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AM ACC 12/18/2018
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EPA’s Wheeler Steers Clear of Scandals as He Rewrites Rulebook
Dec 18, 2018 | PoliticoPro
By Eric Wolff and Alex Guillén
Andrew Wheeler is speeding ahead with a slew of deregulatory actions in his first few months as head of EPA, digging into the fine print to rewrite the agency’s rulebook while skirting the type of tawdry scandals that brought down Scott Pruitt. -
Leading Contenders Emerge to Replace Zinke as Interior Secretary
Dec 18, 2018 | The Hill - E2 Wire
By Miranda Green and Timothy Cama
President Trump said he plans to announce this week his pick to replace Interior Secretary Ryan Zinke, who will be leaving the administration at the end of the year. -
ECOS Names Donald Welsh as Executive Director
Dec 17, 2018 | Inside EPA
The Environmental Council of the States (ECOS), the group that represents state environmental commissioners, has named Donald Welsh, a former EPA Region 3 administrator during the Bush administration and Pennsylvania environment official... -
(ACC Mentioned) Activists Rip EPA Move to Withhold Chemical Health, Safety Data
Dec 17, 2018 | BNA Daily Environment Report
By Adam Allington
The EPA is illegally withholding chemical health and safety data under the premise that the data contain confidential information, six advocacy groups claim. -
EPA Illegally Left Industries Out of Mercury Rule, 11 States Say
Dec 17, 2018 | BNA Daily Environment Report
By Pat Rizzuto
he EPA illegally omitted too many manufacturers and importers from a final rule intended to collect information about mercury in commerce to assist with permitting, Oregon and 10 other states say. -
Despite Past Filings, Sterigenics Avoids Filing Reports to EPA's TRI
Dec 17, 2018 | Inside EPA
By Maria Hegstad
Sterigenics, the sterilization company at the center of a controversy in the Chicago area over its releases of ethylene oxide (EtO), appears to have dropped its past practice of filing emissions data to EPA's Toxics Release Inventory (TRI) database for 2017 for any of its facilities... -
Inspector General Launches Review of EPA's Efforts to Mitigate ETO Risks
Dec 17, 2018 | Inside EPA
By Stuart Parker
EPA's Office of Inspector General (OIG) is launching a review of whether EPA has taken sufficient steps to mitigate cancer risks presented by ethylene oxide (EtO) and other harmful chemicals in its air toxics rules, after the agency's most recent national air toxics assessment... -
N.Y. Eyeing Tough Tap Water Limits for Fluorinated Chemicals
Dec 17, 2018 | BNA Daily Environment Report
By Gerald B. Silverman
New York is poised to set drinking water contaminant standards that will be among the toughest in the country, ending months of study, deliberation, and public debate. -
Washington Governor Budgets $9m on Chemicals in Products to Save Orca Whales
Dec 18, 2018 | Chemical Watch
By Kelly Franklin
Washington state governor Jay Inslee has earmarked more than $9m to address the environmental threat posed by toxic chemicals in consumer products. The move is part of a broader $1.1bn budget aimed at saving the region's orca whales. -
Bill Would Ban Pesticide near Schools
Dec 18, 2018 | E&E Daily
By Courtney Columbus
Sen. Brian Schatz (D-Hawaii) yesterday introduced legislation that would impose a nationwide ban on chlorpyrifos, a common pesticide, near schools. -
10 Percent of EU Toxic Chemical Shipments Illegally Exported: Audit
Dec 17, 2018 | BNA Daily Environment Report
By Stephen Gardner
About one in 10 shipments of the most hazardous chemicals exported from the European Union is being sent illegally, according to figures published by the European Chemicals Agency Dec. 17. -
Hundreds of Infringements in Chemical Safety Reports, EU Project Finds
Dec 18, 2018 | Chemical Watch
By Luke Buxton
A major European project has found "significant quality deficits" in the chemical safety reports (CSRs) of REACH registrants. -
2018 in Court: Climate Impacts Can't Be Ignored
Dec 18, 2018 | E&E Energywire
By Pamela King
Over the past 12 months, court dockets once again filled with challenges to federal and state energy policies. -
Groups Sue to Block Oil Production in Alaska’s Beaufort Sea
Dec 17, 2018 | AP (In The Washington Post)
By Dan Joling
Five conservation groups filed a lawsuit Monday seeking to block oil production from a proposed artificial gravel island in federal Arctic waters. -
Georgia-Pacific Hit With Clean Air Act Complaint
Dec 18, 2018 | BNA Daily Environment Report
By Steven M. Sellers
Arkansas plants operated by Georgia-Pacific Chemicals LLC exceeded federal limits for sulfur and other pollutants, the Justice Department alleged in a new lawsuit. -
NSA Cyber Sleuths Rack up Tech Patents
Dec 18, 2018 | E&E Energywire
By Blake Sobczak
National Security Agency analyst Daryle Deloatch works mainly with mobile devices — phones, iPads and the like. Though his day job immerses him in the cybersecurity issues inherent to use of these technologies, he writes programs to fix them as a "side project." -
Obama Ozone Rule Finally Gets Its Day in Court
Dec 18, 2018 | BNA Daily Environment Report
By David Schultz
The Trump administration will find itself defending Obama-era ozone standards that it once considered rolling back, as a long-delayed dispute over the air pollution requirements finally heads to court. -
EPA Could Lean on 2008 Court Loss to Keep Power Plant Mercury Limits
Dec 17, 2018 | BNA Daily Environment Report
By Amena H. Saiyid
A decade-old court decision could form the backbone of the EPA’s upcoming proposal to keep in place standards on toxic air pollution from power plants even as the agency recalculates the rule’s costs. -
Scientists Tout MATS' Health Benefits Ahead of EPA Rule Review
Dec 17, 2018 | Inside EPA
Scientists with the Harvard School of Public Health and other institutions are touting what they say are billions of dollars worth of “un-monetized” benefits from EPA's mercury and air toxics standards (MATS), offering a possible argument against a pending agency rule... -
New Jersey Readies Plan to Joint Power Plant Carbon Trading Pact
Dec 18, 2018 | BNA Daily Environment Report
By Leslie A. Pappas
New Jersey power plants would need to cut carbon dioxide emissions almost in half by 2030 if the state rejoins the Northeast’s regional cap-and-trade program for greenhouse gases. -
Cuomo's Call for 'Green New Deal' Signals Strong Climate Push
Dec 18, 2018 | E&E Climatewire
By Benjamin Storrow
New York Gov. Andrew Cuomo (D) called yesterday for a "Green New Deal" to make the Empire State's power sector carbon neutral by 2040 and ultimately eliminate its carbon footprint. -
Poll: Majorities of Both Parties Support Green New Deal
Dec 17, 2018 | The Hill - E2 Wire
By Timothy Cama
More than 80 percent of registered voters support the Green New Deal proposal being pushed by progressional Democratic lawmakers, a new poll found. -
Advocates Sue EPA Over Air Pollution in Alaska
Dec 18, 2018 | BNA Daily Environment Report
By Jill Burke
Two environmental groups are suing the U.S. Environmental Protection Agency to force action to clean up heavily polluted air in Alaska’s interior, which experiences some of worst pollution in the nation.
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EPA’s Wheeler Steers Clear of Scandals as He Rewrites Rulebook
Dec 18, 2018 | PoliticoPro
By Eric Wolff and Alex Guillén
Andrew Wheeler is speeding ahead with a slew of deregulatory actions in his first few months as head of EPA, digging into the fine print to rewrite the agency’s rulebook while skirting the type of tawdry scandals that brought down Scott Pruitt.
Since being named acting administrator in July, Wheeler has upended the agency's approach to smog-forming pollution from power plants and trucks, questioned health studies used to set safety rules for chemicals, stymied greenhouse gas pollution regulations and moved to freeze aggressive fuel efficiency standards for vehicles.
It's a contrast to his politically ambitious predecessor, Pruitt, who saw his efforts to roll back environmental regulations derailed by distractions from a string of ethical scandals, including his below-market condo rental from a lobbyist, investigations into travel expenses and efforts to procure work for his wife.
Instead, Wheeler, who spent four years at EPA early in his career and later helped conduct oversight of the agency as a congressional staffer, has harnessed EPA's machinery to delve into the legal nuances involved in unwinding pollution regulations opposed by conservatives and fossil fuel industries. President Donald Trump has indicated he intends to nominate Wheeler as the permanent EPA chief.
For Trump administration critics like former New Jersey Gov. and George W. Bush EPA Administrator Christine Todd Whitman, Wheeler is simply better at navigating to the same destination than Pruitt.
"[Pruitt] liked headlines. He liked to make grand announcements because I think he was thinking about his political future,” Whitman said.
“I just know that [Wheeler] knows the process better,” she said, and that makes him more effective at carrying out Trump’s agenda.
Wheeler's accomplishments so far show he understands the agency's authorities and limits. And while Pruitt kept EPA's career staff at arm's length, preventing them even from entering the part of the agency’s Washington, D.C., headquarters that houses the administrator's office, Wheeler often taps into the expertise in his 14,000-strong career staff.
"Wheeler appears to trust the super-smart career staff, and is making sure they have a seat at the table. That's helping him accomplish his policy goals," said one EPA career employee. "Pruitt didn’t trust career staff. You can’t do this alone.”
While EPA civil servants tell POLITICO they may not always agree with Wheeler's policy direction, following the directives of political leaders is part of a career in government service.
EPA did not return several requests for comment.
One example of Wheeler's and Pruitt’s differing approaches involves national smog standards. Pruitt had planned an outright rollback of the Obama administration’s tightening of the standards, only to be stymied by a court order telling him to implement former President Barack Obama's rule. Under Wheeler, EPA decided to defend the Obama regulation.
Though environmentalists initially cheered EPA's decision, the agency quietly said in an August court filing it would move quickly to complete its upcoming ozone review — with a "new approach" that could justify later raising the nationwide pollution limit during Trump's first term.
Wheeler has also abandoned the standard agency procedure for the ozone review, declining to establish a scientific panel of ozone experts that past administrators would turn to for advice. That's drawn complaints from members of the panel of outside experts who advise him on air quality issues. (Wheeler also disbanded a separate panel of experts on soot pollution that had already started work on that pollutant.)
EPA-watchers like Paul Billings, national senior vice president for advocacy at the American Lung Association, are unhappy about the changes coming in the Clean Air Act regulation procedures.
"There’s a fear the process is politicized, a fear that politics trumps science," he said.
Wheeler is using similar strategies to effect lasting change on other EPA rules.
EPA’s proposal earlier this month that would make it easier to build new coal-fired power plants left environmentalists steaming, even though the agency still doesn’t expect any new coal plants to be built.
But tucked inside that proposal was a footnote that raised complex, novel legal questions about whether EPA can or should regulate greenhouse gases from chemical plants, cement-makers and other industries.
Those questions don’t make it clear what exactly EPA is seeking, but such a policy change might justify doing “little, or maybe nothing” for a major portion of the nation’s climate-changing pollution, said Bob Perciasepe, a former Obama EPA deputy administrator.
And where a federal court rebuked Pruitt for trying to freeze Obama-era limits on methane pollution from new oil and gas wells, Wheeler took a more subtle approach, proposing to ease only some leak inspection requirements rather than outright repealing the rule. That move would mean major savings for oil and gas producers, and administration critics say it could be the first step in ending any significant regulation of well emissions.
Wheeler also vowed last month to follow up on an Obama EPA priority and consider tightening emission limits for smog-causing nitrogen oxide for 18-wheelers and other big trucks — in a move that surprised both critics and supporters of Trump's deregulatory agenda. However, the timeline is still years behind what the Obama administration had considered, and Wheeler did not commit to tightening the standard or promise to move as quickly as many smog-choked states had asked.
Another subtle move came buried in EPA’s proposal last week to vastly reduce the number of streams and wetlands that fall under the Clean Water Act’s protections. Language in the proposed rule's preamble could lay the groundwork for rolling those protections back even further in a final version of the rule, for instance by changing the definitions of "traditionally navigable waters."
Critics of the newly proposed Waters of the U.S. rule say Wheeler relied on legal interpretations to weaken the federal role rather than looking at the scientific data they contend was the basis for the Obama administration’s 2015 rule that cemented Clean Water Act protections.
“The lack of public input, the lack of peer-reviewed studies — it's all of the elements you would expect for a document that's to serve a political purpose,” said National Wildlife Federation CEO Collin O’Mara.
For administration allies, Wheeler's steady and quiet rollback of EPA regulations was a welcome change from the damaging headlines in the spring that helped drive out Pruitt. Still, some Pruitt supporters say he and Wheeler could have had an effective partnership had the White House been quicker to install Wheeler to the deputy slot.
Wheeler was nominated to the deputy administrator post in October 2017, but he wasn't confirmed until April as he waited his turn behind a slew of federal judges.
"I think a lot more could have been done a lot more quickly with that team in place," said Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute and a critic of EPA's regulations. "Pruitt was a really good advocate for the Trump agenda, but less good at accomplishing or implementing the Trump agenda. Andy is now charged with being the implementer and advocate. I think he’s great at implementing."
Environmentalists, many of whom made removing Pruitt a top goal, say they have no regrets about helping push him out and leaving the job to a more effective Wheeler.
"I don’t think it’s helpful to the country or EPA to have bumbling corruption at the helm of the agency," said John Walke, clean air director for the Natural Resources Defense Council. "I don’t buy this binary narrative that Wheeler is fundamentally more effective or knowledgeable about deregulation because his background differed from Pruitt. The infrastructure of an administration with industry serving as ventriloquist is far more influential in carrying out EPA’s agenda than personalities of Scott Pruitt or Andrew Wheeler."
Ultimately, Wheeler may be a more effective administrator than Pruitt, but he is pushing the deregulatory priorities of the Trump White House, Whitman said.
“With Wheeler, you’re not getting the nasty headlines about ethical behavior breaches. But the policy is still the president’s policy. It’s what he wants to see. He sets the tone,” she said. “If he wants to starve the agency fiscally, which is happening, he can do that with the budget. If he wants to disregard the science, he can do that.”
Annie Snider contributed to this report.
https://subscriber.politicopro.com/energy/article/2018/12/epas-wheeler-steers-clear-of-scandals-as-he-rewrites-rulebook-1029099
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Leading Contenders Emerge to Replace Zinke as Interior Secretary
Dec 18, 2018 | The Hill - E2 Wire
By Miranda Green and Timothy Cama
President Trump said he plans to announce this week his pick to replace Interior Secretary Ryan Zinke, who will be leaving the administration at the end of the year.
The likely contenders have experience on congressional committees overseeing the Interior Department or hail from western states, an important factor considering Interior's outsized influence in the West.
Trump's eventual pick will need to go through the Senate confirmation process.
Here are some of the most-talked-about contenders.
Interior Dept. Deputy Secretary David Bernhardt
Bernhardt had long been considered a shoo-in for secretary. But in announcing Zinke’s exit, Trump didn’t say the deputy secretary would be in charge of the agency and its 70,000 employees. Still, he will become acting secretary until Zinke's replacement is nominated and then confirmed by the Senate.
Bernhardt worked at Interior in various capacities, including solicitor, during the George W. Bush administration. He has had multiple stints at at the lobbying firm Brownstein Hyatt Farber Schreck LLP, representing clients with business before Interior.
In his current role at Interior, Bernhardt has taken the lead on major initiatives like efforts to ease Endangered Species Act compliance, reduce protections for the greater sage grouse, open the Arctic National Wildlife Refuge for oil and gas drilling and direct more water to farmers in the West.
“Bernhardt will be a strong leader,” said Ann Navarro, a partner at Bracewell LLP, a law firm and lobbying shop. “He’s an extremely hard worker and knows the agency’s mission. He also understands how the agency functions and is well-regarded among the agency staff, which is essential to successfully lead the agency.”
He also strikes fear in environmentalists.
“We cannot allow a lobbyist like David Bernhardt to transform our public lands and waters into oil and gas production zones when we have basically a decade left to avoid climate catastrophe,” Janet Redman, climate director for Greenpeace USA, said in a statement.
If Trump prefers to put a politician at the helm, Bernhardt would likely stay in his post to smooth the transition and to maintain the policy focus.
“It may benefit the president’s agenda to appoint someone else in that role so Bernhardt can keep the agenda on track,” said Dan Eberhart, CEO of oil services firm Canary LLC and a major Republican donor.
Rep. Rob Bishop (Utah)
Unlike other politicians in contention for the Interior post, Bishop isn’t leaving his current job. But the chairman of the House Natural Resources Committee is getting a demotion and becoming its ranking member starting next month since the GOP lost its House majority in the November midterm elections.
Bishop’s main qualification is that he has served for years on the Natural Resources panel, which oversees Interior, and has wielded the chairman's gavel for the past four years. He’s worked closely with Zinke to reduce national monuments and ease endangered species protections. Before that, he furiously fought the Obama administration’s policies.
When asked whether he would be interested in the job, Bishop’s spokeswoman, Kristina Baum, said he “has an interest in the opportunity to pursue the Trump administration’s continued leadership on energy dominance, reorganization of [the Bureau of Land Management], and access to public lands.”
She declined to elaborate.
Bishop has previously said that he does not plan to run for reelection in 2020 and will retire at the end of the 116th Congress.
Sen. Dean Heller (Nev.)
Heller hails from a state with a high concentration of federal land, managed by numerous agencies within Interior. He lost a competitive reelection bid last month to challenger Rep. Jacky Rosen (D), making him the only GOP senator to fall short on Election Day this cycle.
The Nevada Independent reported that Heller is very interested in the Interior job, and that Trump is seriously considering him.
But Heller may lack a key qualification Trump has sought in his Cabinet members: loyalty to him.
During the 2016 presidential campaign, Heller made disparaging remarks about Trump, saying he was “vehemently opposed” to the real estate mogul. But since Trump took office, the two have grown more friendly. Both Trump and his eldest daughter -- White House adviser Ivanka Trump -- campaigned for Heller in his failed reelection bid.
Rep. Raul Labrador (Idaho)
Labrador is another contender striving for the Interior post, according to a source close to the congressman. The Idaho Republican, who is retiring from Congress next month, met with Trump on Saturday and has been in touch with his aides about the position, the source said.
The source described Labrador as “uniquely qualified.”
The Idaho Republican, who was born in Puerto Rico, has served for nine years on the House Natural Resources Committee, which oversees the Interior Department.
If nominated and confirmed, he would be the first person born in one of the insular territories of the U.S. to serve as Interior secretary.
Interior oversees the governing of most U.S. territories, but not Puerto Rico.Labrador has at times had an icy relationship with Trump.
In March 2017, the congressman got in a Twitter altercation with the president, who had blasted the House Freedom Caucus for not getting on board with an Obamacare reform package. "The Freedom Caucus will hurt the entire Republican agenda if they don't get on the team, & fast. We must fight them, & Dems, in 2018!" Trump wrote.
Labrador responded: "Freedom Caucus stood with u when others ran. Remember who your real friends are. We're trying to help u succeed." Trump declined to endorse Labrador in his bid for Idaho governor this year. Labrador dropped out after losing in the primary.
Former Rep. Cynthia Lummis (Wyo.)
Lummis is openly vying for the spot.
“Yes, it is a position I'm interested in,” she told The Hill on Monday.
The Wyoming Republican, who retired from the House in 2017 after deciding not to seek reelection, first interviewed for the post last year before Trump picked Zinke.
Lummis told The Hill that if chosen for the role she would focus on forest management and wildfire controls.
“I have always prioritized natural resources policy," she said, adding that action needs to be taken to address "these catastrophic wildfires we've seen in California and elsewhere."
“Much more needs to be done to enhance the ability of the land to resist and fight catastrophic wildfire,” she added.
The former congresswoman said she has not met with the president about the position but has been in touch with White House staff. She said Zinke achieved a lot in his tenure, but now it’s time to move the focus.
“There are things we have to do at the National Park Service. When I was on the Oversight and Government Reform committee, there had been nearly decades of neglect of sexual harassment at the National Park Service,” she said.
“I would love to be at Interior to work with the House Oversight and Government Reform Committee and incoming Chairman Elijah Cummingsto make sure that issue is addressed,” she said, referring to the Maryland Democrat.
Idaho Gov. Butch Otter
Two sources familiar with the selection process said Otter, Idaho's outgoing governor, is one of the leading candidates Trump is considering.
Otter has been governor of the Gem State for 12 years and is retiring in January. He previously served in Congress and as lieutenant governor.
As governor, Otter has frequently worked with Interior since the federal government owns more than 60 percent of the state’s land, the second highest of any state.
He’s a harsh critic of the Endangered Species Act, and Interior is working to overhaul its enforcement of the decades-old law.
Otter has routinely dealt with public land issues, including a signature good neighbor agreement that allows Idaho to work with the National Forest Service to expand the agency's capacity to work on forest health.
But one area where he has little experience is with oil and gas. Idaho lacks notable fossil fuel developments, meaning the governor hasn't worked much with extraction policies.
The Trump administration under Zinke focused heavily on increasing drilling on public lands and offshore as a way to grow America's energy independence -- a policy strongly favored by Trump.
Otter’s office didn’t respond to requests for comment about his interest in the position.
https://thehill.com/policy/energy-environment/421755-five-potential-contenders-to-replace-zinke-as-interior-secretary
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ECOS Names Donald Welsh as Executive Director
Dec 17, 2018 | Inside EPA
The Environmental Council of the States (ECOS), the group that represents state environmental commissioners, has named Donald Welsh, a former EPA Region 3 administrator during the Bush administration and Pennsylvania environment official, as its new executive director.
“Don’s experience in leadership roles in state environmental protection and at the U.S. Environmental Protection Agency provides him the ideal background to lead ECOS as we work to implement Cooperative Federalism 2.0,” ECOS President Becky Keogh said in a Dec. 17 statement.
“His demonstrated skills in building and maintaining successful partnerships to achieve environmental results will be valuable to the association in our efforts to improve the capability of state environmental agency leaders and their staff to protect and improve human health and the environment.”
Welsh follows Sam Sankar as the head of the organization.
Most recently, Welsh has served as the chairman of the Citizens' Advisory Council to Pennsylvania Department of Environmental Protection (DEP). The council conducts independent oversight of DEP, participates in the development of regulations, and provides advice on environmental matters to state officials.
Welsh also served as a voting member of the state's Environmental Quality Board, which adopts environmental regulations in the state.
In the 1990s, Welsh held several positions at DEP including deputy secretary for state/federal relations, and he served as the Region 3 administrator during the George W. Bush administration.
https://insideepa.com/daily-feed/ecos-names-donald-welsh-executive-director
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(ACC Mentioned) Activists Rip EPA Move to Withhold Chemical Health, Safety Data
Dec 17, 2018 | BNA Daily Environment Report
By Adam Allington
The EPA is illegally withholding chemical health and safety data under the premise that the data contain confidential information, six advocacy groups claim.
The groups say the Environmental Protection Agency’s Office of Chemical Safety and Pollution Prevention is holding back 24 studies that form the basis for its draft risk evaluation on Pigment Violet 29, or PV-29.
PV-29, a colorant used in paints, inks, and plastics, is on the EPA’s list of 10 priority substances undergoing risk evaluation following the 2016 amendments to the Toxic Substances Control Act (TSCA).
Failing to disclose these studies “will frustrate the ability of interested parties to review and submit comments on the science EPA cites to support its risk evaluation and to participate meaningfully in the peer review process,” the groups said in a Dec. 6 letter to EPA.
The groups claim that the EPA’s assertion it can’t release these studies, because doing so would violate protections on confidential business information (CBI), reflects a clear break from a longstanding EPA precedent of not extending CBI protections to health and safety data.
But the American Chemistry Council, the chemical industry’s main trade group, argues that according to the text of TSCA Section 14, the agency also isn’t required to disclose.
“The statute states that it ‘does not prohibit’ EPA from disclosing health and safety studies unless to do so would reveal CBI,” said Jon Corley, director of issues communication for the council.
“EPA carefully reviews and evaluates the CBI substantiations that CBI owners make in support of their claims. EPA has determined in the case of pigment violet 29 that the CBI owner has provided sufficient facts and context to establish that the disclosure of the CBI in this instance would result in competitive harm and therefore may not be disclosed,” he added.
The EPA didn’t respond to Bloomberg Environment’s request for comment.
No Risk Seen for PV-29
The EPA has a three-year statutory window to finalize the 10 evaluations, which ends in December 2019.
In its first draft evaluation, the EPA found that PV-29 doesn’t pose an unreasonable risk to human health or the environment. The draft evaluation will now undergo peer review by EPA’s Science Advisory Committee on Chemicals, following a 60-day comment period. The committee is scheduled to meet Jan. 29–Feb. 1.
The only health and environmental information on PV-29 the EPA is releasing are summaries of studies that were prepared by the companies that make the chemical, and were submitted to the European Chemicals Agency (ECHA) when the chemical was registered under the European Union’s REACH regulation on chemicals.
Environmental groups say the U.S. agency’s assessment of PV-29 was based on limited data and that the summaries don’t provide sufficient transparency and may themselves be flawed.
“Two of those studies were conducted by BASF four decades ago and are the sole basis EPA cites for its assertion that ‘no adverse effects were observed’ for the inhalation route of exposure,” wrote Richard Denison, a senior scientist with the Environmental Defense Fund.
Denison points out that even the company submitting the study to ECHA didn’t trust the results.
Unsuitable?
“BASF itself labeled these two studies ‘not reliable’ due to use of an ‘unsuitable test system’ and said the studies should be ‘disregarded due to major methodological deficiencies,’” said Denison, who was one of six people to sign the Dec. 6 letter.
The other signers included representatives from the Center for Environmental Health, Earthjustice, the Environmental Health Strategy Center, the Natural Resources Defense Council, and Safer Chemicals, Healthy Families.
But in a statement to Bloomberg Environment, the American Chemistry Council’s Corley said the health and safety results themselves can’t be claimed as CBI, and “hasn’t done so in the case of PV-29.”
When registering a chemical under REACH, companies form group to share the cost of testing and collecting data, the results of which they own going forward. Therefore, without CBI protections, the value of the data may be lost if its made public.
“As a practical matter, EPA can’t be given access to studies conducted by REACH registrants if it doesn’t agree to not disclose those reports given the commercial value to REACH registrants,” said Herb Estreicher, a regulatory compliance attorney in the Washington and Brussels offices of Keller and Heckman LLP.
Lack of Transparency
Activists maintain that one of the major reasons for the 2016 changes to TSCA was to expand public access to information about chemicals and agency decisions.
“Two of the biggest problems under the old TSCA was a lack of transparency and a lack of data,” said Melanie Benesh, a legislative attorney with the Environmental Working Group.
When given the option, companies could abuse the CBI provision, and EPA should push back to reflect the intent of the nation’s primary chemicals law, Benesh told Bloomberg Environment.
“What we’re concerned about is making public information that would add to the body of scientific knowledge that contributes to the health and safety of the public,” she added.
https://news.bloombergenvironment.com/environment-and-energy/activists-rip-epa-move-to-withhold-chemical-health-safety-data
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EPA Illegally Left Industries Out of Mercury Rule, 11 States Say
Dec 17, 2018 | BNA Daily Environment Report
By Pat Rizzuto
he EPA illegally omitted too many manufacturers and importers from a final rule intended to collect information about mercury in commerce to assist with permitting, Oregon and 10 other states say.
The 2016 Toxic Substances Control Act amendments required the Environmental Protection Agency to gather information on mercury and mercury compounds in U.S. commerce, so the agency could decide whether to impose restrictions.
The law required the EPA to collect that information not only from industries regulated by the chemicals law but also from pharmaceutical, pesticide, and other manufacturers if they use mercury and mercury compounds.
The final rule (RIN:2070-AK22) the EPA issued to fulfill that obligation exempted companies that import mercury-containing products and manufacturers that use a mercury-containing component in something they produce, Oregon, Connecticut, Hawaii, Massachusetts, Maine, Maryland, Minnesota, New Jersey, Pennsylvania, Rhode Island, and Washington state said in a legal brief filed Dec. 14.
Typically, pharmaceutical, pesticide, and some other industries are excluded from TSCA, because they are covered by other laws.
Found in Many ProductsAutomobiles, thermostats, and toys’ batteries might contain mercury, the 11 states said in their friend of the court brief.
The states are supporting Vermont and the advocacy group Natural Resources Defense Council in their lawsuit challenging the EPA’s mercury regulation.
States need to know what industries use mercury so that, for example, they can identify discharge sources they may not be aware of and appropriately issue permits, the 11 states said.
The EPA’s policy is not to comment on cases in litigation. The agency asked the court Dec. 14 to allow it to file its brief on March 8, 2019.
The case is Nat. Res. Def. Council v. EPA, 2d Cir., No. 18-2121, 12/14/18.
https://news.bloombergenvironment.com/environment-and-energy/epa-illegally-left-industries-out-of-mercury-rule-11-states-say
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Despite Past Filings, Sterigenics Avoids Filing Reports to EPA's TRI
Dec 17, 2018 | Inside EPA
By Maria Hegstad
Sterigenics, the sterilization company at the center of a controversy in the Chicago area over its releases of ethylene oxide (EtO), appears to have dropped its past practice of filing emissions data to EPA's Toxics Release Inventory (TRI) database for 2017 for any of its facilities, according to searches performed by Inside EPA.
According to EPA, the agency has posted 2017 data for hundreds of facilities in its TRI database, though searches of the database find no results for Sterigenics facilities in 2017, even though such reports were due to EPA by July 1.
By contrast, searching data in the TRI database for 2006-2016 provides emissions reports from nine Sterigenics facilities across the U.S., in California, Georgia, Illinois, North Carolina, New Mexico, New York, Texas and Utah.
For example, in 2016, the Willowbrook, IL, facility reported 4,205 pounds of EtO air releases, down from 4,899 pounds in 2015.
While such levels appear to fall below EPA's typical reporting threshold of 10,000 pounds, the company has filed such data for years but now appears to have stopped the practice
A Sterigenics spokesperson says the company is not required to file TRI reports for its facilities but did not explain why, or why the company appears to have changed its practices. Several of Sterigenics' facilities have filed TRI Form R reports annually as far back as 1987.
An EPA spokesperson gave no specifics about Sterigenics' 2017 data, but provided some scenarios in which a facility would not have to report to TRI, such as if its status changed to exempt it from reporting.
“A facility might not report for a given year because it determined that it did not meet one [of the] requirements. ... each year hundreds of facilities come into and out of the TRI regulatory scheme due to threshold determinations. Each year, EPA conducts data quality analyses and reviews changes in reporting.”
Regardless, the lack of information could intensify national controversy over the adequacy of EPA's regulation of the chemical's releases and local uncertainty about the risks communities in the Chicago-area face from the company's emissions of EtO, a known carcinogen, as they await a promised EPA risk assessment in 2019.
EtO is commonly used as an intermediate to make other chemical products like detergent, antifreeze and polyester, and to sterilize medical equipment and foods, though the chemical has long been suspected of causing breast and lymph cancers.
EPA's 2016 Integrated Risk Information System (IRIS) assessment of EtO affirmed those links and classified the substance as a known carcinogen. It also recommended conservative risk values that are expected to drive stricter regulatory standards.
Sterigenics and its use of EtO to sterilize medical equipment and devices came to widespread attention in recent months after EPA's release last August of modeling emissions data in its latest National Air Toxics Assessment (NATA) covering 2014 emissions. When combined, the NATA data and IRIS assessment prompted EPA to announce earlier this year that it would review its air toxics rules for EtO.
In addition, an assessment by the Agency for Toxic Substances Disease Registry also suggested high cancer risk in the area around the Illinois plant.
EPA's Office of Inspector General (OIG) announced Dec. 17 that it is launching a review of whether EPA has taken sufficient steps to mitigate cancer risks presented by EtO and other harmful chemicals in its air toxics rules
But the chemical industry has filed a request for correction with EPA under the Information Quality Act (IQA) asking the agency to withdraw EtO data in the NATA that relied on its 2016 IRIS values for the chemical.
Stricter Rules
Officials representing communities near the Illinois Sterigenics plant, however, have been urging EPA to clamp down on the facility's emissions and to strengthen its rules governing EtO. In October, Sens. Dick Durbin (D-IL) and Tammy Duckworth (D-IL), as well as Rep. Bill Foster (D-IL), spelled out a series of steps they wanted the agency to take to more strictly regulate EtO under the Clean Air Act and the Toxic Substances Control Act.
The controversy has done little to quell local concerns, especially after EPA indicated over the Thanksgiving weekend that it may have overstated the amount of EtO in the air near the Sterigenics facility.
The agency is now gathering and analyzing emissions monitoring data as part of an effort to complete a risk analysis for the Willowbrook community, which EPA's air chief Bill Wehrum promised will be completed in 2019. In addition, the agency also recently began conducting water sampling for EtO, according to a local CBS affiliate.
But the missing TRI data could inform the pending analysis.
TRI, created by section 313 of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA), requires industrial facilities in a host of sectors to report annual releases of a specified set of more than 650 chemicals.
The agency places all the information in a public, searchable database on its website and also releases an annual “National Analysis” report on the latest year's data.
The law generally requires the data for the prior calendar year to be reported by July 1 of the following year and provides a $25,000 per day penalty for missing the reporting deadline.
Last October, OIG announced that it is beginning a review of how the agency addresses situations in which companies who are required to report to TRI do so after the statutory deadline. In an Oct. 4 memo to EPA enforcement chief Susan Bodine, a top OIG official explains that the “project objective will address whether the EPA is taking enforcement actions against companies that delay required reporting of chemical release data to EPA’s TRI.”
TRI is one source for data used in NATA. While NATA is released every few years, TRI is released annually. Its data source is also uniform, allowing comparison over time and between different parts of the country -- as EPA produces with its National Assessments. Such analyses cannot be performed with NATA data, which varies in detail between states and over time in its analyses.
Sterigenics' plants are not the top producers of EtO in terms of pounds of emissions, according to TRI reports from 2006-2016. Sterigenics' facility in Santa Teresa, NM, ranks number 12 in the country for facilities that reported EtO releases to TRI between 2006 and 2016, with more than 111,300 pounds released over that decade, according to EPA's EasyRSEI Dashboard.
Sterigenics' Willowbrook facility ranks 21st in this category, with more than 57,600 pounds of emissions over that decade. But when ranked by Risk-Screening Environmental Indicators (RSEI) score, two of Sterigenics' facilities are in the top 10 for the 2006-2016 decade: Willowbrook has the fourth highest RSEI score for the nation in that decade, while Sterigenics' facility in Atlanta ranks ninth.
EPA's website explains that “RSEI scores add context to chemical release data reported by facilities to the [TRI] by considering the size of the chemical release, the fate and transport of the chemical through the environment, the size and location of the exposed population, and the chemical's toxicity. RSEI Scores are available for modeled releases and transfers (air releases, water releases, and transfers to POTWs and off-site incineration).” The scores, which are “unitless values” are “calculated as toxicity weight multiplied by the exposed population multiplied by the estimated dose.” The scores “are only meaningful in comparison to other RSEI Scores.”
In the case of the list of facilities reporting emissions of EtO in the U.S., the size of the exposures and the exposed population represent the differences in the RSEI score.
The Willowbrook facility is touting new pollution control devices it installed last summer after the release of the NATA information, which it says ensure the facility captures 99.9 percent of EtO used. The company has also questioned EPA's analysis of the monitoring results -- after EPA last month acknowledged errors in its emissions testing -- as well as the soundness of the IRIS assessment. They also argue EtO's use as a sterilizer is critical because it is the only way some medical devices can be sterilized without damaging them.
https://insideepa.com/daily-news/despite-past-filings-sterigenics-avoids-filing-reports-epas-tri
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Inspector General Launches Review of EPA's Efforts to Mitigate ETO Risks
Dec 17, 2018 | Inside EPA
By Stuart Parker
EPA's Office of Inspector General (OIG) is launching a review of whether EPA has taken sufficient steps to mitigate cancer risks presented by ethylene oxide (EtO) and other harmful chemicals in its air toxics rules, after the agency's most recent national air toxics assessment (NATA) spurred concerns in some communities over health impacts of EtO.
In a Dec. 17 letter to EPA air policy chief Bill Wehrum, the OIG says it intends to conduct a project to examine whether EPA's risk-and-technology review (RTR) rules, required for industry sectors eight years after their initial regulation for air toxics, are sufficiently addressing cancer risks.
The review's “objective is to determine whether the EPA’s residual RTR process has sufficiently identified and addressed any elevated cancer risks from air toxics emitted by facilities,” says James Hatfield, director of the OIG's Air Directorate, in the letter. The probe is the result of the OIG's “internal planning process,” Hatfield says.
The inquiry will probe EPA's conduct of RTRs for: “Group 1 polymers and resins; Synthetic organic chemical manufacturing industry; Polyether polyols production; and Ethylene oxide sterilization facilities.”
Action by the OIG follows controversy stirred by EPA's NATA, released this past summer, which showed an elevated health risk from EtO from certain facilities. The elevated risk level was due largely to a revised 2016 Obama EPA cancer risk assessment for EtO, which the agency now believes to be more harmful than previously thought. Industry disputes the higher risk numbers, however.
The EtO issue has risen to the fore in particular at the Sterigenics sterilization facility in Willowbrook, IL, where local residents and elected officials have expressed alarm over potentially harmful emissions.
Wehrum in Nov. 29 remarks at a community meeting in Willowbrook promised residents of the communities surrounding the Chicago-area sterilizing facility that the agency will report "early next year" on its analysis of ongoing air monitoring near the plant to better assess the communities' risk from EtO emitted.
His remarks follow the agency's admission earlier that the laboratory analysis of some of the Willowbrook air samples could have overestimated the amounts of EtO in them.
Meanwhile, EPA is also planning revisions to its air toxics rules in response to the NATA findings on EtO. The agency is facing added pressure to complete its rule revisions from Illinois Democrats. Sens. Dick Durbin and Tammy Duckworth and Reps. Dan Lipinski, Bill Foster and Brad Schneider have touted legislation that would require EPA to upgrade its national emissions standards for facilities using EtO by a date certain.
Following release of the NATA, EPA said it would look at EPA's national emissions standards for hazardous air pollutants (NESHAP) to cut toxic emissions from miscellaneous organic chemical manufacturing, last updated in 2006 and already due for another review by a court-ordered deadline of March 2020.
The agency also said it will “take a closer look” at its rules governing emissions from other sectors, starting with the NESHAP for EtO commercial sterilization and fumigation operations, last updated in 2006.
https://insideepa.com/daily-news/inspector-general-launches-review-epas-efforts-mitigate-eto-risks
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N.Y. Eyeing Tough Tap Water Limits for Fluorinated Chemicals
Dec 17, 2018 | BNA Daily Environment Report
By Gerald B. Silverman
New York is poised to set drinking water contaminant standards that will be among the toughest in the country, ending months of study, deliberation, and public debate.
The state Drinking Water Quality Council is expected to approve the standards at a meeting Dec. 18, the first key step in the regulatory process.
The standards will establish maximum contaminant levels for perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), and 1,4 dioxane. PFOA and PFOS are used in nonstick coatings and water repellents and have been linked to developmental delays, liver and immune system problems, and increased cancer risk.
New York will join at least eight other states that aren’t waiting for the Environmental Protection Agency to regulate these chemicals but are taking action on their own. At least 10 other states are also considering action.
It’s been a long path for the state standards since PFOA and PFOS were first detected in the drinking water in Hoosick Falls, N.Y., four years ago. The state enacted a law in 2017 creating the Drinking Water Quality Council and gave it a statutory deadline of Oct. 2, 2018, for making its recommendations.
How Low?The question is how far will New York go with its contaminant levels. The Health Department’s Bureau of Toxic Substance Assessment has provided the council with the scientific basis for levels between 4 and 35 parts per trillion for PFOA and between 8 and 35 parts per trillion for PFOS.
The EPA set a nonenforceable health advisory in 2016 for PFOA and PFOS levels in drinking water at a combined 70 parts per trillion, but the Centers for Disease Control and Prevention said in June that exposure to even lower concentrations may pose health risks.
The Business Council of New York State is concerned that setting a contaminant level too low will add to the cost of testing and providing drinking water and could increase remediation costs in locations contaminated by the chemicals, according to Darren Suarez, director of government affairs for the group.
For example, the Suffolk County Water Authority estimates that it would cost $458 million to reduce 1,4 dioxane to non-detectable levels and an additional $36 million a year in operating costs, Suarez said. However, it would cost $155 million to reach a level of 0.35 micrograms per liter, he said.
“There are numerous other health matters that could be addressed with the millions of dollars saved,” he told Bloomberg Environment in an email.
NRDC RecommendationState lawmakers and environmental groups have been urging the water council to set a combined contaminant level of 4 parts per trillion for PFOA and PFOS and 0.3 parts per billion for 1,4 dioxane. The Natural Resources Defense Council is calling for an even stricter standard—a combined PFOA-PFAS level of 2 parts per trillion.
“The more we learn about PFOA and PFOS, the more dangerous we realize these contaminants are, even at extremely low levels,” Kimberly Ong, a staff attorney at NRDC, told Bloomberg Environment in an email.
Once approved by the drinking water council, the contaminant levels must then be approved by the state health commissioner and the Public Health and Health Planning Council. They will also be subject to a 60-day public comment period.
https://news.bloombergenvironment.com/environment-and-energy/ny-eyeing-tough-tap-water-limits-for-fluorinated-chemicals
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Washington Governor Budgets $9m on Chemicals in Products to Save Orca Whales
Dec 18, 2018 | Chemical Watch
By Kelly Franklin
Washington state governor Jay Inslee has earmarked more than $9m to address the environmental threat posed by toxic chemicals in consumer products. The move is part of a broader $1.1bn budget aimed at saving the region's orca whales.
The news follows a set of recommendations released last month by the Southern Resident Orca Task Force, a group formed earlier this year to establish a long-term plan for recovering the region's waning killer whale population.
The taskforce identified toxic contaminants as one of three "key threats". And it recommended the state "identify, prioritise and take action on chemicals" that threaten the whales.
In accordance with this, the governor has set aside $7.3m to implement chemical action plans (CAPs) to prevent toxics from entering the environment, and $2m to "enhance testing" for chemicals in products.
Funding effects
Ivy Sager-Rosenthal, campaign and communications director at Washington-based NGO Toxic-Free Future, told Chemical Watch that enhanced product testing will help the state enforce its existing laws and give policy makers critical information on where chemicals are being used in products, so they can determine what actions should be taken.
Regarding CAPs the state's Department of Ecology develops these to "identify, characterise, and evaluate all uses and releases of a specific chemical of concern". The instruments do not ban or regulate chemicals, but provide recommendations that can lead to future legislation or regulations.
Increased funding will allow the state to do more of them, and implement recommendations, like pollution prevention plans, or enforcing existing chemical bans.
Past CAPs have focused on:
· polychlorinated biphenyls (PCBs);
· polycyclic aromatic hydrocarbons (PAHs);
· polybrominated diphenyl ethers (PBDEs);
· lead; and
· mercury.
A CAP addressing per- and poly-fluorinated alkyl substances (PFASs) is also underway.
Ms Sager-Rosenthal said on PFASs that the state could use some of the money to help implement new bans on their use in firefighting foam and food packaging, such as by helping fire departments move away from or dispose of PFAS-containing foams.
But she added that a shortcoming in the CAP programme is that "the agency's authority to take quick action on these chemicals is weak". Taking "meaningful action" – like banning certain uses or requiring chemical reporting – is a slow process that can take numerous years, she said, and orcas don’t have that kind of time.
"I'm hopeful that we'll see legislation in 2019 to close this gap and give state agencies authority to take quicker action on harmful chemicals when a problem is identified," she added.
https://chemicalwatch.com/72846/washington-governor-budgets-9m-on-chemicals-in-products-to-save-orca-whales
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Bill Would Ban Pesticide near Schools
Dec 18, 2018 | E&E Daily
By Courtney Columbus
Sen. Brian Schatz (D-Hawaii) yesterday introduced legislation that would impose a nationwide ban on chlorpyrifos, a common pesticide, near schools.
The bill is titled the "Prohibit Chlorpyrifos Poisoning Students Act."
"My bill would take Hawaii's state ban nationwide, so all of our children are protected no matter where they live or go to school," Schatz said in a statement.
Hawaii Gov. David Ige (D) signed a chlorpyrifos ban into law in June.
Starting Jan. 1, Schatz's bill would prohibit restricted-use or organophosphate pesticides — including chlorpyrifos — from being used on or near school property during the school day. The nationwide ban would take effect the following year.
The legislation would also change the pre- and post-application reporting requirements for restricted-use pesticides.
Meanwhile, EPA is challenging a ruling by the 9th U.S. Circuit Court of Appeals that orders the agency to block the chemical's use (Greenwire, Sept. 25).
https://www.eenews.net/eedaily/2018/12/18/stories/1060109917
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10 Percent of EU Toxic Chemical Shipments Illegally Exported: Audit
Dec 17, 2018 | BNA Daily Environment Report
By Stephen Gardner
About one in 10 shipments of the most hazardous chemicals exported from the European Union is being sent illegally, according to figures published by the European Chemicals Agency Dec. 17.
Under the EU’s Prior Informed Consent (PIC) Regulation ((EU) 649/2012), exports of more than 200 highly hazardous substances, which are banned or restricted from use in the EU, can only go ahead if notifications are submitted to authorities in EU countries. In some cases, exports also require explicit permission from authorities in importing countries.
But an enforcement project coordinated between 13 EU countries found that out of 164 cases for which an export notification should have been submitted, there was no notification in 17 instances.
The project, which ran in the first half of 2018, also turned up other irregularities, such as incorrect chemical safety information or noncompliance with packaging and labeling requirements, according to a European Chemicals Agency summary report.
Penalties included fines and, in 14 cases, the handing over of criminal complaints to public prosecutors, the agency report said. The report did not provide further details of cases and companies involved.
The EU’s PIC Regulation implements in the bloc the Rotterdam Convention on the PIC Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. The procedure seeks to ensure that companies only export hazardous substances to countries that have previously consented to their import.
Problem for Smaller CompaniesMost of the companies inspected as part of the enforcement project were small or medium-sized, and the “vast majority” of noncompliance was found in these companies, European Chemicals Agency spokesman Jakob Aahauge told Bloomberg Environment Dec. 17.
Further data issued separately by the agency Dec. 17 showed that in 2017, the most exported hazardous substances for which PIC notification is required were ethylene dichloride (or 1,2-dichloroethane), benzene, and chlorate.
Ethylene dichloride, which is used in the production of polyvinyl chloride plastic, is banned from use in the EU without a use-specific authorization.
But companies including BASF SE, Evonik Industries AG, Mitsubishi International GmbH, and Vynova Group hold registrations for supply of the substance under the EU’s REACH law (Regulation No. 1907/2006 on the registration, evaluation, and authorization of chemicals).
BASF declined to comment about whether it exports ethylene dichloride from the EU, but spokesman Florian Tholey told Bloomberg Environment Dec. 17 that for its products, “various mechanisms ensure that the requirements for exports are met,” and “no exports can therefore take place without a permit.”
https://news.bloombergenvironment.com/environment-and-energy/10-percent-of-eu-toxic-chemical-shipments-illegally-exported-audit
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Hundreds of Infringements in Chemical Safety Reports, EU Project Finds
Dec 18, 2018 | Chemical Watch
By Luke Buxton
A major European project has found "significant quality deficits" in the chemical safety reports (CSRs) of REACH registrants.
The fifth REACH enforcement project (Ref-5) saw 898 companies inspected in 29 EU and EEA countries during 2017. The checks covered 1,435 substances.
Inspectors focused on company obligations under REACH to prepare exposure scenarios that describe risk management measures in the CSR, and to ensure this information is passed along the supply chain in an extended safety data sheet (eSDS).
They also checked whether downstream users implement these risk management measures or prepare their own safety assessment.
They found 296 infringements related to quality of SDSs, which contain guidelines on the safe use of hazardous substances.
The fewest incidences of non-compliance were due to companies not compiling their own extended SDSs for the mixtures they prepare. The highest number involved failing to translate the extended SDSs into the language of the member states where the substance was marketed.
While the report concluded many duty holders comply with regulatory provisions, during the inspection period an Echa support team found:
· poor-quality information, including lacking updates on harmonised classification of substances;
· missing/incomplete exposure scenarios;
· risk management measures that were not clearly specified;
· exposure models used outside their functional domain; and
· questionable exposure estimates.
In the majority of cases, these deficits are copied through into the eSDSs, meaning the information transferred through the supply chain via these is not of satisfactory quality, the report said. Breakdown
Of the companies inspected, 655 were manufacturers, 139 wholesalers and retail traders and 104 engaged in other activities. A total of 71% were small and medium-sized enterprises (SME), 28% were non-SMEs and 1% were unknown.
During the project, inspectors scrutinised:
· 302 registrant SDSs (28%);
· 270 (25%) downstream user SDSs (including formulators and distributors); and
· 519 (47%) downstream end-user SDSs.
Of the 296 infringements, registrants accounted for 42%, and downstream users and downstream end-user companies 29% each. There were 168 companies that committed at least one infringement
Overall 665 enforcement measures were taken. Of these, over two-thirds were verbal and written advice, and 4% entailed fines. Recommendations
The project report recommended that industry ensures registration dossiers and the associated CSRs are "periodically updated as appropriate, and as a consequence of this, the extended SDSs are also".
It said registrants should put more effort into proposing functional risk management measures as part of the CSRs and corresponding exposure scenarios in the SDSs.
The use of available tools, such as those generated by the Exchange Network on Exposure Scenarios (Enes), can contribute to improving quality of the exposure scenarios/extended SDSs. This is also one of the actions proposed by the Commission’s REACH Review. However, it added, these tools do not yet cover the full spectrum of supply chain needs.
Downstream users, it said, should work to better communication up the supply chain.
With chemical/chemical product manufacturers and wholesale and retail trade sectors reported as the most non-compliant, it would be "beneficial for the relevant industry organisations to start a discourse" on the way forward towards better fulfilment of their REACH duties, it added.
The European Commission, it suggested, could initiate discussion with Echa’s Enforcement Forum on how to work towards attaining the objectives and practical enforcement of REACH issues explored in Ref-5. It could also do more to support SMEs in improving their CSR.
Meanwhile, it said, national enforcement authorities (NEAs) should design programmes to support implementation of Ref-5 scope. It further recommended national campaigns to improve understanding of the legal requirement to supply exposure scenarios.
And NEAs should start initiatives aimed at making practical use of the exposure scenarios
https://chemicalwatch.com/72862/hundreds-of-infringements-in-chemical-safety-reports-eu-project-finds
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2018 in Court: Climate Impacts Can't Be Ignored
Dec 18, 2018 | E&E Energywire
By Pamela King
Over the past 12 months, court dockets once again filled with challenges to federal and state energy policies.
Some of the lawsuits forced judges to grapple with the Trump administration's approach to climate analysis under the National Environmental Policy Act (NEPA). In a few key cases, the courts ordered federal officials to revisit their reviews.
"Courts are showing little patience for the approach of saying, 'Gee, we just don't know how much greenhouse gas emissions are associated with a project,'" said David Hayes, executive director of the State Energy & Environmental Impact Center and a former Interior Department official under the Obama and Clinton administrations.
Green groups have signaled that they don't just want meatier NEPA analyses. They also want agencies to choose, as a result of those reviews, alternative actions that impose fewer environmental and climate risks.
Many of this year's legal findings have focused on getting climate analysis on the record. But judges have at times questioned whether requiring federal agencies to conduct more in-depth reviews will address environmentalists' true criticisms.
During recent oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit, Judge Gregory Katsas, a Trump appointee, asked what would happen if the court required the Federal Energy Regulatory Commission to analyze an alternative to a natural gas transport project (Energywire, Dec. 14).
What if the agency conducted that study and still decided to move forward with its original proposal, he asked.
"A finding of impacts doesn't require a halting of the project because NEPA doesn't mandate any particular outcome," said BakerHostetler attorney Mark Barron. "It just requires that the decisionmaking be informed."
As long as there is a comprehensive analysis that identifies climate impacts, "that should satisfy NEPA," he said.
Not so, say environmental advocates. Groups like WildEarth Guardians that have challenged federal energy policies in court want to hold the Trump administration accountable to recent findings in the National Climate Assessment and a U.S. Geological Survey report.
Those documents, released over the Thanksgiving holiday, found that climate change could shrink the economy by up to 10 percent by the end of the century and that a quarter of warming-inducing emissions come from energy production on public lands (Climatewire, Nov. 23; Climatewire, Nov. 27).
"Together, these reports probably provide more support for our arguments than ever before," said Jeremy Nichols, director of WildEarth Guardians' climate and energy program.
Public lands
The courts this year required the Bureau of Land Management to take a harder look at climate impacts during the process of leasing public lands to oil, gas and coal developers.
Judges ruled in three leasing cases in Montana, New Mexico and Colorado that BLM should consider alternative uses of public lands and do a better job of analyzing downstream emissions (Energywire, Dec. 5).
"Amazingly, notwithstanding these court losses, the BLM continues to sidestep disclosure of climate impacts, especially on the oil and gas side of things and especially when it comes to leasing," said Nichols of WildEarth Guardians. "They continue to prepare environmental analyses where they minimize climate concerns, try to avoid disclosure of emissions and avoid any acknowledgment of carbon costs."
The group is watching BLM's approach on climate review in New Mexico's portion of the Permian Basin, where Interior this year hosted a blockbuster, $1 billion lease sale (Greenwire, Sept. 7).
"Despite the boom taking place there and very serious climate concerns, BLM is still refusing to calculate indirect emissions, minimizing climate concerns, ignoring climate costs and overlooking the cumulative climate impacts of leasing," Nichols said.
While climate is a common thread in several of the leasing challenges that BLM faces, the message from the courts isn't necessarily one-size-fits-all, said Barron of BakerHostetler.
"The accuracy of impact analysis really is more project-specific than I think some of the courts have observed," he said.
In cases like the Montana leasing lawsuit, which dealt with resource management plans for the coal-rich Powder River Basin, calculating downstream impacts may be more feasible when the mineral in question is being purchased by a specific power plant, Barron said (Energywire, March 26). Asking for a full review of downstream emissions for a general oil and gas lease sale may be less realistic, he said, because there's no way to know how much fuel will be purchased and how exactly it will be combusted.
"Calculating accurate estimates for NEPA purposes is not necessarily plausible" in those cases, Barron said.
The courts this year struck down multiple attempts by the Trump administration to suspend Obama-era standards for methane emissions from oil and gas operations on federal and tribal lands.
This fall, President Trump's BLM issued a revised methane rule, the merits of which will be subject to a fresh round of legal action. Just hours after BLM released the language of the revised 2016 Methane and Waste Prevention Rule, the states of California and New Mexico filed a lawsuit (Energywire, Sept. 19).
That round of litigation will focus on climate impacts not from a NEPA perspective but from a cost-benefit standpoint. The Trump administration's approach to climate analysis drastically tipped the scales in favor of its revised rule, which BLM said would result in maximum total net benefits of roughly $1.08 billion over 10 years.
During the Obama administration, BLM calculated that the 2016 rule would carry annual net benefits of between $46 million and $204 million. Those benefits were contingent on avoiding the social cost of emitting methane, a potent greenhouse gas, into the atmosphere.
"Defendants' reliance on an 'interim domestic social cost of methane' model is arbitrary and capricious for multiple reasons, including that it is outcome-seeking; fails to take into account the best available science; undervalues the benefits of the Rule (including benefits to public health and safety), apparently to justify repeal; fails to adequately address risk and uncertainty; and ignores significant climate impacts," the state attorneys general wrote in their September lawsuit.
Industry groups enmeshed in the litigation have promised to back the Trump rule every step of the way.
"Methane regulation should be handled by the EPA," said Mallori Miller, director of government relations for the Independent Petroleum Association of America. "There's nothing in the Mineral Leasing Act that stipulates methane regulation should be handled in the BLM. This was a step over the line by the Obama administration."
Trump's EPA is in the process of scaling back its own methane standards (Greenwire, Sept. 11).
Pipelines
A federal judge this year ordered the government to take a closer look at climate impacts from the Keystone XL pipeline after Trump revived the project shortly after taking office.
The Trump administration did not do a good enough job of analyzing emissions — and other impacts — from the 1,200-mile conduit, which would carry Canadian crude to the Gulf of Mexico, Judge Brian Morris for the U.S. District Court for the District of Montana found.
A Nov. 8 preliminary injunction from the judge effectively halted construction on the pipeline until Trump's State Department can offer a better defense for why it brought the project back to life after former President Obama nixed it (Energywire, Nov. 9).
Opponents of the pipeline applauded the ruling, but they raised concerns over the developments that followed a separate order from the judge. Morris, an Obama appointee, earlier in the year required the State Department to redo its NEPA analysis of Keystone XL's alternative route through Nebraska.
State Department officials quickly handed back a document that groups like the Sierra Club denounced as a "sham review" (Greenwire, Sept. 24).
Some legal experts questioned whether Morris' ruling imposed too great a burden.
"It's hard to say that more information is bad, but when you have a NEPA process already taking over five years on average, there has to come a point where there's a diminishing return on value," said James Coleman, an energy law professor at Southern Methodist University.
Individual challenges may ultimately be effective in stopping pipelines' progress, he said, but requiring granular analysis of each project may not be a worthwhile pursuit. In the case of Keystone XL, for example, Morris required the State Department to revisit its assessment of the pipeline's market impacts in light of the fact that oil prices had nearly halved since the Obama administration completed its analysis in 2014.
"I just don't believe that we can say anything valuable enough about any specific pipeline to say that that's going to influence the decision we make on it," Coleman said.
Developers of the 600-mile Atlantic Coast natural gas pipeline from West Virginia to North Carolina also opted to halt construction this year amid a set of unfavorable rulings out of the 4th U.S. Circuit Court of Appeals (Energywire, Dec. 10). Those rulings pertained to the project's forest crossings and impact to species along the pipeline route.
While states have control over oil pipeline authorizations, gas pipelines are subject to FERC approval. The agency's pipeline authorization process itself has also been the focus of recent legal scrutiny.
FERC this year announced in a procedural document that it would narrow its approach to considering and disclosing upstream and downstream greenhouse gas emissions associated with the projects under its oversight (E&E News PM, May 18).
Attorneys general for six states and the District of Columbia this month called on the D.C. Circuit to uphold its 2017 finding in Sierra Club v. FERC that greenhouse gas emissions are a "reasonably foreseeable consequence" of fossil fuel projects.
"In Sierra Club, this Court rejected FERC's willful blindness towards the indirect and cumulative downstream impacts of a proposed natural gas infrastructure project on greenhouse gas emissions," they wrote in a recent brief filed with the D.C. Circuit. "Instead, this Court held that downstream combustion of natural gas transported by a natural gas infrastructure project — combustion that generates electricity and carbon dioxide that contributes to global climate change — is not only reasonably foreseeable, but 'is the project's entire purpose.'"
FERC's policy shift drew lots of attention — both for its substance and for the way it was announced.
"It seemed very strategic to try to evade opposition and scrutiny," said Ari Peskoe, director of Harvard Law School's electricity law program.
Clearly that strategy didn't work, because the policy is now before the D.C. Circuit, he said.
"We'll see if it sticks," Peskoe said.
Electricity
Two appellate courts recently upheld state autonomy in clean energy policymaking, but some state officials this year worried that their emissions-cutting efforts could be eclipsed by Trump-era policies.
The 7th U.S. Circuit Court of Appeals this fall ruled in favor of Illinois' zero-emission credit (ZEC) program, which incentivizes nuclear power. Two weeks later, the 2nd Circuit upheld a similar program in New York.
Both rulings cited the Supreme Court's finding in Hughes v. Talen Energy Marketing LLC that the Federal Power Act pre-empts state laws that interfere with interstate auctions.
"As long as you don't do that, states have pretty wide flexibility to design policies to achieve a clean energy goal," Peskoe said.
Attorneys for the Electric Power Supply Association, which challenged the ZEC programs, could soon bring one of the cases to the Supreme Court.
States have also pledged to sue the Trump administration if it follows through with its plans to replace the Obama-era Clean Power Plan. Trump's EPA unveiled its proposed replacement, the Affordable Clean Energy (ACE) rule, in August.
The Clean Power Plan, meanwhile, sits on ice after a February 2016 stay from the Supreme Court.
The proposed ACE rule is in conflict with states' efforts to limit emissions from coal-fired power plants, 19 attorneys general wrote in recent comments (Energywire, Nov. 2).
"Although EPA has previously acknowledged the need for urgent reductions in greenhouse gas emissions, EPA's proposed rule does not, nor does it explain the rationale for its apparent reversal," they wrote.
"States and Cities, by contrast, are acting to address the threat posed by climate change."
Proponents of the ACE rule say the Clean Power Plan exceeded federal authority.
"The ACE Rule would restore the rule of law and empower states to reduce greenhouse gas emissions and provide modern, reliable, and affordable energy for all Americans," acting EPA Administrator Andrew Wheeler said in August.
Trump is expected to release the final ACE rule in March.
https://www.eenews.net/energywire/2018/12/18/stories/1060109943
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Groups Sue to Block Oil Production in Alaska’s Beaufort Sea
Dec 17, 2018 | AP (In The Washington Post)
By Dan Joling
Five conservation groups filed a lawsuit Monday seeking to block oil production from a proposed artificial gravel island in federal Arctic waters.
The groups asked the 9th U.S. Circuit Court of Appeals to review an offshore production plan approved for the Liberty project in the Beaufort Sea off Alaska’s north coast.
The groups said the plan violates federal law governing outer continental shelf drilling, the environment and endangered species. The Trump administration failed to consider impacts of an oil spill in remote Arctic waters or effects of drilling on polar bears and other endangered species, said Kristen Monsell of the Center for Biological Diversity, one of the groups that sued.
“An oil spill in the Arctic would be impossible to clean up in a region already stressed by climate change,” she said.
Drilling law requires the administration to reject development if the risks to the human and marine environment outweigh the benefits of oil extraction. That includes both spills and climate change, Monsell said.
“Here the agency used the totally inadequate analysis that actually found that the ‘no action’ alternative — not approving the project — would actually result in more greenhouse gas emissions, which is just completely ridiculous on its face, and also ridiculous given the modeling they used,” Monsell said.
The Bureau of Ocean Energy Management did not immediately respond to an email request for comment Monday.
BOEM in October approved a plan submitted by Houston-based Hilcorp for production wells on an island proposed in 19 feet (5.8 meters) of water about 5.6 miles (9 kilometers) off shore.Energy & EnvironmentGroups sue to block oil production in Alaska’s Beaufort SeaBy Dan Joling | APDecember 17 at 7:34 PM
ANCHORAGE, Alaska — Five conservation groups filed a lawsuit Monday seeking to block oil production from a proposed artificial gravel island in federal Arctic waters.
The groups asked the 9th U.S. Circuit Court of Appeals to review an offshore production plan approved for the Liberty project in the Beaufort Sea off Alaska’s north coast.
The groups said the plan violates federal law governing outer continental shelf drilling, the environment and endangered species. The Trump administration failed to consider impacts of an oil spill in remote Arctic waters or effects of drilling on polar bears and other endangered species, said Kristen Monsell of the Center for Biological Diversity, one of the groups that sued.
“An oil spill in the Arctic would be impossible to clean up in a region already stressed by climate change,” she said.
Drilling law requires the administration to reject development if the risks to the human and marine environment outweigh the benefits of oil extraction. That includes both spills and climate change, Monsell said.
“Here the agency used the totally inadequate analysis that actually found that the ‘no action’ alternative — not approving the project — would actually result in more greenhouse gas emissions, which is just completely ridiculous on its face, and also ridiculous given the modeling they used,” Monsell said.
The Bureau of Ocean Energy Management did not immediately respond to an email request for comment Monday.
BOEM in October approved a plan submitted by Houston-based Hilcorp for production wells on an island proposed in 19 feet (5.8 meters) of water about 5.6 miles (9 kilometers) off shore.
The site is 15 miles (24 kilometers) east of Prudhoe Bay, North America’s largest oil field.
Hilcorp plans to extract oil from federal leases sold in the 1990s. BP Exploration Alaska drilled at the site in 1997 and sold 50 percent of the assets to Hilcorp in 2014.
The base of the gravel island would cover 24 acres of ocean floor, about the size of 18 football fields, with sloped sides leading to a work surface of 9 acres, the size of nearly seven football fields.
To create the island, trucks would travel by ice road to a hole cut in sea ice and deposit 83,000 cubic yards (63,450 million cubic meters) of gravel.
The surface would have room for 16 wells. Hilcorp anticipates extracting 80 million to 130 million barrels over 15 to 20 years. Hilcorp proposes to move oil to shore by buried pipe.
Liberty would be the 19th artificial drilling island in Alaska, including four now pumping oil from state waters.
Liberty spokeswoman Lori Nelson did not respond to a request for comment Monday.
The four other groups suing are Friends of the Earth, Greenpeace, Defenders of Wildlife and Pacific Environment. They’re represented by environmental law firm Earthjustice.
https://www.washingtonpost.com/national/energy-environment/groups-sue-to-block-oil-production-in-alaskas-beaufort-sea/2018/12/17/a4f3777e-025c-11e9-958c-0a601226ff6b_story.html?utm_term=.01d9a1d05fc9
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Georgia-Pacific Hit With Clean Air Act Complaint
Dec 18, 2018 | BNA Daily Environment Report
By Steven M. Sellers
Arkansas plants operated by Georgia-Pacific Chemicals LLC exceeded federal limits for sulfur and other pollutants, the Justice Department alleged in a new lawsuit.
Multiple air pollution control systems at GP’s paper pulp and chemical manufacturing facilities in Crossett, Ark., allowed emissions above federal Clean Air Act standards the Dec. 14 complaint filed in the U.S. District Court for the Western District of Arkansas alleges.
The federal government seeks civil penalties for violations that occurred between February and September 2015, when they were corrected.
The 26-count complaint also alleges “equipment leaks” that allowed formaldehyde emissions, failure to use an approved method in performance testing of a wood pulping system to ensure compliance with EPA’s National Emission Standards for Hazardous Air Pollutants, failure to maintain compliance records required by federal law, and other violations.
Georgia-Pacific should be permanently enjoined from operating the facilities unless they comply with all Clean Air Act requirements, and take actions to mitigate and “offset the harm caused to public health and the environment,” the complaint states.
Georgia-Pacific didn’t immediately respond to a request for comment.
The case is U.S. v. Georgia-Pacific Chemicals, LLC, W.D. Ark., No. 18-cv-01076, complaint filed 12/14/18.
https://news.bloombergenvironment.com/environment-and-energy/georgia-pacific-hit-with-clean-air-act-complaint
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NSA Cyber Sleuths Rack up Tech Patents
Dec 18, 2018 | E&E Energywire
By Blake Sobczak
National Security Agency analyst Daryle Deloatch works mainly with mobile devices — phones, iPads and the like. Though his day job immerses him in the cybersecurity issues inherent to use of these technologies, he writes programs to fix them as a "side project."
A self-described "tech weenie," Deloatch devoted spare time at the agency to developing a method for detecting tampering with a mobile device, such as someone who tries to swap out a phone's SIM card.
"When I originally made the technology, I was thinking along the lines of something I would want: a security solution," he said. "It's very helpful because with identity theft, with malware, with any action that might take place, unbeknownst to me, I have an early warning that something's going on with my phone."
The technology could have a range of applications, he said, including for critical infrastructure operators who increasingly rely on portable devices to remotely log in and manage industrial control systems. Deloatch's color-coded alert system would tip off end users to potential malicious meddling.
Every alert is tied to a time stamp, "so it helps to build a picture of what took place while you were away from the phone," he said.
Deloatch's invention marks the third patent he's filed while working in the secretive halls of Fort Meade. He's now courting commercial partners to license the technology and bring it to a broader audience.
The effort is part of NSA's Technology Transfer Program, a rare public-facing effort from the intelligence agency. Congress mandated the program, which is used in part to justify NSA's classified research and development budget. A 2016 study sponsored by the Department of Defense found license agreements using NSA technology generated nearly $350 million in economic impacts over a decade and a half.
"The technology is not classified — it's the use of it," Deloatch explained. "I think sometimes people are shocked by what we do put out."
Deloatch said he's heard from a few organizations interested in licensing his latest mobile defense add-on. One of his past inventions, an integrity scanner for Blackberry devices, went on to be incorporated into the Sentinel product line from tech firm Fixmo in the early 2010s. The impetus for developing the technology came from a White House request to use Blackberry devices for official communications.
The Fixmo case brought an unusual level of exposure to an agency accustomed to operating well out of the limelight.
Last year, NSA launched a public account on the code-sharing site GitHub, posting a range of tools released under its Tech Transfer Program. One of those open-source tools, Grassmarlin, is tailor-made for discovering devices on industrial control systems. Grassmarlin has been used in the natural gas sector as well as in the Department of Homeland Security's Industrial Control Systems Cyber Emergency Response Team.
But are companies comfortable integrating technology from an agency whose day-to-day job involves spying on electronic devices?
"It depends on the type of company and the relationship" with NSA, Deloatch said. But he said, "We want you to use [cybersecurity] mitigations that can help you. If anything, if it was the opposite, and we held onto that material, people would get upset."
Former NSA officials have said the agency is still rebuilding its reputation following disclosures from former intelligence contractor Edward Snowden, who leaked top-secret documents exposing an NSA-run mass surveillance program in 2014.
Navy Adm. Michael Rogers, who led NSA and the U.S. Cyber Command until he retired from the dual-hat posts this summer, told an industry audience at an oil and gas conference in October that the agency tends to keep a low profile when it comes to its information assurance mission.
"We're a foreign intelligence organization, so generally we will partner with the FBI, DHS," or other domestic civilian agencies, he said. "You won't necessarily know it came from us."
Still, Rogers pointed to a few notable exceptions to that rule, citing cases when NSA analysts provided direct, on-the-ground support to private companies. One such case was in 2014, when suspected North Korean government hackers launched a damaging cyberattack on Sony Pictures Entertainment.
More recently, in 2017, a suspected Russian hacking group targeted the corporate networks of multiple nuclear power plant owners across the U.S. and caught the NSA's attention, Rogers said, adding that only business-side networks were found to have been affected. "We actually sent people out to a couple [nuclear] facilities [to] partner with the production owner, to go through their networks," he said.
NSA support "happens occasionally on very high-level, highly visible kinds of things," Rogers added, "but day to day, it will be through the FBI and the DHS."
https://www.eenews.net/energywire/2018/12/18/stories/1060109937
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Obama Ozone Rule Finally Gets Its Day in Court
Dec 18, 2018 | BNA Daily Environment Report
By David Schultz
The Trump administration will find itself defending Obama-era ozone standards that it once considered rolling back, as a long-delayed dispute over the air pollution requirements finally heads to court.
The U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hold nearly 90 minutes of oral argument Dec. 18 featuring attorneys representing states, industry groups, environmentalists, and the Environmental Protection Agency.
In its own brief, the agency described the central question in the case as “reminiscent of Goldilocks and the Three Bears"—are its current standards for ozone too tight, too lax, or just right?
The EPA has designated more than 50 regions across the country as exceeding the standards, which were set at 70 parts per billion.
Fossil Fuel Byproduct
The answer could have big implications not only for public health but also for a variety of industry sectors, especially the energy industry.
Burning fossil fuels creates ground-level ozone. Areas out of compliance with EPA ozone standards are required to enact measures to improve air quality, which could include restrictions on power plants and other industrial facilities. Ozone is a lung irritant that exacerbates breathing conditions like asthma.
A coalition of industry groups is arguing that, when the EPA lowered its standards in 2015 by almost 7 percent, it ignored naturally generated ozone as well as ozone generated in other countries that drifts into the U.S. The industry groups say the federal Clean Air Act doesn’t give the agency authority to hold them accountable for failing to meet the standards when these natural or international sources of ozone play such a prominent role.
Environmentalists, meanwhile, say the tighter standards enacted during the Obama administration weren’t tight enough. Young people and people with lung problems can still suffer adverse health effects when ozone reaches even the current standards, they argue.
The Sierra Club is one of the environmental groups suing the EPA over these new ozone standards. It has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
Trump Defends Obama
This case was originally supposed to go to oral arguments early last year, just days after President Donald Trump took office. But the Trump administration asked the court for a postponement while the EPA considered whether to repeal previous ozone standards.
This summer, the administration announced it wouldn’t attempt to repeal the ozone standards. Instead, the EPA would try to address some of the issues with the new ozone standards when it comes time to review them again in 2020.
With that, the consolidated lawsuit from the industry groups, environmentalists, and the states was back on.
And it puts the Trump administration in the unusual circumstance of defending in court an environmental regulation put in place by its predecessor—something it has rarely opted to do since coming into office last year.
The case is Murray Energy Corp. v. EPA, D.C. Cir., No. 15-01385, oral argument, 12/18/18.
https://news.bloombergenvironment.com/environment-and-energy/obama-ozone-rule-finally-gets-its-day-in-court
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EPA Could Lean on 2008 Court Loss to Keep Power Plant Mercury Limits
Dec 17, 2018 | BNA Daily Environment Report
By Amena H. Saiyid
A decade-old court decision could form the backbone of the EPA’s upcoming proposal to keep in place standards on toxic air pollution from power plants even as the agency recalculates the rule’s costs.
The Environmental Protection Agency is readying a proposal, which could come as early as this week, to retain the mercury and air toxics standards (MATS) for power plants set by the Obama administration, though it will take comment on eliminating the rule as well.
Legal experts tell Bloomberg Environment that central to its justification, also known as the appropriate and necessary finding, will be the U.S. Court of Appeals for the District of Columbia Circuit’s 2008 decision in New Jersey v. EPA , which scuttled the George W. Bush administration’s attempt to replace toxic air pollution standards for power plants with an emissions trading program.
That decision will give the EPA the legal cover it needs to retain the Obama-era standards for mercury and other toxic air pollutants, while revising its legal basis, according to Jeff Holmstead of Bracewell LLP, who was the EPA assistant administrator for air and radiation who helped draft the Clean Air Mercury Rule, which was struck down by the court’s decision.
“I think New Jersey was wrongly decided, but it’s the law of the circuit,” Holmstead, who has been closely tracking the agency’s rulemaking efforts, said. “The court held that, once the standards are set, they cannot be withdrawn unless EPA goes through a formal delisting process. According to the court, it doesn’t matter if the underlying justification has been undone.”
A One Way StreetCrowell & Moring LLP partner Thomas Lorenzen likened EPA’s obligation to regulate power plant releases of hazardous air pollutants to driving down a one-way street.
“It’s easy to get in, very difficult to get out. The only way to get out is to show there is no risk to public health,” said Lorenzen, who supervised defense of the Clean Air Mercury Rule while at the Justice Department.
The agency also is expected to seek public comment on a slew of options, including revoking the standards, but its preferred option is to retain the standards as most power plants have already made the investments necessary to comply with the emissions requirements for toxic air pollutants, a power industry source who has spoken to EPA officials about the rule told Bloomberg Environment.
The power industry has urged the EPA to leave the rule in place in White House meetings on the proposal (RIN:2060-AT99). Murray Energy Corp., the nation’s largest underground coal mining company, wants the 2012 standards to be revoked, saying its domestic sales have suffered.
“If the EPA revokes its legal basis for the hazardous air pollutants limits, then utilities have no reason to run pollution controls to meet the standards, Joseph Goffman, executive director of Harvard Law School’s Environmental and Energy Law Program, wrote in a Dec. 17 analysis.
Moreover, the agency could be sued for continuing to implement the standards on grounds that “the appropriate and necessary finding prerequisite for those standards had been removed,” said Goffman, who served as the EPA’s associate assistant administrator for climate and senior counsel in the agency’s air office during the Obama administration.
EPA Counting CostsThe EPA also is in the middle of recalculating the costs and health benefits of its power plant pollution standards in response to the U.S. Supreme Court’s decision in Michigan v. EPA. The agency has indicated it will eliminate the use of co-benefits—including the health benefits of reducing pollutants that aren’t directly regulated—and focus on the actual costs that power plants have spent in meeting the standards and the direct benefits that the public has gleaned from cuts in mercury pollution.
As much as 89 percent of the 2012 rule’s health benefits came from reducing fine particles rather than from the toxic air pollution controls, according to EPA estimates.
The EPA already has the authority and the obligation to address airborne particle pollution and shouldn’t be doing that under the guise of regulating unrelated pollutants, Bill Wehrum, the EPA’s air office head, told Bloomberg Environment in an interview.
“So I don’t need MATS for that. What I need MATS for is to control air toxic emissions from power plants,” he said.
Acting EPA Administrator Andrew Wheeler has maintained throughout the process that the EPA intends to leave the toxic pollution standards in place. But environmental groups are skeptical.
“It is a little hard to accept the notion that EPA is engaged in some academic exercise and all it wants to do is revoke the cost-benefit finding,” James Pew, an Earthjustice attorney who participated in the New Jersey v. EPA lawsuit, told Bloomberg Environment.
https://news.bloombergenvironment.com/environment-and-energy/epa-could-lean-on-2008-court-loss-to-keep-power-plant-mercury-limits
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Scientists Tout MATS' Health Benefits Ahead of EPA Rule Review
Dec 17, 2018 | Inside EPA
Scientists with the Harvard School of Public Health and other institutions are touting what they say are billions of dollars worth of “un-monetized” benefits from EPA's mercury and air toxics standards (MATS), offering a possible argument against a pending agency rule that is expected to take comment on weakening or scrapping the rule.
EPA is expected to imminently issue its proposal to reconsider both the 2012 MATS rule and its underlying finding that it is “appropriate and necessary” to regulate power plants for air toxics under Clean Air Act section 112. The agency will solicit public comment on a range of options, from abolishing the finding outright to “tinkering” with it, and also will likely present a way to ease compliance burdens for industry under the rule.
The agency is thought unlikely to propose scrapping MATS outright, given the millions of dollars utilities have already invested in compliance. However, environmentalists view any change to the underlying cost finding as a threat to the continued existence of MATS itself, because the finding is a legal prerequisite for the rule. Also, environmental groups and Democrats are warning against any weakening of MATS.
On a conference call with reporters Dec. 17, the Harvard scientists sought to stress the value of MATS so far in reducing mercury emissions and their harmful effects on public health.
Harvard researcher Elsie Sunderland said that opponents of MATS have created a “false dichotemy” between the rule's original monetized mercury benefits, of only around $6 million annually, and the original estimated cost of $9 billion per year. EPA relied mostly on “co-benefits” of reducing particulate matter -- not an air toxic -- to justify the rule's costs.
But the scientists say EPA quantified only a “tiny subset” of the MATS rule's benefits, related to the impact on childrens' IQ of mercury ingestion by their mothers because of certain fish consumption. In fact, the benefits of the rule run into the billions of dollars, the scientists say.
Syracuse University researcher Charles Driscoll said MATS has been “remarkably effective” in reducing mercury emissions. The rule contributed to a trend that has seen power plant mercury emissions decline by 85 percent from 2006 to 2016, Driscoll said.
Sunderland said that in fact, the rule's implementation costs have been lower than EPA initially projected, and that consumers have seen a “very small fluctuation” in their energy bills as a result of MATS.
The Harvard School of Public Health, headed by former Obama EPA Administrator and air policy chief Gina McCarthy -- an architect of the MATS rule -- released a report Dec. 17 to stress the researchers' finding on the MATS rules' benefits.
If EPA revises or scraps the “appropriate and necessary” finding, it may opt not to count co-benefits, making the rule much harder to justify from a cost standpoint. Quantification of health benefits previously not monetized would therefore be key to justifying the rule.
https://insideepa.com/daily-feed/scientists-tout-mats-health-benefits-ahead-epa-rule-review
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New Jersey Readies Plan to Joint Power Plant Carbon Trading Pact
Dec 18, 2018 | BNA Daily Environment Report
By Leslie A. Pappas
New Jersey power plants would need to cut carbon dioxide emissions almost in half by 2030 if the state rejoins the Northeast’s regional cap-and-trade program for greenhouse gases.
The Garden State issued two proposed rules on Dec. 17 to bring it back into the Regional Greenhouse Gas Initiative (RGGI), a carbon trading program that curbs greenhouse gases by limiting the emissions from large power plants and allowing states to sell pollution allowances in quarterly auctions.
Former Gov. Chris Christie (R) pulled New Jersey out of RGGI in 2011, and Gov. Phil Murphy (D), who was elected in 2017, supports rejoining it.
“Today’s action is an important first step toward restoring our place as a leader in the green economy and keeping us on a path to 100 percent clean energy by 2050,” Murphy said in a statement Dec. 17.
One of the rules, a CO2 Budget Trading Program proposal, would require regulated entities in the state to reduce annual emissions, starting from an initial cap level of 18 million metric tons in 2020, down from the 20.5 million metric tons they currently produce, to 11.5 million metric tons by 2030. The other rule would establish a framework for how the state will spend the money it gets from quarterly carbon auctions.
Next: Public CommentThe public comment period for both proposals will be open until Feb. 15, and a public hearing will be held Jan. 25.
The rules would put New Jersey on track to rejoin RGGI beginning in 2020. Virginia is also on track to join the regional program that year.
“New Jersey has taken an important step towards resuming participation in our regional market-based program,” the Regional Greenhouse Gas Initiative Inc., which provides technical and administrative services to the RGGI states, said in a statement. “The entry of additional states into our market has the potential to make our regional program even more cost-effective, and allow more participants to share in these benefits.”
New Jersey would become the tenth state to join the market-based program, which stretches along the eastern seaboard the from Maryland to Maine.
The program requires fossil fuel electric generating units with a capacity greater than 25 megawatts to meet emission caps or buy allowance for each ton of carbon dioxide they emit annually. Rejoining the regional pact would affect an estimated 103 electric generating units in New Jersey and 39 power plants, which often have more than one unit, state authorities said earlier this year.
The rulemaking follows up on an executive order Murphy signed in January directing the state’s Department of Environmental Protection and the Board of Public Utilities to rejoin the carbon trading bloc.
—With assistance from Gerald B. Silverman.
https://news.bloombergenvironment.com/environment-and-energy/new-jersey-readies-plan-to-joint-power-plant-carbon-trading-pact
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Cuomo's Call for 'Green New Deal' Signals Strong Climate Push
Dec 18, 2018 | E&E Climatewire
By Benjamin Storrow
New York Gov. Andrew Cuomo (D) called yesterday for a "Green New Deal" to make the Empire State's power sector carbon neutral by 2040 and ultimately eliminate its carbon footprint.
Cuomo offered few details for his plan. His comments nevertheless set the tone for 2019, signaling that climate action will be one of Democrats' top priorities when their party takes complete control of state government next month.
Speaking at the New York City Bar Association, where he outlined his priorities for 2019, the governor called a warming planet "a matter of life and death, if not for us, then for our children."
"We know what we must do. Now we must have the vision, the courage and competence to do it," Cuomo said. "New York must be the most progressive state in the nation moving to renewables."
New York has a mixed climate record. Cuomo has established a series of ambitious climate goals in recent years, seeking to slash emissions by 40 percent of 1990 levels by 2030 and to boost renewables to half of New York's power generation by the same year.
Just last week, state regulators finalized a plan to double energy efficiency requirements for New York's investor-owned utilities and install 3 gigawatts of energy storage by 2030.
At the same time, considerable work remains to meet those targets. Greenhouse gas emissions were down 8 percent between 1990 and 2015, the latest year for which state data are available, according to the New York State Energy Research and Development Authority. Power-sector emissions fell by more than 50 percent over that period, but the gains have been offset in large part by a 26 percent rise in transportation emissions.
The big question for 2019 is how far Cuomo intends to push. Greens want the governor to support a bill that calls for completely decarbonizing the state economy by 2050. The "Climate and Community Protection Act," as the measure is known, passed the state Assembly three times, only to be defeated in the Senate, which Republicans previously controlled.
But with Democrats set to take control of the Senate next month, lawmakers said they sense an opening for passing climate legislation.
"Now that we have some people that actually believe scientists should be listened to in the Senate, we have a chance to really be a beacon of hope again," said Assemblyman Steve Englebright (D), who authored the climate bill.
Englebright praised the governor's commitment to climate issues but said he has questions about how the policy would be implemented. Cuomo has supported subsidies for three upstate nuclear plants, even as he backed the closing of Indian Point Energy Centers.
Englebright said he favors powering the state with renewables.
"I'm not real clear what the governor means by carbon neutral," the Long Island lawmaker said. "The devil is always in the details. I have one idea of what carbon neutral may be; his might be something different."
Cuomo's comments make him the latest governor to commit to greening his state's power sector. California, New Jersey and Hawaii have all committed to decarbonizing their power grids, though their approaches vary. Washington Gov. Jay Inslee (D) recently announced a plan to make the Evergreen State's power grid carbon-free by 2045 (Climatewire, Dec. 11).
New York has considerable work to do to green its grid. Dual-fuel natural gas and oil plants account for more than a third of New York's power generation, according to state figures. Coal contributes an additional 5 percent, while wind and solar account for a combined 5 percent, according to the state.
If New York's challenges in the power sector are large, the scope of work in the transportation and building sectors is even more daunting. Efforts there have received comparatively less attention from policymakers, though there is evidence that that has begun to change. The New York City Council is debating a bill to slash emissions from large buildings 40 percent by 2040 (Climatewire, Dec. 17).
Karl Rábago, executive director of Pace Law School's Energy and Climate Center, said he believes the governor's comments will push climate to the fore of public debate, providing the state with a foundation to tackle those issues.
That in and of itself marks a shift, he said. Wall Street's home state is hardly California, where environmentalism has always strongly imbued state politics. But the fact that New York is joining the Golden State in making big climate commitments represents a new chapter for climate action, he said.
"Pretty soon, a majority of Americans are going to be living in places with strong commitments to a carbon-free future," Rábago said. "That's how countries get turned."
https://www.eenews.net/climatewire/2018/12/18/stories/1060109947
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Poll: Majorities of Both Parties Support Green New Deal
Dec 17, 2018 | The Hill - E2 Wire
By Timothy Cama
More than 80 percent of registered voters support the Green New Deal proposal being pushed by progressional Democratic lawmakers, a new poll found.
The survey conducted by the Yale Program on Climate Communication and the George Mason University Center for Climate Change Communication found that 92 percent of Democrats and 64 percent of Republicans back the Green New Deal plan.
The organizations behind the poll explained poll-takers avoided mentioning to respondents which representatives were backing the New Green Deal to prevent injecting bias.
Progressive Democrats like Rep.-elect Alexandria Ocasio-Cortez (N.Y.) and Rep. John Lewis (Ga.) are some of the loudest voices behind the idea, which has been backed by only Democratic lawmakers back so far.
“Other research has shown that people evaluate policies more negatively when they are told it is backed by politicians from an opposing political party. Conversely, people evaluate the same policy more positively when told it is backed by politicians from their own party,” the poll takers wrote in a blog post explaining its results.
“Therefore, these findings may indicate that although most Republicans and conservatives are in favor of the Green New Deal’s policies in principle, they are not yet aware that this plan is proposed by the political Left.”
The plan’s centerpiece is a goal of moving the nation to 100 percent renewable electricity. It would also guarantee jobs for unemployed people and boost energy efficiency and infrastructure.
Ocasio-Cortez and more than three dozen Democrats want the House to create a select committee charged with writing a bill to achieve the goals.
The poll surveyed 966 registered voters and has a margin of error of +/- 3 percentage points.
https://thehill.com/policy/energy-environment/421765-poll-majorities-of-both-parties-support-green-new-deal
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Advocates Sue EPA Over Air Pollution in Alaska
Dec 18, 2018 | BNA Daily Environment Report
By Jill Burke
Two environmental groups are suing the U.S. Environmental Protection Agency to force action to clean up heavily polluted air in Alaska’s interior, which experiences some of worst pollution in the nation.
For more than a decade, the Fairbanks North Star Borough has experienced unhealthy levels of fine particulate matter air pollution when measured against the 35 micrograms per cubic meter limits set under the Clean Air Act.
From 2015-2017, the borough averaged more than twice that, or about 85 micrograms per cubic meter of fine particute matter.
Citizens for Clean Air, a project of Alaska Community Action on Toxics and the Sierra Club, represented by Earthjustice, filed the lawsuit Dec. 14 in federal court in Seattle, where the EPA’s Region 10 headquarters are located.
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.
Thick with ParticlesThe Fairbanks North Star Borough—which at 7,400 square miles is about the size of New Jersey—routinely has some of the highest particulate pollution in the country, attributed to winter weather inversions and wood-burning stoves. Small particles can be inhaled deeply into the lungs, creating inflammation and other respiratory health problems for people with heart or lung disease, and those who experience asthma episodes.
The borough is currently categorized as a serious “nonattainment area” for air quality by the EPA. The environmental groups argue the EPA has consistently missed mandatory deadlines that would eventually clean up the air and move the area into compliance with PM standards.
At less than 2.5 microns in diameter, fine particulate matter like dirt, soot, and smoke can be inhaled deep into the lungs.
If the air quality is left unaddressed, the borough could be subject to more stringent permitting on new sources of pollution. If efforts languish for years, the state could ultimately lose non-essential federal highway funds, although that policy hammer has yet to be invoked in EPA’s history.
The present lawsuit is the fourth filed by the plaintiffs requesting that the court compel the EPA to enforce compliance deadlines and PM standards.
In 2017, Alaska received a $2.5 million grant from the EPA to reduce air pollution in the borough. The state planned to use the money to fund a wood stove changeout program, according to an EPA news release.
The case is Sierra Club v. EPA, W.D. Wash., No. 2:18-cv-01803, 12/14/18.
https://news.bloombergenvironment.com/environment-and-energy/advocates-sue-epa-over-air-pollution-in-alaska
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