Fight
Oct 2, 2018 | BNA Daily Environment Report
By Catherine Traywick
Colorado drillers are working to lock in future production amid rising crude prices and before a November vote that could curb oil and gas development in the state.
Applications for drilling permits more than doubled during the first nine months of 2018 versus the same period last year, according to data from the Colorado Oil and Gas Conservation Commission. Explorers including Noble Energy Inc., Extraction Oil and Gas Inc., SRC Energy Inc. and PDC Energy Inc. filed more than 7,000 requests to drill, the highest number of applications received by the state since 2008.
The surge in permit requests comes as Colorado explorers pump a record volume of crude—and amid a contentious ballot box fight to limit drilling in the state. So-called Proposition 112, up for a vote in November, would increase the buffer between oil and gas infrastructure and occupied structures and other designated areas. If passed, the measure could block new drilling in more than half the state, according to the state energy regulator. However, permits active at the time the measure takes effect would not be subject to the setback requirement.
“Colorado has seen strong production growth since the start of last year and with Prop 112 on the ballot, it’s not surprising to see companies trying to build up some additional flexibility,” said Bloomberg Intelligence analyst James Blatchford. “There are several companies that don’t have operations elsewhere.“
The state has approved 1,773 permits through August, with a median approval time of 87 days, according to Jane Stanczyk, the permit manager for the Colorado Oil and Gas Conservation Commission. Permits are valid for two years.
https://news.bloombergenvironment.com/environment-and-energy/colorado-drilling-applications-surge-before-ballot-box-fight
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Trump’s EPA Gives Up in Legal Fight Over Obama-Era Chemical Rules
Oct 2, 2018 | BNA Daily Environment Report
By Sam Pearson
EPA rules to improve the safety of chemical facilities could take effect as soon as this month after agency attorneys decided not to pursue more legal action.
A panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit ruled Aug. 17 that the Environmental Protection Agency lacked sufficient basis to delay for 20 months the Obama administration’s changes to its risk management program. The government declined to file a petition for rehearing of the case before an Oct. 1 deadline, records show.
The program is a set of safety standards aimed at ensuring safety for first responders and communities near chemical facilities. The Obama administration modified the regulation in response to a 2013 explosion at a fertilizer plant in West, Texas, that killed 15 people, but the agency under the current leadership moved to halt the regulation.
The Environmental Protection Agency estimates fully implementing the Obama-era program could cost companies about $131 million per year, while preventing some of an estimated $274.7 million in annual damages from unplanned chemical releases.
The EPA didn’t immediately respond to a request for comment by Bloomberg Environment.
The case is Air Alliance Houston v. EPA, D.C. Cir., No. 17-1155, 8/17/18.
https://news.bloombergenvironment.com/environment-and-energy/trumps-epa-gives-up-in-legal-fight-over-obama-era-chemical-rules
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`Elevated Cancer Risk’ at Sterigenics Illinois Facility: State Regulators
Oct 2, 2018 | BNA Daily Environment Report
By Nick Lichtenberg
The Illinois EPA began an enforcement action against Sterigenics based on findings by the Agency for Toxic Substances & Disease Registry regarding emissions of ethylene oxide.
The ATSDR’s Aug. 21 report found an “elevated cancer risk” among residents and off-site workers in the Willowbrook community around the Sterigenics facility.
The Illinois Environmental Protection Agency is seeking an order enjoining Sterigenics from continuing any operations that result in such emissions.
Sterigenics primarily uses ethylene oxide to sterilize medical equipment.
https://news.bloombergenvironment.com/environment-and-energy/elevated-cancer-risk-at-sterigenics-illinois-facility-state-regulators
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DHS on Russian Grid Hackers: 'They Are Doing Research'
Oct 3, 2018 | E&E Energywire
By Blake Sobczak
A Russia-linked hacking campaign that targeted parts of the U.S. grid last year likely represented an effort to "prep the battlefield" for a more disruptive attack, U.S. Homeland Security Secretary Kirstjen Nielsen said yesterday.
"In my opinion, they are doing research, and they want to know how [the grid] works," Nielsen said at a cybersecurity conference hosted by The Washington Post.
She cited serial cyberattacks on Ukraine's power grid in December 2015 and again in December 2016 as evidence of Russia's interest in laying groundwork for future disruption.
However, in contrast to some of her counterparts at the Department of Energy, Nielsen voiced confidence in the "distributed nature" of the U.S. power grid providing some buffer against widespread blackouts caused by hackers.
"We do feel there is resilience built in," she said. "We continue to work with the [electricity] sector."
Last week, DOE's top cybersecurity official, Karen Evans, told lawmakers she could not say with confidence that the U.S. grid could withstand a major cyberattack (Energywire, Sept. 28). She noted that she would work to pass along actionable intelligence on the latest threats from nation-states like Russia and Iran, so utilities could better defend their networks.
"For me to have a certain confidence level of that, I want to make sure that I'm providing all the information that they need to have so that they can make sure that they have the proper defenses in place," Evans said.
Nielsen credited DOE as being "very active" as the federally designated "sector-specific agency" for parrying threats to the energy sector. This week, DOE unveiled $28 million in cybersecurity research awards aimed at developing new methods for thwarting hackers who target the grid, oil and natural gas sectors (Energywire, Oct. 2).
The Homeland Security secretary pointed out that her own agency is also leading efforts to protect the industrial control systems that keep U.S. critical infrastructure up and running. Nielsen cited Project Sentry, a DHS pilot project eyeing the boundary between utilities' business and operational systems.
In a recent, long-running cyberespionage campaign traced to Russia, DHS and the FBI warned that hackers broke into the corporate networks of energy companies before attempting to hop over to the operational side, where they could cause real-world impacts, like blackouts.
"That's the other area that we've been closely tracking: When they [hackers] get into one system, do they have the capabilities, through that door, to get into the industrial control system?" Nielsen said.
She said the Russia-linked hackers remain "active," even though they may not yet possess the ability to cause wide-scale blackouts. "They do have some capability, absolutely, to disrupt ICS systems," she said.
https://www.eenews.net/energywire/2018/10/03/stories/1060100359
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CSX Can’t End Claims Over Derailment, Fire, Evacuation
Oct 2, 2018 | BNA Daily Environment Report
By Peter Hayes
CSX Transportation Inc. failed to shake the bulk of class action claims by Pennsylvania residents forced from their homes by the derailment and subsequent fire of a train carrying hazardous materials.
The plaintiffs’ state law nuisance claims may proceed as well as their request for punitive damages, the U.S. District Court for the Western District of Pennsylvania said.
Neither the Federal Railroad Safety Act nor the Hazardous Materials Transportation Act preempts the claims, the court said.
But claims related to the unsafe condition of the rail cars or the noise and fumes created by CSX’s cleanup of the site are preempted by the Interstate Commerce Commission Termination Act, the court said.
The suit stems from an August 2017 derailment of a CSX train in Hyndman, Pa., which had been transporting hazardous materials, including propane and molten sulfur.
The named plaintiff, Denora Diehl, is a resident of Hyndman, and the proposed class consists of approximately 1,000 other residents of the borough.
Judge Kim R. Gibson issued the ruling.
Frederick Law Group PLLC, Marcus & Mack P.C., David Bryant Law PLLC, and Fayard & Honeycutt, APC represent Diehl.
Burns White LLC and Crowell Moring LLP represent CSX.
The case is Diehl v. CSX Transp., Inc., 2018 BL 357783, W.D. Pa., No. 18-cv-122, 10/1/18.
https://news.bloombergenvironment.com/environment-and-energy/csx-cant-end-claims-over-derailment-fire-evacuation
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Toxic Air Pollution Will Rise With EPA Policy Move, California Says (1)
Oct 2, 2018 | BNA Daily Environment Report
By Amena H. Saiyid
Hazardous air pollution in California could double under an EPA policy relaxing standards for large industrial facilities that keep toxic emissions below a specified level, the state told a federal appeals court.
The Environmental Protection Agency’s move would allow about 42 large industrial sources to avoid more stringent and costly controls if they keep their emissions below the Clean Air Act’s threshold for air toxics, California told the U.S. Court of Appeals for the District of Columbia Circuit in an Oct. 1 brief.
The facilities could now put as much as 950 tons of toxic pollution into the air every year, the state said.
The D.C. Circuit must rule on the fate of a January memo by EPA Air Chief Bill Wehrum to revoke the 1995 “once in, always in” policy. Large sources of air toxics, under the original rule, must keep using pollution controls even if their emissions eventually drop below the law’s thresholds for regulating them.
Wehrum reasoned that those industrial facilities can now be reclassified as smaller “area” sources that are subject to less stringent requirements.
Clean Air Act emissions control requirements for toxics kick in for industrial facilities that emit at least 10 tons per year of a single hazardous pollutant, or 25 tons of two or more air toxins.
California and a coalition of environmental groups led by California Communities Against Toxics sued the EPA for changing its approach to regulating hazardous air pollution at major industrial sources without seeking public comment.
Skirting the Thresholds
In effect, California said Wehrum’s decision would allow industrial facilities to emit just under those thresholds and avoid operating pollution controls. The once-in, always-in policy “ensures that all hazardous air pollutants sources ‘at least clean up their emission to the level that their best performing peers have shown can be achieved,’” the state argued.
Environmental groups including the Sierra Club, the Environmental Integrity Project, and the Environmental Defense Fund also argued the policy change will increase hazardous air pollution.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
Large Emissions Increase PredictedAn Environmental Defense Fund’s analysis, which the groups cite in their Oct. 1 brief, found around 2,617 facilities in the EPA’s enforcement and compliance database that are identified as major sources for hazardous air pollutants across the nation.
These facilities fall below the 10- and 25-ton annual thresholds because they are required to install the maximum level of controls.
In the Houston-Galveston area alone, the analysis found 18 industrial facilities including chemical plants, that could take advantage of the loophole created by the Wehrum memo and potentially increase their hazardous emissions by 267 tons a year.
The analysis by California and other plaintiffs is problematic because it assumes that sources will increase their hazardous air pollution if the control requirement goes away, Eric Hiser, a Phoenix-based Clean Air Act attorney at Jorden Hiser & Joy PLC, told Bloomberg Environment in a Oct. 2 email.
“Most sources will control if they have the equipment, while some might lessen the controls or maintain them less assiduously,” Hiser said. “But to assume that they will all increase to the threshold is unrealistic for a variety of reasons, including inertia, willingness to control as the ‘right thing to do’ and inability to substantially adjust controls to hit a higher number without compromising the controls in the first place.”
The practical impact of the Wehrum memo will be more pollutants that are not as strictly regulated, Maureen Gorsen, a former general counsel to the California Environmental Protection Agency and the California Natural Resources Agency, told Bloomberg Environment Oct. 2.
“That is because smaller facilities won’t be treated like major ones,” said Gorsen, who now is a partner in Alston & Bird LLP’s Los Angeles office.
At the end of the day, though, “it’s just a battle over two memos with one replacing the other,” Gorsen said. She said the arguments that California and the environmental groups are making about the memo being issued without public comment can just as easily be made about the Clinton-era memo.
The case is Calif. Cmties. Against Toxics v. EPA, D.C. Cir., No. 18-1085, briefs filed 10/1/18.
(Updated last three paragraphs with comments.)
https://news.bloombergenvironment.com/environment-and-energy/toxic-air-pollution-will-rise-with-epa-policy-move-california-says-1
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EPA Slated to Defend CSAPR 'Update' Rule at D.C. Circuit Oral Argument
Oct 2, 2018 | Inside EPA
By Stuart Parker
EPA at Oct. 3 oral argument in the U.S. Court of Appeals for the District of Columbia Circuit is slated to defend the Obama-era “update” to the Cross-State Air Pollution Rule (CSAPR) emissions trading program, fighting East Coast states' and environmentalists' claims that the rule is too weak and utilities' and other states' claims that it is too strict.
Judges Sri Srinivasan, Patricia Millett and Robert Wilkins -- all appointed by former President Barack Obama -- will hear the consolidated litigation in which EPA is defending its authority for how it wrote the CSAPR update, even as the Trump administration is signaling a move away from interstate trading programs.
CSAPR, introduced by the Obama EPA in 2011 and then revised in 2016, established an interstate trading program for power plants in up to 28 eastern states for ozone-forming nitrogen oxides (NOx) and also sulfur dioxide. The original version aimed to help states mitigate their interstate emissions and attain the 1997 ozone national ambient air quality standard (NAAQS), expressed as 84 parts per billion (ppb), in addition to particulate matter (PM) standards.
The 2016 update at issue in the pending case State of Wisconsin, et al. v. EPA, et al. tightened state emissions caps, or “budgets,” to help states meet the tougher Bush EPA ozone NAAQS of 75 ppb, set in 2008. It left SO2 limits unchanged, however. And it did not address the stricter 2015 ozone limit of 70 ppb.
The Trump EPA plans to rely on states' individual efforts to satisfy the Clean Air Act's “good neighbor” requirement for the 2015 NAAQS, rather than crafting another federal trading rule. That air law provision requires states to curb their air emissions that contribute significantly to problems attaining or maintaining NAAQS in other states downwind, by crafting state implementation plans (SIPs) detailing control measures.
Several Midwestern and Southern states in the suit claim EPA wrongly included them in the 2016 CSAPR update, contesting EPA's analysis that found them to be contributing to NAAQS attainment problems downwind.
In contrast, East Coast states that experience significant ozone levels transported from upwind, and several environmental groups, are defending the update rule but also seeking to toughen it to force bigger ozone cuts. A chief legal argument made by coastal states and environmentalists is that the CSAPR update was by design only a partial solution to interstate transport causing violations of the 2008 ozone NAAQS.
EPA will argue that its recently proposed CSAPR “close-out” finding in effect moots environmentalists' and downwind states' cases. The finding establishes that all eastern states will meet the 2008 ozone NAAQS by 2023, and that further federal steps beyond CSAPR update are unnecessary to ensure attainment.
East Coast states strongly dispute this finding, pushing the agency in recent public comments for further federal action to curb interstate emissions.
Interstate Pollution
The agency, meanwhile, has denied a series of petitions filed by East Coast states for direct federal regulation of air pollution sources in upwind states, often citing CSAPR and the “good neighbor” SIPs as more-appropriate vehicles to limit interstate pollution.
Environmental petitioners Appalachian Mountain Club and Sierra Club in a Sept. 12 letter to the court reject EPA's mootness argument, saying, “The conduct that Petitioners challenge in this case -- EPA’s refusal to abate interstate air pollution in accordance with statutory requirements -- would not 'cease' under EPA’s proposal to refuse yet again to abate this pollution.” Environmentalists note that claiming NAAQS attainment by 2023 is not relevant, because the attainment deadlines of many states for the 2008 ozone NAAQS fall before this date.
Meanwhile, EPA in the suit will also have to defend the CSAPR methodology from industry attacks, even as EPA has moved to provide states with flexibility to depart from the CSAPR method in their SIPs to satisfy the 2015 ozone NAAQS' good neighbor requirement, which were due to the agency Oct. 1.
Recent EPA guidance gives states a range of options in determining their significant contribution to interstate pollution. While CSAPR used a threshold of one percent of the relevant NAAQS to initially determine this, and then employed a cost-effectiveness test to possible controls in the upwind state, EPA's guidance allows use of a higher percentage threshold, which would more likely exclude an upwind state from a duty to make interstate emissions cuts.
Upwind states and utility industry groups say that EPA relied on computer modeling that overestimated downwind ozone levels in crafting the CSAPR update, ignoring actual ozone monitoring data. This led to unlawful “over-control” of the upwind states, critics claim, in violation of the Supreme Court's 2014 ruling in EPA et al. v. EME Homer City Generation L.P. et al. The high court ruling largely upheld CSAPR but also found it possible that EPA could unlawfully force upwind states to reduce emissions more than required to ensure attainment at all downwind sites.
The rule's industry detractors further argue that EPA failed to account for naturally-occurring or international “background” ozone that local regulators cannot control.
https://insideepa.com/daily-news/epa-slated-defend-csapr-update-rule-dc-circuit-oral-argument
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Children's Health Language Deleted from Climate Rule
Oct 2, 2018 | E&E News PM
By Maxine Joselow
The White House scrubbed language about how climate change affects children's health from a draft EPA proposal on heat-trapping chemicals, new documents show.
An earlier draft of an EPA proposal on the heat-trapping chemicals, known as hydrofluorocarbons or HFCs, contained language about how children are more vulnerable to the effects of climate change. That language was nixed during an interagency review by the White House Office of Information and Regulatory Affairs.
"Certain populations and life stages, including children, the elderly and the poor, are most vulnerable to climate-related health effects," the draft said. "The 2016 assessment The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment describes how children's unique physiological and developmental factors contribute to making them particularly vulnerable to climate change."
The draft continued: "Impacts to children are expected from heat waves, air pollution, infectious and waterborne illnesses, and mental health effects resulting from extreme weather events. In addition, children are among those especially susceptible to most allergic diseases, as well as health effects associated with heat waves, storms and floods."
EPA last month rolled out the proposal for shrinking an Obama-era rule aimed at preventing leaks of HFCs in air-conditioning and refrigeration appliances (Greenwire, Sept. 20).
While short-lived in the atmosphere, HFCs are thousands of times more potent as greenhouse gases than carbon dioxide. The Obama administration made phasing out HFCs a key part of its climate agenda. The Trump administration, however, has backtracked (Climatewire, Sept. 17).
EPA said its proposed amendments to the HFC rule would generate $39 million in cost savings. The agency also tacitly acknowledged that the proposal would result in at least 3 million metric tons of additional greenhouse gas emissions annually.
The deleted language comes after the director of EPA's children's health office was put on administrative leave (Greenwire, Sept. 26).
Ruth Etzel, a career employee who joined the agency in 2015, was put on leave while the agency reviews "allegations" about her leadership of the office, EPA Chief of Staff Ryan Jackson said in a statement Friday.
This isn't the first time that the Trump regulatory affairs shop has cut climate language from an EPA rule. OIRA also scrubbed references to climate change from the agency's proposed Clean Power Plan replacement (Climatewire, Sept. 5).
An EPA spokesman referred questions about the deleted language to the White House, which did not immediately respond to a request for comment.
https://www.eenews.net/eenewspm/2018/10/02/stories/1060100339
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U.S. Doubles down on Science 'Uncertainties,' Fossil Fuels
Oct 3, 2018 | E&E Climatewire
By Jeam Chemnick
Top researchers are huddled with government officials in South Korea this week to confront the scientific consensus that maintaining a safe global climate will require immediate and aggressive action.
The U.N. Intergovernmental Panel on Climate Change is expected to release a long-awaited study Monday showing what the world will look like if temperatures rise an average of 1.5 degrees Celsius over preindustrial levels, versus the 2-degree scenario scientists once deemed safe.
The study is expected to call for deep cuts in fossil fuel use and stepped carbon sequestration efforts in line with the lower temperature goal. It is also likely to warn that a 2-degree increase would cause substantial damage.
But first, governments have their role to play.
"This is a tried and true method by which governments have an opportunity to own, with the scientific community, the topline findings of the report," said Peter Frumhoff, chief climate scientist at the Union of Concerned Scientists.
Representatives from 195 countries have been sequestered with scientists since Monday, working out of sight of the press and public to hash out the report's so-called Summary for Policymakers. That's the outline of the report's findings that will likely get the most attention. It will be used most widely in setting policy and informing the implementation of the Paris Agreement.
National representatives are going line by line through the summary, requesting changes on everything, from wording to the placement of semicolons.
"Obviously, those changes, whether small or large, can have different interpretations and therefore implications for all manner of things," Frumhoff said. "But the bottom line in terms of the rules of the game is that it's not a negotiation among equivalents."
Government officials, however, don't get the final say. That responsibility belongs to the 91 scientists from nearly 40 countries who were nominated by their nations to write the report's chapters. They must choose to accept the governments' line edits.
The goal of the exercise is to arrive at a final summary that the body agrees captures the core findings in the underlying report on issues like mitigation and impacts — not to ask bureaucrats to endorse the scientists' work.
But that doesn't mean it's impossible that one country or more could part from tradition and try to hold up the whole process, especially as this report is expected to recommend much deeper cuts in emissions than called for in the past.
"Could anything trip this up? Sure," Frumhoff said.
He and others say governments could move to delay the release of the summary, and possibly also of the underlying report. It's not clear they will. The meeting in Incheon is moving slowly, but experts say that's nothing new. The negotiators have a deadline: They must wrap up by Saturday evening to make way for a meeting of the Green Climate Fund at the same venue.
The United States, which has declared a retreat from the Paris accord, is represented in South Korea by Trigg Talley, director of the State Department's Office of Global Change.
In comments obtained by E&E News, the United States and other countries took issue with 66 elements of the draft summary prepared by scientists.
The United States complained that the report focused too much on sustainable development, which is "beyond the mandate given the authors of the report and beyond the mandate of the IPCC itself." It admonished the authors to play up areas where it said there were "significant uncertainties," including on core scientific questions of climate sensitivity and the so-called carbon budget, or the amount the world can still emit while staying within a certain range.
The United States also noted that global poverty has lessened in the last few decades as fossil fuel use has "exploded" in the developing world.
"The report and SPM do not present a balanced assessment of the economic, social and development costs associated with the trade-offs of pursuing actions consistent with limiting global warming to 1.5 C," state the comments, which would have been prepared by the State Department with sign-off from the White House National Economic Council.
"Too often," the comments continue, "authors dismiss tradeoffs as being solvable by using redistributive policies or by pursuing actions that are deemed consistent with sustainable development."
Trump administration officials highlighted similar themes at last year's climate talks in Bonn, Germany, where then-White House adviser George David Banks touted the importance of nuclear and advanced fossil fuels technology in combating climate change and the need to balance climate objectives against the apparently competing priority of alleviating global poverty.
If the 1.5-degree report were delayed by months, it could affect a collective stocktaking exercise in Poland in December — the so-called Talanoa Dialogue, which is meant to inspire countries to strengthen their commitments to Paris. Countries were asked to ready new commitments in time for the U.N. secretary-general's summit in New York next September; they're officially due at year-end climate talks in 2020.
The 2015 Paris summit mandated the IPCC report in part to address concerns from vulnerable nations that feared the new agreement wouldn't be strong enough to guard against the worst impacts of climate change.
The deal's text called for the nations to keep temperature rise "well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius," but island nations and poor countries argued that 2 degrees wouldn't protect them.
And current Paris pledges don't add up to a 2-degree limit even if countries implemented them. Estimates of temperature rise with Paris commitments range as high as 3 degrees Celsius.
Business-as-usual scenarios are higher still.
"Governments across the world must take the report seriously and respond with science-based policies to spur genuine emissions reductions," said Ethiopia's Gebru Jember Endalew, chairman of the Least Developed Countries negotiating group within the U.N. climate talks. "Our world's natural systems place limits on us that we cannot negotiate, and all countries need to respond accordingly with fair and ambitious climate action."
https://www.eenews.net/climatewire/2018/10/03/stories/1060100393
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