Preview Newsletter
AM ACC Clips Report - October 4, 2018
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Senators Clash over Science Proposal
Oct 3, 2018 | E&E News PM
By Sean Reilly
Lawmakers clashed along party lines at the outset of a Senate hearing this afternoon on an EPA proposal to restrict the agency's use of science in crafting new regulations. -
EPA Excluded Its Own Top Science Officials When It Rewrote Rules on Using Scientific Studies
Oct 3, 2018 | The Washington Post
By Steven Mufson and Chris Mooney
When former EPA administrator Scott Pruitt launched an effort to limit what kinds of scientific studies could be used to protect public health, he left out some key experts: the Environmental Protection Agency’s own Office of the Science Advisor, according to an email exchange obtained by The Washington Post. -
EPA Left Key Official out of 'Secret Science' Rule
Oct 4, 2018 | The Hill - E2 Wire
By Miranda Green
The Environmental Protection Agency (EPA) under former Administrator Scott Pruitt excluded one of its top scientists while devising its new “secret science” rule, the Washington Post reported Wednesday. -
As EPA Eyes Curbs, NAS Head Backs Need For Science In Policy Decisions
Oct 3, 2018 | Inside EPA
By Lara Beaven
As the Trump EPA weighs curbs on the use of science in its decisions, the head of the National Academy of Sciences (NAS) is emphasizing the need for using scientific data to make federal policy decisions, pointing to historical examples -- such as the Spanish Flu epidemic -- of the adverse consequences of ignoring science. -
Senate Quietly Sends 'Historic' Reforms to Trump's Desk
Oct 4, 2018 | E&E Daily
By Nick Sobczyk
While few people were watching amid an unrelenting news cycle the past two weeks, Congress agreed to a bill that would make big changes to the way the Federal Emergency Management Agency does business. -
EPA Agrees to New Contract Payment Controls to Avert $1.2 Billion 'Risk'
Oct 3, 2018 | Inside EPA
EPA leadership is pledging to modernize the systems it uses to bill contractors in a move that its Office of Inspector General (OIG) says could avert risking up to $1.2 billion in annual funding, agreeing with the OIG's recommendation in a new report for a quick transition to purely electronic billing to prevent invoicing error. -
Key Test Vote for Kavanaugh Set for Tomorrow
Oct 4, 2018 | E&E Daily
By Geof Koss
The Senate will vote tomorrow to end debate on the nomination of Brett Kavanaugh to become a Supreme Court justice, giving senators little more than a day to review the supplemental FBI background check that has had the Capitol on edge all week. -
EPA Issues 26 TSCA Significant New Use Rules
Oct 4, 2018 | Chemical Watch
The US EPA has issued TSCA significant new use rules (Snurs) for 26 substances subject to section 5 orders. -
EPA Round-Up
Oct 4, 2018 | Chemical Watch
The US EPA has reminded industry of the 5 October cut-off date for voluntarily submitting a notice of activity form on chemicals they processed in the ten-year period that ended on 21 June 2016. -
(ACC Mentioned) EPA Looks to Roll Back Regulations Governing Radiation
Oct 4, 2018 | ConsumerAffairs
By Amy Martyn
The Environmental Protection Agency (EPA) is currently trying to overhaul the way that chemicals are regulated and is reportedly relying on the expertise of a toxicologist who argues that small amounts of radiation are beneficial. -
The EPA’s Bold New Idea Has Massive Implications for Public Health
Oct 3, 2018 | Mother Jones
By Rebecca Leber
For years, the Environmental Protection Agency’s regulation of radiation, carcinogens, and other toxic chemicals has been based on the cautious scientific reasoning that considers even slight exposure to toxins potentially risky to public health. -
Congress Takes Step Forward to Protect Drinking Water from PFAS Chemicals
Oct 3, 2018 | Safer Chemicals Healthy Families
By Jamie Nolan
Today, Congress took bipartisan action to protect drinking water from contamination by passing legislation that directs the Federal Aviation Administration (FAA) to allow airports to use firefighting foam free of highly fluorinated chemicals or PFAS. -
Congress Backs PFAS Alternatives for Airports
Oct 3, 2018 | Inside EPA
Congress has passed Federal Aviation Administration (FAA) reauthorization legislation that contains a provision that will allow commercial airports to stop using firefighting foams that contain per- and poly fluoroalkyl substances (PFAS), an action that comes as PFAS chemicals continue to be found in drinking water systems near sites where PFAS foam has been used. -
Lawmakers Ok Bill with Disaster, Environmental Provisions
Oct 3, 2018 | E&E News PM
By Nick Sobczyk
The Senate today passed a major set of disaster reforms, as well as the first round of aid for victims of Hurricane Florence, in what proponents say is a windfall for future disaster mitigation. -
California Faces Criticism over Paint Stripper Chemical Priority Listing
Oct 3, 2018 | Inside EPA
The California toxics department's plan to name products containing N-Methylpyrrolidone (NMP) such as paint and varnish strippers as priorities under its Safer Consumer Products (SCP) green chemistry program is facing push-back from industry groups, which argue in part that EPA risk assessments upon which the proposal is based are flawed. -
EU Project Nominates Five Plastic-Packaging Phthalates for Substitution
Oct 4, 2018 | Chemical Watch
A research project involving scientists and NGOs has named five phthalates used in plastic packaging as substances of the "highest priority" to be considered for substitution. -
US Congress Introduces Broad Cosmetics Safety Bill
Oct 4, 2018 | Chemical Watch
By Kelly Franklin
A sweeping bill has been introduced in the US House of Representatives that would ban several ingredients from personal care products and require full disclosure of ingredients. -
Baltimore Approves Study of Toxic Chemicals in River to Help Scientists Figure out How to Get Rid of Them
Oct 3, 2018 | The Washington Post
By Scott Dance
Traces of toxic chemicals have persisted in waterways and animals for decades since the U.S. government banned their use. -
Shell LNG, Trade Deal No Help to Stalled Trans Mountain Pipeline
Oct 3, 2018 | BNA Daily Environment Report
By Natalie Obiko Pearson
Royal Dutch Shell Plc’s commitment to invest in the largest private-sector project in Canada’s history and a new trade deal with the U.S. and Mexico show the country is open for business again. -
Chinese LNG Buyer Is Said to Dodge U.S. Tariff in Cargo Swap
Oct 3, 2018 | BNA Daily Environment Report
By Stephen Stapczynski
The U.S.-China trade war is starting to alter global fuel flows. -
Is Canada's big week bad for U.S. industry?
Oct 4, 2018 | E&E Energywire
By Jenny Mandel and Margaret Kriz Hobson
"Today is a good day," Canadian Prime Minister Justin Trudeau said Tuesday at the announcement of a $31 billion liquefied natural gas export plant to be built by Royal Dutch Shell and partners on Canada's west coast. -
Feds, Oil and Gas Execs Launch Cybersecurity Initiative
Oct 4, 2018 | E&E Energywire
By Blake Sobczak
A top Department of Homeland Security official met with oil and gas industry executives yesterday to discuss keeping hackers out of U.S. pipeline networks. -
Petroleum-by-Rail Surges as Producers Pay Up to Bypass Pipelines
Oct 4, 2018 | BNA Daily Environment Report
By Alex Nussbaum
Here is more fallout from the pipeline shortages bedeviling North American crude producers: Petroleum-packed trains are once again rolling through the heartland of the U.S. and Canada. -
Trump Administration Repeals Train Safety Regulation, Triggering New Oil Spill Fears
Oct 3, 2018 | McClatchy Washington Bureau
By Kellen Browning
The Trump administration has repealed a safety regulation governing trains that carry large quantities of oil, sparking new fears among Washington state officials and environmental activists that devastating oil spills could be more likely. -
CSX Brings Emergency Training to NJ Firefighters as Crude Oil Shipments Rise
Oct 4, 2018 | NorthJersey.com
By Curtis Tate
CSX, the railroad that operates trains carrying millions of gallons of crude oil and ethanol through New Jersey every week, rolled out its Safety Train on Wednesday to help first responders prepare for an incident. -
Wash. Failed Twice to Tax Carbon. Is 2018 Different?
Oct 4, 2018 | E&E Climatewire
By Benjamin Storrow
Bob Guenther spent 34 years tending to a massive coal plant here in the shadow of Mount Rainier. -
Judge Aghast EPA Didn’t Seek Emissions Cuts Beyond 2017
Oct 4, 2018 | BNA Daily Environment Report
By Amena H. Saiyid
A federal appellate judge expressed astonishment Oct. 3 at the EPA’s acknowledgment that the agency didn’t seek cuts in smog-forming pollution beyond 2017 in a rule designed to help 22 states meet federal ozone standards. -
California, Environmentalists Ask Court To Revive 'Once In' Air Toxics Policy
Oct 4, 2018 | Inside EPA
By Stuart Parker
California and environmental groups are asking a federal appeals court to restore EPA's former “once in, always in” (OIAI) policy of regulating industrial facilities as “major” air toxics sources even when they cut emissions below major source thresholds, arguing the Trump administration's decision to scrap the policy is unlawful and will boost pollution. -
D.C. Circuit Judges Ask Tough Questions In Suit Over EPA CSAPR Update
Oct 3, 2018 | Inside EPA
By Stuart Parker
A three-judge appellate panel at Oct. 3 oral argument asked tough questions of all sides in litigation over the Obama EPA's “update” to its Cross-State Air Pollution Rule (CSAPR), including what authority the agency has to craft interstate air pollution rules that fail to guarantee states will attain federal air standards by statutory deadlines. -
12 States Ask Judge to Toss Climate Suit Against Big Oil
Oct 4, 2018 | E&E Climatewire
By Anne C. Mulkern
Indiana and 11 other states asked a federal judge yesterday to throw out a lawsuit in Washington state that seeks to make petroleum giants pay for damages related to climate change.
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Senators Clash over Science Proposal
Oct 3, 2018 | E&E News PM
By Sean Reilly
Lawmakers clashed along party lines at the outset of a Senate hearing this afternoon on an EPA proposal to restrict the agency's use of science in crafting new regulations.
While EPA rules help protect the public from dirty air and other hazards, "I have been concerned that the broad discretion and lack of transparency at the EPA has led the agency to seek out science that supports a predetermined policy outcome," said Sen. Mike Rounds (R-S.D.), chairman of the Environment and Public Works Subcommittee on Superfund, Waste Management and Regulatory Oversight.
But Sen. Cory Booker (D-N.J.), the subcommittee's ranking member, said the EPA proposal "is far more likely to hinder science-based regulation than to help it." Booker also noted that EPA had not consulted with its own Science Advisory Board before advancing the proposal.
The draft EPA rule, which has not been made final, would bar the agency from tapping studies for which the underlying data is not available for independent verification.
Rounds is the sponsor of legislation that would similarly prohibit EPA from using research if the data are not "transparent" or "reproducible." The bill, introduced more than a year ago, is still awaiting action by the EPW Committee.
https://www.eenews.net/eenewspm/2018/10/03/stories/1060100460
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EPA Excluded Its Own Top Science Officials When It Rewrote Rules on Using Scientific Studies
Oct 3, 2018 | The Washington Post
By Steven Mufson and Chris Mooney
When former EPA administrator Scott Pruitt launched an effort to limit what kinds of scientific studies could be used to protect public health, he left out some key experts: the Environmental Protection Agency’s own Office of the Science Advisor, according to an email exchange obtained by The Washington Post.
Tom Sinks, director of the office, said in an April 24 email that “Even though OSA and I have not participated in the development of this document and I just this moment obtained it (have yet to read it), I am listed as the point of contact.”
Sinks added, accurately, that “the proposal likely touches upon three aspects of OSA work — public access to EPA funded research, human subjects research protection, and scientific integrity” — all of which fall in his area of responsibility.
The email was released in response to a Freedom of Information Act request by the Union of Concerned Scientists.
The proposed rule, dubbed “Strengthening Transparency in Regulatory Science,” has ranked as one of conservatives’ top priorities for years. It would allow the EPA to consider only studies for which the underlying data is publicly available and can be reproduced by other researchers. Such restrictions could alter how the agency protects Americans from toxic chemicals, air pollution, radiation and other health risks, adding to the agency’s broader deregulatory agenda.
“It’s astounding that the EPA science adviser’s office was left completely out of the loop during the development of a major science policy proposal,” said Michael Halpern, deputy director of the center for science and democracy at the Union of Concerned Scientists. “Crafting any significant proposal behind closed doors without even bothering to notify career scientific staff suggests that it’s much more about politics than it is about science.”
In a statement, the agency countered that “EPA received input from a number of stakeholders and utilized the intra and interagency process to ensure a robust proposal was put forward.”
The science adviser’s office is part of the agency’s chief research branch, the Office of Research and Development (ORD). But an agency reorganization could merge it with another office further down the organizational chart within the ORD. Critics say this could blunt its influence.
In an interview Monday, acting EPA administrator Andrew Wheeler said the agency was not seeking to diminish the role of the ORD.
“We’re really trying to elevate the office within the organization and try to make it more customer-focused, so that all the other program offices turn to our research office for research leads and science needs,” Wheeler said.
Though technical, the Strengthening Transparency in Regulatory Science proposal is highly controversial. In an extended public comment period, it has drawn 590,000 comments, EPA spokesman John Konkus said Tuesday.
Sixty-nine prominent scientific, medical and academic organizations — including the American Association for the Advancement of Science — called on the EPA to withdraw the proposed rule. They said it would exclude reputable studies founded on epidemiological data that include proprietary information or confidential information from patients participating in private-sector research.
“Contrary to the stated purpose of the rule, the rule would result in the exclusion of valid and important scientific findings,” Rush D. Holt, a former congressman and former physics professor who is now the CEO of the American Association for the Advancement of Science, said in testimony prepared for a congressional hearing Wednesday. He said the rule was “not about transparency or sound science” and that the title was an “insidious dodge.”
Peter Wood, president of the conservative advocacy group the National Association of Scholars, wrote to Pruitt urging the EPA to “institute a process by which to rescind existing regulations based upon irreproducible science.”
The EPA’s proposed regulation closely resembles the HONEST Act, the subject of a hearing Wednesday at the Senate Environment and Public Works Subcommittee on Superfund, Waste Management, and Regulatory Oversight. Edward J. Calabrese, professor at the University of Massachusetts at Amherst’s School of Public Health, hailed the EPA’s “bold and constructive proposal” in prepared testimony.
One area that could be affected deals with air pollution regulations that limit levels of fine particulate matter that can enter the bloodstream and cause lung and heart problems. The link between these particles and health risks comes from several studies, but one of the most important, Harvard University’s look at pollution in six cities, promised subjects that their extensive personal information would not be shared.
“A study that has been replicated many times might be excluded from consideration, while one that uses an inferior database that is publicly available would be considered,” said John Bachmann, who worked at the EPA for 30 years and was involved in setting pollution regulations.
Guidelines for radiation exposure could also be undermined by limits in the proposal, experts say. For the past three decades, scientists have relied on something called the linear, no-threshold model in evaluating the biological effects of radiation. It is a way of measuring a full range of radiation doses against health outcomes, primarily cancer.
The model is used in part because of the difficulty of measuring exposure and long-term health effects, with the exception of the survivors of the Hiroshima and Nagasaki atomic bombings in 1945.
Until now, government regulators have said that even low levels of radiation can be hazardous and cause cancer.
Konkus said in an email that the proposal “doesn’t even mention the word ‘radiation.’ ” Yet the EPA proposal does say: “EPA shall evaluate the appropriateness of using default assumptions, including assumptions of a linear, no-threshold dose response, on a case-by-case basis.”
That pleases Calabrese, who is an advocate of “hormesis,” the idea that exposure to low doses of toxins — or radiation — can be beneficial. He said in his prepared testimony that moving away from the linear, no-threshold approach was “long overdue.”
Asked about the implications for resetting acceptable radiation exposure, Konkus said in an email that the EPA’s policy would be to continue using the linear, no-threshold model for “population-level radiation protection purposes” and that the proposed regulation “would not … trigger any change in that policy.”
David J. Brenner, director of the Center for Radiological Research at Columbia University Medical Center, said: “Dr. Calebrese’s view, that exposure to low levels of radiation are beneficial to human health and decrease cancer risk, is very much an outlier view in our field, with little or no supporting data.”
Brenner said in an email that “over the past few years there have been a number of large scale epidemiological studies that strongly suggest that low levels of radiation produce a very small risk of cancer. These studies would suggest that the current radiation limits for the public are pretty reasonable, providing a reasonable balance between public safety and the beneficial uses of radiation.”
“We don’t know how harmful low doses of radiation are yet,” said Allison Macfarlane, former chairman of the Nuclear Regulatory Commission and a supporter of limiting low-level exposure. “That’s because it’s difficult to distinguish which harms (exposure to cigarette smoke, exposure to low doses of radiation, exposure to chemicals, etc.) caused cancer and because it takes the cancer so long to develop.”
https://www.washingtonpost.com/energy-environment/2018/10/03/epa-excluded-its-own-top-science-officials-when-it-rewrote-rules-using-scientific-studies/?utm_term=.9c85f60e9c49
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EPA Left Key Official out of 'Secret Science' Rule
Oct 4, 2018 | The Hill - E2 Wire
By Miranda Green
The Environmental Protection Agency (EPA) under former Administrator Scott Pruitt excluded one of its top scientists while devising its new “secret science” rule, the Washington Post reported Wednesday.
Emails obtained through a Freedom of Information Act request by the Union of Concerned Scientists show that the EPA’s director of the Office of the Science Advisor (OSA),Tom Sinks, was self-admittedly completely out of the loop as the EPA worked to devise the new rule that aimed to limit the types of science that could be used by the agency in devising new regulations.
In an April 24 email, Sinks wrote, “Even though OSA [the Office of Science Advisor] and I have not participated in the development of this document and I just this moment obtained it (have yet to read it), I am listed as the point of contact.”
Sinks added that he was also concerned about his lack of involvement because the rule clearly would affect the roles of his office, saying “the proposal likely touches upon three aspects of OSA work — public access to EPA funded research, human subjects research protection, and scientific integrity.”
An EPA spokesperson said in a statement to The Hill that the agency “received input from a number of stakeholders and utilized the intra and interagency process to ensure a robust proposal was put forward.”
The rule is formally known as the “Strengthening Transparency in Regulatory Science,” and was introduced in April. It aims to expose the methodology behind scientific findings and cut back on what Pruitt had deemed “secret science.”
It is one of many decisions made by Pruitt under the auspices of increasing transparency and getting rid of conflicts of interest. Last year he announced a new agency-wide policy that would bar scientists receiving money through an EPA grant from sitting on any science advisory board.
The rule met almost immediate resistance from the science community, which argued that it would exclude a number of peer reviewed scientific studies related to public health because many would not be able to share the details of the patients studied.
Instead, critics feared, the rule would place more reliance on industry produced studies that might reaffirm arguments that certain chemicals or emissions had little harmful side effects on human health or the environment.
In June, a group of 103 lawmakers signed a letter sent to Pruitt calling on him to reverse course on the rule-making.
“Contrary to its name, the proposed rule would implement an opaque process allowing EPA to selectively suppress scientific evidence without accountability and in the process undermine bedrock environmental laws,” the lawmakers wrote.
The Senate’s Environment and Public Works Committee on Wednesday held a hearing to discuss the merits and disadvantages posed by the new rule.
Sen. Cory Booker (D-NJ.) likened the rule to the tobacco industry’s old playbook, where companies paid for and pushed studies that appeared to find no heath risks associated with smoking.
“This rule is far more likely to hinder science-based regulation than help it,” he said, adding that this was “deja vu all over again.”
EPA confirmed to the Hill last week that it is reorganizing a number of offices within ORD including merging the Office of the Science Advisor with the Office of Science Policy, a move that critics fear would diminish the role of the scientists there and push it further down the totem pole.
https://thehill.com/policy/energy-environment/409777-epa-left-key-official-out-of-secret-science-rule
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As EPA Eyes Curbs, NAS Head Backs Need For Science In Policy Decisions
Oct 3, 2018 | Inside EPA
By Lara Beaven
As the Trump EPA weighs curbs on the use of science in its decisions, the head of the National Academy of Sciences (NAS) is emphasizing the need for using scientific data to make federal policy decisions, pointing to historical examples -- such as the Spanish Flu epidemic -- of the adverse consequences of ignoring science.
“Science without policy is still science. But policy without science is just gambling,” NAS President
National Academy of Sciences (NAS) President Marsha McNutt said during a recent Resources For the Future (RFF) Policy Leadership Forum event on evidence-based decisionmaking.
McNutt, a geophysicist whose career has included serving as editor-in-chief of the Science family of journals and director of the U.S. Geological Survey (USGS) during the Obama administration, has emerged as a leading critic of the Trump administration's approaches on climate change science and other issues.
Earlier this year, McNutt and the presidents of the National Academy of Engineering and the National Academy of Medicine strongly criticized EPA's proposed rule mandating use of publicly available research to justify its regulations, charging that while the agency is seeking to cite their advice to justify the measure, it fails to adequately consider potential consequences.
“EPA’s proposed rule ignores the inherent risks involved in data disclosure, the everchanging risk landscape, and the efforts needed to mitigate those risks” including cybersecurity and the possibility of privacy breaches, the National Academies comments said.
And as the Trump administration sought to roll back Obama-era climate policies, NAS has taken a series of steps to continue to make the case for more-ambitious policies. For example, NAS launched a “climate communication” effort that seeks to offer “rapid and effective” dissemination of climate change science information.
NAS under McNutt has also taken steps to preserve and bolster the Obama administration's social cost of carbon metric -- used to quantify the benefits of greenhouse gas controls -- after the Trump administration eliminated it.
But such efforts have inflamed conservative groups, that generally want to block EPA from using NAS to review agency science as they charge the group supports strict regulation and has too much influence over regulators.
Responding to questions during her recent remarks, McNutt specifically criticized several science-related approaches of the Trump administration, including EPA's proposed science transparency rule and the lack of scientists in key positions across the government.
She noted that during her time at Science, the journal was one of the leaders among scientific journals in pushing for more openness and transparency in data. But there were always exemptions to protect personal privacy, she said.
“If journals can do it, we don't see why” EPA couldn't, she said.
Scientists 'Under Siege'
“I really don't think there is any better way to make decisions other than evidence-based,” McNutt said, adding that the “scientific method is pretty iron-clad and is a proven self-correcting approach for understanding the natural world.” But in “the post-truth era, I think scientists are feeling they're under siege,” she said, and science does not have as much credibility.
As an example of the pitfalls of ignoring science, McNutt cited NAS recommendations during the Spanish Flu epidemic of 1918-1919 that U.S. military troops not be housed in close quarters, in order to prevent the spread of the deadly disease.
The military rejected the recommendations because they did not fit with military protocol, she said. The result is that 20-40 percent of troops were sick with influenza, and mortality rates from the disease were higher than from enemy troops, she said.
McNutt outlined three reasons that science is ignored in policymaking. The first is when no practical solution is available to address the problem identified by science.
She said the classic example of this is the delay in the signing of the Montreal Protocol, an international agreement to protect the stratospheric ozone layer by phasing out the production and consumption of ozone-depleting substances, until industry had developed drop-in substitutes for refrigerants and other products containing chlorofluorocarbons and halons.
A second scenario when science is ignored is when the data presented is not actionable. McNutt said an example of this would be trying to use environmental impacts data on hydraulic fracturing in Pennsylvania to make a decision about permitting the practice in California. The water resources and susceptibility to seismic activity between the two states is quite different, she said.
Finally, science is ignored when the results conflict with deeply held biases, McNutt said. She cited a pair of NAS reports -- the 2015 The Integration of Immigrants into American Society and the 2016 The Economic and Fiscal Consequences of Immigration -- which together found “immigrants don't steal your jobs and don't increase crime.”
But the reports' findings are not reflected in the Trump administration's policies, she said.
When asked how to “flip the switch” so that science is taken more seriously in policy decisions, McNutt said NAS discussed having a boot camp for newly elected representatives, but eventually decided to offer to convene scientific experts for decision-makers to meet with. She said this has seemed to work well, even in the Trump administration.
But “the challenge in this administration is they need to know when they have a science problem,” she said.
McNutt said the expected confirmation of Kelvin Droegemeier to head the White House Office of Science and Technology Policy will go a long way in addressing this issue. Droegemeier, a meteorologist who has studied extreme weather events and serves as Oklahoma's secretary of science and technology, won bipartisan support in the Senate Commerce Committee, though the full Senate has yet to vote on his nomination.
Additionally, McNutt said that a science adviser slot at the State Department is soon to be filled.
“Policy should be science relative not science prescriptive,” McNutt said referencing the work done by USGS to help the Interior Department make policy decisions.
Conflicts Of Interest
And McNutt said scientists need to become far more concerned about real and perceived conflicts of interest. As an example of how addressing conflicts of interest can change conclusions, she pointed to the National Academies' 2016 report on genetically engineered crops. In developing the report, the review panel looked at how every existing study on genetically modified crops was funded and eliminated any that had ties to proponents or opponents of such crops, she said. The result was the National Academies' study “came to different conclusions than studies that used all the data,” she said.
In response to a question about whether there is a distinction between how natural science and social science data is perceived, McNutt said, “Really well done studies are respected no matter the field.”
But she acknowledged that sometimes social science data and some environmental science data, such as that related to climate change, have to be 10 times better than other disciplines to be taken seriously. In part, this is due to the fact that in both the social sciences and climate science there is the challenge of not being able to run alternative experiments, she said, noting that we have only one planet.
McNutt said that to be effective science communicators, “It is important that the audience sees you as competent and trustworthy.” Most scientists come across as very competent but not trustworthy, because trustworthiness involves expressing warmth, and “warmth gets beaten out of us in graduate school,” she said. Scientists want to be unbiased, but “if you're too warm, it almost works against that,” she said, noting that scientists need to work on being unbiased in the lab but maintain personal warmth in their communications.
https://insideepa.com/daily-news/epa-eyes-curbs-nas-head-backs-need-science-policy-decisions
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Senate Quietly Sends 'Historic' Reforms to Trump's Desk
Oct 4, 2018 | E&E Daily
By Nick Sobczyk
While few people were watching amid an unrelenting news cycle the past two weeks, Congress agreed to a bill that would make big changes to the way the Federal Emergency Management Agency does business.
A long-awaited compromise to reauthorize the Federal Aviation Administration, H.R. 302, includes a major set of reforms to address rising costs of disasters and help communities better prepare for hurricanes, floods, earthquakes, wildfires and other disasters.
The bill, which would also dole out $1.68 billion for victims of Hurricane Florence, passed the House by a wide margin last week and cruised through the Senate yesterday on a 93-6 vote.
The reform language would ensure a "sustainable, evergreen source of funding" for pre-disaster mitigation projects, which are generally funded haphazardly through the normal appropriations process, said Forbes Tompkins, expert on flood-prepared infrastructure with the Pew Charitable Trusts' flood-prepared communities initiative.
"I think it's potentially historic," Tompkins said.
Some proponents — namely some Democrats — see a connection to climate change: As hurricanes and wildfires get more intense with a warming planet, it only makes sense to make sure affected infrastructure is more resilient.
"These critical reforms will help communities become more resilient and better prepared to deal with the impacts of global climate change," Rep. Dina Titus (D-Nev.) said on the House floor last week.
In 2017, natural disasters caused more than $300 billion in damage, and some research suggests that unusually warm water in the Atlantic spurred the intense hurricane season last year that included Hurricanes Harvey, Maria and Irma.
But the language is also wildly popular as a cost-saving measure, and it has support from a wide range of groups, from the U.S. Chamber of Commerce to Pew's flood initiative.
While climate change may have a role in driving more intense disasters, the bill addresses larger cultural issues of how infrastructure is built, said Jeremy Gregory, executive director of the Massachusetts Institute of Technology's Concrete Sustainability Hub.
In short, developers are building bigger and more expensive buildings in areas prone to flood, wildfire and other disasters, which drives up the costs of recovery.
"[Climate change] might be part of it, but I think there's also a broader issue that we now currently build without properly considering the cost of dealing with future hazards," Gregory said.Details
The reforms are, in part, a version of the "Disaster Recovery Reform Act," which has been met with bipartisan acclaim since it was introduced last year by Rep. Lou Barletta (R-Pa.) as H.R. 4460.
Among other things, the measure would tweak the Robert T. Stafford Disaster Relief and Emergency Assistance Act to make sure more post-disaster assistance goes to future mitigation and more resilient building.
That language was part of a nearly yearlong push by House Majority Leader Kevin McCarthy (R-Calif.) and Minority Whip Steny Hoyer (D-Md.) in the wake of last year's hurricane season.
It would allow as much as 6 percent of certain spending under the Federal Emergency Management Agency's Disaster Relief Fund to go to a pre-disaster mitigation fund, which would award projects on a competitive basis. The measure would also aim to help communities adopt improved building standards.
That 6 percent may seem like a tiny fraction, but it's not insignificant given the large scale of U.S. disaster spending, Tompkins said.
For instance, Tompkins said if that provision had been in place during the major disasters of 2017, more than $600 million would have been set aside for pre-disaster mitigation.
That money, in turn, would have gone a long way toward cutting down future costs. For every $1 the government spends on mitigation, it saves $6, according to research from the National Institute of Building Sciences, which was cited in various forms on the floor as lawmakers debated the bill.
In a letter to lawmakers last week, Geoffrey Brown, government relations director for Pew, wrote that the reforms would help remedy the fundamental problem that has long plagued the Stafford Act.
The law as it currently stands is centered around rebuilding communities as they stood before the disaster, rather than a "build back stronger" approach that would allow flood-prone buildings to relocate and other future risks to be mitigated, Brown wrote.
"Although Congress has amended the Stafford Act multiple times to allow for disaster recovery spending to include certain pre-disaster mitigation efforts, much of the nation's disaster spending still involves rebuilding projects that fail to protect communities from future natural hazards," Brown wrote. "H.R. 302 addresses this long-enduring problem with a strong emphasis on pre-disaster preparation."'We keep legislating and no one cares'
The bill also includes other reforms, but proponents say there's more work to be done on and off Capitol Hill.
A wide variety of groups, for instance, have called on Congress to overhaul the perpetually indebted National Flood Insurance Program, which is set to expire again Nov. 30.
Away from Capitol Hill, Gregory said his quest is to figure out better incentives for resilient building.
A big part of his research, he said, focuses on quantifying long-term costs associated with disaster damages so that developers can see what they're getting into when they build a structure likely to last a lifetime.
"Culturally, for me, a big priority is to be able to create more market demand for hazard mitigation," Gregory said.
And although "DRRA" would be an improvement over current law, Gregory said he thinks there should be more conversations about how the federal government defines its role in preparing for disasters.
"To me, that's kind of the interesting part about this, is that we still view FEMA as being about emergencies after disasters, rather than trying to make sure we're better prepared," he said.
Still, the "DRRA" provisions mark important progress on pre-disaster mitigation, said Business Council for Sustainable Energy President Lisa Jacobson, who called the measure "the most significant improvement to federal disaster recovery programs since the post-Katrina efforts."
"The Disaster Recovery Reform legislation continues the momentum in this direction," Jacobson said in a statement. "Certainly, more can be done, but the DRRA is an important step."
Sen. Chris Coons (D-Del.) joked yesterday that with all the partisanship surrounding the allegations against Supreme Court nominee Brett Kavanaugh, it seems as if no one noticed the bipartisan agreement on "DRRA" and the FAA reauthorization measure.
As reporters swarmed him to ask about Kavanaugh, Coons said, "We keep legislating and no one cares!"
https://www.eenews.net/eedaily/2018/10/04/stories/1060100473
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EPA Agrees to New Contract Payment Controls to Avert $1.2 Billion 'Risk'
Oct 3, 2018 | Inside EPA
EPA leadership is pledging to modernize the systems it uses to bill contractors in a move that its Office of Inspector General (OIG) says could avert risking up to $1.2 billion in annual funding, agreeing with the OIG's recommendation in a new report for a quick transition to purely electronic billing to prevent invoicing error.
OIG on Oct. 3 published new correspondence with EPA's finance and personnel chiefs where the agency officials agree to take steps aimed at remedying auditors' finding that continued use of manual billing and payment systems, and a lack of safeguards against late payments, “places an annual average of $1.2 billion in taxpayer funds at greater risk” thanks to the greater opportunity for human error.
“The agency agrees with the recommendations and believes that all the recommendations have been addressed,” reads the letter to OIG from EPA Office of Administration and Resource Management chief Donna Vizian, and Chief Financial Officer Holly Greaves, dated Aug. 31.
Vizian and Greaves were responding to OIG's Aug. 16 report, “Without E-Invoicing and Stronger Payment Process Controls, EPA Is Placing $1.2 Billion at Risk Annually.”
In that report, OIG called on the agency to develop a plan for switching over to fully electronic contractor invoicing -- as the White House Office of Management and Budget has instructed all executive agencies to do -- as well as new policies to prevent errors in payment that result in financial penalties.
“The EPA does not have a plan to implement an e-invoicing system, even though the Office of Management and Budget directed agencies to transition to e-invoicing by the end of fiscal year 2018,” the report says. It continues that without such a system and other error controls the agency risks wasting an uncertain amount of the $1.2 billion annual budget for contract work.
Vizian and Greaves' response says that as of early June the agency had developed a plan for e-invoicing that includes implementation milestones, although it does not list those target dates. It also outlines a host of new procedures the agency plans to implement in order to avoid payment errors in other ways.
In a Sept. 28 reply, OIG agrees that the EPA response satisfies all its recommendations, and acknowledges that the agency was working on an e-invoicing plan before it published the final report. “Based on the information and supporting documentation provided, the planned corrective actions satisfy the intent of our recommendations,” the letter says.
https://insideepa.com/daily-feed/epa-agrees-new-contract-payment-controls-avert-12-billion-risk
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Key Test Vote for Kavanaugh Set for Tomorrow
Oct 4, 2018 | E&E Daily
By Geof Koss
The Senate will vote tomorrow to end debate on the nomination of Brett Kavanaugh to become a Supreme Court justice, giving senators little more than a day to review the supplemental FBI background check that has had the Capitol on edge all week.
Majority Leader Mitch McConnell (R-Ky.) said yesterday evening he expected the report to arrive soon. The White House said it received it early this morning.
Under the schedule set up by McConnell, the chamber will vote at some point tomorrow to invoke cloture — or end debate — on Kavanaugh's nomination. If cloture is invoked — which requires 51 votes — a final confirmation vote could happen as early as Saturday.
Sen. Amy Klobuchar (D-Minn.), a member of the Judiciary Committee, immediately took to Twitter to note that McConnell had started the clock on the confirmation vote "and we haven't (as of now) even seen the FBI report yet."
The report will be available in a secure location in the Capitol only to senators and a handful of top aides.
"There will be plenty of time for members to review and be briefed on this supplemental material before a Friday cloture vote," McConnell said.
The majority leader's maneuvers capped a tense day on Capitol Hill, where there was a heightened police presence due to large numbers of protesters roaming the Senate office buildings looking for senators to sway.'Just plain wrong'
Despite a steady stream of political sniping, there was some agreement between the two parties that President Trump had crossed a line during Tuesday night's rally in Mississippi, where he mocked Kavanaugh accuser Christine Blasey Ford for lapses in recalling details of the sexual attack she said she endured at the hands of the Supreme Court nominee 36 years ago. The president's attacks drew laughter from the crowd.
Trump's comments drew a rebuke from the three Republicans whose support leadership is desperately courting; Maine's Susan Collins, Arizona's Jeff Flake and Lisa Murkowski of Alaska.
Murkowski told reporters that Trump's remarks were "absolutely, wholly inappropriate," while Collins said the president's words were "just plain wrong." In an appearance on NBC's "Today" show, Flake called the comments "kind of appalling."
Sen. Bob Corker (R-Tenn.) told reporters that Trump's behavior was not helping win over any undecided senators, who in addition to the three Republicans include Sens. Heidi Heitkamp (D-N.D.) and Joe Manchin (D-W.Va.).
"I think all of us need to keep in mind that there's a few people who are on the fence right now, and right now that's where our focus needs to be, is them having all the information and appropriate context to make a good decision," Corker told reporters.
Asked whether Trump's attacks would influence her vote, Murkowski replied, "I am taking everything into account."
Collins later declined to speak with reporters, walking through the Senate basement surrounded by Capitol Police, who earlier in the day closed down the hallway outside her office, citing the senator's safety.
Flake told The Washington Post that Trump's comments would not affect his consideration of the nomination.
"You can't take it out on other people, the president's insensitive remarks," he said.Background fights
Democrats and Republicans on the Judiciary Committee clashed yesterday over the existing trove of background materials on Kavanaugh.
Ranking member Dianne Feinstein (D-Calif.) slammed Republicans for interviewing former boyfriends of Kavanaugh's accusers "in a transparent attempt to discredit them."
"Rape shield laws and the federal rules of evidence are designed precisely to stop this sort of attack," Feinstein said in a statement. "The Judiciary Committee in 1994 expressly prohibited these abuses in the Violence Against Women Act."
Feinstein's criticism came one day after Judiciary Republicans released a letter from a man who claimed to have dated another Kavanaugh accuser, Julie Swetnick, who last week submitted an affidavit saying that she had attended parties where Kavanaugh was present when women were drugged and gang-raped.
Later yesterday, eight of the 10 Democrats on Judiciary wrote to Chairman Chuck Grassley (R-Iowa) calling for the GOP staff to correct a tweet from earlier this week stating that in none of the six FBI background checks that had been previously conducted "was there a whiff of ANY issue — at all — related in any way to inappropriate sexual behavior or alcohol abuse."
Democrats who did not sign the letter were Klobuchar and Sen. Chris Coons of Delaware.
The signatories said they felt "compelled to state for the record" that there was information in the GOP tweet "that is not accurate."
The Democrats said they could not detail what the information was but noted they had all reviewed Kavanaugh's background information.
Later today, senators will receive a letter signed by hundreds of law professors urging them to reject Kavanaugh's nomination, citing his angry testimony last week in responding to Ford's accusations.
At that hearing, Kavanaugh "displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land," states the letter.
https://www.eenews.net/eedaily/2018/10/04/stories/1060100477
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EPA Issues 26 TSCA Significant New Use Rules
Oct 4, 2018 | Chemical Watch
The US EPA has issued TSCA significant new use rules (Snurs) for 26 substances subject to section 5 orders.
A variety of chemicals are covered by the rules, including several polymers and a carbon nanomaterial.
The Snurs are intended to hold users of the substances to the same requirements as those the original pre-manufacture notice (PMN) are held to under either section 5(e) consent orders or section 5(f) orders.
The protective measures included in these orders are designed to address potential unreasonable risks the EPA identified while reviewing the request to bring each new substance to market.
In line with other recent Snur groupings – 28 on 17 September, 29 on 27 August, 27 on 17 August and 145 others on 1 August – the agency has promulgated these as a direct final rule and a proposed rule.
The direct final rule is slated to take effect from 3 December. But for any individual Snur for which the EPA receives significant adverse feedback before 2 November, it will drop it from the direct final rule and address it through the proposed rulemaking process.
The EPA has met resistance from industry on its recent Snur proposals. On 26 September, the EPA withdrew 145 Snurs issued under a direct final rulemaking, in response to adverse comments.
More recently, business groups have protested against the EPA’s plan to impose time-based Snur requirements on a set of medium- and long-chain chlorinated paraffins (MCCPs and LCCPs).
The agency has also fielded critical feedback on its approach of issuing the Snurs through simultaneous direct final and proposed rules – a tactic which some have complained limits the time they have to formulate responses.
https://chemicalwatch.com/70762/epa-issues-26-tsca-significant-new-use-rules
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Oct 4, 2018 | Chemical Watch
TSCA inventory reminder to processorsThe US EPA has reminded industry of the 5 October cut-off date for voluntarily submitting a notice of activity form on chemicals they processed in the ten-year period that ended on 21 June 2016.
Under the amended TSCA, the EPA must update its chemical substance inventory by designating every substance on it as either active or inactive in US commerce in that period.
The optional processor reporting period for this 'inventory reset' exercise followed a mandatory submission period for manufacturers and importers that ended in February. The EPA has announcedthat more than 38,000 substances have already been notified as 'active'.
The agency says it intends to issue an updated TSCA inventory with all substance designations within a few months. TSCA fees webinars
The EPA has announced three webinars on changes to its Central Data Exchange (CDX) as a result of the final fees rule on administering TSCA.
The webinars, which will discuss using CDX for upfront payment of fees, will be held on 10 and 24 October and 7 November.
Each webinar will be limited to the first 1,000 registrants. The agency says a recording will be posted on its website after the first webinar.TSCA 'not likely to present an unreasonable risk' findings
The agency has issued two "not likely to present an unreasonable risk" findings under TSCA section 5(a)(C) for new chemical substances that were the subject of a pre-manufacture notice (PMN).
The determinations will allow the substances to go to market without restriction. The agency cites a risk assessment in support of these decisions.
The first substance – waxes and waxy substances, rice bran, oxidized, calcium salts – is used as a lubricant and surface protection agent for consumer, commercial and industrial applications. Consumer products may include shoe polish, floor coatings, and car polishes.
The second is an alkanoic acid, substituted alkyl-, polymer with isocyanatoalkane, alkyl carbonate, alkanediol and polyalkylene glycol ether with alkyl(substituted alkyl) alkanediol alkenoate, glycerol monoacrylate alkanoate-blocked. It is intended for industrial use as a waterborne UV curable coating resin binder in inks or overprint varnishes.
The EPA's determinations say that although these substance could be very persistent, they have low potential for bioaccumulation, "such that repeated exposures are not expected to be cumulative".
Based on test data, the agency says the substances are not likely to present an unreasonable risk under their conditions of use.
https://chemicalwatch.com/70733/epa-round-up
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(ACC Mentioned) EPA Looks to Roll Back Regulations Governing Radiation
Oct 4, 2018 | ConsumerAffairs
By Amy Martyn
The Environmental Protection Agency (EPA) is currently trying to overhaul the way that chemicals are regulated and is reportedly relying on the expertise of a toxicologist who argues that small amounts of radiation are beneficial.
The Associated Press reports that Edward Calabrese, a toxicologist at the University of Massachusetts, is set to testify before Congress today as the EPA’s lead witness over proposed new rule changes that the federal government claims will bring more “transparency” to the regulation of toxic chemicals.
Calabrese has argued for years that the current standard for evaluating radiation risks, referred to by scientists as the linear no-threshold model, is overly cautious.
As the site Phys.org reported last year, “Calabrese has for many years advocated for hormesis,” an alternative approach to evaluating the risk of radiation exposure. It’s a model that Calabrese says “provides evidence that low-dose exposure of some chemicals and ionizing radiation is benign or even helpful,” according to Phys.org.Arguing for radiation
Currently, federal laws regarding radiation exposure operate on the principle that no amount of radiation is safe. While plenty of research has linked health risks to low doses of radiation, some researchers have tried to make the case that, when it comes to radiation, the dose makes the poison.
Calabrese is among the researchers in the latter group in promoting his alternative hormesis model. In a 2016 interview, he reportedly said that it “would have a positive effect on human health as well as save billions and billions and billions of dollars.”
In statements to the Associated Press, the EPA said it has no intention of changing the way that radiation exposure is currently regulated. Its “transparency” proposal does not name any substance or chemical specifically. However, the Associated Press notes that Calabrese is quoted heavily in an EPA news release announcing the proposed rule changes.
In a news release that the EPA issued in April, Calabrese is quoted as saying that the agency is making a “a major scientific step forward” in the field of "chemicals and radiation” with its proposed new methods for evaluating health risks of certain substances.Strengthening transparency or protecting companies?
At issue is a proposed regulation that the EPA claims will “strengthen transparency in regulatory science.” The proposal, introduced when Scott Pruitt was still leading the agency, would require that all researchers investigating the health effects of substances make their data public if they want the research to be considered by federal regulators.
Numerous researchers say that such a proposal is simply a backhanded way to protect industries that work with toxic substances from facing any regulations. Researchers say that when it comes to studies on humans, for instance, they never make the data completely public because doing so would violate the privacy of their subjects.
“If EPA excludes studies because the data cannot be made public, people may be exposed to real harm,” a coalition of 69 professional doctors’ associations and health organizations warned in a statement they released in July.
Industry groups, meanwhile, are throwing their support behind the EPA’s proposal. The American Chemistry Council, the industry trade group that has long defended the safety of synthetic chemicals commonly used in consumer products, says that the “EPA’s proposed rule is a major step toward enhancing the public’s understanding of the science used to support regulations issued by the agency and increasing public confidence in agency decisions.”
The EPA says they are currently reviewing nearly 600,000 comments that people have submitted in response to the proposal.
https://www.consumeraffairs.com/news/epa-looks-to-roll-back-regulations-governing-radiation-100318.html
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The EPA’s Bold New Idea Has Massive Implications for Public Health
Oct 3, 2018 | Mother Jones
By Rebecca Leber
For years, the Environmental Protection Agency’s regulation of radiation, carcinogens, and other toxic chemicals has been based on the cautious scientific reasoning that considers even slight exposure to toxins potentially risky to public health. From that premise, the EPA has assessed a wide range of pollution, including lung-clogging particulate matter, Superfund cleanup, water treatment, radiation exposure, and risk assessments for carcinogens like benzene.
That time-honored approach may be changing because of easy-to-overlook phrasing within a paragraph buried in the proposed “Strengthening Transparency In Regulatory Science Rule,” a regulation that will bar the EPA from considering a wide range of scientific studies in its rule-making. With a few sentences buried in the seven-page Federal Register text, the EPA is opening the door to a new scientific approach that—in a worst-case scenario—could further relax regulations because of the assumption that a little pollution is actually beneficial.
Some scientists have considered the implications of this paragraph and described a whole array of potential problems to Mother Jones. Because the paragraph is written in incredibly vague language, most scientists were unable to explain which pollutants or regulations were the prime targets. Moreover, the various examples of pollutants that it could affect were not based on the prevailing scientific literature.
“I was surprised to see it,” said Jonathan Levy, an expert in human health risks from the environment at Boston University who was one of the scientists warning of the implications from this passage. “The EPA looks at dozens upon dozens of toxins, and there are decisions based on exposure above and below a certain level, and cancer-risk above and below a certain level. This could be so sweeping to affect almost any chemical under consideration.”
Despite its potential importance, this change has attracted little attention. One likely reason is that with phrases citing the “growing empirical evidence of non-linearity in the concentration-response function,” the language is impenetrable for all but the most serious specialists. But the change has been noticed and celebrated by the chemicals industry, as well as EPA critics in conservative circles who have previously challenged the agency on everything from its acceptance of climate change science to the health costs of air pollution.
On Wednesday afternoon, a congressional hearing on the proposed rule will be held by a Senate Environment and Public Works subcommittee. One of the witnesses will be an enthusiastic proponent of the change, University of Massachusetts environmental health scientist Edward Calabrese, who discloses that one of the funders for his research into toxicology is ExxonMobil. Calabrese has long argued that the science supports the argument that low levels of exposure to cancer-causing substances are actually beneficial — which is tantamount to saying that a little bit of it is good for you.
So, how could this have happened?
It all began with Scott Pruitt. A few months before his many controversies finally cost him his job, the Environmental Protection Agency Administrator proposed a far-reaching rule that would have drastically limited the kinds of scientific studies that the EPA considers legitimate.
The response to the “Strengthening Transparency In Regulatory Science Rule,” was immediate and overwhelmingly critical. During the three-month public comment period, which ended in August, scientists, environmentalists, and public health groups warned that the effect of this single political act would sanction that the EPA would ignore or dismiss the best available science in order to tilt its regulatory work in industry’s favor; they’ve taken to calling the rule a “censored science proposal.”
By requiring data to be made public, which researchers say is impossible when it comes to decades-old landmark studies that are based on sensitive medical records, the rule would effectively slash the body of research that underpins the EPA’s work. The primary target of the rule is the landmark air pollution studies that look at the health effects of fine particulate matter on the lungs, but it can touch virtually any rule relying on sensitive medical records, from lead poisoning to mercury.
In order to understand how this change could potentially unleash dangerous toxins into the public sphere, it’s important to understand how standards have been set historically. The model has long held that there is a direct relationship between the dose and the level of harm, which is known as the “linear no-threshold” (or LNT) risk-averse version. This model acknowledged there are still risks associated even with the lowest levels of exposure. Some people — babies, children, the sick and elderly — are more vulnerable than others, so there is no single threshold that can be considered as safe.
No one is spared exposure to a mass of potentially dangerous substances such as lead, mercury, asbestos, formaldehyde, and fine particulate matter. A growing body of epidemiological evidence shows how even the tiniest exposure of some of these substances for fetuses and children can have profound effects on their development. Radiation, too, may be everywhere, but the risks rise with higher exposure, such as near a Superfund cleanup site, or for workers at a nuclear plant. The consensus model adopts a risk-averse approach, suggesting that there is a linear relationship between risk and exposure.
A small community of scientists and interests, some funded by the chemical and fossil fuel industries, have argued for years that the EPA should replace their existing standards with more flexible ones. Instead of the “linear no-threshold” risk-averse version, some would prefer one that could raise the threshold at which the EPA considers exposure dangerous.
In fact, they argue, there are benefits to low doses of radiation, lead, and other toxic exposures. Cato Institute’s Patrick Michaels, an EPA critic and climate skeptic cheered the departure from LNT as a paradigm change in a blog post: “The LNT model isn’t just wrong — nature actually works opposite to it. Small amounts of exposure to things that are toxic in large amounts can actually be beneficial.”
That line of reasoning also appeared in the EPA press release when Pruitt announced the regulation, giving a hint of what was really buried in the rule. Among the supporters, which included a handful of Republican politicians, were three scientists who lent their scientific weight supporting the new rule.
One of them was Edward Calabrese, who wrote in his statement for the EPA in April, “The proposal represents a major scientific step forward by recognizing the widespread occurrence of non-linear dose responses in toxicology and epidemiology for chemicals and radiation, and the need to incorporate such data in the risk assessment process.” His endorsement was surprising for many reasons, not the least of which was because the word “radiation” does not appear anywhere in the rule.
Calabrese is one of the leading scientists who advocate moving towards a model known as hormesis. Proponents argue hormesis is preferable to the linear no threshold model because some exposure is actually good for public health — a little bit of the toxin inoculates you from its greater dangers. “The question is how does the EPA find a way out of this regulatory quagmire of using the historically corrupt and scientifically flawed LNT model?” he wrote. “The EPA proposal should be accepted and implemented across all programs involving risk assessment as soon as possible.”
Levy responded to Calabrese’s argument, saying that the EPA’s best course of action is to find a “regulatory sweet spot” that combined various models, some of which assume that some exposure is actually good for you. It could make a major difference for the most vulnerable if the EPA operates under the assumption that very low doses could be good for you instead that they can be harmful. “He is basically saying that the risk levels considered by EPA to be unacceptable are fine,” Levy says, “because it would be hard to detect the effects.”
Calabrese declined several requests to be interviewed, pointing instead to his work “which speaks for itself.”
Steve Milloy, who has made a career out of contesting the science around tobacco’s health effects, also supports the new rule. He has a long record of denying climate change and the dangers of air pollution and blogs on personal website JunkScience. A few days after the announcement, Milloy wrote a brief obituary for the “linear no-threshold” model: “The LNT model was born in fraud, caused great harm, during its lifetime and will die in ignominy. We will bury it via the opportunity provided by the Trump EPA science transparency initiative.”
The EPA is now claiming — without supplying the evidence — that there is a growing scientific consensus that supports loosening the agency’s longstanding approach in which even low levels of exposure to cancer-causing chemicals and radiation are considered to be harmful. All this flies in the face of 40 years of scientific study that has explored the uncertainty surrounding these models. The National Academy of Sciences, the National Regulatory Commission, and the Environmental Protection Agency’s independent science advisory board have looked in recent years at whether the LNT default model is still the best approach. (The EPA has contested the Associated Press’ reporting on this approach to loosening its radiation rules; you can read their reply here)
The EPA, in fact, strongly came out against the last time a regulatory body attempted to review its LNT model. The NRC in 2015 looked at the debate when it considered reviewing its radiation standards, and the EPA wrote at the time: “Over the last half-century, numerous authoritative national and international bodies have convened committees of experts to examine the issue of LNT as a tool for radiation regulation and risk assessment. Again and again, these bodies have endorsed LNT as a reasonable approach to regulating exposures to low dose radiation.”
Now, environmental groups like the Natural Resources Defense Council and independent scientists charge that even without the proof of empirical evidence, the EPA is likely to adopt the kind of models favored by Milloy and Calabrese. Politics has trumped careful scientific review.
John Bachmann, who retired from the EPA office of air and toxics, stressed the implications for the overall costs and benefits for the agency’s rules, which tabulate the lives saved in dollar-value from reducing fine particulate matter. “It has really broad implications for setting regulations for carcinogens or lawsuits to roll them back,” Bachmann says. “It has implications for doing cost-benefit analysis of all pollutants, even [particulate matter] pollutants, the biggest driver of all pollutants.”
Once the scientific assessments are undermined, so too are the policies that are supposed to protect people. “This is a situation analogous to having global warming deniers in charge at the EPA,” said Jan Beyea, a nuclear physicist with Consulting in the Public Interest. He compared it to the tiny world of scientists who charge that climate change is exaggerated, propped up by the same industries that benefit from muddying the waters in the public’s eye.
The rule is the most recent example of the Trump administration undermining science. It has already reorganized the EPA’s independent science advisory boards and disbanded the position of the EPA chief science adviser. “The only thing left standing at the end of this scorched-earth anti-science series of policies,” NRDC’s senior scientist Jennifer Sass says, “would be the industry-sponsored studies, because they adhere to these guidelines for the purpose of getting regulatory approval.”
It is unclear how the language in the EPA rule may be implemented, or if EPA’s acting administrator Andrew Wheeler intends to follow through with a plan that was first put in motion by Scott Pruitt. But if it is implemented it could potentially leave children, elderly, and the ill — typically the most vulnerable to environmental pollution — more vulnerable to the effects of increasing toxins. A family living near a cleaned-up Superfund site could be faced with potentially higher levels of radiation and toxins, while consuming treated water from a nuclear plant containing higher levels of radiation, or breathing in more fine particulate matter that’s now considered less harmful.
Meanwhile, the government would justify its policies by claiming that science considers this exposure could benefit public health. By changing the underlying science, the EPA would make it easier to justify deregulation in the courts. The best option, Beyea notes, would be for the EPA to “look at this in an objective way, and not do it based on a small minority theory” that happens to support the industry position for less regulation.
What’s ultimately at stake, Beyea told Mother Jones, is the “levels which the population will be exposed to in the future of various chemicals, whether they be pesticides or radiation in certain cases of relief and accident, like a Fukushima. At what level do you start to run away from the plant, at what level do you start to relocate? These are difficult questions. There’s no easy answer for them.”
https://www.motherjones.com/environment/2018/10/the-epas-bold-new-idea-massive-implications-public-health/
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Congress Takes Step Forward to Protect Drinking Water from PFAS Chemicals
Oct 3, 2018 | Safer Chemicals Healthy Families
By Jamie Nolan
Today, Congress took bipartisan action to protect drinking water from contamination by passing legislation that directs the Federal Aviation Administration (FAA) to allow airports to use firefighting foam free of highly fluorinated chemicals or PFAS. The use of PFAS-containing firefighting foam is responsible for drinking water contamination for millions of Americans.
PFAS chemicals are linked to cancer, liver toxicity, and other health effects. The chemicals are extremely persistent and can stay in the human body for as long as eight years.
“Families across the country are being exposed to these highly toxic chemicals in their drinking water. Congress has taken an important step toward ending the use of PFAS foams at commercial airports,” said Safer Chemicals Healthy Families Director Liz Hitchcock. “We look forward to working with Congress and the Administration to take many more steps forward to tackle this public health crisis.”
Included in legislation to fund the Federal Aviation Administration and to strengthen disaster programs that passed the Senate today is a provision that allows commercial airports to choose to use firefighting foams that do not contain PFAS chemicals. This provision is an important step forward because much of the drinking water contamination is found near airports – military and commercial – that use PFAS-based aqueous film-forming foam.
Firefighting foam without PFAS is currently used successfully around the world, including at the Copenhagen and Heathrow airports, but outdated federal guidelines have required U.S. commercial airports to use foam that contains PFAS.
Safer Chemicals Healthy Families applauded the bipartisan group of lawmakers from both chambers who led negotiations of the final package: House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.); Senate Commerce, Science, and Transportation Committee Chairman John Thune (R-S.D.); House Transportation and Infrastructure Committee Ranking Member Peter DeFazio (D-Ore.); and Senate Commerce, Science, and Transportation Committee Ranking Member Bill Nelson (D-Fla.). The group also thanked Michigan Senator Gary Peters and Alaska Senator Dan Sullivan for their advocacy on the PFAS provision.
https://saferchemicals.org/newsroom/congress-takes-step-forward-to-protect-drinking-water-from-pfas-chemicals/
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Congress Backs PFAS Alternatives for Airports
Oct 3, 2018 | Inside EPA
Congress has passed Federal Aviation Administration (FAA) reauthorization legislation that contains a provision that will allow commercial airports to stop using firefighting foams that contain per- and poly fluoroalkyl substances (PFAS), an action that comes as PFAS chemicals continue to be found in drinking water systems near sites where PFAS foam has been used.
The bipartisan measure was included in a larger FAA reauthorization bill, H.R. 302, that passed the House in September, and, on Oct. 3, passed the Senate, 93-6.
The provision lifts a requirement that commercial airports use firefighting foam containing PFAS, allowing them the option to choose non-PFAS foams. The FAA, in coordination with EPA, must eliminate the PFAS requirement within three years.
PFAS is a class of thousands of chemicals that has raised concerns in recent years as the chemicals have turned up in drinking water systems around the country, particularly near sites where firefighting foam was used, such as military sites. The chemicals have been linked to adverse health effects, such as certain cancers, ulcerative colitis and thyroid disease.
The military -- which is facing significant potential cleanup liability for its use of PFAS firefighting foam at sites throughout the country -- has said it currently has no PFAS-free foam compliant with critical military specification requirements for fire suppression, although the Defense Department is testing alternatives. But advocates note that other countries and companies are currently using alternatives to PFAS firefighting foam.
“[W]e must do more to reduce exposure and clean up contamination in our communities,” Rep. Dan Kildee (D-MI), sponsor of the measure, said in a Sept. 26 press release announcing House passage of the legislation. “Allowing airports to find alternatives to firefighting foam containing PFAS will help to ensure clean drinking water and better protect public health.”
Environmentalists are praising the measure's passage, with Environmental Working Group (EWG) attorney Melanie Benesh citing the foam as a significant source of drinking water PFAS contamination.
“This legislation is a critical first step to allow airports to switch to the less toxic alternatives, which are already being used safely and effectively in other countries,” she says. EWG estimates that roughly 110 million Americans could have PFAS-contaminated drinking water.
https://insideepa.com/daily-feed/congress-backs-pfas-alternatives-airports
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Lawmakers Ok Bill with Disaster, Environmental Provisions
Oct 3, 2018 | E&E News PM
By Nick Sobczyk
The Senate today passed a major set of disaster reforms, as well as the first round of aid for victims of Hurricane Florence, in what proponents say is a windfall for future disaster mitigation.
Both measures are attached to a compromise bill, H.R. 302, to reauthorize the Federal Aviation Administration, which passed this afternoon 93-6.
North Carolina lawmakers said the $1.68 billion in aid for Florence victims is a down payment, as the state recovers from widespread flooding wrought by a historic storm.
"This funding is an important step on the long road to recovery for the thousands of North Carolinians affected by Hurricane Florence," Sen. Richard Burr (R-N.C.) said in a statement. "With $1.14 billion allocated for North Carolina, and another $540 million for South Carolina, our constituents can start to rebuild their homes, businesses and livelihoods."
Also included in the bill is a measure to reform federal disaster law to address rising costs of disasters and changing federal programs to better prepare communities for hurricanes, floods, earthquakes, wildfires and other disasters.
The language is, in part, a version of the "Disaster Recovery Reform Act," which has been met with bipartisan acclaim since it was introduced last year by Rep. Lou Barletta (R-Pa.) as H.R. 4460.PFAS
The FAA title of the package, meanwhile, would allow commercial airports to stop using firefighting foams containing per- and polyfluoroalkyl substances, or PFAS, which have contaminated the drinking water of millions of Americans.
Commercial airports are currently required to follow standards outlined in military specifications, which call for fluorinated foams.
Sen. Gary Peters (D-Mich.) — one of the authors of the provision — called the PFAS requirement "outdated" and noted that more than 70 airports around the world have made the switch to nonfluorinated foams.
"Not only have these foams containing PFAS been used for decades, we are still requiring their use at American airports, even as safe alternatives are now being developed and deployed abroad," Peters said on the Senate floor yesterday.
"While there's a lot of work to be done related to remediation, human health research, filter technology and more, we must stop making this problem worse."Supersonic flights
But as the package heads to President Trump's desk, environmentalists are concerned about another provision that would pave the way for the FAA to end its four-decade ban on supersonic flight.
The measure would prompt the FAA to begin a rulemaking process that could end the ban, but environmental groups point to a study by the International Council on Clean Transportation, which found that supersonic planes are projected to burn five to seven times more fuel per passenger — and emit 70 percent more carbon dioxide — than typical airliners (Greenwire, Aug. 27).
"It's shameful that Congress is trying to resurrect these incredibly dirty planes so rich people can get to business meetings and vacations faster," Clare Lakewood, a senior attorney at the Center for Biological Diversity, said in a statement.
"Supersonics are a needless extravagance that will supersize the aviation industry's already hefty contribution to the climate crisis."
https://www.eenews.net/eenewspm/2018/10/03/stories/1060100445
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California Faces Criticism over Paint Stripper Chemical Priority Listing
Oct 3, 2018 | Inside EPA
The California toxics department's plan to name products containing N-Methylpyrrolidone (NMP) such as paint and varnish strippers as priorities under its Safer Consumer Products (SCP) green chemistry program is facing push-back from industry groups, which argue in part that EPA risk assessments upon which the proposal is based are flawed.
The Department of Toxic Substances Control (DTSC) on Sept. 18 held a brief workshop in Sacramento on its proposal to name paint and varnish strippers and graffiti removers containing NMP as a priority product under the SCP program, providing a summary of a draft "product-chemical profile" that explains the scientific, regulatory and policy basis for the proposal.
Though no industry representatives objected to the proposal during the workshop, they appeared poised to raise substantial concerns through written comments, which were due by Oct. 1.
"One potential issue of concern is the apparent decision by DTSC to rely on the findings from the EPA risk evaluation on paint remover products containing NMP," says a source with the Washington D.C.-based NMP Producers Group. "There are inconsistent findings from the EPA risk assessment issued for public review and the risk assessment used by EPA in its risk management review. We would encourage DTSC to carefully evaluate these issues and not rely on the EPA report," says the group, consisting of Ashland Inc., BASF Corp. and Lyondell Chemical Co.
Under the SCP program, DTSC publishes three-year priority work plans, in which specific chemicals and products are identified for near-term reviews to determine if they should be studied in-depth for potential phaseouts or bans. DTSC may eventually require manufacturers to study whether replacing chemicals of concern with alternatives is feasible. This is known as the alternatives assessment process, considered a key part of the program. DTSC can also ban certain chemicals found in products if it deems that action necessary.
During the workshop on the proposal, DTSC staff said a 2015 EPA risk assessment of NMP in paint strippers and other data show there is "strong evidence" that NMP can cause developmental toxicity in humans and "suggestive evidence" for reproductive toxicity. It may also harm skin and damage eyes, says DTSC's product-chemical profile.
In addition, there is wide exposure of the NMP products to consumers, DTSC concluded. "There is a potential for these exposures to contribute or cause widespread or significant adverse impacts on human health."
The NMP Producers Group previously challenged the 2015 EPA risk assessment and "supplemental" risk reports released in 2016, and plans to relay those arguments during the DTSC process, the industry source says.
For example, in a May 19, 2017, letter to EPA, the industry group challenges the risk assessment findings in opposing the agency's proposed rulemaking to regulate certain uses of NMP under the Toxic Substances Control Act.
"There are numerous and significant flaws in the supplemental risk assessment -- flaws that EPA would have become aware of had it issued the assessment for public and peer review, as the NMP Producers Group had asked," the letter states. "As issued, the supplemental assessment and its findings are not scientifically appropriate or relevant, and EPA cannot base a decision to proceed with risk management based on those findings."
DTSC officials during the workshop defended the use of EPA's risk assessments in their SCP proposal, saying that they do not intend to reconsider any of the assumptions or metrics used in the federal agency's reviews.
"Certainly the documents that EPA has produced are very valuable and helpful to us in our assessment," said Karl Palmer, chief of DTSC's SCP program. "But it is a different process. We're not going to be establishing a new benchmark or looking at some numeric threshold, for example."
In response to questions about why DTSC is pursuing the listing of NMP in paint and varnish stripping products if EPA is already poised to take regulatory action at the national level, Palmer said "we're not entirely sure what EPA's path is, exactly, and when that might be. So we're just moving forward in our process and we'll see how that goes."
https://insideepa.com/daily-feed/california-faces-criticism-over-paint-stripper-chemical-priority-listing
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EU Project Nominates Five Plastic-Packaging Phthalates for Substitution
Oct 4, 2018 | Chemical Watch
A research project involving scientists and NGOs has named five phthalates used in plastic packaging as substances of the "highest priority" to be considered for substitution.
They were selected from an initial database containing more than 4,000 chemicals potentially present in plastic packaging using a set of prioritisation criteria "involving expert judgement", according to a report.
The two-year project, Hazardous chemicals in plastic packaging: State of the art, prioritisation, and assessment, will run until mid-2019.
The five phthalates must be assessed for risks to human health resulting from their use in plastic packaging, as well as their potential for substitution, the report said. They are:benzyl butly phthalates (BBP);dibutyl phthalate (DIBP);diisobutyl phthalate (DBP);bis(2-ethylhexyl) phthalate (DEHP); anddicyclohexyl phthalate (DCHP).
The first phase of the project, unveiled in May, identified 63 "high-ranking" substances for human health hazards, and 68 for the environment, from a list of 906 "likely associated with plastic packaging" based on their harmonised CLP classifications.
Researchers then embarked on a more detailed second-stage prioritisation process to shorten the list and focused on biomonitoring data, endocrine disrupting properties, and regulatory requirements in Europe.
The prioritisation approach for environmental hazards included consulting additional sources for ecotoxicological information, defining exclusion criteria, and extracting information from the primary literature. This, the report said, resulted in BBP being selected as the first substance for further risk assessment.
The phthalates are on the REACH candidate list due to their endocrine disrupting as well as toxic to reproduction properties. In July, EU member states backed a European Commission proposal to restrict four of them – DEHP, DBP, DIBP and BBP – in articles. But the substances can still be legally used in food contact plastics.
The report said that, in many countries outside of Europe, the phthalates are still widely used in consumer products, including plastic films and sheets.
Over the coming months, the project will look at potential alternatives to the substances.Further work
The research findings came with the caveat that prioritisation strategies rely on available data, and as a result highlight substances "that are in the spotlight already".
Data on hazards, use, exposure and regulatory status are largely missing for many chemicals in the database, the report said. For example, only 13.4% and 27% of the substances from the initial database had harmonised CLP classifications for environmental and human health risks, respectively.
The database may serve as a basis for future research to close those gaps, it added, by generating novel data through, for example in silico analysis or in vitro bioassay-based screening programmes.
Michael Warhurst, executive director of NGO CHEM Trust, said it is "odd" that phthalates are still allowed in food packaging. The project, he added, demonstrates "how we need stronger, faster and more comprehensive regulation of problematic groups of chemicals, such phthalates".
And Jane Muncke, managing director of Food Packaging Forum, said there is an "urgent need for more transparency on this matter" as the Commission begins to evaluate the FCM Regulation.
As part of this process, late last year the EU executive consulted on a roadmap. NGOs have calledfor a "by-default ban" on all hazardous substances in FCMs.
https://chemicalwatch.com/70766/eu-project-nominates-five-plastic-packaging-phthalates-for-substitution
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US Congress Introduces Broad Cosmetics Safety Bill
Oct 4, 2018 | Chemical Watch
By Kelly Franklin
A sweeping bill has been introduced in the US House of Representatives that would ban several ingredients from personal care products and require full disclosure of ingredients.
The Safe Cosmetics and Personal Care Products Act of 2018 (HR 6903), introduced on 26 September, calls for the establishment of a safety standard that provides a "reasonable certainty of no harm … and protects the public from any known or anticipated adverse health effects associated with the cosmetic or ingredient".
Among the many requirements named in the bill is a mandate for the labels of both consumer and professional products to list all ingredient, including most contaminants, in descending order of predominance.
And it calls for the prohibition of several substances from cosmetics, including toluene, the phthalates DBP and DEHP, styrene, triclosan, benzophenones, formaldehyde and parabens. The bill outlines processes for maintaining and growing regulatory lists of prohibited and restricted substances.
Additional provisions in the legislation address manufacturer registration with the Food and Drug Administration (FDA), mandatory submission of chemical and ingredient safety information, maintenance of a federal database of cosmetics information, and recall procedures.‘Needed to keep Americans safe’
The bill’s sponsor, Jan Schakowsky (D – Illinois), said that the bill takes a step "that should have already been taken".
"We need to ban toxic beauty and personal care products and give the Food and Drug Administration the resources it needs to keep Americans safe, including recall ability," she said.
The American Sustainable Business Council (ASBC) has backed the legislation.
"Responsible businesses are proving that products can be made with safer ingredients but need this policy due to the lack of transparency and standards within the industry," said the advocacy group, which represents some quarter of a million businesses in a range of industries.
The Personal Care Products Council (PCPC) did not respond to a request for comment from Chemical Watch by the time of publication.
Congress has considered several pieces of legislation to update the FDA’s oversight of cosmetics in recent years, but none has gained traction. Without a co-sponsor from the Republican majority, this new bill faces an uphill road to becoming law unless a dramatic shift in political power comes as a result of the upcoming November midterm elections.
The measure has been referred to the House Committee on Energy and Commerce.
https://chemicalwatch.com/70770/us-congress-introduces-broad-cosmetics-safety-bill
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Oct 3, 2018 | The Washington Post
By Scott Dance
Traces of toxic chemicals have persisted in waterways and animals for decades since the U.S. government banned their use. And they continue to flow into waterways such as the Back River in Baltimore County.
A study there could soon help explain why that is happening — and maybe provide insights into how to get rid of them.
Industrial chemicals known as polychlorinated biphenyls, or PCBs, were long used in electrical and hydraulic equipment and plastics. They were outlawed in 1979 but continue to be found throughout the environment, including in humans.
As Baltimore City, Baltimore County and other jurisdictions around the state struggle with how to tackle the toxic pollution in the Chesapeake Bay, researchers at the U.S. Geological Survey and University of Maryland at Baltimore County are focusing on the Back River to better understand the contamination. They plan to collect and analyze samples of PCBs that are embedded in muddy creek bottoms, flowing out of wastewater treatment plants and floating around in the water — and into fish gills.
Baltimore’s Board of Estimates approved city funding for the research Wednesday.
PCB pollution is often thought of as a contaminant found only in soils and sediments, a remnant of old factories and dirty industry. But the research aims to address a different reality regarding PCBs, said Upal Ghosh, a professor of chemical, biochemical and environmental engineering at UMBC.
“What we are finding for our area, especially, and many other urban areas, is there are ongoing sources still,” he said. “We’re starting to figure out what these sources are.”
PCBs are known to cause cancer and impair reproductive and immune systems in animals, building up the most in those at the top of the food chain. Research published last week found the chemicals are threatening the future survival of killer whales.
Enough of the contamination has been found in fish tissue or sediments in many Chesapeake waterways and their tributaries — including the Potomac, Severn, South, Rhode, Elk and Sassafras rivers, along with the Back — that they are classified as PCB-impaired by the Environmental Protection Agency.
Much like the state’s responsibilities to reduce nutrient and sediment pollution across the Chesapeake, the EPA requires jurisdictions that contain those impaired waterways to address the pollution. But given relatively poor understanding of the types and sources of PCBs, there is little those governments can do for now, said Emily Majcher, a USGS hydrologist collaborating with Ghosh and other researchers on the Back River study.
“Right now, there are a lot of unknowns,” she said. “It’s difficult to apply resources to mitigate anything at this point.”
There are 209 varieties of PCBs, for example, and groups of them behave differently. But there is no data on which types are most prevalent in the bay, Majcher said.
The research aims to fix that, as the scientists collect and analyze samples not just long-embedded in the dirt but also potentially built up inside old sewer mains and slowly being released through the Back River Wastewater Treatment Plant, which processes sewage from across much of the Baltimore region.
Data that was used to classify Back River as PCB-impaired as recently as 2008 dates as far back as 2001, and it calculates all types of PCBs, known as congeners, in the aggregate.
“I don’t want to say it’s meaningless, but it’s much more detailed and informative if you’re looking at the congener level,” Majcher said.
The researchers plan to collect samples from the Back River over the coming months, funded with about $200,000 — including the $75,000 Baltimore officials approved Wednesday, and other money from Baltimore County and the U.S. Department of the Interior.
Then, it could provide answers for dealing with PCBs elsewhere: The study is intended as a pilot that could inform eventual cleanup efforts around the region and the country.
https://www.washingtonpost.com/local/baltimore-approves-study-of-toxic-chemicals-in-river-to-help-scientists-figure-out-how-to-get-rid-of-them/2018/10/03/f7eb7898-c74a-11e8-9b1c-a90f1daae309_story.html?utm_term=.ed41ae647052
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Shell LNG, Trade Deal No Help to Stalled Trans Mountain Pipeline
Oct 3, 2018 | BNA Daily Environment Report
By Natalie Obiko Pearson
Royal Dutch Shell Plc’s commitment to invest in the largest private-sector project in Canada’s history and a new trade deal with the U.S. and Mexico show the country is open for business again.
But neither are likely to help Trans Mountain, the troubled oil pipeline project that has epitomized the country’s inability to get big projects done and for which Prime Minister Justin Trudeau needs to find a buyer if it’s ever to get it built.
“The comparisons between Trans Mountain and LNG Canada are apples and oranges,” British Columbia Premier John Horgan said in an interview after the gas project’s signing ceremony with Trudeau in Vancouver Oct. 2.
Kinder Morgan Inc. sold the oil pipeline to the government for C$4.5 billion ($3.5 billion) after the U.S. energy giant said it faced “unquantifiable” political and regulatory risk. Trudeau’s plans to quickly find a buyer who would build the expansion project were derailed by a federal court ruling that quashed its permits. The bungle prompted cries that Canada had become uninvestable and resource projects undoable—quelled by the massive LNG commitment announced this week.
Shell and its four Asian partners signed off Oct. 2 on LNG Canada, a record C$40 billion ($31.2 billion) liquefied natural gas project that the fiery British Columbia premier has been touting while simultaneously battling Trudeau’s government to thwart Trans Mountain, which is critical to getting Canada’s landlocked bitumen in Alberta to the British Columbia coast for export.
“Trans Mountain is the real here-and-now situation that has everything to do with the problems of our country,” Rafi Tahmazian, a senior portfolio manager overseeing energy investments at Canoe Financial in Calgary, said in an interview with BNN Bloomberg TV. “The LNG Canada project is a beneficiary of how we used to do things.“
While Horgan bantered jovially with Trudeau as they each praised the other for finding common ground on LNG Canada, there’s no indication they’ll find that on Trans Mountain.
For one, there’s the difference between the two fuels, Horgan said. LNG evaporates in a spill while diluted bitumen is messier and less predictable. It also comes down to what’s in it for British Columbia: 10,000 jobs created during construction of the LNG project versus a roughly C$7 billion ($5.5 billion) expenditure on a pipeline “to move an admittedly Alberta resource to tidewater and then to offshore markets,” Horgan said.
Indigenous Support
Gas for the new LNG terminal will come in part from northeast B.C. Meanwhile the inability to get Alberta oil out of the country has contributed to a discount of about C$41 ($32) to the U.S. oil.
But most importantly, in a province where indigenous groups have never formally ceded their ancestral lands to Canada, it comes down to aboriginal support, he said.
“Shell and LNG Canada were able to realize benefit agreements from wellhead to water line and Trans Mountain was not,” said Horgan. “I think that speaks for itself.”
The federal court in its decision to quash Trans Mountain’s approval asked for additional indigenous consultation. Trudeau’s government has subsequently put off the search for a buyer and resolved to restart the approval process.
‘Meaningful Engagement’
“We’re not at the time where we think solicitation of a buyer is the appropriate next step,” Finance Minister Bill Morneau said Oct. 2. “We need to acknowledge that doing things the right way is the only way to get it done, consulting with indigenous peoples so that there’s meaningful engagement.“
Canada may need to take a different public policy approach to bitumen compared with LNG, said James Moore, a former industry minister and now a senior adviser at law firm Dentons Canada LLP.
The LNG deal is “blueprint about cooperation and collaboration,” Moore said. “It’s desperately needed just on a global investor confidence basis to have these kinds of projects finally be approved.”
https://news.bloombergenvironment.com/environment-and-energy/shell-lng-trade-deal-no-help-to-stalled-trans-mountain-pipeline
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Chinese LNG Buyer Is Said to Dodge U.S. Tariff in Cargo Swap
Oct 3, 2018 | BNA Daily Environment Report
By Stephen Stapczynski
The U.S.-China trade war is starting to alter global fuel flows.
A Chinese buyer late last month swapped a cargo of U.S. liquefied natural gas for a shipment from another country, primarily to avoid new tariffs on the fuel, according to traders with knowledge of the deal, who asked not to be identified as the information isn’t public.
Typically, LNG traders engineer swaps when both benefit from using the other’s cargo, usually because of location. For instance, someone with a shipment in Europe but a buyer in Asia could switch with a trader in the opposite situation, thereby saving on transport costs.
Now, China’s 10 percent tariff on U.S. LNG, which kicked in Sept. 24, has opened up a new trade opportunity as Chinese buyers seek to replace some American cargoes they’ve committed to purchase with supply from elsewhere in order to avoid the new duties.
They may need to pay premiums for the swapped cargoes, but these will likely be less than the tariff, according to Saul Kavonic, Credit Suisse Group AG’s director of Asia energy research.
“We expect U.S. cargoes destined for China to be swapped out with other cargoes heading to the region in order to avoid the tariff,” Kavonic said in an email. “This will be a near-term phenomena until the trade dispute is resolved.”
The U.S. started exporting shale gas for this first time in February 2016 and shipments are set to grow as more capacity comes on stream. China overtook Japan this year as the world’s biggest importer of gas.
Planned CutsWhile the November swap is a small piece of China’s bigger supply puzzle, it’s one of the first signs that Chinese companies are following through on plans to avoid American supplies. Goldman Sachs Group Inc. analysts last month predicted that the tariff could swiftly end direct LNG trade between the two countries as most of the deals are done on a spot basis.
“We have definitely seen activity from China to optimize their flows with respect to the flavor of LNG that they are going to receive,” James Cheeseman, head of Atlantic LNG trading for BP Plc, said Oct. 2 at a Bloomberg NEF panel in London. “They will work with their neighbors to try and optimize what LNG is received by each country.”
The cargo swapped by the Chinese buyer is for November delivery and originated from Cheniere’s Sabine Pass project in Louisiana, the people said, adding the transaction was completed at the end of September.
There are currently no U.S. cargoes signaling China as their destination, according to ship-tracking data compiled by Bloomberg. The most recent—GasLog Greece, which left Cheniere’s terminal on Aug. 15—changed direction to South Korea mid-journey last month.
https://news.bloombergenvironment.com/environment-and-energy/chinese-lng-buyer-is-said-to-dodge-us-tariff-in-cargo-swap
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Is Canada's big week bad for U.S. industry?
Oct 4, 2018 | E&E Energywire
By Jenny Mandel and Margaret Kriz Hobson
"Today is a good day," Canadian Prime Minister Justin Trudeau said Tuesday at the announcement of a $31 billion liquefied natural gas export plant to be built by Royal Dutch Shell and partners on Canada's west coast.
The project, described as the largest private investment ever made in Canada, is designed to initially export 14 million metric tons per year of LNG, with expansion potential to ship double that amount (Energywire, Oct. 2).
News of the project decision hit the day after Trudeau and President Trump triumphantly announced that Canada would sign on to the North American Free Trade Agreement's successor, the United States-Mexico-Canada Agreement, extending Trudeau's media glow for a second day.
The LNG deal represents a big win for Canada's LNG industry, the nation's first export project to formally cross the starting line despite years of work on 24 projects that have obtained permits from the National Energy Board.
Is Canada's big win a U.S. loss?
A main selling point for LNG Canada is the planned terminal's location on the British Columbia coastline, near the province's extensive natural gas reserves and a little over a week by tanker from Tokyo.
The U.S. Gulf Coast, by contrast, where Cheniere Energy Inc.'s Sabine Pass export plant is located and where four other terminals are under construction and several more in permitting, has roughly double the transit time to Asia and is reliant on passage through the Panama Canal.
Two U.S.-based projects aim, like LNG Canada, to take advantage of Pacific coast locations but are far from the finish line: Alaska LNG, proposed to carry stranded gas from the state's North Slope oil fields, and Jordan Cove LNG, a project that was relaunched after a major permit denial two years ago.
Following Shell's announcement this week, some analysts said the start of construction on the Canadian megaproject represents the kick-off of a new wave of LNG export projects. It comes after a lull of several years in industry final investment decisions that has led stakeholders to warn of looming LNG shortages.
"The momentum behind LNG Canada reflects the drastic improvement in the LNG market over the past 12 months, driven by buoyant demand in China," Dulles Wang, an analyst with Wood Mackenzie's North America gas team, wrote in a note.
"We believe 2019 could be the busiest year of LNG FIDs ever," Wang added, referring to final investment decisions. "A clutch of projects are vying for FID, including four mega trains in Qatar, Arctic LNG-2 in Russia, at least one development in Mozambique and several US projects."
Wang's comments suggest that the sheer volume of natural gas demand in countries with growing economies like China and India, paired with existing demand from Japan, South Korea and elsewhere, will support numerous projects moving forward.
Some of those projects may, like LNG Canada, rely on equity investors to provide funding. In this case, Shell is putting up 40 percent of the project cost with Malaysian state company Petroliam Nasional Bhd. putting up 25 percent, PetroChina Co. 15 percent, Mitsubishi Corp. 15 percent and Korea Gas Corp. 5 percent.
For other projects, lining up customers for long-term contracts is crucially important to underpin financing arrangements. Those customers have proved increasingly difficult to secure as buyers look for advantages in global markets that have shifted in their favor over the past few years as LNG markets have become increasingly robust.
That jockeying for a limited pool of investment-grade buyers can put the devil in the financing details as projects go head to head.'Competition is brutal'
Katharine Ehly, a senior policy adviser with the Center for LNG, downplayed the threat to pending U.S. projects from the LNG Canada announcement.
"Out to 2025 you're going to see more demand than just what that Canadian terminal is capable of supplying," she said. "So we think there's still a market and options for those west coast terminals."
She acknowledged that "there's definitely competition in the market, there's competition from other countries abroad," adding that the pressure highlights the need for a smooth regulatory process to move projects along.
Fred Hutchison, president of the competing industry group LNG Allies, was more stark about the challenge facing U.S. project developers.
"It's a brutal global market, competition is brutal," Hutchison said.
"It's somewhere between a sprint and a marathon," he said of the LNG business. "It's like the 1,500 meters, like one of those races where you have to run all out, but it's not just a sprint."
He means that lining up the permits and financing for a project can be a competitive challenge within the industry, and then there's the multiyear task of executing on the construction of a complicated facility on time and on budget.
Hutchison said there is a clear need for "a lot" of LNG capacity starting in the middle of the next decade, but he pointed to a recently announced project expansion in Qatar and Russia's second Arctic project as evidence that "the other entrants in the race are out of the blocks."The projects at the head of the pack
The U.S. projects that are best poised to make a final investment decision are three that have cleared all the necessary regulatory hurdles.
Golden Pass LNG, an existing import terminal in Sabine Pass, Texas, whose proposed export expansion is fully approved, is jointly owned by Exxon Mobil Corp. and Qatar Petroleum and is widely seen as likely to eventually move forward thanks in part to the strong balance sheets behind it.
In an email, a company spokesman declined to add new detail to the project's timeline. "Golden Pass continues to work hard to line up all of the necessary elements to position for a positive investment decision from our shareholders. We expect to receive a FID in the near future," he said.
Magnolia LNG is a midscale, new build project proposed for construction in Louisiana that has approval from the Federal Energy Regulatory Commission and other agencies to go forward, but it continues to work on buyer sign-up.
Lake Charles LNG is an existing LNG import terminal in Lake Charles, La., owned by a subsidiary of Energy Transfer Partners LP, the company behind controversial pipeline projects like Dakota Access and Rover. The project website says the company is currently working with Korea Gas and Shell "to study the feasibility" of a joint project at the export-approved site.West coast
Farther up the pipeline, the two U.S. Pacific coast projects have considerable work to do before FID comes into play.
The state of Alaska continues to push forward with its $44 billion LNG pipeline and export project aimed at tapping the 32 trillion cubic feet of gas available at the state's North Slope oil fields.
But the project could face political hurdles if Gov. Bill Walker (I) loses a November bid for re-election. Walker has been the main driving force behind the gas export project and appointed the members of the Alaska Gasline Development Corp. (AGDC), which manages it.
Walker faces a tight three-way race with conservative former state Sen. Mike Dunleavy (R) and Alaska's former U.S. Sen. Mark Begich (D). Both are eager to commercialize Alaska's LNG, but they don't agree with Walker's state-controlled approach.
Alaska officials say Shell's decision to begin work on LNG Canada won't overshadow the commercial viability of the Alaska project.
"It's not as if a single project is going to take up all of the quickly growing demand in Asia for LNG," said Jesse Carlstrom, communications manager at AGDC. "This is a sign that buyers across the Asia-Pacific region are diversifying their portfolios."
Carlstrom insisted that the Alaska LNG project wasn't aiming to be the first west coast project to deliver LNG to Asia. "It's not a race in that sense. But we should aim to be in the top 10," he said. "There's still a market for us."
Larry Persily, former director of Alaska natural gas transportation projects under the Obama administration, said AGDC might be able to learn something from the Canadian project.
"They're going ahead, and that's great," Persily said. "We're happy for them. Maybe we'll learn something about pipeline construction that we can use here."
He predicted that "there are probably four or five projects that will come to FID before Alaska. So we can't cry over each one."
Thus far, AGDC has signed up several gas suppliers and potential buyers.
The state has reached tentative agreements to buy North Slope natural gas from two of the state's three major gas owners, BP Alaska and Exxon Mobil. AGDC is still in talks with the third producer, ConocoPhillips.
AGDC has also signed a nonbinding joint development agreement with three Chinese companies. Under that pact, the companies would provide 75 percent of the funding for the project. In return, the state would ship 75 percent of its LNG to China for the length of the contract.
The two sides are aiming to sign definitive agreements on the project by the end of this year. Meanwhile, FERC has promised to complete its draft environmental impact statement on the Alaska project by February. The final EIS is planned for November 2019.
Once the government permits are in hand, AGDC officials say they'll make their FID by the end of next year and begin shipping gas in the 2024-2025 time frame.
Jordan Cove LNG has also put many years of work into its project.
In 2016, the project was denied an LNG export permit by FERC. The company had proceeded through a multiyear, iterative process of providing a host of engineering documents, environmental analyses and other information to the regulator. All along it battled strong opposition that said the project would harm local waterways and environmental resources and put communities in Oregon at risk for limited local benefit.
Another project proposed for the state, Oregon LNG, folded under pressure from local land-use challenges and the denial of a key county-level permit.
When FERC turned down Jordan Cove, it said the company hadn't shown sufficient demand to justify the harms that would come with building a needed feeder pipeline. Without the pipeline the export terminal would have no natural gas, FERC reasoned, so the project was off (Energywire, April 19, 2016).
The denial appeared to have killed the project, but a year later Trump adviser Gary Cohn encouraged Veresen Inc., the Canadian company behind the effort, to reapply to FERC (E&E News PM, April 21, 2017).
Jordan Cove LNG is currently proceeding through FERC approval with a scheduled environmental review next year, and it has several state-level permits yet to secure.
https://www.eenews.net/energywire/2018/10/04/stories/1060100487
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Feds, Oil and Gas Execs Launch Cybersecurity Initiative
Oct 4, 2018 | E&E Energywire
By Blake Sobczak
A top Department of Homeland Security official met with oil and gas industry executives yesterday to discuss keeping hackers out of U.S. pipeline networks.
Chris Krebs, undersecretary of DHS's National Protection and Programs Directorate, said a new "pipeline cybersecurity initiative" would take aim at emerging threats to the hundreds of thousands of miles of crude oil and natural gas pipelines that crisscross the U.S.
He joined senior officials at the Department of Energy and Transpiration Security Administration yesterday at a closed-door meeting with the Oil and Natural Gas Sector Coordinating Council, a group of CEOs and security professionals from various refining, pipeline and oil-drilling trade organizations.
Attendees "discussed ways industry and government can take a more strategic approach to securing pipelines and other critical infrastructure," according to a DHS statement.
Pipeline companies' cyberdefenses have come under federal scrutiny as natural gas has grown increasingly vital to U.S. national security.
In the past three years, natural gas has eclipsed coal as the No. 1 fuel source for electric power generation in the U.S., according to data from the U.S. Energy Information Administration.
Natural gas's newfound dominance has stoked concerns among some security experts, who worry a cyber or physical disruption to a key pipeline could carry over to disrupt the power grid.
Security oversight for oil and gas pipelines falls to TSA, an agency better known for its role in U.S. airports. An E&E News investigation last year found that TSA had six full-time employees dedicated to pipeline cybersecurity issues — a number that has held steady since early 2017, according to a recent TSA statement.
TSA Administrator David Pekoske, who attended yesterday's meeting, cited recent updates to TSA's voluntary pipeline cyber safety guidelines as evidence that the agency "is committed to the mission of securing the nation's natural gas and oil pipelines."
He said the agency would join DOE and DHS's new National Risk Management Center "to minimize the consequences of an attack or disruption."
The goal of the "pipeline cybersecurity initiative" is to tackle top-tier cyberthreats to U.S. energy infrastructure, according to Karen Evans, DOE assistant secretary for cybersecurity, energy security and emergency response.
She said the effort "will leverage the unique expertise of DOE, DHS, TSA, and other federal agencies to support the efforts of the Oil and Natural Gas Subsector Coordinating Council to address the threats to our nation's pipelines."
It's not clear whether the effort will result in any additional inspections or oversight of the nation's pipeline network, which is not subject to mandatory security standards.
Senior officials at the Federal Energy Regulatory Commission, which monitors the cybersecurity of the bulk electric grid and helps regulate interstate pipelines, have suggested shifting oversight of gas pipeline security from TSA to DOE.
"I'm not entirely certain that the TSA is the right agency for the job," FERC Commissioner Richard Glick said in an interview this summer.
Glick, a Democrat, added that "it makes some sense to seriously consider imposing mandatory standards on natural gas pipelines," given their growing importance to the electric grid and the lack of federal visibility into their defenses.
DHS's Krebs said the initiative unveiled yesterday would help DHS gain a better grip on the nature of the threat to gas pipelines, calling the meeting a "key milestone" for the government.
"Collaborative efforts like this allow us to better understand the threat landscape and direct more targeted and prioritized risk management activities," he said.
https://www.eenews.net/energywire/2018/10/04/stories/1060100493
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Petroleum-by-Rail Surges as Producers Pay Up to Bypass Pipelines
Oct 4, 2018 | BNA Daily Environment Report
By Alex Nussbaum
Here is more fallout from the pipeline shortages bedeviling North American crude producers: Petroleum-packed trains are once again rolling through the heartland of the U.S. and Canada.
More than 13,000 rail cars a week hauled oil and other petroleum products through the U.S. in the second week of September, a 47 percent increase over a year earlier and the highest count since 2015, according to data from the Association of American Railroads. In Canada, where pipeline bottlenecks are more acute, shipments reached a record of about 9,000 cars, the data show.
For producers, it is a pricey alternative. Cenovus Energy Inc. announced contracts last week to ship oil-sands from Western Canada to the U.S. Gulf Coast for $16 to $19 a barrel, said Samir Kayande, a director at Calgary-based researcher RS Energy Group. A similar journey by pipeline might have cost $7 to $10, he said.
But with a host of pipeline projects to the oil-sands stalled, Cenovus had limited options. The company signed contracts with Canadian National Railway Co. to transport about 100,000 barrels a day of heavy crude to the Gulf over the next three years.
Below StandardsAdding to costs is a dearth of tanker cars that meet new safety standards adopted after a series of fiery oil-train accidents earlier in the decade, said Katie Bays, a Height Capital Markets analyst in Washington.
In the U.S., much of the increase has come in the Bakken shale play in North Dakota, according to the Railroads Association. In July, rail carriers hauled about 290,000 barrels of oil a day out of the state, more than twice the level from a year earlier, figures from the North Dakota Pipeline Authority show.
The shift has been less dramatic in the Permian Basin in Texas and New Mexico, America’s busiest oilfield, Bays said. Trucking has been the preferred alternative there, with the Gulf a relatively short drive away and key rail infrastructure lacking, she said.
https://news.bloombergenvironment.com/environment-and-energy/petroleum-by-rail-surges-as-producers-pay-up-to-bypass-pipelines
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Trump Administration Repeals Train Safety Regulation, Triggering New Oil Spill Fears
Oct 3, 2018 | McClatchy Washington Bureau
By Kellen Browning
The Trump administration has repealed a safety regulation governing trains that carry large quantities of oil, sparking new fears among Washington state officials and environmental activists that devastating oil spills could be more likely.
The Department of Transportation announced last week that trains carrying flammable liquids such as crude oil and ethanol would no longer be required to install electronically controlled pneumatic braking systems, an Obama-era rule instituted to decrease the chance of train derailments.
Washington Gov. Jay Inslee, a Democrat, blasted the decision as a “reckless disregard for the life and property of all who live or work along the rail tracks” that transport oil.
“I fear the day we witness a destructive or deadly derailment that could have been prevented with readily available technology,” he said in a news release.
But the railroad industry was pleased by the administration’s change.
The Association of American Railroads, an industry trade group that appealed the original decision to require the new braking system and argued that the cost of installing brakes was much higher than the department’s estimate, said it “welcomes this final decision.”
“The Department of Transportation let the data drive its decision regarding ECP brakes,” AAR spokeswoman Jessica Kahanek said. “After a thorough review, it found that the ECP brake proposal simply does not pass muster. AAR appreciates the department’s thoughtful consideration of this matter.”
Railroad companies and manufacturers of train cars benefit from the decision, because they would have been charged with installing the new braking equipment, said Matthew Rosenberg, a senior analyst at the U.S. Government Accountability Office, Congress’ independent watchdog arm that studied ECP brakes.
The Department of Transportation’s original analysis of ECP brakes, which transmit an electronic signal throughout train cars that allows for faster stopping compared to conventional brakes, found that they “can reduce the number of cars in a derailment that puncture and release their contents by almost 20 percent compared to other braking technologies.”
Cynthia Quarterman, who led the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration during the Obama administration, has said ECP brakes “would stop the pileup of the cars when there’s a derailment or when there’s a need to brake in a very quick fashion.”
And the National Transportation Safety Board has conducted studies showing ECP brakes “have a real measurable safety benefit,” according to NTSB spokesman Christopher O’Neil.
But data on the use and effectiveness of the brakes is limited, and railroad companies have disputed their usefulness.
Joe Delcambre, a spokesman for the PHMSA, which finalized last week’s ruling, referred to the department’s press release and said he was not authorized to comment on the new decision, which Inslee called a “biased cost-benefit analysis.”
The Department of Transportation said an updated analysis of the new braking system determined the cost of implementing the system — between $375 and $491 million — vastly outweighed the potential benefits. The department’s new report estimated hundreds of millions less in savings than the initial analysis.
Benefits of installing the brakes were calculated by looking at the “reduction in the severity of derailments and the associated damages, including deaths and injuries, property damage and environmental contamination, and savings to the industry,” according to a Department of Transportation fact sheet.
The department’s original analysis estimated $254 million in benefits to businesses and $215 to $358 million in savings related to safety. But it revised those numbers in its new analysis to $131 to $198 million in total benefits, Rosenberg said.
Rosenberg believes the lower estimate stems from a decrease in the amount of oil being transported by train since the initial analysis. Because of that, there’s less danger to mitigate, so installing the brakes wouldn’t save as much, he said.
But Rebecca Ponzio, a program director with the Washington Environmental Council, an advocacy organization, said the dangers posed by oil trains are “not a theoretical threat.” She referenced an oil train derailment in Mosier, Oregon, in 2016, at the border with Washington state, “which really brought home” the danger.
That derailment spilled 42,000 gallons of oil, sparked a huge blaze, forced some Mosier residents to evacuate, shut a sewage treatment plant down and caused some oil to spill into the Columbia River.
“It was a disaster zone,” Ponzio said.
The Federal Railroad Administration’s model of the accident concluded that ECP brakes would have “provided additional train control, potentially shortening the stopping distance, and leading to a less severe derailment.” Two tank cars could have avoided derailment and one might have avoided being punctured, the FRA said.
Spilled oil that seeps into marine habitats can kill animals and plants, and past oil train derailments and crashes have caused explosions and fires that have killed people.
Each year, 20 billion gallons of oil are transported by trains, pipelines and ships through Washington, which has five oil refineries, according to the state’s Department of Ecology.
The only serious oil spill caused by a train in Washington in the past 10 years occurred in 2014, when more than 1,600 gallons of oil leaked from a rail car in Blaine, according to the Office of Hazardous Materials Safety.
The cause of the leak was undetermined.
https://www.mcclatchydc.com/news/policy/environment/energy/article219311185.html
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CSX Brings Emergency Training to NJ Firefighters as Crude Oil Shipments Rise
Oct 4, 2018 | NorthJersey.com
By Curtis Tate
CSX, the railroad that operates trains carrying millions of gallons of crude oil and ethanol through New Jersey every week, rolled out its Safety Train on Wednesday to help first responders prepare for an incident.
The train includes the most common types of tank cars firefighters are likely to encounter, including one that carries flammable liquids and others that typically carry propane or chlorine.
The Safety Train also includes a classroom inside a converted boxcar and a flatcar used to demonstrate how to close leaking valves.
More than 99.9 percent of hazardous materials shipments by rail arrive at their destination without incident, according to industry data.
But the Safety Train provides a teaching tool to local officials in the event that something does go wrong.
"Our goal is to be as best prepared as we can," said Bergen County Executive Jim Tedesco, who attended Wednesday's demonstration and has received training for rail incidents in the past.
According to CSX, the railroad has trained 1,300 personnel from 11 municipalities in New Jersey on responding to a rail incident. That includes a three-day class in Atlanta. The railroad pays for the firefighters' travel and lodging expenses.
CSX also plans to resume sponsoring an intensive three-day course at the U.S. Department of Transportation's rail testing facility in Pueblo, Colorado. That training includes a derailment and fire simulated with real railcars. The Federal Emergency Management Agency also pays for firefighters to attend the Pueblo course.
For those who can't take the time off to travel, though, the Safety Train brings the classroom to communities. CSX has two such trains, and they travel throughout the 23 states in the railroad's network.
The railroad offers an evening class for firefighters who can't attend during the day.
Mike Austin, CSX's director of hazardous materials, said the company has built a relationship with departments across the country. It helps make it easier to coordinate when there is an incident.
"We get to meet the folks today, not at 2 a.m." when something happens, he said.
A series of derailments involving crude oil and ethanol across North America have awakened state, local and federal officials to the risks communities face, and the need to help first responders know what they might encounter.
"They can gear up and know what they're dealing with," Austin said.
A fiery oil train derailment in Lac-Megantic, Quebec, in July 2013 killed 47 people. Others, while resulting in no fatalities, released millions of gallons of crude oil and ethanol into the environment, ignited enormous fires and caused evacuations.
Though the volume of crude oil transported by rail has declined from its peak in 2014 and 2015, recent federal data show it's on the rise again.
https://www.northjersey.com/story/news/transportation/2018/10/04/csx-brings-training-nj-firefighters-crude-oil-shipments-rise/1492902002/
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Wash. Failed Twice to Tax Carbon. Is 2018 Different?
Oct 4, 2018 | E&E Climatewire
By Benjamin Storrow
Bob Guenther spent 34 years tending to a massive coal plant here in the shadow of Mount Rainier.
But with the plant now scheduled to close in 2025, the longtime labor leader is backing a ballot measure seeking to impose a fee on carbon emissions. In his estimation, it will raise money to help this coal community build a new future.
That's a shift for Guenther, 74, who was the second man hired in the maintenance department at the Centralia Coal Plant when it rumbled online in 1971. Two years ago, when Washington voters were presented with a proposed carbon tax at the ballot box, Guenther voted against it.
Now he's willing to take a chance.
"We need to take advantage of the opportunity of the green energy economy," he said last week over a cup of coffee at the Country Cousin, a greasy spoon off Interstate 5. "I want to be the energy hub for the state of Washington, right here. And in order to be the energy hub, you got to get a little progressive."
Climate hawks will need to find more voters like Guenther if they hope to avoid a replay of 2016, when Washington voters rejected a similar idea by a 59 percent to 41 percent margin.
Washington headlines a trio of climate-related ballot measures around the country. In Nevada, voters will decide whether to raise the state's renewable portfolio standard from 25 percent to 50 percent. A similar plan is on the ballot in Arizona, where clean energy advocates want half the state's electricity sales to come from renewable energy by 2030.
But neither of those efforts packs the political punch of the Evergreen State showdown. It could have sweeping implications for U.S. climate policy. If the initiative passes, Washington would become the first state to adopt a carbon price via the ballot box. That could inject momentum into other efforts to price carbon.
A loss would mark the third time in as many years that Washington tried and failed to price carbon. Gov. Jay Inslee (D) saw a carbon tax die in the Legislature earlier this year, raising doubts on its political viability. The consequences figure to be steep in a year when the political winds favor Democrats and when environmentally conscious voters want to counteract President Trump.
"I think the great power of a state-level carbon tax is serving as a demonstration project for Washington, D.C.," said Christopher Knittel, an economist at the Massachusetts Institute of Technology. "If the state of Washington can do this and collect close to two years of data on carbon emissions ... whomever is next in office in 2020 can take that as evidence of what might happen if we were to adopt a national carbon tax."
At the state level, the initiative is a test of blue-state ambitions to expand carbon reductions beyond the power sector.
Risky move?
Washington's power grid is among the greenest in the country, thanks to the state's abundance of hydropower. The Centralia plant is Washington's only coal facility. But rising emissions from the transportation sector have pushed greenhouse gas levels up in recent years, complicating the state's push to slash emissions 25 percent below 1990 levels by 2035.
If the initiative passes, Washington will join California as the only states with a firm plan to tackle emissions reductions beyond the power sector, said Michael Wara, who directs the climate and energy program at Stanford University's Woods Institute for the Environment.
"I think transportation and electrification of buildings is climate policy 2.0," Wara said. "If this initiative happens, there will be two large states treading down this path together. Hopefully, there will be collaboration, because it is going to be a learning process."
The proposal, known officially as Initiative 1631, calls for placing a $15 fee on carbon emissions beginning in 2020. The fee would increase $2 every year through 2035, when it would top out around $55 a ton. The Washington Office of Financial Management estimates the plan would raise $2.3 billion over its first five years.
It contains changes from the 2016 measure. First, it is a fee, a small but bureaucratically important distinction from a tax. In Washington, taxes go to general revenue, whereas money raised by a fee must be spent on a specific purpose.
That points to the second change. Where the 2016 proposal was revenue-neutral, Initiative 1631 would earmark 70 percent of the revenue for pollution reduction, 25 percent for climate mitigation and 5 percent for low-income assistance.
It's a risky move, said Billy Pizer, a faculty fellow at Duke University's Nicholas Institute for Environmental Policy Solutions. Spending money on pollution reductions tends to be inefficient when compared with a strong carbon price, which incentivizes consumers and businesses to change behavior. Revenues generated by the fee also tend to increase over time, even as opportunities for pollution reduction become scarcer.
The Washington proposal nevertheless has one chief advantage, Pizer said. It has the potential of passing.
"If the money is not being spent effectively, people can change that more easily than getting something on the books," he said, noting that the federal Clean Air Act was amended several times to address loopholes and inefficiencies. "You do whatever you can to get the architecture in place and then amend it later on."Big Oil says no
Oil companies and environmental groups are both spending big in an effort to sway voters. The no campaign has collected more than $20 million from the oil industry, which has a large refining presence in the state. Phillips 66 contributed $7.2 million, BP PLC gave $6.3 million and Andeavor chipped in $4.3 million.
Environmental groups like the Nature Conservancy ($1.2 million) and the League of Conservation Voters ($500,000) rank among the biggest supporters of the yes campaign, which collected $7 million through yesterday. That figure does not include $1 million pledged Tuesday by Michael Bloomberg, a former New York City mayor and outspoken climate action advocate.
Greens are banking on a reconciliation in the environmental community and an ambitious ground game to counteract the opposition's funding advantage.
Environmentalists are united this year, a change from 2016, when a combination of personal grievances and policy disagreements produced a fissure among greens and helped sink the initiative. And where many traditional Democratic allies sat out the previous race, labor and minority advocates were among the groups that lent a hand in writing this year's proposal. Inslee, who opposed the 2016 measure, is vocally championing a carbon fee on the campaign trail.
One result of a unified environmental community is a more organized campaign effort. On a recent afternoon, roughly two dozen staffers buzzed about the converted chiropractor's office that serves as yes campaign headquarters in northeast Seattle. The campaign reported sending 420 volunteers into the field one week in September to knock on doors or make phone calls, a precursor to a wider effort to reach 220,000 people in the two weeks before the vote.
That push has benefited from a well-organized network of local climate activists like Kristin Edmark, who has spent years fighting a series of proposed fossil fuel projects along the Columbia River.
A retired hospital dietitian from the southwestern Washington town of Battle Ground, Edmark was drawn to the yes campaign by a local network of Sierra Club activists who fought a proposed methanol plant in nearby Kalama.
"I believe the science, and I want to do anything we can to reduce the impact of climate change," said Edmark, who estimated knocking on 750 doors in the past three weeks.
But if climate activists are fully engaged, most Washington voters are not. Many are unaware of the proposal.
In Centralia, where support for the GOP is thicker than the trunks of the towering Douglas firs that blanket the foothills of the Cascades, many voters and local officials said they were only vaguely aware of the initiative. Most who were said it would be a dead weight on the local economy.
"This isn't just going to attack the businesses that people work for and potentially impact their paychecks. It is going to affect everyone who drives a gasoline and diesel vehicle," said state Rep. Ed Orcutt, a Republican who represents Centralia. "If we can have less carbon emissions, that's great, but let's do it in a way that doesn't disturb our economy."
The Washington Policy Center, a conservative think tank backed by the Koch brothers, projects that gas prices would increase by 14 cents a gallon as a result of the proposal. An average household would see its total energy budget increase by $234 to $305 in the plan's first year and increase to $672 to $877 after 10 years, the center found.
Centralia is emblematic of the challenges climate action proponents face outside the rapidly growing metropolitan areas that ring Puget Sound. Trump won surrounding Lewis County with more than 60 percent of the vote in 2016, and Republicans dominate local elected offices.
Conservative politics here are infused with deep-seated skepticism for the environmental movement, a sentiment that dates back to the fight over the spotted owl and subsequent collapse of the region's timber industry. Centralia's woes were compounded by the closure of the coal mine in 2006 that served the power plant. More than 550 jobs evaporated.
Edna Fund, a Republican who serves on the Lewis County Commission, said she hadn't paid the campaign much attention. A tough budget year has consumed most of her time. The timber tax that once filled local coffers continues to decline. Poverty is rampant. More than 90 percent of children at one Centralia school are on free and reduced lunch programs.
Against all that, she summed up her knowledge of the ballot initiative like this: "I heard somebody say it is a carbon fee. For us, who can put taxes on different entities, a fee always sounds better."Opposition cites warming
Centralia has nevertheless emerged as a key talking point for both sides of the initiative. The no campaign has sought to use the coal plant as an example of the exemptions offered to big industry under the measure. A mailer sent to voters shows a picture of the plant, steam billowing from its smokestacks, with the headline, "The unfair exemptions in Initiative 1631 make no sense."
The flyer makes no mention of the plant's closing date, which was hammered out as part of a deal struck by TransAlta Corp., the plant's operator, and then-Gov. Christine Gregoire (D) in 2011. Under that agreement, one unit of the 1,340-megawatt plant will close in 2020. The second will shut down in 2025.
Dana Bieber, a spokeswoman for the No on 1631 campaign, which is linked to the oil industry, defended the campaign's use of the plant. "It is undeniable truth that they are getting an exemption for five years if this measure is to pass," she said of the power plant.
And it is emblematic of a bigger problem, she said. Initiative 1631 gives eight of the state's top 12 polluters an exemption.
"Climate change is a serious issue, and it deserves a serious response," Bieber said.
Advocates say the oil-industry-backed opposition has little credibility advocating for a stronger climate plan. Initiative 1631 covers 80 percent of the state's fossil fuel emissions, they note. They frame the exemptions as a necessary evil.
Given the lack of national climate action, advocates drew up a proposal that worked for Washington state, said Nick Abraham, a spokesman for the Yes on 1631 campaign. That meant excluding the state's aluminum smelters and pulp and paper mills, which use lots of energy and are exposed to international markets. Pricing carbon on those sectors would simply prompt companies to move, taking their jobs and pollution elsewhere.
"Exemptions is what they're trying to hit us on because it's an attack from our left," Abraham said. "They're not having a debate about whether we should act on pollution. They know they've lost that fight a long time ago."
Exemptions are one of the most challenging aspects of any state carbon-pricing plan because the potential for leakage of jobs and pollution is higher, said Wara, the Stanford professor. California has tackled leakage in its cap-and-trade system by offering free carbon allowances to major industries.
"The thing about including these energy-intensive trade-exposed industries is you have to do something," Wara said. A carbon price on one of the state's aluminum smelters, for instance, would almost certainly prompt it to leave.
Back at the Country Cousin, Guenther said the closure of the coal plant offers a model for how the state can transition from fossil fuels. When TransAlta and Gregoire agreed to shut the facility down, they established a $55 million transition fund to help pay for local energy efficiency retrofits, economic development initiatives and energy technology projects.
Today, shoots of the green energy economy are already emerging. TransAlta has plans for a 180-MW solar facility, and a wind developer has proposed a 137-MW wind farm nearby. Guenther talked excitedly about the prospects of luring a renewable manufacturer, a battery maker or even a bioenergy refinery that would turn timber into fuel to the 13,000-acre property now occupied by the plant and its former mine.
"We do need to get green energy, but we need to do it systematically and diplomatically," Guenther said. "We need to do that in a way that doesn't kill the community, in a way that doesn't kill the company and in a way that benefits the environment."
The carbon fee does that, Guenther said. The question now is whether Washington voters agree.
https://www.eenews.net/climatewire/2018/10/04/stories/1060100485
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Judge Aghast EPA Didn’t Seek Emissions Cuts Beyond 2017
Oct 4, 2018 | BNA Daily Environment Report
By Amena H. Saiyid
A federal appellate judge expressed astonishment Oct. 3 at the EPA’s acknowledgment that the agency didn’t seek cuts in smog-forming pollution beyond 2017 in a rule designed to help 22 states meet federal ozone standards.
U.S. Court of Appeals for the District of Columbia Circuit Judge Patricia A. Millett’s reaction came during oral arguments over the 2016 update to the Cross-State Air Pollution Rule that targeted transport of power plant emissions that were driving downwind states out of compliance with national air quality standards. Millett said that was a clear violation of a D.C. Circuit’s 2008 decision in North Carolina v. EPA.
The Clean Air Act requires states to control emissions that cross state lines and prevent neighboring areas from meeting national air quality standards for ozone and other pollutants. In 2008, the D.C. Circuit directed the Environmental Protection Agency to ensure that the emissions levels it it set for upwind states to help downwind states meet the national ozone standards were consistent with the deadlines.
For the 2016 transport rule, this meant EPA had to make sure the downwind states were able to meet the deadline for the 2008 ozone standard no later than July 2018, something the EPA conceded upwind states would not be able to meet in the regulation.
Justice Department attorney Amy Dona said the EPA did provide a partial remedy to reduce power plant emissions of nitrogen oxide for the 2017 ozone season in its regulatory update, but the rule didn’t apply for ozone seasons in 2018 and beyond.
Millet also showed surprise when Dona said the 2016 update was only a partial remedy. Dona said the EPA has yet another proposal that will fulfill its obligations to help downwind states struggling with transported power-plant pollution meet the 2008 national ozone standard of 75 parts per billion.
“You don’t even have a partial remedy to control emissions after 2017. You don’t have anything,” Millett said, after listening to Dona justify why the EPA chose this approach.
Stepwise ApproachDona said the D.C. Circuit itself allowed a step-by-step approach to reducing pollution.
The EPA’s 2016 regulation sets nitrogen oxide emissions budgets for utilities in 22 states across the eastern U.S. Power plants are the largest sources of nitrogen oxides, a precursor to ozone. Ozone causes health problems, especially for children, the elderly, and people with asthma.
The 2016 regulation has been challenged by environmental groups and downwind states such as Delaware, Maryland, New Hampshire, and New York that claim the regulation doesn’t require enough cuts in power-plant emissions. The rule also faces lawsuits from the electric utility sector and a coalition of mostly upwind states, led by Wisconsin, which argued the EPA demanded too much.
Until Dona’s admission, Judges Millett, Sri Srinivasan and Robert L. Wilkins were grappling with why the EPA didn’t hold the power plants to a firm deadline of meeting the 2008 standards. They were trying to understand whether the EPA has discretion to push back the deadlines to meet federal ozone standards.
Earthjustice attorney Neil Gormley, who represented the Sierra Club and Appalachian Mountain Club, argued the Clean Air Act allows the agency to require pollution cuts at power plants that can be met “expeditiously as practicable,” but doesn’t absolve it from meeting the deadlines.
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.
Inquired About FlexibilityMillett asked whether the law “locksteps” the EPA into requiring compliance deadlines, while Srinivasan and Wilkins questioned the authority the agency has in giving states and their sources flexibility to meet these standards.
The EPA’s obligation was to prohibit significant contribution of the pollutant right away, meaning by October 2016 when the rule was published, Gormley said.
Gormley and Delaware Deputy Attorney General Valerie Edge called upon the court to return the rule to the EPA for a rewrite, but not to vacate it. That would leave the current statewide emissions caps in place while the agency redid them, rather than removing the regulation off the books completely.
E. Carter Chandler Clements, a Hunton Andrews Kurth LLP attorney who represented the electric utility groups, defended the EPA regulation from the environmental arguments, calling it reasonable and feasible for the sector. She told Millett that the EPA gave the flexibility based on knowing it was impossible for the power plants to install controls for nitrogen oxides.
Wisconsin v. EPA, D.C. Cir., No. 16-1406, argued 10/3/18.
https://news.bloombergenvironment.com/environment-and-energy/judge-aghast-epa-didnt-seek-emissions-cuts-beyond-2017
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California, Environmentalists Ask Court To Revive 'Once In' Air Toxics Policy
Oct 4, 2018 | Inside EPA
By Stuart Parker
California and environmental groups are asking a federal appeals court to restore EPA's former “once in, always in” (OIAI) policy of regulating industrial facilities as “major” air toxics sources even when they cut emissions below major source thresholds, arguing the Trump administration's decision to scrap the policy is unlawful and will boost pollution.
In separate briefs filed Oct. 1 with the U.S. Court of Appeals for the District of Columbia Circuit in the case California Communities Against Toxics, et al. v. EPA, et al., the state and a coalition of environmentalists make similar arguments that EPA air chief Bill Wehrum's Jan. 25 memo ending the longstanding policy is procedurally flawed and based on an incorrect interpretation of the air law.
For example, environmentalists in their opening brief say that Wehrum's memo violates the air act by evading notice-and-comment procedures required by formal rulemaking, and that it will result in higher levels of pollution, contravening the intent of Congress to achieve the maximum possible emissions reduction.
California in its opening brief also raises concerns about adverse air quality impacts from ending the policy. “EPA fails to explain why it is no longer concerned that major sources may take less stringent standards if allowed, thereby resulting in an increase in emissions of hazardous air pollutants. Indeed, the Wehrum Memo makes no effort at all to assess what impacts it will have upon emissions,” the brief says.
Under the since-rescinded OIAI policy, introduced in the 1990s during the Clinton administration, facilities once subject to maximum achievable control technology (MACT) air toxics rules for “major sources” remain subject to MACT permanently, regardless of emissions reductions they may make. The Clean Air Act defines major sources as those emitting 10 tons per year (tpy) of one hazardous air pollutant, or 25 tpy of a combination of HAPs.
Previously, such sources could not escape the stringent MACT standards even if they cut emissions below major source limits. But Wehrum's memo allows them to avoid MACT by reducing emissions to below these thresholds. As such, they become “synthetic minor” sources, also known as “area sources,” by deliberately limiting their potential to emit air pollution. Area sources are subject to much less stringent air pollution controls.
The Wehrum memo withdrew the agency's 1995 memo establishing the “once in” policy, which environmentalists say EPA relied on to implement its air toxics program for 23 years. EPA has said it will formalize the policy shift in a rulemaking, but has yet to do so. The agency may argue that its memo represents non-binding guidance that states are not bound to follow, and is therefore not “final agency action” eligible for judicial review.
'Legislative Rule'
Environmentalists, however, assert in their brief that the Wehrum memo is a “legislative rule,” and its issuance violates the Administrative Procedure Act by not following notice-and-comment requirements.
“The Memo dramatically alters the compliance requirements for thousands of industrial facilities across the country, and increases the public’s exposure to hazardous air pollutants. These effects -- which can only be attributed to the Wehrum Memo, as they have no foundation in the statute’s text or EPA’s current regulations -- render the Wehrum Memo a legislative rule, for which notice and comment was required by the APA,” environmentalists say.
“Even if EPA’s violation of the APA could be overlooked, the Agency’s claim that the Clean Air Act compelled it to withdraw the Once-In Policy and allow major sources to reclassify themselves as area sources at any time cannot be reconciled with the statutory text and structure. Both show that the statute does not even permit EPA’s new interpretation, let alone require it,” environmentalists say.
Environmentalists argue that the Wehrum policy is at odds with the air law's objective to reduce air toxics to the maximum achievable extent. They also argue that EPA's stance that the air law prohibits a OIAI policy means the agency is not due any deference under the Chevron legal doctrine, since the agency maintains there is no ambiguity in the law. Under Chevron, courts can defer to federal agencies' interpretations of the law where a statute is silent or ambiguous on an issue, but EPA here claims no such ambiguity, environmentalists claim. “The Memo does not claim to resolve any statutory ambiguity; it therefore receives no deference under Chevron.”
Further, they claim that the “Wehrum Memo is arbitrary, capricious and unlawful because EPA failed to consider vitally important aspects of its decision to withdraw the Once-In Policy: increasing public exposure to toxic pollutants, and unwinding EPA’s past execution of the statutory scheme.”
Petitioner Environmental Defense Fund (EDF) in an Oct. 2 press release said, “This loophole upends the whole concept of our country’s clean air protections. It was created unlawfully, and it risks exposing our families and communities to unacceptably high levels of toxic and dangerous pollutants such as benzene."
California's Claims
Meanwhile, California in its Oct. 1 brief reiterates concerns that scrapping the OIAI policy will lead to uneven state regulation of facilities' emissions that could lead to spikes in pollution in some states, especially those where EPA regulates air toxics.
Although California has its own program for regulating air toxics that is generally more stringent than federal standards, the California Air Resources Board (CARB), the state air regulator, has not adopted its own standards for “over 100 source categories and instead relies upon federal standards.”
If CARB determines that federal standards are inadequate, it must issue its own standards instead. Hence, “EPA has handed an unfunded mandate to the states -- like California -- to patch the regulatory gap” created by the Wehrum memo, the state argues in its brief.
Those concerns echo fears raised earlier this year by several state regulators, Democratic lawmakers and environmentalists about uneven state regulation as a result of ending the OIAI policy.
For example, in an April 25 letter to former Trump EPA Administrator Scott Pruitt, 87 House Democrats led by Reps. Debbie Dingell (D-MI) and Don Beyer (D-VA), warned the agency's decision to end the policy will lead to dramatic increases in toxics air pollution and urged Pruitt to reinstate it. “This is a matter of critical human health and safety. We ask you to reverse your decision to rescind the ‘once in, always in’ policy, in order to safeguard future generations from harmful air pollutants,” the lawmakers write.
Similarly, the Union of Concerned Scientists (UCS) also warned of the potential uneven adverse health impacts from the decision. An April 24 UCS analysis found that the 21 states that rely on EPA to enforce the Clean Air Act for air toxics will be the most impacted, because they include, by reference, EPA air toxics rules in their state regulations. As a result, even if they wanted to create a state-level OIAI policy they could be precluded from doing so.
https://insideepa.com/daily-news/california-environmentalists-ask-court-revive-once-air-toxics-policy
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D.C. Circuit Judges Ask Tough Questions In Suit Over EPA CSAPR Update
Oct 3, 2018 | Inside EPA
By Stuart Parker
A three-judge appellate panel at Oct. 3 oral argument asked tough questions of all sides in litigation over the Obama EPA's “update” to its Cross-State Air Pollution Rule (CSAPR), including what authority the agency has to craft interstate air pollution rules that fail to guarantee states will attain federal air standards by statutory deadlines.
U.S. Court of Appeals for the District of Columbia Circuit Judges Patricia Millett, Sri Srinivasan and Robert Wilkins heard more than three hours of argument in State of Wisconsin, et al. v. EPA, et al. The case consolidates suits filed by various states, industry groups and environmental groups to the 2016 rule updating CSAPR, an emissions trading program aimed at reducing ozone-forming nitrogen oxides (NOx) and sulfur dioxide (SO2).
Environmentalists are defending the update rule against claims from some states and industry groups that it is too stringent, while calling on the court to force EPA to tighten the rule's emissions caps. Downwind states are similarly defending the rule as necessary to help them meet national ambient air quality standards (NAAQS).
But all petitioners and EPA faced tough questioning at the lengthy and complex argument, making it difficult to predict how the judges might rule on the agency's authority to craft interstate air pollution rules.
For example, the judges pressed environmentalists on why they believe that EPA must ensure that it satisfies a Clean Air Act mandate to reduce one state's air pollution impacts on another state to coincide with statutory deadlines for attainment of the NAAQS, which include the standards for ozone and particulate matter.
And they pressed industry petitioners on their arguments claiming the rule is too strict, including their criticisms of a cost-benefit review in which the agency concluded its update approach was reasonable.
The original 2011 CSAPR aimed to help states attain the 1997 ozone NAAQS expressed as 84 parts per billion (ppb). The update tightened state emissions caps to help states meet the tougher 2008 ozone NAAQS set at 75 ppb. CSAPR's NOx and SO2 cap-and-trade progam aimed to satisfy the Clean Air Act's “good neighbor” requirement that states “upwind” mitigate their emissions that contribute “significantly” to problems attaining or maintaining NAAQS in other states “downwind.”
The Obama administration in 2015 tightened the ozone standard further to 70 ppb but has proposed no trading program to account for that move. And the Trump administration has said that it will “close out” the CSAPR program, not tightening the rule further and instead relying on states to meet their good neighbor mandates. Nevertheless the State of Wisconsin case tees up important questions on the scope and legality of potential future interstate trading rules.
Environmentalists' Claims
Central to environmentalists' legal claims are that the updated CSAPR which covers a total of 22 states in NOx trading is, by design, a partial solution that does not ensure compliance by states with the 2008 NAAQS. EPA has suggested that all CSAPR-area states will meet the 2008 standard by 2023, but environmentalists counter that this finding is irrelevant to the attainment deadline for the 2008 standard which falls this year. East Coast states further contest EPA's projection as wrong, and estimate that some areas will remain in nonattainment in 2023.
At argument, the judges pressed attorney for environmental petitioners Neil Gormley on why EPA must satisfy its good neighbor authority in “lockstep” with NAAQS attainment deadlines, given that the court in previous rulings on interstate transport issues has afforded the agency flexibility on that issue. The good neighbor provision places responsibility on states to craft state implementation plans (SIPs) to curb interstate pollution, but in CSAPR, EPA issued federal implementation plans (FIPs) directly requiring states' compliance.
A key case in this regard is North Carolina v. EPA, in which the D.C. Circuit in 2008 remanded to the agency the Bush administration's Clean Air Interstate Rule, the forerunner of CSAPR. That ruling found that EPA's interstate ozone programs must achieve NAAQS attainment “as expeditiously as practicable,” but the air law itself links the good neighbor provision with both this requirement and NAAQS attainment deadlines themselves, Gormley argued.
EPA must implement the good neighbor requirement “consistent with” not just the requirement to be “expeditious,” but also the NAAQS attainment deadlines, he said.
Gormley also said EPA's decision to allow some use of “banked” emissions allowances from the first iteration of CSAPR in the second phase of the program is unlawful, as it undermined the program's goal of NAAQS attainment.
Valerie Edge, representing Delaware, argued that the CSAPR update failed to help the state attain the 2008 NAAQS by applicable attainment dates, and that upwind states are not being called on to do their fair share on emissions reduction. Absent action to curb upwind emissions, Delaware cannot issue air permits to new or modified facilities because the state lacks any ozone “headroom,” and 90 percent of the state's ozone originates elsewhere, she said.
'Important First Step'
Justice Department (DOJ) attorney Amy Dona, representing EPA, defended the CSAPR update as “an important first step” in a “step-wise process” that is allowed under D.C. Circuit precedent, and also the Supreme Court's 2014 ruling in EPA, et al, v. EME Homer City Generation L.P., et al. that largely upheld the original CSAPR.
She argued that EPA was “cognizant” of NAAQS attainment deadlines in crafting CSAPR, but not bound by them. Dona admitted that CSAPR may be a “partial remedy,” but to require more of the upwind states would be “punitive” and “would essentially shift too much burden to the upwind states.”
Judges Millett and Srinivasan pressed Dona hard on the NAAQS deadline issue. “You don't even have a partial remedy after the 2018 attainment deadline,” Millett said. “You have got nothing.”
Dona responded that EPA has proposed a further step with the CSAPR “closeout” proposal that finds no further federal action is needed to curb interstate air pollution because Eastern states will attain the 2008 standard by 2023.
Attorney Carter Clements, representing utility industry intervenors supporting EPA in its defense against claims the rule is too weak, appeared to directly contradict Dona, however, when he said the agency did not determine that the CSAPR update was a partial remedy.
The judges appeared unconvinced by Clements' assertion that under the North Carolina precedent, there is no need for EPA to “harmonize” its action with NAAQS attainment deadlines.
That interpretation seems to ignore statutory text requiring that EPA act to mitigate interstate transport “not later than” NAAQS attainment deadlines, Srinivasan said. “It seems like that text just gets read out of the statute.”
Wilkins asked “what work” the text in question does, to which Clements responded that it is states' responsibility, not EPA's to meet NAAQS deadlines, and it is sufficient for EPA to “go a long way toward” meeting those deadlines considering “what can actually be done.”
Nor does EPA's proposed “closeout” rule mean EPA now has a full remedy, Millett said. “I'm not sure how that helps. They really dropped the ball” in meeting NAAQS deadlines, Millett said.
The judges also appeared skeptical of environmentalists' argument that it is impermissible for EPA to allow use of banked allowances from an earlier phase of the trading program.
Gormley argued that EPA's “policy preference” is not enough to overcome an air law imperative to achieve NAAQS attainment as expeditiously as practicable.
But Srinivasan in particular saw disadvantages to abruptly retiring older banked allowances, which could, he suggested, suddenly be used by power plants instead of running controls before the new program kicks in.
Clements suggested the rollover of banked allowances was reasonable because the 2016 modification of CSAPR was only an “update,” not a new trading system, and EPA was seeking to ensure market stability.
Vacatur Request
The judges then turned to arguments by industry and states seeking vacatur or remand of the rule, either in its entirety or with respect to only certain states.
Attorney Misha Tseytlin argued on behalf of Wisconsin and other upwind states that EPA's rule wrongly forced some states into the CSAPR trading program when their “significant contributions” to downwind air pollution were “de minimis,” ignoring states' calls for the agency to conduct a state-specific cost-benefit analysis.
Tseytlin said the high court's 2015 ruling in Michigan v. EPA requiring that EPA consider costs when deciding to regulate power plants' air toxics requires EPA to consider costs relative to benefits in the update rule. He said EPA's approach is not “rational,” as it ignores the fact that costs to industry in affected states outweigh the benefits in ozone reduction.
The judges pressed Tseytlin on whether upwind state petitioners reject EPA's use of a uniform cost-effectiveness threshold in the rule, which finds that emissions reductions are cost-effective at $1,400 per ton of pollution reduced. Millett noted that the statutory language requiring that EPA find it both “appropriate and necessary” to regulate air toxics is absent from the air law's good neighbor provision, and hence the high court's view of “appropriate” as requiring cost analysis does not directly translate to this case.
“It seems to me that you are requiring carve-outs,” Srinivasan said.
Norman Fichthorn, representing the Utility Air Regulatory Group of electric generating companies, alleged that EPA unlawfully failed to consider two important elements of interstate air pollution in promulgating CSAPR.
The first is the cumulative impacts of upwind states not “linked” to downwind nonattainment under the CSAPR methodology, which although excluded from the trading program contribute emissions to downwind areas.
The second is the impact of downwind states' measures to curb local pollution, which EPA declined to project. In both instances, accounting for these issues would suggest reduced CSAPR emissions reduction obligations for upwind states that are included in the CSAPR rule.
Fichthorn said that without the extra analysis, it is not possible to say whether EPA has “over-controlled” the upwind states, which would contravene the high court's ruling in EME Homer City.
Emissions Controls
DOJ attorney Chloe Kolman rebuffed arguments asserting over-control or questioning cost-effectiveness of controls in specific states, including Mississippi and Oklahoma.
“The rule is well within its limits” under the Supreme Court's definition of over-control, which says that over-control occurs when an upwind state is required to reduce emissions more than is needed to ensure NAAQS attainment in all the downwind areas to which it contributes “significantly,” Kolman said.
EPA considered “non-linked” upwind areas' emissions, and found that they would not result in any change in the status of CSAPR states' participation in the trading program, Kolman argued.
Further, the air law speaks only to the responsibility of “contributing” states, and the high court has accepted EPA's definition of “significant contribution,” she argued.
Kolman further noted that with respect to downwind states' emissions reductions obligations under other air law provisions, downwind states' SIPs containing steps to comply with those provisions are due to EPA after upwind states' good neighbor SIPs are due under the air act's timetable. Hence EPA cannot wait until those downwind emissions reductions are known before ascertaining the responsibility of upwind states, Kolman argued. Fichthorn countered on rebuttal that the agency should have attempted to project the impact of downwind emissions reductions when crafting CSAPR.
Attorney Andrew Frank, on behalf of downwind states, argued that industry and upwind states' positions are “contrary to the purpose of the good neighbor” provision, noting that downwind states already pay up to three times as much per ton to reduce ozone-forming pollution, and granting upwind states and industry's wishes would shift the burden even further against the downwind states.
https://insideepa.com/daily-news/dc-circuit-judges-ask-tough-questions-suit-over-epa-csapr-update
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12 States Ask Judge to Toss Climate Suit Against Big Oil
Oct 4, 2018 | E&E Climatewire
By Anne C. Mulkern
Indiana and 11 other states asked a federal judge yesterday to throw out a lawsuit in Washington state that seeks to make petroleum giants pay for damages related to climate change.
The states argued that allowing the case to advance "would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials." The courts shouldn't allow the suit "to confound" state and federal oversight, they said.
"Emissions policy (or, as is more likely, multiple conflicting emissions policies) should not be established on a piecemeal, ad hoc, basis," the states told Judge Robert Lasnik of the U.S. District Court for the Western District of Washington.
Opponents to the case, filed by King County, Wash., comprise attorneys general from Alabama, Arkansas, Colorado, Georgia, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas and Utah. King County is suing BP PLC, Chevron Corp., Exxon Mobil Corp., Royal Dutch Shell PLC and ConocoPhillips.
The states said they have a strong interest in the case because the "list of potential defendants is limitless," since the plaintiffs' theory on liability is tied to the promotion of fossil fuels. That could also allow states to be sued because they sometimes operate utilities and are "significant users of fossil fuels," the attorneys general wrote in their brief.
King County, home to Seattle and more than 2 million people, seeks an order requiring the companies to pay the costs of adapting infrastructure to climate damages, like stormwater management and salmon recovery systems. The abatement fund could be in the hundreds of millions of dollars, county attorneys said.
The opponents' brief warned that it could be more expensive.
"Such a remedy could cost several billion dollars and seriously impact Defendant's ability to provide energy to the rest of the country," it said. That would impose limitations on businesses outside King County, it said, arguing that it's a violation of the Constitution's commerce clause.
The amicus brief cited American Electric Power Co. v. Connecticut. In that case, states sought to cap utility emissions. It went to the Supreme Court, which held that corporations cannot be sued for greenhouse gas emissions because EPA regulates those through the Clean Air Act.
The King County case is one of many climate lawsuits against oil companies. In California, Imperial Beach, San Mateo, Marin County, Richmond, Santa Cruz and Santa Cruz County have sued two dozen fossil fuel companies and trade associations. A 9th U.S. Circuit Court of Appeals decision is pending on whether to send those suits back to state court.
The appellate court will also decide whether to reverse a judge's dismissal of lawsuits from San Francisco and Oakland, which sued five of the biggest oil companies.
There are other lawsuits against oil firms in Colorado, Maryland and New York.
https://www.eenews.net/climatewire/2018/10/04/stories/1060100491
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