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PM ACC 11/16/2018
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(ACC Blog) New ‘Mind the Science’ Website Aims to Educate Retailers and Shoppers on the Science Behind Chemical Safety
Nov 16, 2018 | American Chemistry Matters
By American Chemistry
It’s that time of year again – time to rake the leaves, baste the turkey, and, for some of us, to prepare for Black Friday and the traditional kick-off of the holiday shopping season. In another nod to tradition, it’s time for one advocacy group to issue its annual retailer report card... -
The Trump EPA Is Poised to Grant the Chemical Industry yet Another of Its Wishes Under TSCA
Nov 16, 2018 | Environmental Defense Fund
By Richard Denison
The chemical industry has long sought to have the Environmental Protection Agency (EPA) rubber-stamp as “safe” as many of its chemicals as possible without imposing any burden on the industry to develop the information needed to actually demonstrate safety. -
NGO Initiative Sets out Criteria for Floors in Healthcare Facilities
Nov 16, 2018 | Chemical Watch
By Lisa Martine Jenkins
The North American arm of the NGO Health Care Without Harm (HCWH) has launched an initiative that aims to combat the "lasting negative impact" of chemicals used in resilient flooring in health care facilities. -
California Judge Orders Next Monsanto Weed-Killer Cancer Trial for March
Nov 16, 2018 | Reuters (In The New York Times)
By Tina Bellon
A California judge on Thursday granted an expedited trial in the case of a California couple suffering from cancer who sued Bayer AG's Monsanto unit, alleging the company's glyphosate-containing weed killer Roundup caused their disease. -
Calif. Recommends Restrictions for Popular Chemical
Nov 16, 2018 | AP (In E&E Greenwire)
By Brian Melley
California regulators recommended new restrictions yesterday on a widely used pesticide blamed for harming the brains of babies. -
Trade Body Urges ‘More Suitable’ EU Chemical Policies for SMEs
Nov 16, 2018 | Chemical Watch
European trade body SMEunited has called on the European Commission to improve chemical policies for small and medium enterprises. -
Interior Moves Ahead on Arctic Lease Sale
Nov 16, 2018 | Houston Chronicle
By James Osborne
The Department of Interior is readying to study the impacts of offshore oil and gas drilling in Alaska's Arctic coastline ahead of a lease sale scheduled for next year. -
North Dakota Refinery Construction Stalled by Court Challenge
Nov 16, 2018 | Natural Gas Intelligence
By Richard Nemec
Construction on a crude oil refinery in North Dakota billed as the “cleanest” and first new U.S.-based facility in 50 years has been halted by a lawsuit that challenges the legitimacy of the state’s permitting process. -
Senators Call for New Safety Board Leader
Nov 16, 2018 | E&E Greenwire
By Courtney Columbus
Prominent Senate Republicans have added themselves to the list of lawmakers calling for the White House to nominate a new Chemical Safety Board chair. -
Handling Explosive Dust: Chemical Board Wants Manufacturers’ Input
Nov 15, 2018 | Bloomberg Environment - Occupational Safety
By Sam Pearson
Companies in a broad set of manufacturing sectors could see new advice on managing explosive dust risk under a Chemical Safety Board initiative. -
(ACC Mentioned) Hope and Patience Waning on Self-Driving Bill
Nov 16, 2018 | Politico - Morning Energy
By Sam Mintz
...The Senate Small Business Committee is holding a field hearing in Louisiana today on how small businesses benefit from smart rail shipping regulation. Led by Sen. John Neely Kennedy (R-La.)... -
Commuter Rail Makes Strong Process Toward PTC Implementation
Nov 16, 2018 | Transportation Today
By Melina Druga
The commuter rail industry made significant progress installing Positive Train Control (PTC) in the third quarter, which ended Sept. 30, according to the American Public Transportation Association (APTA).© Shutterstock -
Veteran Democrats Wary of Leftward Push on Climate
Nov 16, 2018 | PoliticoPro
By Anthony Adragna and Zack Colman
Veteran Democratic lawmakers are closing ranks against new members pushing the party to the left on climate change. -
Climate Protesters Storm Pallone's Office
Nov 16, 2018 | PoliticoPro
By Anthony Adragna
Dozens of youth climate protesters stormed Rep. Frank Pallone’s (D-N.J.) office Friday urging bold action to address climate change, in the latest signal liberal activists will continue pushing senior House Democrats to ramp up their ambition. -
What exactly is the 'Green New Deal'?
Nov 16, 2018 | E&E Greenwire
By Hannah Northey
In a Democratic clash on Capitol Hill, progressives are pushing an ambitious plan to wean the U.S. off fossil fuels, boost renewables and build a "smart" grid. -
States, NRDC Urge D.C. Circuit To Scrap EPA Guide Undoing HFC Limits
Nov 16, 2018 | Inside EPA
By Lee Logan
A coalition of states and the Natural Resources Defense Council (NRDC) are urging an appellate court to scrap an EPA guidance document that “effectively rescinds” an Obama-era rule limiting refrigerant chemicals that act as potent greenhouse gases...
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Nov 16, 2018 | American Chemistry Matters
By American Chemistry
It’s that time of year again – time to rake the leaves, baste the turkey, and, for some of us, to prepare for Black Friday and the traditional kick-off of the holiday shopping season. In another nod to tradition, it’s time for one advocacy group to issue its annual retailer report card, which calls into question the safety of some of the products sold by large retailers, based on their chemical make-up.
As manufacturers of the chemical ingredients that provide beneficial qualities to thousands of consumer products, we believe that people must have confidence in the safety of the ingredients in products they use every day.
Decisions about chemicals in products should be based on scientific approaches that consider a range of factors, including the amount of the chemical ingredient used in a product, as well as how consumers use the product and the extent to which they may come in contact with the chemical ingredients.
That’s why the American Chemistry Council has just launched a new website – www.MindTheScience.org – a resource for retailers, consumers and others interested in the chemistry behind everyday products that provides straightforward, science-based information about chemical ingredients.
MindTheScience is intended to bring both science and sensibility back into the consumer holiday shopping experience. The website provides easy-to-understand information about chemicals used to make everyday products, including the specific benefits that the chemical ingredient brings to the products, as well as information of the safety testing the chemical has undergone.
Check back to the site often, as we continue to add chemical-specific content, and let us know if you have questions about specific chemicals, or specific claims you may have read online. Our goal is to help ensure that you have both a safe and enjoyable holiday shopping experience, and that you can visit your favorite stores and select from a wide range of products with more confidence, and less confusion, about their safety.
https://blog.americanchemistry.com/2018/11/new-mind-the-science-website-aims-to-educate-retailers-and-shoppers-on-the-science-behind-chemical-safety/
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The Trump EPA Is Poised to Grant the Chemical Industry yet Another of Its Wishes Under TSCA
Nov 16, 2018 | Environmental Defense Fund
By Richard Denison
The chemical industry has long sought to have the Environmental Protection Agency (EPA) rubber-stamp as “safe” as many of its chemicals as possible without imposing any burden on the industry to develop the information needed to actually demonstrate safety. It has repeatedly pushed for EPA to set aside large numbers of chemicals in commerce and ensure they don’t have to undergo evaluations of their potential or actual risk.
During the debate over reform of the Toxic Substances Control Act (TSCA), various industry associations advocated for an approach that would have required EPA to quickly review all chemicals in commerce using whatever information was available (which is virtually none for the great majority of such chemicals), and set aside as “low-priority” any that EPA could not demonstrate were harmful.
When that didn’t fly (more on this below), industry commenters demanded that, in promulgating its Prioritization Rule, EPA designate long lists of chemicals as low-priority without any review. One of the few positives of that final rule was that it rejected those calls as well.But lest you think the issue is settled, think again. Leave it to the Trump EPA to find an even more devious way of granting the industry’s wish.
EPA’s ill-conceived proposal to “bin” the entire TSCA Inventory
EPA’s latest move comes in its proposal called “binning the TSCA Inventory.” It constitutes the second half of a White Paper EPA released in September titled “A Working Approach for Identifying Potential Candidate Chemicals for Prioritization.” Last night, EDF filed extensive comments on this document. Among our many other concerns, we voiced strong opposition to EPA’s proposal for binning the entire TSCA Inventory, which numbers in the tens of thousands of chemicals. Here’s why.
EPA’s White Paper is clear as to EPA’s purpose in binning the Inventory (emphases added): “[I]ts purpose is not to identify a list of high-priority candidates. Nor is its purpose to signal that the EPA has concerns with particular chemicals or categories of chemical substances” but rather “to identify a portion of the Active Inventory that can be set aside as not containing candidates for high-priority designation.” Sound familiar?
The problem with this is that the 2016 amendments to TSCA alreadyestablished a process for EPA to use to set aside chemicals not warranting further risk evaluation: the authority and mandate for EPA to designate certain chemicals as “low-priority substances.” This was a highly controversial aspect of TSCA reform: Many stakeholders and members of Congress were concerned that it could be abused to shove large numbers of chemicals into that bin based on only limited information and a cursory review by EPA, thereby indefinitely or even permanently putting them off-limits to the process called for under TSCA to actually evaluate their potential risks.
To guard against this, Congress carefully circumscribed the process for low-priority designations EPA was to use. Among the key safeguards:
· SUFFICIENT INFORMATION: Such designations have to be “based on information sufficient to establish that a chemical does not meet the standard … for designating a chemical substance a high-priority substance.”
· JUDICIAL REVIEW: Such designations can be challenged in court by by any person.
· MODEST PACE OF DESIGNATION: TSCA anticipates an approximate balance in the pace at which high- and low-priority substance designations are made by indicating that EPA should make 20 of each type of finding within three and a half years of enactment.
· PUBLIC NOTICE AND COMMENT: TSCA requires that EPA “publish the proposed designations … along with an identification of the information, analysis, and basis used to make the proposed designations, and provide 90 days for public comment on each such proposed designation.”
EPA’s new Inventory binning proposal includes none of these safeguards (though the courts may ultimately conclude that binning decisions are subject to judicial review). Instead, it appears EPA is trying to install a new parallel process, outside of TSCA’s statutory boundaries, that EPA will use to set aside thousands of chemicals from any further review indefinitely and with no recourse for the public.
Not only is there no statutory basis for EPA’s proposal, there is no need for it and undertaking it would seriously detract from EPA’s many other (and, in some cases, unmet) obligations to properly implement the 2016 TSCA amendments.
An unwarranted diversion of scarce EPA resources for TSCA implementation
Our detailed comments further discuss each of the following additional points:
· Nothing in TSCA mandates or authorizes binning of the TSCA Inventory.
· Nothing in TSCA requires binning of the TSCA Inventory. There is no reason or need for EPA to look at tens of thousands of chemicals when, even well into the future, EPA will need to have identified at most a few hundred chemicals under TSCA’s prioritization and risk evaluation processes.
· EPA should not divert its already stretched-thin and limited TSCA resources to undertake an exercise not mandated under TSCA, especially when it is not meeting all of its obligations under the new law.
· EPA has seriously underestimated the resources needed to fulfill its mandatory duties under TSCA, including those it is not adequately fulfilling.
· There is no indication EPA has budgeted the resources needed to carry out the proposed binning.
· EPA’s claim that other countries (e.g., Canada) are undertaking similar exercises is misleading.
· EPA’s proposal is contrary to TSCA’s process and criteria for setting aside chemicals and subverts Congress’ intent to ensure EPA uses a rigorous process to do so.
EPA’s binning process will favor industry data over the published scientific literature
As detailed in our comments, the binning exercise will not only be resource-intensive, it will also be incomplete and biased. In order to “bin” the tens of thousands of chemicals on the Inventory, EPA would utilize an automated approach that only considers certain, limited types of studies and information. As a result, EPA’s proposed approach would include industry studies conducted for regulatory purposes, while excluding the large majority of information published in the scientific literature, including key epidemiological and ecological studies. Thus, EPA will make binning decisions on chemicals while ignoring reasonably available information about their risks.
This approach is particularly problematic because of how it would handle false positives (i.e., chemicals erroneously flagged as high-concern when they are actually low-concern) vs. false negatives (i.e., chemicals erroneously flagged as low-concern when they are high-concern), both of which would inevitably be generated. Any false positives would be identified and remedied promptly as the agency moved them to the next stage of evaluation and considered such substances for prioritization and risk evaluation. In contrast, the false negatives would be set aside indefinitely, effectively deemed “safe,” and likely never be revisited.
Will EPA give the chemical industry a direct role in selecting chemicals for prioritization?
Another highly disturbing aspect of EPA’s White Paper we discuss in our comments is EPA’s suggestion that it may give the industry a direct role in the designation of the priority to be assigned to chemicals. Citing comments it received on its earlier proposals for identifying candidates for prioritization, EPA states (emphases added):
Stakeholders suggested that, after information from designating the required 20 low- priority chemicals is publicly available, they may wish to volunteer to sponsor the development of information that could be used by EPA to identify candidates that may be designated as low-priority chemicals, beyond the required 20. The experience that EPA and stakeholders gain in designating the first 20 low-priority chemicals could set the stage for an enhanced stakeholder role in designation of additional substances. Similarly, the experiences EPA and stakeholders gain in designating the first 20 high-priority chemicals could also set the stage for an enhanced stakeholder role.
EPA’s reference to “stakeholders” is misleading, as the only stakeholders making such comments were from the chemical industry.
While it should be obvious, the chemical industry has a clear conflict of interest in decisions about which chemicals are identified as candidates for low- or high-priority substances. EPA’s suggestion that it may provide the industry an “enhanced role” in the designation of such substances is nothing less than appalling.
Instead of abdicating its responsibilities and authorities by resorting to “enhanced stakeholder roles” for industry in selecting the priority to be assigned to a chemical, and relying on voluntary industry sponsorship programs (that have failed in the past) to fill information gaps, EPA should do the job Congress intended it to do and actually utilize the enhanced mandatory information authorities provided in the 2016 amendments to TSCA – authorities it has yet to even hint at using, two and a half years after the passage of those reforms.
http://blogs.edf.org/health/2018/11/16/the-trump-epa-is-poised-to-grant-the-chemical-industry-yet-another-of-its-wishes-under-tsca/
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NGO Initiative Sets out Criteria for Floors in Healthcare Facilities
Nov 16, 2018 | Chemical Watch
By Lisa Martine Jenkins
The North American arm of the NGO Health Care Without Harm (HCWH) has launched an initiative that aims to combat the "lasting negative impact" of chemicals used in resilient flooring in health care facilities.
According to HCWH, resilient flooring is durable, easy to clean, low cost and comfortable, which makes it a popular choice for facilities like hospitals. However, they say, manufacturing certain types of flooring necessitates materials and chemicals that can have adverse health effects "including asthma, cancer and developmental impacts."
"Flooring can be an important and negative contributor to indoor air quality, depending on the materials selected," reads the HCWH webpage on the subject.
The expected volume of flooring needed in future construction has spurred the timing of the initiative: "this is an important category to prioritise in choosing safer alternatives."
Accordingly, HCWH has released a manufacturer’s guide that rates all floors, aside from carpet, fluid applied floors and concrete. There are two product ratings: "silver" and "gold". According to the requirements, "product" means every part of the flooring, including material, coating and adhesives.
A "silver" rating means that the floor’s manufacturing process does not involve any of a list of 16 chemicals and substances. These include flame retardants and PFAS above 100ppm, formaldehyde-based formulations and PBTs above 1000ppm. There are also certain maintenance requirements.
A "gold" rating means floors meet every criterion of the silver rating, as well as some additional requirements:
· the product does not contain isocyanate-based formulations;
· the product must have a complete Health Product Declaration with all substances characterised, screened, and identified to 100ppm;
· the product does not contain styrene-butadiene rubber (SBR) and
· the product must meet GREENGUARD Gold certification, which includes criteria on volatile organic compound (VOC)
Those incorporating either the silver or gold criteria into their specifications must also use third-party-certified installation adhesives.
Manufacturers wishing to certify their products under the initiative must get in touch with HCWH. However, HCWH does not itself verify that products meet the criteria they outline; rather, they encourage producers to seek verification, either through
· third party certification;
· a formal declaration that the product does not contain the chemical or materials above the threshold; and/or
· laboratory testing for categories that do not reference third party certification.
Purchasers can enter into a non-disclosure agreement with a manufacturer in order to access identifying information about their products’ chemical content.
https://chemicalwatch.com/72118/ngo-initiative-sets-out-criteria-for-floors-in-healthcare-facilities
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California Judge Orders Next Monsanto Weed-Killer Cancer Trial for March
Nov 16, 2018 | Reuters (In The New York Times)
By Tina Bellon
A California judge on Thursday granted an expedited trial in the case of a California couple suffering from cancer who sued Bayer AG's Monsanto unit, alleging the company's glyphosate-containing weed killer Roundup caused their disease.
The order by Superior Court Judge Ioana Petrou in Oakland, California, comes on the heels of a $289 million verdict in the first glyphosate trial in San Francisco, in which a jury found Monsanto liable for causing a school groundskeeper's cancer.
Damages were later reduced to $78 million, and Bayer, which denies the allegations, said it would appeal the decision.
Its share price, however, has dropped nearly 30 percent since the Aug. 10 jury verdict and the company faces some 9,300 U.S. glyphosate lawsuits.
Petrou's ruling clears the way for the second California jury trial over glyphosate, the world's most widely used weed killer. The trial of California residents Alva and Alberta Pilliod is scheduled to begin on March 18, 2019, according to a court filing.
"While we have great sympathy for the plaintiffs, we are confident that our glyphosate-based herbicides were not the cause of their injuries and we will vigorously defend them at trial," the company said in a statement.
Glyphosate jury trials will ramp up next year. The company is scheduled to face jurors in a Missouri state court in St. Louis, where the first trial was set to begin in early February. That date, however, was vacated by a judge, Bayer said, and the trial is likely to be postponed to later in 2019.
A trial in San Francisco federal court, where federal Roundup lawsuits are consolidated, is scheduled to begin at the end of February.
Bayer, which acquired Monsanto earlier this year for $63 billion, says its glyphosate-based products do not cause cancer, pointing to decades of scientific studies and regulatory approvals that have shown the chemical to be safe for human use.
The U.S. Environmental Protection Agency in September 2017 concluded a decades-long assessment of glyphosate risks and found the chemical not likely carcinogenic to humans. But the World Health Organization's cancer arm in 2015 classified glyphosate as "probably carcinogenic to humans."
The Pilliods, who are in their 70s, allege their regular use of Roundup between 1975 and 2011 caused them to develop non-Hodgkin lymphoma, a cancer of the lymph system.
The couple filed their lawsuit in June 2017, after being diagnosed with the cancer in 2011 and 2015 respectively. Their lawyers earlier this year asked for an expedited trial, citing the couple's risk of a relapse and their short life expectancy.
https://www.nytimes.com/reuters/2018/11/16/business/16reuters-bayer-glyphosate-lawsuit.html
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Calif. Recommends Restrictions for Popular Chemical
Nov 16, 2018 | AP (In E&E Greenwire)
By Brian Melley
California regulators recommended new restrictions yesterday on a widely used pesticide blamed for harming the brains of babies.
The Department of Pesticide Regulation issued temporary guidelines for chlorpyrifos that include banning it from crop dusting, discontinuing its use on most crops and increasing perimeters around where it's applied.
The DowDuPont Inc. pesticide currently used on about 60 crops — including grapes, almonds and oranges — has increasingly come under fire from regulators, lawmakers and courts.
A federal appeals court in August ordered EPA to remove the pesticide from sale in the United States after it ruled the Trump administration endangered public health by reversing an Obama-era effort to ban the chemical (Greenwire, Aug. 9). EPA is appealing that 2-1 ruling to a full panel of the 9th U.S. Circuit Court of Appeals.
Hawaii passed legislation in June that will ban the use of the pesticide in January.
An environmental group blasted the new recommendations as toothless and said California should be taking the pesticide off the market after scientists for three state agencies found it was toxic and couldn't be safely used at any levels.
"Unfortunately, these are voluntary recommendations for local officials that have no weight of law behind them," said Paul Towers of the Pesticide Action Network. "Instead of taking this brain-harming pesticide off the market, California officials are again passing the buck."
The California action comes as the state considers long-term regulations to restrict the use of chlorpyrifos and designate it as a "toxic air contaminant" that poses a risk of serious illness or death.
Farmworkers in the nation's leading agricultural state have been sickened several times in recent years when the pesticide drifted.
DowDuPont disagreed with the recommendations and said it would hurt growers who rely on the pesticide, spokesman Gregg Schmidt said.
https://www.eenews.net/greenwire/2018/11/16/stories/1060106463
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Trade Body Urges ‘More Suitable’ EU Chemical Policies for SMEs
Nov 16, 2018 | Chemical Watch
European trade body SMEunited has called on the European Commission to improve chemical policies for small and medium enterprises.
Its request comes in a memorandum published ahead of the elections of the new president of the Commission in 2019.
In it, the trade body – formerly known as Ueapme – said it is of "paramount importance" that European policy and legislation on sustainable development provide the right framework for the switch to a greener and more circular economy.
It has requested that:
· the European Commission and Echa make EU chemical policies "more suitable" for small and medium-sized enterprises;
· obstacles to access the circular economy, including uniform application of the waste definition across the EU, be removed and producer responsibility schemes made proportional to SMEs; and
· the EU introduce measures and instruments to foster eco-innovation in these companies.
Last month, Ueapme published a position paper asking for a more ‘workable’ REACH for SMEs.
https://chemicalwatch.com/72119/trade-body-urges-more-suitable-eu-chemical-policies-for-smes
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Interior Moves Ahead on Arctic Lease Sale
Nov 16, 2018 | Houston Chronicle
By James Osborne
The Department of Interior is readying to study the impacts of offshore oil and gas drilling in Alaska's Arctic coastline ahead of a lease sale scheduled for next year.
In an announcement Thursday, the department said it would examine, "the potential effects" of opening up for lease approximately 65 million acres in the Beaufort Sea.Recommended Video
Last year Interior Secretary Ryan Zinke announced the administration was studying the possibility of opening up oil and gas drilling along all U.S. coastlines, including areas in the Arctic and Atlantic Oceans that the Obama administration had made off limits to oil companies.
Drilling in the Arctic has long confounded oil companies. In 2015 Royal Dutch Shell abandoned a project in the Beaufort and Chukchi Seas, following a drop in oil prices and rising opposition from environmentalists.
Interior says it will be taking public comment on Arctic drilling through mid-December, with a series of public meeting scheduled in Alaska.
https://www.chron.com/business/energy/article/Interior-moves-ahead-on-Arctic-lease-sale-13398312.php
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North Dakota Refinery Construction Stalled by Court Challenge
Nov 16, 2018 | Natural Gas Intelligence
By Richard Nemec
Construction on a crude oil refinery in North Dakota billed as the “cleanest” and first new U.S.-based facility in 50 years has been halted by a lawsuit that challenges the legitimacy of the state’s permitting process.
The North Dakota Department of Health's Air Quality Division and developer Meridian Energy Group based in Irvine, CA, have argued that the air quality protections were considered fully when the state issued a construction permit for the Davis Refinery. The project is sited on a 620-acre site near Belfield, ND.
Attorneys for the state argued before District Judge Dann Greenwood that the permit was not issued prematurely or in haste.
"Because of the public interest in the Davis Refinery and its proximity to Theodore Roosevelt National Park, the department conducted a more in-depth review than typically required," said Assistant Attorney General Margaret Olson, according to court documents filed earlier this month. A state district court hearing is set for Dec. 12 in Dickinson, ND.
Air Quality Division Director Terry O'Clair told NGI's Shale Daily on Thursday that the state is standing by its position that the refinery would constitute a "minor source" of pollution.
"The state didn't have jurisdiction over where it was built, but we nevertheless spent a lot of hours reviewing the project, and we believe it will meet all air quality standards," O'Clair said.
The National Parks Conservation Association, Environmental Law and Policy Center and Dakota Resource Council have challenged approval of the project, contending that state health officials originally had concerns about potential pollutants, but never adequately explained how they determined there was no problem. The groups allege that Meridian is going to be allowed to build under "unproven and unrealistic" air quality standards.
North Dakota opened a refinery in 2015, the first one in the nation in decades. The refinery and an older one in Mandan, ND, operated by Tesoro Corp., are the only two in the state. There were two other proposals in the works, according to the state’s Department of Mineral Resources (DMR).
Tesoro's refinery in Mandan processes up to 68,000 b/d. The state's original refineries were all opened in 1954, including an older plant in Mandan and others in Williston and Dickinson. The latter two were closed in the late 1980s amid sustained low commodity prices, a DMR spokesperson said. Besides Belfield, there are plans for refineries at Makoti and Devils Lake.
https://www.naturalgasintel.com/articles/116502-north-dakota-refinery-construction-stalled-by-court-challenge
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Senators Call for New Safety Board Leader
Nov 16, 2018 | E&E Greenwire
By Courtney Columbus
Prominent Senate Republicans have added themselves to the list of lawmakers calling for the White House to nominate a new Chemical Safety Board chair.
The Trump administration has repeatedly proposed eliminating CSB, which investigates industrial chemical accidents, but Congress has continued to fund the agency.
In a letter that Republicans on the Senate Environment and Public Works Committee sent to White House chief of staff John Kelly last month, they urged the nomination of a new chair "as soon as possible."
EPW Chairman John Barrasso (R-Wyo.) and Subcommittee on Clean Air and Nuclear Safety Chairwoman Shelley Moore Capito (R-W.Va.) signed the letter.
The CSB has been without a chair since former Chairwoman Vanessa Sutherland resigned her post in June. Board member Kristen Kulinowski has been leading the agency under the title of interim executive authority.
In a statement, Kulinowski said she would "welcome the appointment of a permanent Chairperson."
"In the interim, we are fulfilling the mission of the agency by continuing to deploy to incident investigations and release information related to our ongoing work," she wrote, emphasizing the importance of the agency's work.
The senators "believe that the President should nominate someone from outside the agency to be chair," they wrote, citing a letter sent to Kelly by the House Oversight and Government Reform Committee in August.
That letter also called for a new chair to be nominated. It said Kulinowski and the two other board members "either contributed to or presided over ongoing mismanagement at the CSB" (E&E News PM, Aug. 10).
If someone from outside the agency were nominated as chair, one seat on the five-person board would still be vacant. The EPW panel called for the White House to fill open seats quickly.
The Wall Street Journal first reported on the new letter.
CSB is also embroiled in a legal battle with Public Employees for Environmental Responsibility. The group is challenging the dismissal of former CSB Managing Director Daniel Horowitz earlier this year.
The agency had scheduled a closed meeting Tuesday, with funding authorization for a "legal services support contract" on the agenda, according to a notice in the Federal Register(Greenwire, Nov. 12).
During the meeting, CSB approved a $300,000 payment to the Shaw Bransford & Roth law firm, said PEER Executive Director Jeff Ruch.
CSB spokeswoman Hillary Cohen did not confirm or deny the approval of that payment.
"The CSB is preparing for a hearing before the [Merit Systems Protection Board] in January and out of respect for that process we will not comment on the merits of the case," she said in an email.
"We have twice offered mediation to the appellant and are awaiting a response."
https://www.eenews.net/greenwire/2018/11/16/stories/1060106497
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Handling Explosive Dust: Chemical Board Wants Manufacturers’ Input
Nov 15, 2018 | Bloomberg Environment - Occupational Safety
By Sam Pearson
Companies in a broad set of manufacturing sectors could see new advice on managing explosive dust risk under a Chemical Safety Board initiative.
The U.S. Chemical Safety and Hazard Investigation Board’s new approach aims to improve safety even as federal workplace safety officials back away from regulatory action to address the issue.
Industry groups, safety officials, and companies can weigh in through Nov. 26 in response to the board’s request for information about dust management. The board wants to move...
§ Access to full text unavailable – subscription required.
Story can be found here:https://news.bloombergenvironment.com/safety/handling-explosive-dust-chemical-board-wants-manufacturers-input
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(ACC Mentioned) Hope and Patience Waning on Self-Driving Bill
Nov 16, 2018 | Politico - Morning Energy
By Sam Mintz
With help from Brianna Gurciullo, Stephanie Beasley and Tanya Snyder
PROGRAMMING NOTE: Morning Transportation will not publish on Thursday, Nov. 22, and Friday, Nov. 23. Our next Morning Transportation newsletter will publish on Monday, Nov. 26. Please continue to follow Pro Transportation issues here.
Editor’s Note: This edition of Morning Transportation is published weekdays at 10 a.m. POLITICO Pro Transportation subscribers hold exclusive early access to the newsletter each morning at 6 a.m. To learn more about POLITICO Pro’s comprehensive policy intelligence coverage, policy tools and services, click here.
LOSING PATIENCE WITH CONGRESS ON AV BILL: Hope is diminishing in the private sector that the Senate will be able to advance legislation on self-driving cars by the end of the year. “As we see the clock ticking down before our very eyes, the hope is waning a little bit, which is very disappointing,” said Hilary Cain, Toyota’s director of technology and innovation policy, at a Bloomberg conference Thursday. The bill in question, S. 1885 (115), has been the subject of a drawn-out legislative process. Beyond the political challenges that will arise if lawmakers have to start over next year with a split Congress, testing the industry’s patience risks losing its cooperation altogether. “The sense I’m getting from the developer community is we’re not interested in doing this again next Congress. It’s been a frustrating couple of years to try to get his over the finish line, a lot of wheels spinning,” Cain said. The alternative could be to focus on DOT's efforts to come up with a framework for regulating autonomous vehicles.
Safety metrics not there yet: DOT is keeping tabs on Waymo's imminent rollout of a commercial self-driving car service in Arizona, and an official warned Thursday that as the technology inches ever closer to viability, there’s still no consensus on how to measure safety. Speaking at the same Bloomberg event, Derek Kan, undersecretary of transportation for policy, wouldn’t comment directly on Waymo. But he said that, in general, “I think where we are at this point in history, is defining how do we measure safety and what are the leading indicators of safety?” Kan also said he hopes that as car companies come closer to deployment, they collaborate more on developing safety metrics, citing confidential meetings that the aviation industry holds to share data.
MADD campaign: Speaking of Waymo, 600 of its cars being tested in Arizona will carry red ribbons from Mothers Against Drunk Driving through the holiday season. The ribbons are part of the group’s Tie One On For Safety public awareness campaign. “This year we have learned that drunk driving deaths have increased 35 percent over the past five years between 6 p.m. Thanksgiving Eve and midnight New Year’s Eve,” MADD spokesperson Becky Iannotta said.
FINALLY FRIDAY: Thanks for tuning in to POLITICO’s Morning Transportation, your daily tipsheet on all things trains, planes, automobiles and ports. Get in touch with feedback, tips or song lyric suggestions at smintz@politico.com or @samjmintz.
“So we took to the Calico road / Running from the weather / There was a highway inside of her eyes / There was a buried treasure.”
LISTEN HERE: Follow MT’s playlist on Spotify. What better way to start your day than with songs (picked by us and readers) about roads, rails, rivers and runways?
CHECK IT OUT: Our Tanya Snyder will be interviewing incoming House Transportation Chairman Peter DeFazio (D-Ore.) on C-SPAN’s "Newsmakers" — watch it tonight at 10 p.m. or on Sunday at 10 a.m. and 6 p.m.
NELSON WATCH: The Florida saga continues — and it doesn't look like it's ending anytime soon, as a manual recount was ordered in the Senate race between Commerce ranking member Bill Nelson (D-Fla.) and Republican Gov. Rick Scott.
AVIATION
LOOKING ELSEWHERE: Sen. John Thune (R-S.D.) told our Brianna Gurciullo that it appears the White House is “looking in another direction” than President Donald Trump’s personal pilot John Dunkin when it comes to the nomination for FAA administrator. The Commerce chairman said that former Delta executive Steve Dickson, who The Wall Street Journal reported has surfaced as a consensus choice, is “a very able person,” but he’s awaiting a decision from the White House.
** A message from the Association of American Railroads: What could you do if you had x-ray vision? The ability to fly? A brain faster than a supercomputer? America’s freight railroads have all that and more, using those superpowers to improve safety and efficiency across our 140,000-mile network. See how we’re putting technology to work. www.aar.org/future-of-rail. **
PRESSURE GROWING ON BOEING: The Air Line Pilots Association wants “immediate help” from FAA and NTSB in “clarifying the issues” with a system on Boeing 737 Max airplanes that have come to light after the Lion Air crash last month. “Early news reports about the Oct. 29 crash of Lion Air Flight 610 have pointed to a stall-prevention system that in some circumstances could send a plane into a dangerously steep plunge — a feature that pilots have said they didn't know about,” your MT host writes for Pros. ALPA President Tim Canoll wrote in a letter that “there appears to be a significant information gap, and we want to ensure that pilots operating these aircraft have all of the information they need to do so safely.”
More: American Airlines said it was “unaware of some of the functionality” of the system, per Reuters. And one victim’s family is suing Boeing, The Guardian reports.
SECURITY
DONE DEAL FOR PETERS? Michigan's Gary Peters is throwing his hat in the ring to take over as the top Democrat on the Senate Homeland Security Committee. Both he and Chairman Ron Johnson (R-Wis.) seemed confident about his chances of landing the post when they spoke to our Stephanie Beasley on Thursday. Peters will be the most senior Democrat on the panel next Congress after Sen. Tom Carper of Delaware, who is expected to stay on as ranking member of the Environment and Public Works Committee.
INFRASTRUCTURE
FLORIDA BRIDGE UPDATE: The NTSB said Thursday that it had found design errors in the Miami bridge collapse that killed six people in March. Cracks found in the 174-foot bridge are consistent with “an overestimation of the capacity” of a critical section “and an apparent underestimation of the demand (load) on that section,” investigators said, citing a review by the FHWA’s Office of Bridges and Structures. Tanya has more for Pros.
RAIL
BIZ IN THE BAYOU: The Senate Small Business Committee is holding a field hearing in Louisiana today on how small businesses benefit from smart rail shipping regulation. Led by Sen. John Neely Kennedy (R-La.), the hearing will feature testimony from Paul Roberti, chief counsel of PHMSA, and several private sector leaders. According to the American Chemistry Council’s Scott Jensen, two of the witnesses will highlight the need for policy reforms at STB and DOT on service and rate issues and tank car standards. He also issued MT a cruel reminder that it’s 60 and sunny in New Orleans as D.C. recovers from the first winter storm of the season.
THE AUTOBAHN
— “When Elon Musk tunnels under your home.” The Atlantic.
— “For auto groups, tariffs overshadow benefits of the USMCA.” POLITICO Pro.
— “Ford's blueprint to turn self-driving tech into profits.” Automotive News.
— “Here are 5 new infrastructure projects we’ll likely get with Amazon.” Greater Greater Washington.
— “Silicon eyed as way to boost electric car battery potential.” Reuters.
THE COUNTDOWN
DOT appropriations run out in 22 days. The FAA reauthorization expires in 1,779 days. Highway and transit policy is up for renewal in 685 days.
CORRECTION: The Nov. 14 edition of Morning Transportation incorrectly described the nature of DOT’s TIFIA program. TIFIA provides loans.
** A message from the Association of American Railroads: How did America’s freight railroads decrease mainline train accidents by 32% since 2008, or enable rail shippers to move twice the amount of freight for nearly the same price as in 1980? All it took was advanced technology, innovation and a clear vision for the future. From lasers to UAVs, machine visioning to big data analysis, technology is driving the freight rail industry into the future. Safer. More efficient. Learn how we’re putting technology to work. www.aar.org/future-of-rail. **
https://www.politico.com/newsletters/morning-transportation/2018/11/16/hope-and-patience-waning-on-self-driving-bill-415827
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Commuter Rail Makes Strong Process Toward PTC Implementation
Nov 16, 2018 | Transportation Today
By Melina Druga
The commuter rail industry made significant progress installing Positive Train Control (PTC) in the third quarter, which ended Sept. 30, according to the American Public Transportation Association (APTA).
According to APTA, 100 percent of equipment is purchased, 96 percent of on-track equipment installations are complete, and 94 percent of onboard equipment is installed on locomotives and cab cars. The railroads also have 89 percent of back office control systems are in operation, 85 percent of 13,543 employees are trained in PTC; and 68 percent of railroads are in PTC operation, in Revenue Service Demonstration, or awaiting FRA approval to begin testing.
“Safety isn’t merely a part of our industry’s culture; it’s at the heart of all rail transportation in every technological, logistical, and operational decision we make,” APTA President and CEO Paul P. Skoutelas said. “The significant progress that has been made by the commuter rail industry to install PTC is a demonstration of the industry’s commitment to safety. Commuter railroads are continuing to work tirelessly to meet the Congressional deadline for PTC installation.”
The industry’s progress demonstrates a commitment to safety and meeting the implementation deadline, APTA said.
Implementing PTC has been a challenge for many railroads. Full PTC implementation is required before 2020.
https://transportationtodaynews.com/news/11302-commuter-rail-makes-strong-process-toward-ptc-implementation/
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Veteran Democrats Wary of Leftward Push on Climate
Nov 16, 2018 | PoliticoPro
By Anthony Adragna and Zack Colman
Veteran Democratic lawmakers are closing ranks against new members pushing the party to the left on climate change.
Incoming chairmen say they want to address climate change, but they are bristling at the tactics of Rep.-elect Alexandria Ocasio-Cortez (D-N.Y.) and other newly elected Democrats who say the party needs to come up with a "Green New Deal" that would decarbonize the economy within a decade.
“The idea that in five years or 10 years we’re not going to consume any more fossil fuels is technologically impossible,” Rep. Peter DeFazio (D-Ore.), whose in line to lead the Transportation and Infrastructure Committee, told POLITICO. “We can have grand goals but let’s be realistic about how we get there.”
Ocasio-Cortez is working with other liberal members and youth climate activists to expand the scope of a select committee on climate change that Nancy Pelosi wants to relaunch if elected speaker. But several older members say they think even creating a new panel would be a distraction and could delay action by the existing committees with jurisdiction over the issue.
Incoming Energy and Commerce Chairman Frank Pallone (D-N.J.) slammed the creation of a new committee during a closed-door meeting of Democrats Thursday, drawing pushback from Ocasio-Cortez and Rep.-elect Joe Neguse (D-Colo.).
Liberal environmental advocates torched Pallone for his opposition to the revival of the climate select committee.
“Frank Pallone is concerned about holding onto his power and title, not about the future of our generation or human civilization,” said the Sunrise Movement, which organized the protest at Pelosi’s office earlier this week. “If he were serious about stopping climate change, he would give back his money from fossil fuel PACs and support the Select Committee for a Green New Deal, the only policy in history that rises to the scale of this crisis.”
Pallone said he shares the goals of groups anxious for aggressive action but called for regular order to develop a bipartisan response.
“We can have a very aggressive agenda that we can get a caucus consensus on and that we can even get some Republicans on,” he said. “This select committee kind of takes us away from the goal. We want, as I said, to move very aggressively.”
Some lawmakers are looking for ways to harness the progressive energy within the existing congressional structures so everyone gets on the same page.
“I have the same energy, I have the same urgency, but I think we need to have a conversation about how we do it,” Rep. Jared Huffman (D-Calif.) told POLITICO. “It would help to sit down with those of us that have been here and have been working on these issues and want to team up and go big on climate because I think we have to be strategic and I think we have to function as a team.”
But it’s a big team, noted Rep. Henry Cuellar (D-Texas). He said the centrist Blue Dog caucus expects to add six to eight members. He worried a climate change committee and goals like 100 percent renewable energy could turn off voters in swing districts at a time when Democrats would be unable to do more than pass "messaging" bills.
“A lot of the Republican seats that we won — a lot of them are moderate, conservative Democrats, and we have to keep that in mind. Those are the people I’m concerned about,” Cuellar said. “We can’t go too extreme.”
Others expressed wariness at the thought of going around the traditional nexus of power within the House.
“To create a specific committee may not achieve the goal — the goal being solid legislation to address the climate problem,” Rep. John Garamendi (D-Calif.) said. “I’d be pretty careful going around the normal committee structure. That sets up a set of problems that I don’t think any of us want to be getting into.”
The threat of turf wars might be reason enough to abandon plans for a new climate committee, said Rep. Alan Lowenthal (D-Calif.). He said lawmakers have been handcuffed for years while in the minority and have ideas they want to execute.
“Those committees are geared up and ready to introduce legislation,” he said.
Lowenthal and Rep. Don Beyer (D-Va.), who co-chair the 60-member Safe Climate Caucus, wrote a letter to Pelosi Thursday arguing that existing committees would be sufficient but agreeing to cooperate if she decides to proceed with a new panel.
https://subscriber.politicopro.com/energy/article/2018/11/veteran-democrats-wary-of-leftward-push-on-climate-977988
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Climate Protesters Storm Pallone's Office
Nov 16, 2018 | PoliticoPro
By Anthony Adragna
Dozens of youth climate protesters stormed Rep. Frank Pallone’s (D-N.J.) office Friday urging bold action to address climate change, in the latest signal liberal activists will continue pushing senior House Democrats to ramp up their ambition.
Pallone, the incoming chairman of the Energy and Commerce Committee, said he agreed with the “basic outlines” of Rep.-elect Alexandria Ocasio-Cortez “Green New Deal” proposal and endorsed the idea of moving towards decarbonizing the grid. But he stopped short of committing to the activists' demand that he swear off campaign contributions from oil, gas and coal companies, and he disputed how they categorized some of the contributions he has received from fossil fuel interests.
“The ideal of getting towards a carbon-free America is certainly something I agree on,” Pallone told POLITICO after leaving the protests. “How long it takes to do that, how we would get there and the details of the legislation, all that has to be worked out. But the idea is a good one. There’s no disagreement here on the substance.”
The demonstration was organized by the Sunrise Movement, a group of youth activists rallying around the increasingly dire predictions from climate scientists. The Intergovernmental Panel on Climate Change warned earlier this year that steep cuts in carbon emission are needed by 2030 to have a chance of avoiding the worst effects of global warming and sea level rise around the world.
“We don't anticipate being able to ram any legislation through this election cycle considering Trump is in the presidency and the Senate is controlled by the climate-denying GOP, but we really need to lay out the groundwork now,” Varshini Prakash, founder of the Sunrise Movement, told reporters after the protest. “If we delay another two years to draft the plans and start to build the political will and public consensus around the solutions, we will be well behind our timeline and that’s a death sentence for our generation.
Organizers expected arrests as they occupied Pallone’s office. Those would come on the heels of 51 arrests of protesters at House Minority Leader Nancy Pelosi’s office this Tuesday.
Pallone has been at odds with other Democrats this week over Pelosi’s plan to revive a select panel on climate change. He argues his committee — and others of jurisdiction — are best-positioned to move swiftly on climate legislation and adding another panel would add bureaucratic hurdles to crafting bold bills.
Joining Pallone in a nearly 20-minute discussion with protesters was Rep. Anna Eshoo (D-Calif.), who told POLITICO afterwards she happened to have a meeting scheduled with the New Jersey Democrat at the same time.
“I think you think we don’t agree with you. We do,” she told the youth activists from the Sunrise Movement. “I don’t think you realize you’re preaching to the choir, but it’s music to my ears.”
Protesters said they felt energized after speaking with Pallone, but they urged him to pledge not to take any fossil fuel money. He has received nearly $100,000 from electric utilities and more than $44,000 from other energy interests, according to Opensecrets. Pallone did not sign their pledge Friday but committed to reviewing it.
This week’s actions are just the beginning of their efforts to build support for the Green New Deal, according to the activists. They said Ocasio-Cortez was “well-positioned” to lead the charge in Congress and they would organize “really, really hard” to defeat Democrats not ready to move aggressively on the problem.
https://subscriber.politicopro.com/energy/article/2018/11/climate-protesters-storm-pallones-office-978185
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What exactly is the 'Green New Deal'?
Nov 16, 2018 | E&E Greenwire
By Hannah Northey
In a Democratic clash on Capitol Hill, progressives are pushing an ambitious plan to wean the U.S. off fossil fuels, boost renewables and build a "smart" grid.
Meet the "Green New Deal."
The proposal, drawing inspiration from President Franklin Roosevelt's Depression-era New Deal, is one that progressives — led by Rep.-elect Alexandria Ocasio-Cortez (D-N.Y.), a rising star on the left — want Democratic leaders to embrace.
The thinking is that a newly revived Select Committee on Energy Independence and Global Warming in the House would produce a draft of the plan by Jan., 1, 2020, and finalized legislation no later than March 1, 2020.
The scope of the plan, laid out on Cortez's campaign website, is cast as a work in progress. House leaders would be able to review the results of investigations and studies, along with detailed findings and interim recommendations. And there's time for collaboration.
Pushing the proposal is the youth-driven Sunrise Movement, a growing grassroots movement that's taken over the office of House Minority Leader Nancy Pelosi of California this week and Democratic Rep. Frank Pallone of New Jersey today.
Varshini Prakash, co-founder of the group, told E&E News earlier this week that progressives are calling on Pelosi to start building consensus around the ideas. That way, Democrats can move quickly if they regain power in 2021 and beyond (Climatewire, Nov. 14).
And yet disagreement is brewing, even among those eager to tackle climate change policy. Also outstanding are specifics on what programs would be included in a Green New Deal and how Congress and the federal government would pay for the plan.
"Democrats are united in decarbonizing our economy and addressing climate change in stark contrast to Republicans. But House leaders have to be strategic in how they approach climate change," said Paul Bledsoe, an energy fellow at the Progressive Policy Institute who worked on climate change in the Clinton White House. "Impossible-to-reach targets will only disappoint."
Here's a look at what the plan calls for — so far — within a decade of being enacted:
100 percent renewables
The plan calls for the United States to shift to all renewable energy within a decade.
Such a move has been at the heart of ongoing debates within the energy sector for years. Experts have clashed on whether such a move is possible and on the definition of "100 percent renewables" (Greenwire, April 20).
Some researchers have suggested that moving to all renewables isn't the best way to address climbing temperatures (Climatewire, June 20, 2017).
Build a 'smart' grid
The plan also calls for the creation of a national, energy-efficient "smart" grid.
Billions of dollars around the world has been invested in clean energy technologies, and grid experts for decades have been innovating ways to link them together, from solar arrays and wind turbines to electric cars.
Upgrade homes and businesses
Boosting efficiency is also on the menu. The plan calls for "upgrading every residential and industrial building for state-of-the-art energy efficiency, comfort and safety."
That push could directly confront the Trump administration's decision to leave energy efficiency on the back burner.
Multiple efficiency standards do not have set timelines for release, despite deadlines by Congress, and regulations for portable air conditioners, commercial packaged boilers and uninterruptible power supplies remain among the administration's long-term goals (Greenwire, Oct. 17).
Decarbonize, decarbonize, decarbonize
Progressives are also calling for deep decarbonization across the nation.
The plan includes language that would reduce emissions from manufacturing, agricultural and other industries, as well as decarbonizing, repairing and improving transportation and other infrastructure.
The plan would also call for "funding massive investment" in the drawdown and capture of greenhouse gases, but the proposal hasn't outlined the specifics of how to do that.
Jobs, jobs, jobs
in addition to boosting clean energy and exports, the plan would also lay out a national jobs program.
Specifically, the plan calls for "training and education to be a full and equal participant in the transition, including through a national "job guarantee program" to "assure every person who wants one, a living wage job."
https://www.eenews.net/greenwire/2018/11/16/stories/1060106501
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States, NRDC Urge D.C. Circuit To Scrap EPA Guide Undoing HFC Limits
Nov 16, 2018 | Inside EPA
By Lee Logan
A coalition of states and the Natural Resources Defense Council (NRDC) are urging an appellate court to scrap an EPA guidance document that “effectively rescinds” an Obama-era rule limiting refrigerant chemicals that act as potent greenhouse gases, even though the rule at issue was only partially vacated by a prior court ruling.
The April guidance document outlines EPA's response to the U.S. Court of Appeals for the District of Columbia Circuit's 2017 ruling in Mexichem Fluor, et al. v. EPA, et al. In that ruling, a split panel vacated key portions of a 2015 rule that had required operators to replace hydrofluorocarbons (HFC) with chemicals that are less harmful to the climate.
“But as EPA admits, the Mexichem decision only partially vacated the rule; the Court expressly upheld other discrete applications of the rule, leaving those applications unaffected by the partial vacatur,” says a Nov. 7 opening brieffiled with the D.C. Circuit by a New York-led state coalition in a challenge to the guidance, NRDC, et al. v. Wheeler, et al.
The coalition includes 11 states as well as the District of Columbia. The states argue that even though the Mexichemruling upheld parts of the 2015 HFC rule, the guidance orders a “wholesale abrogation of the underlying rule’s HFC use restrictions,” thus exceeding “the scope of the Court’s ruling” and improperly scrapping part of a duly issued rule.
NRDC adds in a separate Nov. 7 opening brief that “EPA’s 'guidance' turned Mexichem’s partial vacatur into a complete vacatur. It indefinitely suspended portions of a duly promulgated final rule that were expressly affirmed by this Court, without any proposal, opportunity for comment, or observance of the other rulemaking requirements” in the Clean Air Act.
The 2015 rule changed the status of several uses of HFCs under EPA's significant new alternatives policy (SNAP) program, which was created to limit chemicals that harm the stratospheric ozone layer. The program originally sought to phase out ozone-depleting substances (ODS), but the Obama EPA sought to expand SNAP's restrictions to HFCs, which do not harm the ozone layer but are potent short-term GHGs.
The D.C. Circuit in Mexichem upheld EPA's decision to list HFCs as a “prohibited” chemical for certain applications, and agreed that the agency could prevent operators that use ODS from replacing those chemicals with HFCs.
However, it said the agency lacks authority to require manufacturers that have already “replaced” an ODS with a non-ODS to then switch to a new substitute.
The Trump EPA defended the rule in the initial round of litigation, but eventually urged the Supreme Court to reject environmentalists' and chemical firms' petitions to review the D.C. Circuit ruling. The high court later rejected those petitions.
However, NRDC and the state coalition argue that EPA's guidance to respond to the ruling goes too far, by immediately allowing significant uses of HFCs that were previously banned.
“EPA thus violated the Clean Air Act by unlawfully suspending a final rule without notice-and-comment rulemaking and without providing a reasoned explanation for its action,” NRDC argues.
Guidance Rationale
When EPA issued its guidance in April, it said it would not implement any portions of the 2015 rule, pending a new rulemaking to respond to the Mexichem ruling. That rulemaking has not yet formally begun.
The agency said that the 2015 rule, as well as underlying framework regulations issued in 1994, do not allow it to readily distinguish between companies that use HFCs and those that use ODS.
Rather, the rule simply said HFCs are no longer an “acceptable” chemical for a range of end uses, requiring them to be phased out by a certain date. The prohibition applied regardless of whether current equipment uses HFCs or an ODS.
“Thus, the SNAP regulations as currently written do not provide the distinctions that would be necessary to accommodate the letter of the court’s vacatur,” the agency notice says.
But the states' in their recent brief downplay the agency's “purported obstacles.”
“EPA could straightforwardly implement Mexichem by issuing guidance stating that the 2015 Rule’s prohibition on HFC use does not apply to users that have already switched away from ozone-depleting substances as of the effective date of the listing change,” the brief argues. “EPA’s decision to forgo such guidance here -- and instead to adopt a far more sweeping rescission of the 2015 Rule -- is thus unreasonable.”
EPA's response brief is due Jan. 16, with industry intervenors' brief due Jan. 30. Reply briefs from the states and NRDC are due Feb. 13.
https://insideepa.com/daily-news/states-nrdc-urge-dc-circuit-scrap-epa-guide-undoing-hfc-limits
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