Preview Newsletter
AM ACC Clips Report - January 10, 2019
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(ACC Mentioned) The Biggest War on Plastic Is in New Jersey and Bags, Straws May Not Survive
Jan 10, 2019 | North Jersey Record
By Scott Fallon
The global push to ban everyday plastic products that litter oceans and waterways has no greater fight in the U.S. in 2019 than in New Jersey where the most far-reaching set of plastics regulations in the nation is slowly making its way through Trenton. -
(ACC Mentioned) 4 Best Specialty Chemical Stocks to Buy for 2019
Jan 10, 2019 | Zacks
By Tirthankar Chakraborty
On most occasions, factors driving oil and gold prices overshadow what’s happening in the U.S. chemical industry, which is predominantly part of the basic materials sector. -
Trump Nominates Wheeler as EPA Administrator
Jan 9, 2019 | BNA Daily Environment Report
By Jennifer A. Dlouhy
President Donald Trump Jan. 9 nominated Andrew Wheeler to head the EPA, seeking to elevate the former coal lobbyist who has led the agency on an acting basis for six months. -
Wheeler to Face Hill Hearing Next Week Despite EPA Shutdown
Jan 10, 2019 | BNA Daily Environment Report
By Abby Smith and Dean Scott
EPA Acting Administrator Andrew Wheeler will get his day on Capitol Hill next week, even if the agency he’s been tapped to permanently lead is still shut down. -
Email Dump Could Slow EPA Confirmation Fight
Jan 10, 2019 | Roll Call
By Jacob Holzman
Acting Administrator Andrew Wheeler has been formally nominated to run the Environmental Protection Agency, setting up a contentious confirmation fight just as a court order threatens the release of over 20,000 of his emails related to potential conflicts of interest. -
Wheeler Promises Changes to TSCA New Chemicals Transparency, CBI
Jan 10, 2019 | Chemical Watch
By Lisa Martine Jenkins
US EPA acting administrator Andrew Wheeler has committed to increasing the transparency of the TSCA new chemicals programme and to providing Congress with a report on its treatment of confidential business information under the reformed law. -
Forecast for U.S. Federal and International Chemical Regulatory Policy 2019: United States Chemical Forecast
Jan 9, 2019 | National Law Review
Once again, we get to exclaim: What a difference a year makes! Another election has redefined the political winds in Washington, or at least, agitated them. -
(ACC mentioned) US Backs Industry Concern over South Korea’s Osha Changes
Jan 10, 2019 | Chemical Watch
By Sunny Lee
The US has backed its industry's concerns over major changes to South Korea’s Occupational Safety and Health Act (Osha). -
Oral-B Glide Dental Floss Linked to Toxic PFAS Chemicals, Study Says
Jan 9, 2019 | New York Post
By Rob Bailey-Millado
This is nothing to smile about. Oral-B Glide dental floss contributes to elevated levels of toxic PFAS chemicals in the body, according to a new study from the Silent Spring Institute in collaboration with the Public Health Institute in Berkeley, California. -
Manufacturer's Objections Likely to Stall FDA Lead Acetate Ban
Jan 10, 2019 | Chemical Watch
By Kelly Franklin
The US FDA is set to put on hold its final rule banning the use of lead acetate as a colour additive in hair dye, following objections from a manufacturer. -
Imported Articles Key Part of EU Enforcement Priority Plan
Jan 10, 2019 | Chemical Watch
By Luke Buxton
Imports of articles containing substances of concern and cooperation with customs will be key for Echa’s Enforcement Forum activities until 2023. -
(ACC Mentioned) Commentary: We’re Paying Less at the Pump – and That’s Just the Start
Jan 10, 2019 | Post Bulletin
By Nicolas Loris
Media outlets rarely dwell on positive trends, but it’s been hard to miss the good news at the gasoline pump. As 2018 ended, gas prices fell to their lowest in nearly two years — below $2 a gallon in some states. -
Dems Seek Longer Comment Period for ANWR Drilling Proposal
Jan 9, 2019 | E&E News PM
By Margaret Kriz Hobson
Five Democratic senators are calling on the Interior Department to give the public more time to comment on the Trump administration's plans to allow oil and gas lease sales in the coastal plain of the Arctic National Wildlife Refuge. -
House Democrats Introduce Bills to Curtail Offshore Oil, Gas Development
Jan 9, 2019 | Natural Gas Intelligence
By Charlie Passut
Despite impossible odds of passing the GOP-controlled Senate, House lawmakers on their third day of control Tuesday introduced seven bills designed to block the Trump administration's plans to expand offshore oil and gas drilling. -
Joint Venture Proposes Offshore Oil Terminal South of Freeport
Jan 10, 2019 | Houston Chronicle
By Sergio Chapa
Crude oil from the Permian Basin and Eagle Ford Shale may soon have another export option. -
DOE Researches Removing, Reusing Carbon to Avert Warming
Jan 9, 2019 | BNA Daily Environment Report
By Bobby Magill
The Energy Department is researching ways to create a “renewable carbon-based” economy to address climate change without fully sidelining fossil fuels, an official said Jan. 9. -
Oil Industry Makes Landmark Investment in CO2 Air Capture
Jan 10, 2019 | E&E Energywire
By Christa Marshall
Chevron Corp. and Occidental Petroleum Corp. are forming the first major collaboration between the oil industry and a company deploying technology to capture carbon dioxide from the air. -
Inside the Troubling Rise of CO2 at Power Plants
Jan 10, 2019 | E&E Climatewire
By Benjamin Storrow
The power sector has long been the engine behind America's reduction in carbon dioxide emissions. -
Massachusetts to Issue Nation’s First Clean Peak-Energy Standard
Jan 9, 2019 | BNA Daily Environment Report
By Adrianne Appel
Massachusetts will issue by the end of 2019 a first-in-the-nation requirement that utilities and electric suppliers draw on clean energy sources during times of peak demand, the state’s top energy official said Jan. 9. -
Trade war cuts U.S. LNG exports to China in 2018
Jan 9, 2019 | Reuters
By Scott DiSavino
The number of U.S. liquefied natural gas vessels that went to China in 2018 fell by around 20 percent from the prior year as the trade war between Beijing and Washington heated up. -
(ACC Mentioned) House Democrat Urges Key GOP Senator to Back CFATS Extension
Jan 9, 2019 | Inside EPA
House Homeland Security Committee Chairman Bennie Thompson (D-MS) is urging his Senate GOP counterpart, Sen. Ron Johnson (R-WI), to back the lower chamber's just approved bill extending the Department of Homeland Security's (DHS) existing industrial facility security program for two years while lawmakers work to revise it. -
Putting the Brakes on Crude Oil Train Regulation
Jan 10, 2019 | The Regulatory Review
By Mark Nakahara
In 2013, a runaway crude oil train derailed and exploded in the center of Lac-Megantic, Quebec, killing 47 people. Similar derailments of crude oil trains occurred in North Dakota in 2013 and Oregon in 2016. -
Forecast for U.S. Federal and International Chemical Regulatory Policy 2019: Hazardous Materials
Jan 10, 2019 | National Law Review
The U.S. Department of Transportation's (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) is charged with a vital, if often taken for granted, task: protecting the public from the hazards associated with the transportation in commerce of hazardous materials. -
Shutdown Means E.P.A. Pollution Inspectors Aren’t on the Job
Jan 9, 2019 | New York Times
By Coral Davenport
The two-week-old shutdown has halted one of the federal government’s most important public health activities, the inspections of chemical factories, power plants, oil refineries, water treatment plants, and thousands of other industrial sites for pollution violations. -
Unions Tout Waxman-Markey As Alternative To 'Green' Deal, Carbon Tax
Jan 10, 2019 | Inside EPA
By Dawn Reeves
Seven energy-related labor unions are urging Congress to revisit the Waxman-Markey cap-and-trade climate bill that passed the House in 2009 in lieu of both a carbon tax and a so-called “Green New Deal” that are gaining political traction, putting further strain on an already divided Democratic caucus. -
Democrats See Need for Mix of Newcomers, Veterans on Climate Panel
Jan 9, 2019 | BNA Daily Environment Report
By Dean Scott
House Democrats face a choice in filling slots on their resurrected climate committee: fill it with some of the 40 newcomers pushing for faster action on climate change, or mix and match with more seasoned members on energy and climate policy.
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(ACC Mentioned) The Biggest War on Plastic Is in New Jersey and Bags, Straws May Not Survive
Jan 10, 2019 | North Jersey Record
By Scott Fallon
The global push to ban everyday plastic products that litter oceans and waterways has no greater fight in the U.S. in 2019 than in New Jersey where the most far-reaching set of plastics regulations in the nation is slowly making its way through Trenton.
Manufacturers and retailers are gearing up to defeat a bill that would ban plastic bags, foam containers and plastic straws fearing passage in New Jersey could prompt other states to adopt similar regulations.
"No state of major city has taken on all three so the stakes are high," said John Weber, Mid-Atlantic manager of the Surfrider Foundation, a clean ocean and beach advocacy group. "A lot of other states are taking note because it would be the most comprehensive plastics legislation in the country."
Supporters, like Weber, say the measure will curb plastic litter that is inundating New Jersey's beaches, river fronts, streets and even some of its most serene waterways.
Support is growing with more than two dozen towns and cities enacting their own regulations from large cities like Hoboken and Jersey City to Shore towns like Bradley Beach and Point Pleasant to curb the 4.5 billion plastic bags and other products given to New Jersey shoppers each year.
But a coalition of plastics manufacturers, convenience stores, supermarkets and other businesses that turned out in force at a September legislative hearing to oppose the bill say the measure will cost jobs and do little to curb litter.Lobbying lawmakers
Leading the way is the the American Progressive Bag Alliance, which lobbies on behalf of manufacturers that employ 25,000 workers in 40 states and has fought against bans on its product in California, New York and other places across the country.
The group has hired New Jersey's largest lobbying firm - Princeton Public Affairs - and the world’s largest public relations firm - Edelman - in its fight against a statewide ban.
New Jersey's proposed ban "goes way further than anything any state or municipality has done,” Matt Seaholm, executive director of the bag alliance, said in an interview last month.
Seaholm said defeating New Jersey's bill is on the top of his group's national agenda. He intends to concentrate on lobbying lawmakers who have a bag manufacturer or plastics recycling facility in their district including the sponsor of the bill Sen. Bob Smith, D-Middlesex. Smith did not respond to a request for comment.
Unlike his organization's campaign in California, Seaholm said his group would not be giving campaign donations to New Jersey lawmakers or political organizations. His organization raised more than $6 million to try to defeat California's ban, which was ultimately approved by a public referendum in 2016.
“Our focus is working with legislator to help them understand the unintended consequences of anything they might do," Seaholm said. "I would argue that the bill is trying to take a sledgehammer to a mosquito.”
Plastic pollution
Surrounded by water on three sides and sandwiched between New York City and Philadelphia, New Jersey has become inundated with plastics litter. About 85 percent of the litter picked up at two annual beach cleanups by Clean Ocean Action in 2017 was plastic.A 2016 report by NY/NJ Baykeeper estimated that there were almost 166 million pieces of microscopic plastic floating in the waterways of New Jersey and New York.Scientists have found microplastics in some of the most pristine rivers and creeks including the upper Raritan and Passaic rivers.
Grocery store bags can be recycled and are often used again to line garbage cans and pick up pet waste.
Seaholm cites a 2018 litter survey done for the New Jersey Clean Communities Council that shows branded and unbranded plastic bags make up 2.5 percent of litter, which would still place it in the survey's top 10 items. It is a similar amount found by Clean Ocean Action in its beach cleanups.
The consultant group that conducted the survey - Environmental Resources Planningof Maryland - has done work with advocacy groups and industry such as the bag alliance and American Chemistry Council, which also fights against plastic bans, said Steven Stein, the firm's owner.
Stein said the surveys are done without any influence from current or past clients and was paid for by the state Department of Environmental Protection. It was reviewed by an environmental group - NY/NJ Baykeeper - that supports a plastic ban and a business group - the NJ Food Council - whose member supermarkets are affected by the bans.
Environmental groups say thin plastic bags are more difficult to quantify in litter surveys since they are easily blown from location to location and break down into much smaller pieces.
The bill has somewhat stalled in the Senate after being approved by its environment committee in September. Like most legislation, it has taken a backseat to two big issues being pushed by Murphy: raising the minimum wage to $15 and legalizing recreational marijuana.
But to environmentalists and much of the business community, it is still an issue that they're preparing to battle over once other issues are resolved in Trenton.
"It's definitely among our top issues to deal with this year," said Dennis Hart, executive director of the Chemistry Council of New Jersey, which lobbies on behalf of 75 chemical companies including those that supply plastic manufacturers. "The knee jerk reaction is to impose a ban. But there hasn’t been a good examination of the alternatives, and that's what we're going to focus our efforts on."
Story continues after podcastTowns take action
More than two dozen municipalities have recently passed ordinances that regulate some form of plastic sales, according to the Association of New Jersey Environmental Commissions.
Hoboken will become the largest municipality to ban flimsy plastic bags when its ordinance takes effect on Jan. 22.
But like most ordinances in New Jersey, it allows customers to buy a slightly thicker plastic bag for 10 cents that store owners say is reusable and can be cleaned.
Environmental advocates say the number of bags used by customers will still drop exponentially. "You're no longer given an unlimited amount of bags away for free," Weber said. "The fee will make a difference. It will start to change customers habits to the point where they're bringing back their bags."
Plastic tote bags can be bought for a dollar at the city's two main supermarkets: ShopRite and Acme.
The ShopRite will start a 10-day reminder on Jan. 12, with a countdown sign visible at the store and on the store’s Facebook page. Cashiers will also wear "Bring Your Own Bag" T-shirts and offer buy one, get one free on reusable totes.
Among the municipalities that recently passed a plastics ordinance is Leonia where the town council voted in December to ban polystyrene food and beverage containers within six months.
Town leaders were urged to do so by local Girl Scouts. Boy Scouts conducted a survey of the town's two dozens restaurants and found the vast majority were okay with a ban, said Mayor Judah Zeigler.
"Back in the day there weren’t a lot of acceptable alternatives so it would have put an undue burden on business," Zeigler said. "What's available today for takeout is every bit as good and it breaks down."
https://www.northjersey.com/story/news/environment/2019/01/10/plastic-straw-ban-new-jersey/2462315002/
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(ACC Mentioned) 4 Best Specialty Chemical Stocks to Buy for 2019
Jan 10, 2019 | Zacks
By Tirthankar Chakraborty
On most occasions, factors driving oil and gold prices overshadow what’s happening in the U.S. chemical industry, which is predominantly part of the basic materials sector. But this space does carry a lot of weight. It’s a $526 billion business segment that accounts for nearly 10% of all U.S. exports and 12% of the world’s chemicals. Thus, ignoring this business segment will not be a judicious decision, especially, when it is well positioned to expand at a steady clip in 2019 following healthy growth last year.
Solid global growth scenario, an uptick in manufacturing activity, increase in exports, balanced chemical inventories, strong demand from end-use markets and encouraging shale gas economies to name a few are widely expected to boost the U.S. chemical industry this year. Investors, thus, should make the most of the growth trends in the U.S. chemical industry and consider sound chemical stocks that look poised for an upward movement.
Specialty Chemical Industry to Rise and Shine
According to the American Chemistry Council (ACC), U.S. based chemical manufacturers are at an advantage due to abundant energy and feedstock supplies. A staggering 333 projects valued at $202 billion have been announced in recent times across a broad range of industrial sectors. This development, in turn, increased total chemical production volume (excluding pharmaceuticals) by 3.1% in 2018. It is further expected to grow 3.6% in 2019. In fact, total chemical production volume is projected to increase at a healthy rate of 3.1% and 2.2% in 2020 and 2021, respectively. At the same time, basic chemical production is anticipated to increase 2.1% in 2018, 4.8% in 2019 and 4.3% in 2020.
The ACC report stated that a strong export market and rise in business investment spending have boosted demand in end-use markets for the U.S. chemical industry. Most of such end-use markets include light vehicles and housing segments.
Some skeptics may argue that light vehicle sales have dropped from the robust pace witnessed in 2015-16 but ACC predicts that such sales not only increased to 17.1 million in 2018 but will also rise to 16.8 million in 2019. And when it comes to the housing industry, with 1.27 million starts in 2018 and further 1.34 million in 2019, there is surely enough growth opportunity in the near future.
ACC added that demand for specialty chemicals is expected to grow in line with industrial and construction sector gains in the years ahead. Specialty chemical production is expected to pick up by 2.2% this year, with oilfield and electronic chemicals, coatings, adhesives, cosmetic chemicals, and flavors and fragrances leading such gains.
Martha Moore, ACC senior director of policy analysis and economics and another co-author of the council report summed up by saying that “growth rates in U.S. chemistry over the next five years are expected to surpass average growth over the previous 20 years. Provided that access to export markets remains open to our producers, expanding global demand will be met by shale-advantaged chemistry sourced from the U.S.”
https://www.zacks.com/stock/news/346673/4-best-specialty-chemical-stocks-to-buy-for-2019
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Trump Nominates Wheeler as EPA Administrator
Jan 9, 2019 | BNA Daily Environment Report
By Jennifer A. Dlouhy
President Donald Trump Jan. 9 nominated Andrew Wheeler to head the EPA, seeking to elevate the former coal lobbyist who has led the agency on an acting basis for six months.
Trump praised Wheeler last November for having “done a fantastic job” as acting administrator of Environmental Protection Agency following the July 2018 resignation of the EPA’s scandal-plagued former chief, Scott Pruitt.
The nomination now heads to the Senate, which narrowly confirmed Wheeler for his current job as the EPA’s deputy administrator last April by a vote of 53-45, amid complaints from Democrats and environmentalists that his energy-heavy roster of former lobbying clients could pose conflicts at the agency. Wheeler vowed to steer clear of decisions affecting former clients, but those concerns will likely figure prominently in a new round of Senate confirmation hearings and votes.“I am honored and grateful that President Trump has nominated me to lead the Environmental Protection Agency,” Wheeler said in a statement. “For me, there is no greater responsibility than protecting human health and the environment, and I look forward to carrying out this essential task on behalf of the American public.”
‘Outstanding Job’Sen. John Barrasso, a Republican from Wyoming who heads the committee that oversees the EPA and is responsible for vetting Wheeler’s nomination, said in a statement that he would work with committee members toward Wheeler’s confirmation.
Wheeler “has done an outstanding job leading EPA and is well qualified to run the agency on a permanent basis,” Barrasso said.
A politically savvy former energy lobbyist and Republican Senate aide, Wheeler, shares Trump’s approach to environmental regulation—and his commitment to easing Obama administration regulations governing climate change and pollution. But he has moved more methodically than Pruitt to pursue it.
He also has cultivated a relationship with EPA staff, repeatedly invoking his own deep history with the agency in a bid to forge ties with career employees.
Protect Polluters Profits?Environmentalists immediately blasted the move, with Brett Hartl, government affairs director of the Center for Biological Diversity, saying, “The only thing Wheeler is going to protect at the EPA is the profits of polluters.”
He added: “I’m sure corporate board rooms will celebrate this nomination. But for anyone who drinks water, breathes air or cares about wildlife, this will be nothing but awful.”
Unlike Pruitt, Wheeler has avoided the limelight, instead working doggedly behind the scenes to advance policy priorities. With Wheeler at the helm, the agency has sought to ease Obama-era limits on carbon dioxide from new coal plants and has proposed changes that could make it harder to toughen mercury emissions standards at the facilities.
Wheeler’s professional life has been tethered to the EPA, beginning in 1991, when he was hired for a nonpolitical job focusing on toxic chemicals. After four years working at the EPA under Presidents George H.W. Bush and Bill Clinton, he shifted to Capitol Hill, working for Republicans on the Senate Environment and Public Works Committee, including Oklahoma Republican James Inhofe.
After Wheeler left Capitol Hill in 2009, he took on a cadre of lobbying clients, eventually leading FaegreBD Consulting’s energy and environment practice group. His job was dedicated to advocating for chemical manufacturer Celanese Corp., coal producer Murray Energy Corp., uranium miner Energy Fuels Resources Inc., utility holding company Xcel Energy Inc., and other clients.https://news.bloombergenvironment.com/environment-and-energy/trump-nominates-wheeler-as-epa-administrator-1
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Wheeler to Face Hill Hearing Next Week Despite EPA Shutdown
Jan 10, 2019 | BNA Daily Environment Report
By Abby Smith and Dean Scott
EPA Acting Administrator Andrew Wheeler will get his day on Capitol Hill next week, even if the agency he’s been tapped to permanently lead is still shut down.
The Senate Environment and Public Works Committee will hold a hearing on Wheeler’s nomination to be the Environmental Protection Agency chief Jan. 16, the committee announced Jan. 9. The move drew criticism from Democrats, though they face long odds in spiking the nomination.
The move wasn’t a surprise: Trump had publicly signaled in November that he intended to tap Wheeler—who has been serving as the EPA’s acting chief since Scott Pruitt left in July 2018 amid a cloud of ethics questions—for the position.
Any confirmation hearing scheduled next week could occur as portions of the federal government, including the EPA, remain shut down. That leaves a much thinner staff available to prepare Wheeler for a hearing.
The EPA continued work for the first week of the shutdown using carryover funding, but had to furlough more than 13,000 of its employees after those funds ran out Dec. 28.
Preparations UnderwayThe EPA has already begun preparing Wheeler for any potential hearing, an administration source told Bloomberg Environment.
The agency’s press and congressional affairs teams aren’t furloughed, and congressional affairs is leading the preparations, the source added.
The prep team also can draw on the EPA’s assistant administrators and agency leadership, who are excepted from the shutdown, the source said.
The administration source doesn’t expect backlash for the EPA using resources on Wheeler’s confirmation process during the shutdown.
“There’s nothing out of the ordinary here, and in fact, the best thing we can do for all furloughed employees is to have a confirmed nominee, because it brings a measure of certainty to the institution,” the source said.
Continue BusinessThe shutdown also shouldn’t affect whether the Senate committee can hold a hearing, observers said.
“I don’t see why the Senate can’t continue its business, especially at the committee level, while the shutdown is going on,” Dimitri Karakitsos, a partner at Holland & Knight LLP and a former Environment and Public Works senior GOP staff member, told Bloomberg Environment.
Wheeler may not need as much preparation as a typical nominee might, Karakitsos added.
Prior to his role as deputy EPA administrator, Wheeler worked as an energy lobbyist and served for several years as a Republican aide on the Senate environment committee.
“We have somebody there who is a seasoned professional,” Karakitsos said. “He knows the issues, the agency, and the Hill. He just got confirmed not that long ago.”
Post-Hearing WorkWheeler was confirmed as the EPA’s No. 2 last April by a 53-45 vote.
Republicans in the midterm elections increased their margin in the Senate to 53-47, as two of the three Democrats who supported Wheeler—Sens. Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.)—lost their re-election bids.
That leaves Sen. Joe Manchin (D-W.Va.) as the lone Wheeler-backing Democrat left.
Democrats Want CommitmentsDemocrats on the Senate environment committee, though, are already criticizing Wheeler’s nomination.
Carper, the panel’s top Democrat, said he will be looking for concessions from Wheeler on several policy issues he raised in a July 2018 letter shortly after Wheeler was elevated to the acting position.
Without commitments from Wheeler on those issues—which include abandoning proposals to change the way the EPA uses science and to freeze federal fuel economy standards—Carper suggested Democrats could slow the confirmation process.
“These are the kinds of issues we want to make progress on, clean air, clean water, public health, and we’ve been very disappointed in the lack of progress, and we need to see some progress on those issues,” Carper told reporters Jan. 9. “And it’s not just me. He’s going to hear this from Democrats. He’s going to hear this from Republicans in the Senate, as well.”
“Wheeler might not be the cartoon villain that Scott Pruitt was as Administrator, but he’s no Captain Planet,” Rep. Frank Pallone (D-N.J.), chairman of the House Energy and Commerce Committee, said in a Jan. 9 news release.
https://news.bloombergenvironment.com/environment-and-energy/wheeler-to-face-hill-hearing-next-week-despite-epa-shutdown
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Email Dump Could Slow EPA Confirmation Fight
Jan 10, 2019 | Roll Call
By Jacob Holzman
Acting Administrator Andrew Wheeler has been formally nominated to run the Environmental Protection Agency, setting up a contentious confirmation fight just as a court order threatens the release of over 20,000 of his emails related to potential conflicts of interest.
The White House on Wednesday formally sent Wheeler’s nomination to the Senate, triggering the start of the process. Wheeler, a former coal lobbyist, was confirmed to be the agency’s deputy in April 2018 and became acting administrator in July after the departure of scandal-plagued Scott Pruitt, who resigned from the top post amid mounting ethics issues.
The Senate Environment and Public Works Committee will hold a confirmation hearing for Wheeler on Jan. 16.
The last time he came before the committee, for the deputy position, it sparked a partisan fight similar to other high-profile confirmation bouts, though three Democrats in difficult re-election races voted in his favor, including Sen. Joe Manchin III of West Virginia, who is now ranking member of the Senate Energy and Natural Resources panel.
The other Democratic supporters, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana, lost re-election, and it’s unclear if Manchin, who now has another six years before he might face voters in West Virginia, will back Wheeler again. And while Heitkamp, for example, has been replaced by Republican Kevin Cramer, a near-sure vote for Wheeler, a larger number of Republicans face contentious 2020 re-election campaigns than there were last go-around, leaving less room for controversy mucking up the process and causing Republican defections.
Since he became acting administrator, Wheeler has fallen further and further out of favor with environmental groups as well as Senate Democrats, as the agency has continued on the deregulatory path Pruitt paved during his tenure. It has proposed rollbacks of major Obama administration policies like the Clean Power Plan and the so-called waters of the U.S. rule. Most recently, hours before the agency was to furlough most of its staff due to the government shutdown, it proposed rescinding the legal justification for regulating air pollution from power plants.
However, Wheeler has largely avoided the ethics scandals that plagued his predecessor.
On Dec. 26, the U.S. District Court for the Northern District of California ordered the release of more than 20,000 emails and meeting calendars sought by the Sierra Club as part of a lawsuit seeking records relating to any communications Wheeler and other agency officials had with representatives of regulated industries.
In the order, U.S. Magistrate Judge Elizabeth D. Laporte said the president’s desire to nominate Wheeler to run the agency was one of Sierra Club’s “persuasive reasons for the urgency of its requests.”
The partial government shutdown will play a role in timing. The administration was required to provide the court a document production schedule on Jan. 9, including an agreement to produce at least two tranches of documents by some point in February and all documents produced within ten months. A Jan. 2 order now requires it do so three business days after “the shutdown of the federal government has ended and relevant appropriations to the Department of Justice have been restored.”
This ruling will provide fodder for Democrats to stall Wheeler’s confirmation process. His nomination received plaudits from Senate Environment and Public Works chairman John Barrasso of Wyoming, whose committee will oversee his confirmation. However, the committee’s ranking Democrat, Sen. Thomas R. Carper of Delaware, told reporters he wants to talk to Barrasso about moving things at a more deliberate pace.
Carper said he hopes to sit with Wheeler and review promises made during the previous confirmation, and he plans to tell Wheeler that “this can be a longer process or this can be a somewhat shorter process.”
“We should hit the pause button,” he said.
http://www.rollcall.com/news/congress/email-dump-could-slow-epa-confirmation-fight
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Wheeler Promises Changes to TSCA New Chemicals Transparency, CBI
Jan 10, 2019 | Chemical Watch
By Lisa Martine Jenkins
US EPA acting administrator Andrew Wheeler has committed to increasing the transparency of the TSCA new chemicals programme and to providing Congress with a report on its treatment of confidential business information under the reformed law.
This pledge came in a letter to Senator Tom Carper (D–Delaware) – the ranking Democrat on the Committee on Environment and Public Works – during the confirmation process of Alexandra Dunn to head the EPA’s toxics office. And his commitments apparently helped win Democrat support for the Trump appointee’s unanimous confirmation, which occurred in the 11th hour of the 115th Congress.
In the letter, Mr Wheeler promised to involve Congress and the public in updating the TSCA new chemicals framework, and to make publicly available more information about pre-manufacture notices (PMNs) and their supporting documentation. The acting administrator also noted plans related to CBI, the use of science under TSCA, and action on per- and polyfluoroalkyl substances (PFASs).
In a statement to Chemical Watch, Mr Carper said the EPA has "made specific commitments to me with respect to some of the most egregious" concerns he has raised regarding the agency’s environmental policies.
He added that he intends to hold Mr Wheeler and other confirmed nominees to those commitments.New chemicals programme changes
Regarding the TSCA new chemicals programme, Mr Wheeler said the agency will publish and take comment on the next version of its decision-making framework, which will specify the policies the EPA is using in its PMN reviews and the justification for its approaches. The existing new chemicals process has come under fire from consumer advocates and Senate Democrats, who claim the EPA is approving new substances for commerce without a publicly available policy.
Additionally, Mr Wheeler said the EPA would ensure that all new pre-manufacture notices (PMNs) and their attachments – including health and safety studies – are posted online in the ChemView portal within 45 days of their receipt, following CBI review. This is scheduled to take effect from 31 March.
Furthermore, each month the agency will publish in the Federal Register a notice of all PMNs, test marketing exemptions (TMEs) and notices of commencement (NOCs) received. Each PMN reviewed and subject to a final determination will also be available in ChemView, along with underlying documents supporting that determination, he added.CBI and other commitments
The letter also pledges increased transparency on the agency’s treatment of CBI under section 14 of the law. More specifically, Mr Wheeler outlined plans for providing Congress "specific information and statistics" on its confidentiality substantiation efforts, alongside information on how the public will be able to monitor the status and review associated documents for CBI determinations.
The EPA will also describe how it plans to release information no longer eligible for protection, including for substances undergoing risk evaluation, he said.
In the letter, the EPA also agreed to:ensure public comment periods of at least 60 days for each of the draft risk evaluations for the first tensubstances being reviewed, with efforts made to stagger their release to "maximise the opportunity for review and thorough comments";consider public comments received on the 2015 proposed significant new use rule (Snur) for PFASs as it moves forward with issuing a supplemental proposed Snur; andsubmit the chemical safety office’s methodology for deciding how to collect and evaluate scientific research to the non-partisan National Academy of Sciences for review and feedback, and to incorporate those recommendations as appropriate.
"I want to assure you," wrote Mr Wheeler, that implementation of the Lautenberg Act "is a mutual interest, and [I] appreciate the opportunity to work with you on these and other matters of interest."
https://chemicalwatch.com/73218/wheeler-promises-changes-to-tsca-new-chemicals-transparency-cbi
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Jan 9, 2019 | National Law Review
UNITED STATES CHEMICAL FORECAST
A. Introduction
Once again, we get to exclaim: What a difference a year makes! Another election has redefined the political winds in Washington, or at least, agitated them. And now, believe or not, the 2020 Presidential election race begins in earnest. What these new currents will mean for the U.S. Environmental Protection Agency (EPA) in general and the Office of Chemical Safety and Pollution Prevention (OCSPP) in particular is subject to much speculation: will aggressive oversight by the new Democratic House majority stymie Administration initiatives? Will the Administration continue to move forward on numerous initiatives to “reform” Washington or, as we suggested a year ago, will much of the anticipated agenda of the Trump Administration remain unfulfilled, prospective, and fluid at best? And, finally, will there be any bipartisan cooperation on any legislation of substance -- or simply a cacophony of political insult and tumult while the wheels of government grind on in spite of what some refer to as “the circus?”
Behind the more visible political activities and rhetoric of both parties, there remains serious business that Executive Agencies like EPA must attend to: implementation of the laws designed to protect the air and water; clean up and regulation of hazardous waste; regulation of toxic chemicals; and ensuring that pesticides used on crops are both safe to use and avoid unreasonable impacts on the environment. For OCSPP, the agenda remains busy as the not-so-new (but immensely important) TSCA amendments, now 30 months after enactment, reach critical decision points about definitions of key terms and appropriate approaches to assessing chemical risks. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) issues remain controversial with regard to both individual pesticides causing controversies (example: chlorpyrifos) as well as continued debates about policies used to comply with the Endangered Species Act (ESA), which necessarily involves interagency coordination -- always a tenuous endeavor.
And all of this, party control of Congress, controversies about EPA, Presidential ambition of more than a dozen U.S. Senators, is a subset of the global issues surrounding the regulation of pesticides and toxic chemicals on the world stage. Our predictions presented here attempt to cover that even broader waterfront.1. Elections Have Consequences
The 2018 elections will bring a change in the party control of the House of Representatives. With Democrats in charge, EPA and other agencies will face intense scrutiny and probing inquiries as part of Congressional oversight of Executive Branch agencies. Effective oversight is no small task. Developing penetrating and effective oversight will take some time as the new Congress organizes committee leadership positions and jurisdictions (both formal and informal) between committee responsibilities. The committees must hire new staff that will then have to become familiar with both the subject matter and how to conduct oversight. Compared to when the Democrats last had control, some important veterans are now retired. Specifically, Rep. Henry Waxman (D-CA) and Rep. John Dingell (D-MI) are now retired, and the absence of their oversight experience over EPA programs will be noticeable. For OCSPP, the major committees of jurisdiction in the House are the House Agriculture Committee for FIFRA and the House Energy and Commerce Committee for both TSCA and the Federal Food, Drug, and Cosmetic Act (FFDCA) (which dictates the requirements EPA is to follow to ensure the safety of residues of pesticides used on food).
In the Senate, there are at least four Senators widely presumed to be Presidential candidates on the Environment and Public Works Committee, which has jurisdiction over TSCA implementation. This will allow Sens. Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Jeff Merkley (D-OR), and Bernie Sanders (D-VT) to have a platform to emphasize environmental protection issues on a regular basis. The Senate Agriculture Committee, with jurisdiction over FIFRA, will have three members seen as Presidential candidates: Sens. Klobuchar, Gillibrand, and Brown.
Of most concern will be environmental issues of broad interest and media coverage -- examples include climate change, EPA budget and enforcement activities, lead poisoning, and contaminated drinking water. At the same time, as the many candidates vie for visibility, pesticide regulation or controls on toxic chemicals could emerge as an identifying issue for a candidate (example: presence of legacy perfluorinated chemicals in drinking water in some parts of the country -- perhaps including Iowa or New Hampshire).2. EPA Leadership
Two years into the Trump Administration, EPA finds itself still missing a number of senior appointees who typically would have significant experience in their respective offices. Most obvious is the lack of an EPA Administrator, due to the resignation of Scott Pruitt under a cloud of controversies. Effective July 6, 2018, Mr. Pruitt resigned his office; this elevated Andrew Wheeler to Acting Administrator -- who had only recently been himself confirmed to the position of Deputy Administrator in April 2018. Mr. Wheeler faced questions about his past experience as an energy lobbyist and in particular his representation of coal company interests. To date, however, Mr. Wheeler has not engendered the kind of bitter and withering concerns about his policy decisions and general actions as Acting Administrator that Mr. Pruitt did when in office (which is subject to change, of course). Some of the reasons behind his “gentler” approach and reputation may be due to his background as a member of the Washington “establishment” -- or perhaps more interestingly as a former federal employee. In fact, earlier in his career Mr. Wheeler worked in what is now OCSPP -- as part of OPPT -- which then, as now, was responsible for implementing TSCA (in his case, the “old” TSCA). President Donald Trump announced on November 16, 2018, that he intends to nominate Wheeler to be Administrator permanently.
For OCSPP, the leadership situation is still in flux. Two years into the new Administration, OCSPP still awaits the arrival of a new Assistant Administrator (AA). The first nominee for the position was announced in July 2017: Michael L. Dourson, Ph.D., a toxicologist with an extensive background in the risk assessment of chemicals and pesticides, who was at one time a career employee at EPA. Despite what would seem to be strong qualifications for the position, controversy over Dr. Dourson’s past work, sponsored by industry, on various controversial chemicals undergoing review by EPA, led at least three Republican Senators to declare that they would not support Dr. Dourson; Dr. Dourson asked that his nomination be withdrawn in December 2017.
Finally, in August 2018, a second nominee was announced: Ms. Alexandra Dapolito Dunn who currently serves as the Regional Administrator (RA) of EPA’s Region 1. This region covers EPA program activities in New England including the states of Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire, and Maine. Ms. Dunn has also served as the Executive Director of the Environmental Council of the States (ECOS), an organization of state environmental regulatory agencies. The AA positions are subject to Senate confirmation (the RA positions are not), so Ms. Dunn could not simply be transferred into the OCSPP position. Ms. Dunn had to undergo the process of consideration by the Senate Environment and Public Works Committee and will undergo a vote by the Senate. On November 29, 2018, the Senate Environment and Public Works Committee convened a confirmation hearing on the nomination of Ms. Dunn, and the full Senate approved the confirmation on January 2, 2019.3. Administration Initiatives
Notwithstanding any turmoil about appointments, the Administration generally continued high-profile priorities initiated earlier. Along with the arrival of President Trump came a flurry of Executive Orders (EO) and other directives designed to foster business investment and lessen the requirements imposed on regulated entities. Across the government, including EPA, there has been a continued emphasis on “regulatory reform” initiatives, budget cuts, and reforming the civil service personnel system. For EPA, this meant continuation of efforts to, among other things, review and revise controversial regulations in the air and water and all EPA media programs, along with a new initiative to “improve” EPA science.
The reviews of individual regulations and any proposals for changing previously established regulations must follow the rulemaking process, which is inherently cumbersome and time-consuming. Those efforts are ongoing across the various EPA media programs.
The stated purpose of the science proposal is to ensure that the “science” EPA relies on is sound through meeting certain guidelines about the quality and availability of “pivotal” science studies and review policies. Essentially, it is an attempt to propagate the legislation that advanced in the House but was not supported in the Senate: H.R. 1430, the “Honest and Open New EPA Science Treatment Act of 2017” or “HONEST Act.” The purpose of this legislation was to address criticism that EPA in the past has been selective in its emphasis on what science can justify a regulatory proposal and downplay the expected costs. Others see the proposal for new procedures and requirements as an agenda to slow down the development of, and reduce the protections offered by, regulatory options available under environmental laws.
The “science rule” was published as a proposed rule, but has faced intense criticism on almost every aspect of it including how it might work, the meaning of various new terms used in the proposal, what kinds of “science” new requirements would apply to, and fundamentally the authority upon which any new regulation would be based. In short, it is not clear how or when the Administration might proceed to refine further and eventually promulgate a final “rule” in this context. Acting Administrator Wheeler has stated publicly, however, that he plans to move the rule forward to completion as it is important for EPA to be more transparent and to increase confidence in EPA decisions.
Concerning the budget, proposals for reducing the budgets of EPA and other agencies have not been supported by Congress; instead of budget cuts of 15-25 percent, as proposed by the President’s budget, EPA has remained capable of absorbing any reductions without drastic action to personnel or program activities. Budgets and personnel numbers continue to shrink, however, and when combined with proposals for reductions in pension funding, “streamlined” procedures for firing employees, and lengthening the time for automatic increases in staff pay grades, the federal workforce at EPA and across the government will face eroding morale and less incentive to remain in or join federal service. With a projected 41 percent of the federal workforce eligible to retire in the next five years, and with restrictions on hiring new staff, a steady drip of budget cuts, and changes to the pension scheme, the government altogether may face a serious personnel crisis in the coming years.4. Operating Environment4.1 Congress
The biggest change in the operating environment for any Executive Branch agency is the change in party control in the House of Representatives. An analysis by EPA’s office that addresses Congressional affairs counted 30 Committees and Subcommittees in the House of Representatives with some jurisdiction over EPA program activities (they counted 21 in the Senate). These include Committees relating to appropriations, environmental laws, oversight of government program implementation, and general agency operations. Congressional offices will also ask the General Accountability Office (GAO) and even the Congressional Research Service (CRS) to evaluate program initiatives and behavior. Altogether, there will be a significant amount of distraction for senior program officials, but in addition, the rank-and-file staff (non-political) will be engaged supporting the responses and testimony of the senior political officials. And, each of the 30 Committees and Subcommittees of the House has a press operation, looking to ensure favorable media coverage for the leadership of the Committee -- for some, that will mean the more provocative the headline, the better.
Some speculate that the divided control between the House and Senate will mean little substantive legislating will be successful. Besides any expected partisan grandstanding, the Committees across both the House and Senate will have to agree on budgets and spending for government programs. Amendments to these “must pass” bills then become a target for pushing forward by one or both sides on key priorities (immigration and health care, to name two). In recent years, raising the debt ceiling and funding government operations have led to threats of a shutdown and consumed significant legislative capital while the debates continue. It is widely assumed that the prospects for any breakthrough towards compromise or serious cooperation among the constituencies appear to be remote.4.2 Media Coverage
As we noted last year, media coverage of EPA actions under the Trump Administration has been intense and mostly critical. News in the current era is described as “tribal” -- consumers can pick from many sources and receive a constant stream of information tuned to their personal biases without necessarily receiving many contrary views. One problem with media coverage of media coverage is that it is covered by the media. One person’s “fake news” is another person’s important stand of telling truth to power.
Major national news outlets spent significant time on where former Administrator Pruitt shopped for a mattress, whether he had the siren on when he was in a vehicle, and to who and how much he paid rent to while in Washington, D.C. This coverage raised important questions of whether laws about conflict of interest were violated and possible violations of spending rules. It also meant that less reporting time and energy was spent on how best to address air or water pollution issues, actions states were taking to protect the environment in their jurisdiction, or what was going on behind the scenes at EPA in the media programs.
Ad hominem attacks are not new in politics, but the present rancor in Washington has raised the intensity and focus of such attacks to an unprecedented level. Advocates of all views have taken to attacking the messenger as well as the message to support a position. Given the expected “oversight” and “investigations” into the Administration, there is likely to be more intense scrutiny of not only actions, but also the personal behavior, of those in question.4.3 Litigation
Litigation is a time-tested tool of advocacy, either to support or to prevent change to a desired policy position. As soon as the new Administration arrived, environmental advocacy groups planned on using litigation as a key strategy since advocacy through both the Executive and Legislative branches of government was considered to be ineffective. Two years later, that plan has been executed, and it has been effective in both delaying some changes in rules and policies sought by the Administration and in ensuring that proper tools and procedures are followed in making changes to established regulations. For example, using Executive Orders to “make it happen” and other means simply to impose changes have been slowed or reversed due to procedural defects. Similarly, even when the appropriate procedures were followed to propose changes, challenges to the development process or judicial challenges to the final decision have been filed to delay or reverse the outcome. Litigation is also not a new tool, but here again the frequency and intensity of using the tool has been emphasized.B. TOXIC SUBSTANCES CONTROL ACT (TSCA)1. Predictions and Outlook for the U.S. Environmental Protection Agency’s Office of Chemical Safety and Pollution Prevention 2019
The U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP) has been drinking from the proverbial firehose all year, working hard to comply with the many deadlines embedded in the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg) in addition to fulfilling its regularly scheduled programming. Bergeson & Campbell, P.C.’s (B&C®) Toxic Substances Control Act (TSCA) TSCAblog™has closely tracked and reported on all implementation measures, which OCSPP has done a good job in addressing timely and well. The summary below reflects our thoughts on key issues.1.1 Section 4 -- Testing(a) Regulatory Actions
Two years post implementation of Lautenberg, and EPA has not yet issued a Section 4 testing action. Given issues that have been raised as part of Section 5 reviews about toxicological concerns with certain categories of chemicals, it is somewhat surprising that EPA has not yet used its new order authority under Section 4. EPA has focused instead on issuing Section 5(e) testing requirements on individual new chemical submitters. The inability of EPA to require testing under old TSCA was one of the primary issues of concern in amending the law. While industry may not relish being subject to such testing, EPA needs to utilize the tools afforded to it by Congress to help address data gaps more equitably and improve the knowledge of hazard and exposure to chemicals.
EPA might use the Section 4 tools (particularly the new order authority) to fill critical data needs as part of the ongoing risk evaluations under Section 6. At the same time, the short deadline for completing risk evaluations will affect EPA’s ability to obtain completed studies that can be timely reviewed and incorporated in risk evaluations. EPA has indicated that it may not proceed with prioritization for chemicals that do not have sufficient data. Section 4 is the tool available to address that issue, although to use order authority in such cases (rather than a rule or an enforceable consent agreement (ECA)), EPA would need to support a “may present” conclusion. Another complication in requiring prioritization testing is that EPA must make a prioritization designation within 90 days after receiving the Section 4 information.
We believe it is likely, given the completion in 2018 of the “framework” rules required under new TSCA, that Section 4 testing actions will be taken in 2019.(b) Alternative Test Methods
As required under TSCA Section 4(h)(2)(A), EPA released its Strategic Plan to Promote the Development and Implementation of Alternative Test Methods Within the TSCA Program (Strategic Plan) in June 2018. The goal of the Strategic Plan is to reduce the level of testing in vertebrates and the strategy relies on a range of applications and testing approaches to characterize human health and environmental endpoints. EPA coined a new term “new approach methodologies” (NAM) as encompassing any “alternative test methods and strategies to reduce, refine or replace vertebrate animal testing.” The Strategic Plan identified current and near term (under three years), intermediate (five years), and longer (unspecified) term activities. More information is available in our June 22, 2018, memorandum and in our podcast on “Animal Testing and New TSCA.” In 2019, EPA is expected to continue to apply existing NAMs to evaluate hazard, exposure, and environmental fate for new and existing chemicals, extend the application of NAMs to identify candidates for prioritizing chemicals for risk evaluation, and develop information technology platforms to disseminate and increase access to these tools.
At the end of 2018, EPA no longer proposed consent orders or Significant New Use Rules (SNUR) on chemicals for which it has identified a hazard other that low hazard for health and ecotoxicity endpoints (so-called low/low cases). B&C has written and commented extensively on the lack of legal and policy support for such a broad interpretation of “not likely to present unreasonable risk under the reasonably foreseen conditions of use.” SeeLynn L. Bergeson, Richard E. Engler, Charles M. Auer, and Kathleen M. Roberts, “New Chemicals Under New TSCA -- Stalled Commercialization,” Bloomberg Environment Insights, September 11-13, 2018; Charles M. Auer, Lynn L. Bergeson, “Role of ‘Conditions of Use’ Under Sections 5 and 6 of Amended Toxics Law,” BNA Daily Environment Report, October 14, 2016. Thus, EPA is moving away from its initial view under amended TSCA that any identifiable hazard required it to propose a regulation. EPA held this view because “reasonably foreseen” was interpreted as synonymous with “any conceivable” and “not likely” was synonymous with “reasonable certainty.” Neither of these interpretations is supported in the language of the statute, nor in the legislative record. B&C applauds this careful reconsideration of the new law’s requirements.
Another notable change is that EPA is now relying on the U.S. Occupational Safety and Health Administration (OSHA) for routine worker protection, especially dermal and eye protection. In the first two years after enactment of Lautenberg, EPA was foreseeing that workers would not use personal protective equipment (PPE) absent the issuance of a consent order or SNUR requiring this result. The B&C-led TSCA New Chemicals Coalition (NCC) demonstrated that, based on OSHA’s database of violations that covers four decades and more than 12 million violations, only a tiny fraction of OSHA violations related to workers not using appropriate gloves, goggles, or general dermal protection. After receiving this information, EPA shifted its view of what is reasonably foreseen regarding use of worker protection.(a) Backlog of “5e SNURs” Getting Cleared
EPA has proposed many SNURs derivative of Section 5(e) consent orders. EPA is required, under new TSCA, to do so or to explain why the companion SNUR is not necessary. We expect that EPA will continue its work to publish 5(e) SNURs and clear this backlog at some point in 2019.(b) Non-order SNURs Proposed
EPA took the novel step of proposing a SNUR in October 2018 to make certain conditions of use subject to SNUR notification once the SNUR is in place, such that these conditions of use would not be reasonably foreseeable for purposes of the associated PMNs. With the limitation on foreseeable conditions of use, EPA could then make “not likely” determinations on these cases. Although this construction is not specified in Lautenberg, neither is it prohibited. New TSCA requires that EPA enter into a consent order if EPA makes a “may present” or other Section 5(a)(3)(B) determination. If, on the other hand, there are enforceable SNUR limits on what would otherwise be reasonably foreseen conditions of use that might lead to concerns, EPA can determine that these conditions of use are no longer reasonably foreseeable (because they are prohibited by the SNUR) and, as such, EPA can make a “not likely” finding.
If, following consideration of comments on the first proposed non-order SNUR, EPA proceeds to issue the SNUR in final as proposed, B&C believes that additional such SNURs will be proposed in 2019, thus clearing out additional backlog cases. The interpretation that underlies the non-order SNUR approach, however, relates to issues raised in the New Chemicals Decision-Making Framework litigation discussed below. For this reason, we believe that the final SNUR seems likely to be the target of future litigation.(c) New Chemicals Litigation
In January 2018, the Natural Resources Defense Council (NRDC) petitioned the U.S. Court of Appeals for the Second Circuit for review of EPA’s “New Chemicals Decision-Making Framework: Working Approach to Making Determinations under Section 5 of TSCA” (Framework Document). NRDC v. EPA, No. 18-25. In its petition for review, NRDC described the Framework Document as a final rule, and argued in its May 1, 2018, opening brief that, based on the Framework Document, EPA “limits its review of a new chemical substance to the manufacturer’s intended conditions of use and disregards Congress’s instruction to address risk concerns through enforceable orders and regulations.” EPA’s July 31, 2018, opening brief included a declaration from Office of Pollution Prevention and Toxics (OPPT) Director Jeffery Morris, Ph.D. According to Morris, EPA considers the “conditions of use” of the PMN when making determinations under TSCA Section 5(a)(3).
EPA stated that, since it issued the Framework Document for comment in November 2017, it has made 150 determinations on PMNs under TSCA Section 5(a)(3), but “has not yet followed the SNUR approach described in the Framework.” For 19 PMNs, EPA determined that the new chemical substance was not likely to present an unreasonable risk. According to EPA, “[f]or none of these determinations did EPA consider whether a significant new use rule had been issued in concluding that unreasonable risk was unlikely.” Additionally, for 131 determinations, EPA made a determination under TSCA Section 5(a)(3)(B) related to the sufficiency of information regarding the substance, and then issued orders under TSCA Section 5(e). The basis for a significant number of these determinations was related to the reasonably foreseen conditions of use of the new chemical substance at issue. In light of EPA’s representations, NRDC filed a motion on August 27, 2018, for voluntary dismissal of its petition for review.
Several weeks after the court dismissed the suit, EPA proposed non-order SNURs for new chemicals with pending PMNs. The preamble to the proposed rule contains novel language to address the new circumstances and legal issues encountered in the rule and, as noted, B&C expects that there will be a legal challenge to this interpretation of Section 5 if the SNURs are promulgated as proposed.1.3 Section 6 -- Existing Chemicals(a) Prioritization
TSCA Section 6(b)(2)(B) requires that, as of three and a half years after enactment (by December 22, 2019), at least 20 high-priority chemicals to be undergoing risk evaluations (these appear to be in addition to the “first ten” risk evaluations currently underway as discussed below) and at least 20 low-priority chemicals to be designated by EPA. Accordingly, between now and December 2019, EPA must identify at least 20 high- and 20 low-priority candidates and then complete the prioritization designation process within the allowed nine to 12 months. The process will be conducted consistent with the prioritization procedural rule (40 C.F.R. Section 702.5) which, as discussed below, has been legally challenged. EPA also released the document A Working Approach for Identifying Potential Candidates for Prioritization (Working Approach) that it plans to apply in this process.
Under the near-term Working Approach, EPA plans to identify high-priority candidate chemicals by using information from other EPA program offices, state and federal agencies, and including assessments or evaluations from various U.S. and international organizations. For low priority chemicals, EPA may identify substances from multiple sources, including one or more of the following: EPA’s Safer Chemical Ingredients List (SCIL); EPA’s Chemical Assessment Management Program (ChAMP); and the Organization for Economic Cooperation and Development (OECD) Screening Information Data Set (SIDS) initial assessment documents.
Once candidate chemicals have been identified, EPA will initiate the prioritization process, as outlined in the procedural rule, including two 90-day comment periods, and complete the final prioritization designations in nine to 12 months, but no later than December 22, 2019. Thus, 2019 will be an important year for stakeholders to participate in and consider EPA’s efforts throughout the prioritization process and in its designations.(b) Risk Evaluations
EPA is in the process of developing risk evaluations for the first ten chemicals selected from the 2014 update to the TSCA Work Plan. Under new TSCA, EPA has three years to complete a risk evaluation, extendable for six months. EPA released its first draft risk evaluation in November 2018 concerning the chemical Colour Index (C.I.) Pigment Violet 29. EPA’s draft concluded that the chemical does not present an unreasonable risk. As discussed below, the Science Advisory Committee on Chemicals (SACC) will hold its first public meeting in January 2019, when it will take public comment and conduct a peer review of this draft risk evaluation.
During 2019, EPA will be releasing additional draft risk evaluations for peer review and public comment prior to preparing the final risk evaluations by the December 16, 2019, deadline (extendable to June 16, 2020). Presumably, for most of these cases, EPA will be working behind closed doors during 2019 on the evaluations, which means there may not be heightened media coverage or public discourse on the ongoing EPA work. Nonetheless, release of the draft and possibly final risk evaluations will be one of the more important developments expected to occur in 2019.
We expect the upcoming peer review of C.I. Pigment Violet 29 to receive close attention from stakeholders and the media. It will be an important milestone that could serve to outline the nature and depth of the scientific and analytic work required to meet the new law’s requirements, and the peer review may foretell the breadth and depth of the attention that will be expected for other such reviews. Given that EPA’s perceived inability to act under Section 6 was one of the hallmark criticisms of old TSCA, EPA’s ability to stay on schedule and complete scientifically and legally sound risk evaluations represents a critical test for the Agency’s existing chemicals work.
New TSCA also requires that, by the end of calendar year 2019, EPA must have at least 20 chemical risk evaluations ongoing at any given time on high-priority substances. In addition, as allowed under Section 6(h)(5), EPA has initiated manufacturer-requested risk evaluations on two persistent, bioaccumulative, and toxic (PBT) chemicals.(c) Risk Management, including of Certain PBT Chemicals
During the late stages of the Obama Administration, EPA issued proposed Section 6(a) rules to regulate methylene chloride, N-methylpyrrolidone (NMP), and trichloroethylene (TCE). EPA also proposed SNURs relating to several of these substances. The Fall 2018 Regulatory Agenda states that EPA was scheduled to issue the final rule prohibiting consumer and commercial paint stripping uses for methylene chloride by December 2018. The Regulatory Agenda characterizes EPA’s two co-proposed Section 6(a) rules on NMP, as well as its proposed SNUR on several alkylpyrrolidones, as long-term actions for which the final rule date is “To Be Determined.” The Regulatory Agenda also includes three long-term actions on TCE. These include issuance in final of two proposed Section 6(a) rules for which the dates are “To Be Determined” and a proposed Section 5(a)(2) SNUR with a date of July 2020. The delay in pursuing regulatory actions on NMP and TCE may indicate that EPA intends to rely on the risk evaluations of these chemicals that are currently underway, rather than the existing OPPT risk assessments.
There is, in addition, a 2019 statutory deadline for regulatory action on certain PBT chemicals. TSCA Section 6(h) requires EPA to propose Section 6(a) regulatory action by June 22, 2019, on chemicals from the 2014 update of the TSCA Work Plan that meet the PBT requirements laid out in Section 6(h). The proposed Section 6(a) rules must, pursuant to Section 6(h)(4), “address the risks” presented by the chemicals and reduce exposure “to the extent practicable.” EPA identified five PBT chemicals that meet the statutory criteria (decabromodiphenyl ethers (DecaBDE); hexachlorobutadiene (HCBD); pentachlorothiophenol (PCTP); phenol, isopropylated, phosphate (3:1); and 2,4,6-tris(tert-butyl) phenol). The proposed rules that must be issued by June 2019 will represent another of the important developments in 2019, as they will be the first use by the Trump Administration of the new regulatory authority and requirements under Sections 6(a) and (c) of the amended law.(d) Prioritization and Risk Evaluation Litigation
Several environmental, health, and labor organizations challenged in two different federal appellate courts EPA’s final prioritization and risk evaluation rules. The cases were consolidated in the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) with Safer Chemicals, Healthy Families as the lead petitioner. Safer Chemicals, Healthy Families v. EPA, No. 17-72260. The petitioners argue that EPA’s claim of authority to exclude conditions of use and their resulting exposures from risk evaluations “violates TSCA’s plain text, structure, and purpose.” According to the petitioners, the directive to “determine whether a chemical substance presents an unreasonable risk” requires an evaluation of the chemical’s total risk. The phrase “‘under the conditions of use’ unambiguously means all of the chemical’s conditions of use.” Petitioners claim that EPA’s use-by-use approach cannot be reconciled with TSCA’s requirement that EPA “make a single, holistic risk determination on ‘a chemical substance.’” The petitioners argue that EPA unlawfully rewrote the definition of “conditions of use” to omit a chemical’s current and future use and disposal if the chemical’s manufacture, processing, and distribution for that specific use are not ongoing, but petitioners believe that Congress’ inclusion of “use” and “disposal” as “conditions of use” foreclose this construction. According to the petitioners, EPA’s rules are inconsistent with its duty to “take into consideration” all “reasonably available” information when prioritizing chemicals and conducting risk evaluations.
On August 6, 2018, EPA filed a motion for partial voluntary remand of three provisions at issue in the consolidated petitions. The motion concerns three provisions of the final risk evaluation rule -- the penalty provision, the relevancy provision, and the consistency provision. According to EPA, in light of petitioners’ arguments and upon further consideration and review, “EPA intends to reconsider these provisions and take appropriate agency action. Because EPA intends to revisit the challenged provisions, remand would best serve the interests of judicial economy.” Petitioners asked the court to grant in part and deny in part EPA’s request. The petitioners supported EPA’s request to remand 40 C.F.R. Section 702.31(d) with vacatur, which currently penalizes submission to EPA of incomplete or misleading information pursuant to a risk evaluation. EPA also asked the court to remand 40 C.F.R. Sections 702.37(b)(4) and (b)(6) (the “manufacturer-discretion provisions”), but without vacatur. The petitioners urged the court to deny this part of EPA’s motion. According to the petitioners, EPA’s request, if granted, will effectively deny the petitioners any opportunity to seek judicial review of the manufacturer-discretion provisions, while leaving the provisions in place indefinitely. The petitioners want a court, rather than EPA, to review these provisions that they maintain create loopholes that will prevent EPA from obtaining and developing the “reasonably available information” it needs to conduct “sound, comprehensive risk evaluations” under TSCA. On December 12, 2018, the court granted in part and denied in part EPA’s motion. The court granted EPA’s request to remand 40 C.F.R. Section 702.31(d) (the penalty provision). The court denied EPA’s motion to remand Sections 702.37(b)(4) and (b)(6) (the manufacturer-discretion provisions), referring them to the merits panel.
EPA argued in its August 6, 2018, brief that it reasonably exercised its discretion to determine that legacy activities that EPA has limited tools to regulate should not form the basis for findings of unreasonable risk. According to EPA, the risk evaluation rule’s provision on iterative risk evaluations is consistent with TSCA, and the information-gathering and consideration provisions still at issue should be upheld.
Petitioners argued in their November 9, 2018, reply brief that new TSCA requires EPA to consider “so-called” legacy activities in its risk evaluations. According to the petitioners, EPA’s justifications for eliminating legacy use, associated disposal, and legacy disposal from the “conditions of use” definition are “divorced from the statutory text” and must be rejected. The petitioners maintain that EPA fails to show how excluding conditions of use from risk evaluations comports with new TSCA’s “text, structure, and purposes.” In addition, petitioners assert that EPA fails to show how use-by-use “no unreasonable risk” determinations “can be squared with the text or health-protective purpose of TSCA.” The petitioners claimed that EPA will fail to ensure that it has adequate information for risk evaluation by failing to obtain “often-vital information that can be generated only through longer-term testing.” The petitioners stated that such information may be “reasonably available” because EPA “can reasonably generate” it “considering the deadlines” for both prioritization and risk evaluation.(e) Proposed SNURs on Existing Chemicals
EPA previously proposed SNURs on several groups of existing chemicals including nonylphenols and nonylphenol ethoxylates (NP/NPE), long-chain perfluoroalkyl carboxylates (LCPFAC) and sulfonates (LCPFAS), and toluene diisocyanates (TDI). Because of the significant burden of the required framework rules, the risk evaluations and risk management actions related to the “first ten” existing chemicals, and the PBTs, EPA has not had the bandwidth to move these SNUR actions forward. Although the Fall 2018 Regulatory Agenda identified 2018 and 2019 dates for issuance of these rules in final, it is not surprising that nothing has been issued yet, and B&C would not be surprised if the dates slip further. The Regulatory Agenda also states that EPA is developing a supplemental proposal for part of the SNUR on LCPFACs to make inapplicable the exemption for importation of articles containing a subset of LCPFAC chemicals. This change flows from the new requirement in Section 5(a)(5) that EPA must make a finding that the reasonable potential for exposure to the chemical from the article “justifies notification.”
In addition, the Trump Administration issued a proposed SNUR on June 11, 2018 (83 Fed. Reg. 26922), on certain non-ongoing uses of asbestos and the Fall 2018 Regulatory Agenda states that the rule is scheduled to be issued in final by January 2019. This SNUR received a fair amount of attention in the popular press, although it was interpreted as permitting, rather than regulating, that is, requiring a SNUN prior to initiating these legacy uses. Given all the issues and attention focused on asbestos under TSCA, we expect that this rule will be promulgated during the first quarter of 2019.1.4 Sections 8 and 14(a) Active-Inactive Status for TSCA Inventory Goes into Effect (Reset Inventory)
In April 2018, EPA issued an updated TSCA Inventory that included a field designating substances that are “active” in U.S. commerce based on the following:
Reporting from the 2012 and 2016 Chemical Data Reporting (CDR) cycles;
Notices of Commencement (NOC) received by EPA since June 21, 2006; and
Notice of Activity (NOA) Form As received by EPA through the February 7, 2018, deadline, submitted under the TSCA Inventory Notification (Active-Inactive) rule.
As of April 2018, the Inventory lists approximately 38,303 total active substances, or about 44.5 percent of the substances listed on the Inventory. It is somewhat surprising that a greater percentage of the non-confidential substances were notified as active (45.6 percent of non-confidential business information (CBI) substances compared to 40.5 percent of confidential substances). Because most substances added to the Inventory through the PMN process were added with CBI identities (62.7 percent), we interpret this statistic as supporting B&C’s contention, as articulated in articles and in communications to EPA from the TSCA NCC, that, as a general matter, new chemicals do not necessarily remain long term in the market, thus fewer are active over time. This may be because they are overtaken by even newer chemicals, or because they fail to gain sufficient hold on the market.
The deadline for voluntary submission of a NOA Form A by processors was October 5, 2018. Presumably, processors should only find substances in their supply chain that were notified as active by a manufacturer or importer. It is important, however, that suppliers verify that all non-exempt chemicals in their supply chains are listed on the Inventory as active.
EPA expected to publish the updated Inventory with active and inactive status by the end of the year or in early 2019. Ninety days from that date, it will be impermissible to manufacture, import, or process a substance that is inactive without first submitting a NOA Form B. The ninety-day period is an opportunity for notification by submitters who have commenced activity on a substance that was not identified as active on one of the interim lists (e.g., if activity started after June 22, 2016).
With the notification process nearly complete, stakeholders will have a much clearer concept as to what chemicals are being manufactured and used in commerce. We note, however, that there are still hundreds if not thousands more substances in commerce that are exempt from listing on the Inventory, such as exempt polymers and substances granted LVEs.(b) CBI Inventory Review Rule
The CBI Inventory review rule requires that within one year of publishing the final active/inactive Inventory, EPA must promulgate a rule describing its plan to require submitters to substantiate CBI claims made on active notice submissions and to review claims for confidential substance identities and the associated substantiations. We note that the lawsuit on the Inventory notification rule (discussed below) may presage a challenge to the CBI review rule.(c) Inventory Notification Rule Litigation
On October 12, 2018, the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in the Environmental Defense Fund’s (EDF) challenge to the final rule. EDF v. EPA, No. 17-1201. According to EDF, in promulgating the final rule, EPA “repeatedly violated the statutory text and erred in favor of concealment instead of disclosure.” TSCA Section 8(b)(f)(B)(ii) states that the Inventory rule must require manufacturers or processors that “seek[] to maintain an existing claim for protection against disclosure of the specific chemical identity” to submit a request to maintain that claim. EPA allowed a manufacturer or processor to assert confidentiality claims even if that manufacturer or processor had never asserted such a claim in the past, as long as someone had. EDF maintains that confidentiality claims are person-specific and a person cannot “maintain an existing claim” if the person has never asserted the claim before. New TSCA Section 14 now requires that confidentiality claims meet numerous substantive and procedural requirements beyond those required by Exemption 4 of the Freedom of Information Act (FOIA). According to EDF, the final rule fails to incorporate several of Section 14’s requirements and instead directs EPA to follow its general FOIA regulations. EPA will therefore process confidentiality claims without complying with all of the requirements in new TSCA Section 14.
EPA argued that its decision was required by new TSCA, which mandates EPA to “require any manufacturer or processor of a chemical substance on the confidential portion of the [TSCA Inventory] that seeks to maintain an existing claim for protection against disclosure of the specific chemical identity” to submit such request when submitting their NOA. According to EPA, “[e]ven if the statute were ambiguous on this point, EPA’s interpretation is reasonable and entitled to deference.” EPA noted that EDF is merely speculating that EPA’s compliance with the Inventory rule will “somehow” lead to noncompliance with the procedural requirements relating to EPA’s review of confidentiality claims.
During the oral argument, the three-judge panel focused on the Trump Administration’s revisions to the proposed rule released in the final days of the Obama Administration. The judges noted that new TSCA specifies criteria for substantiating CBI claims, including whether the information is readily attainable through reverse engineering. While this was part of the proposed rule, the Trump Administration removed this criterion from its final rule. EPA responded that while the final rule does not specifically require consideration of whether data are readily attainable through reverse engineering, the final rule’s remaining criteria for substantiating claims capture that concern. EPA argued that if the judges find in favor of EDF, the proper remedy would be to remand the final rule to EPA without vacatur to allow it to explain better why certain criteria were dropped from the rule's provisions for substantiating CBI claims. EDF requested partial vacatur and remand. According to EDF, a complete vacatur would postpone the release of some of the “very information” sought by EDF, allowing EPA to postpone the published TSCA Inventory based on the information that it has already collected. EPA could still explicitly include a consideration of “reverse engineering” in the upcoming review plan that EPA must promulgate under Section 8(b)(4)(C) that must include the provisions for substantiating a CBI claim.(d) Unique ID Implementation
TSCA Section 14(g)(4) requires that EPA develop a system to assign a unique identifier (UID) to each substance identity for which EPA approves a CBI claim. On June 27, 2018, EPA published its UID plan. Under it, EPA will assign a numeric identifier (in the format of UID-YYYY-NNNNN, where YYYY is the year in which the CBI claim was asserted). That UID would then be applied to documents that relate to the confidential substance. EPA plans not to apply that UID to documents that would disclose the substance identity. For example, EPA receives a submission with a valid CBI claim for identity and assigns a UID to that substance, tagging toxicity studies related to that substance with the UID. EPA later receives a Section 8(e) submission from another entity for the same substance, but that submitter does not claim the substance identity as CBI. EPA would not associate the UID with the non-confidential document because doing so would disclose the identity of the confidential substance. EPA anticipated applying UIDs starting in late 2018. We speculate that if the UID system is ready in time, EPA might include UIDs for all substances on the confidential portion of the Inventory for which EPA has reviewed and approved the CBI claim.(e) Mercury Rule
On June 27, 2018, EPA promulgated a final rule regarding reporting requirements for applicable persons to provide information to assist in the preparation of an “inventory of mercury supply, use, and trade in the United States,” where “mercury” is defined as “elemental mercury” and “a mercury compound.” 83 Fed. Reg. 30054. The final rule applies to any person who manufactures (including imports) mercury or mercury-added products, or otherwise intentionally uses mercury in a manufacturing process (including uses traditionally not subject to TSCA, such as for the manufacture of pharmaceuticals and pesticides). EPA will use data from the 2018 reporting year for the 2020 mercury inventory. The 2018 reporting year is from January 1, 2018, to December 31, 2018, and the submission deadline for the 2018 reporting year is July 1, 2019.
The reporting requirements include activities that are well-established under TSCA, including manufacture, import, and distribution in commerce, storage, and export. EPA notes that the reporting requirements also apply to the otherwise intentional use of mercury in a manufacturing process. Persons who manufacture (including import) mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process regardless of the end use (e.g., if the end use is as a drug regulated by the U.S. Food and Drug Administration (FDA) that would normally be excluded from TSCA jurisdiction according to Section 3(2)(B), are required to report amounts of mercury used in such activities during a designated reporting year. Reporters must also identify specific mercury compounds, mercury-added products, manufacturing processes, and how mercury is used in manufacturing processes, as applicable, from preselected lists. For certain activities, reporters must provide additional, contextual data. More detail is provided in B&C’s June 25, 2018, memorandum, “EPA Publishes Final Reporting Requirements for TSCA Mercury Inventory.”(f) Mercury Rule Litigation
On July 19, 2018, NRDC petitioned the U.S. Court of Appeals for the Second Circuit to review and set aside the final mercury rule. NRDC v. EPA, No. 18-2121. On October 15, 2018, the court granted a joint motion filed by NRDC, EPA, and Vermont to consolidate NRDC’s case with Vermont v. EPA, No. 18-2670. NRDC and Vermont filed separate opening briefs on December 7, 2018. NRDC’s statement of issues includes: (1) whether the reporting rule is unlawful because it exempts manufacturers and importers of products with mercury-added component parts, despite TSCA’s instruction that EPA require reporting from “any person who manufactures [or imports] mercury or mercury-added products”; and (2) whether the reporting rule is unlawful because it exempts manufacturers and importers of mercury in amounts (i) greater than or equal to 2,500 pounds per year for elemental mercury, or (ii) greater than or equal to 25,000 pounds per year for mercury compounds despite TSCA’s requirement that EPA require reporting from “any person” who manufactures or imports mercury and that EPA prepare an accurate and comprehensive “inventory” of mercury supply and trade. Vermont’s statement of issues includes these issues, as well as whether EPA’s decision to exempt certain entities from the reporting requirements is contrary to Congress’ intent to create a detailed and complete inventory of the relevant mercury activities involving mercury supply, use, and trade under TSCA. On December 14, 2018, 11 states -- Oregon, Connecticut, Hawaii, Massachusetts, Maine, Maryland, Minnesota, New Jersey, Pennsylvania, Rhode Island, and Washington -- filed an amici brief in support of NRDC and Vermont. EPA’s brief is due March 8, 2019.(g) Nomenclature
Although they may have been developed as potential substitutes for existing chemicals, some new biobased chemicals are not listed on the TSCA Inventory by virtue of the fact that the substance identity specifies the source of the substance. Because the novel source leads to a new identity, the substances are subject to "new chemical" review and evaluation processes by EPA scientists even if the constituents are indistinguishable. These reviews can and do result in EPA applying risk management conditions on the production and distribution in commerce of renewable chemicals, restrictions that may not apply to older chemistries (whether from petroleum or traditional bio sources, such as vegetable oils) even though they may be functionally identical and have a nearly indistinguishable composition.
Ironically, the new chemical may offer a more benign environmental footprint but nonetheless be subject to stricter EPA regulation. The new policies adopted by EPA for amended TSCA have resulted in some cases in even more obstacles and longer timelines for commercialization of innovative new chemicals. B&C staff, in coordination with the Biobased and Renewable Products Advocacy Group (BRAG®), have been advocating for equivalency determinations for biobased chemicals. See “Proposal for a Toxic Substances Control Act (TSCA) Inventory Representation and Equivalency Determinations for Renewable and Sustainable Bio-based Chemicals.”(h) CDR Rule Changes
In the Fall 2018 Regulatory Agenda, EPA indicated that it would be issuing a proposed rule with revisions to the CDR rule. EPA is expected to incorporate updates to the small manufacturer definition for purposes of CDR. In addition, EPA may be proposing additional reporting elements related to required reporting of chemicals that are recycled or processed. EPA had initially identified potential changes as part of its participation in the 2017 Negotiated Rulemaking Committee (Committee) for CDR requirements for inorganic byproducts. The proposed reporting changes would help clarify whether chemicals reported as recycled or reprocessed are considered byproducts or are derived from byproducts.
While these proposed changes may be helpful to the reporting community, it is imperative that EPA move quickly with its proposals so stakeholders are fully educated well before the next reporting cycle in 2020. EPA has made changes in the last four cycles of CDR (or its predecessor, the Inventory Update Reporting (IUR) rule). We hope that this upcoming adjustment will be the last for a while, so companies can set their internal processes with the confidence that no further changes are forthcoming.1.5 Section 21(a) Litigation
EPA is still wrestling with a complaint filed on April 18, 2017, to compel it to initiate a rulemaking under TSCA Section 6 to prohibit the addition of fluoridation chemicals to drinking water supplies (Food & Water Watch, Inc. v. EPA, Case No. 3:17-cv-02162-EMC (N.D. Cal.)). This complaint was filed as an appeal following EPA’s denial of a TSCA Section 21 petition requesting it to exercise its Section 6 authority to prohibit the purposeful addition of fluoridation chemicals to U.S. water supplies filed by several organizations and individuals. On February 7, 2018, the court denied EPA’s motion for a protective order to limit review to the administrative record, stating that the “text of the TSCA, its structure, its purpose, and the legislative history make clear that Congress did not intend to impose such a limitation in judicial review of Section 21 citizen petitions,” and, therefore, allowed for the plaintiffs’ case to be heard de novo – a decision that will allow plaintiffs to introduce evidence above and beyond what was included in the administrative record when EPA responded to plaintiffs’ petition. The case is scheduled for an eight court day Bench Trial beginning August 5, 2019, and ending August 16, 2019, per the court’s April 14, 2018, order and discovery is currently ongoing.
The court’s October 4, 2018, order reiterated its edict to review the case de novo and granted plaintiffs’ request for an order to compel EPA: (1) to produce documents beyond the administrative record that EPA disputed, including specifically defined studies, papers, and meetings such as documents related to the first-ever National Institutes of Health (NIH)-funded study of fluoride and IQ published in September 2017; and (2) to produce a witness, specifically an EPA staff person, that plaintiffs can depose regarding whether EPA considered the neurotoxic risk of fluoride when establishing its safety standards. Close of fact discovery was due November 21, 2018. Opening Expert Reports are due January 24, 2019; Rebuttal Expert Reports are due February 21, 2019; and the close of expert discovery is scheduled for March 14, 2019.
Given the many significant issues at play, the legal and policy problems we foresaw in EPA’s denial decision, the evident commitment and determination of the plaintiffs to see this through, and the novel and potentially wide-ranging nature of the de novo proceeding, this case promises to produce important developments during 2019. The decision, when rendered, is likely to be portentous and result in more litigation from the losing side.1.6 Section 26(a) Fee Rule Implemented/Next Steps in 2019 for Section 6-related Fees
EPA issued the final Section 26(b) fees rule on October 18, 2018. 83 Fed. Reg. 52694. The final rule calls for EPA to collect fees for Section 6 risk evaluation work in conjunction with the publication of the risk evaluation scope. EPA is soon expected to issue its list of chemicals subject to prioritization under Section 6, and then has nine to twelve months to determine if those chemicals are high or low priority. If a chemical is deemed high priority, EPA must initiate a risk evaluation, including publication of the scope, within six months. Thus, by mid-2020, EPA will likely be assessing fees for these chemicals and, per the final rule, the entire risk evaluation fee of $1,350,000 for TSCA Work Plan chemicals will be required sixty days after the scope is published.
This timeline requires that industry stakeholders be prepared to organize into consortia quickly in 2019 if they are not already organized. For those groups already organized, there will likely be time and effort spent in ensuring that the consortium memberships include all applicable parties. More importantly, it means that companies will need to find their share of the $1,350,000 price tag in their 2019 budget to have the funds ready to submit to EPA in 2020.(b) SACC
New TSCA Section 26(o) required EPA to establish within one year of enactment a committee “to provide independent advice and expert consultation, at the request of the Administrator, with respect to the scientific and technical aspects of issues relating to the implementation of this title.” Just before the end of the Obama Administration, EPA appointed 18 expert members to the SACC and in March 2018, the Trump Administration selected eight additional SACC members. This brought the current membership to 26 experts in toxicology, environmental risk assessment, exposure assessment, and related sciences. In September 2018, EPA requested public nominations of scientific experts for ad hoc participation in peer reviews of EPA's risk evaluations for the first ten chemicals addressed under TSCA and possible membership on the SACC.
EPA announced in November that it will convene the first public meeting of the SACC in January 2019, to review the draft risk evaluation of C.I. Pigment Violet 29. This meeting will be preceded by a SACC teleconference to discuss and receive public comments on the draft charge questions for the peer review. We expect a number of additional meetings of the SACC to review risk evaluations as they are released by EPA over the course of the year.1.7 Other Topics(a) OPPT Staffing and Reorganization
The final fees rule, issued in October 2018, opened the door for OPPT to obtain the much needed resources to meet its new obligations under amended TSCA. 83 Fed. Reg. 52694 (Oct. 17, 2018). The new fees apply to Section 5 notices received after October 1, 2018, and to future Section 4 testing actions and Section 6 risk evaluations. We expect that during 2019, OPPT will work to use the new resources to increase its staff and contractor capabilities as the fees begin to flow into EPA’s budget.
Another consideration is the pending reorganization of OPPT. EPA took steps during Spring 2018 to delay its pending reorganization to consider a six division structure that has separate new and existing chemical risk management divisions complemented by separate new and existing chemical risk assessment divisions. Under this scheme, OPPT’s other functions were to be distributed into a mission operations division and a division that sweeps together chemical right-to-know, economics, information reporting, and the Safer Choice/Design for the Environment (DfE) program.
While we like the concept of parallel risk assessment divisions, critical questions and issues concern us regarding OPPT’s ability to obtain both adequate hiring authority to meet its scientific needs and then being able to locate and hire the needed technical experts. While the first may be satisfactorily resolved, based on our experience, the second will be challenging, as expertise is in short supply in areas such as toxicology, environmental fate, exposure assessment, biotechnology, and nanotechnology. A related and critical reorganization issue that could be joined in earnest in 2019 is the process to select the four Division Directors needed to manage and lead the separate new and existing chemical risk assessment and risk management divisions. These selections will be critical in determining the near-term path forward and potentially affecting the long-term direction and implementation of TSCA Sections 4, 5, 6, and 8.(b) International
(i) OECD Chemicals
Among the highlights of work done in 2018 by the OECD chemicals program are the following:
The OECD Council adopted a Decision-Recommendation that revises and replaces a 1991 Decision-Recommendation that resulted in the OECD’s SIDS program. This program produced basic data sets and initial international assessments on hundreds of high volume chemicals. The first part of the new action focuses, among others, on cooperative development of harmonized hazard and exposure assessment methodologies, collaborative assessment, and sharing the burden of information generation. The second part focuses on risk prevention and reduction including implementation of the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals (GHS). Perhaps the most significant advance is that it is now mandatory for OECD members to implement the GHS.
OECD updated its guidance document on standardized test guidelines for endocrine disruption.
OECD started a new program in 2018 to look into the interface between chemicals and waste management policies. A first step was the organization of a Global Forum on Environment on “Plastics in a Circular Economy: Design of Sustainable Plastics from a Chemicals Perspective.”
Potential deliverables in 2019 include the following:
In 2010, OECD first published a report estimating how the OECD’s Environment, Health and Safety Program (which includes both chemicals- and pesticides-related work) saved governments and industry more than 150 million euros/year (~$170 million U.S.). It is believed that this figure underestimates actual savings generated by the program and an update is expected to be published in early 2019.
On the scientific front, OECD is developing a “defined approach” to combine different in vitro methods for skin sensitization that collectively could replace animal tests. At present, while more and more in vitro methods are developed for this endpoint (including many OECD Test Guidelines), there is no harmonized way to apply them to decide on the skin sensitization potential of chemicals. The defined approach aims to develop a harmonized way forward under the OECD system for Mutual Acceptance of Data (MAD) and thereby avoid development of national strategies and interpretation schemes that would result in added costs and duplication for industry and government.
(ii) SAICM
The Strategic Approach to International Chemicals Management (SAICM) is a voluntary policy framework to promote chemical safety around the world that was agreed to internationally in 2006. Its main objective is achieving sound management of chemicals throughout their life cycle by the year 2020. During 2019, SAICM’s existing policy framework will be revisited and possible changes considered through an international process under the auspices of UN Environment and the World Health Organization (WHO). In 2020, the ef
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(ACC mentioned) US Backs Industry Concern over South Korea’s Osha Changes
Jan 10, 2019 | Chemical Watch
By Sunny Lee
The US has backed its industry's concerns over major changes to South Korea’s Occupational Safety and Health Act (Osha).
In a 21 December communication to the WTO, the US called on South Korea's environment and employment and labour ministries (MOE and MoEL) to fully consider concerns raised by industry in letters sent last in March.
In one of those letters, obtained by Chemical Watch, the American Chemistry Council (ACC) argued that proposed changes to South Korea’s Occupational Safety and Health Act (Osha) – also known as the Industrial Safety and Health Act – will "breach" international norms on confidential business information (CBI) and introduce unnecessary duplicate registration under K-REACH.
The revisions to Osha are currently approaching the country’s legislature.
Although not confidential, the letter dated 19 March has not previously been made public. Among the ACC’s concerns, are:the broad requirements for disclosure information on chemical components to the MoEL and in safety data sheets (SDS), which it says will undermine CBI and create onerous administrative burdens; andthe unnecessary duplication of new substance registrations in K-REACH and Osha that it says will create substantial extra work.
The letter argued that the amount of information required by the amendments undermines CBI protection and is in breach of the internationally established UN Globally Harmonized System (GHS) of classification.
In particular, the ACC’s letter took issue with the Osha amendment’s requirement for the disclosure of information on chemical components of mixtures. It said this goes against established standards under GHS, which maintain a focus on hazards. As end users do not extract components, the components themselves are not generally relevant to health and safety, it said.
The US statement to the WTO repeated many issues from a statement it made in June on how South Korea’s revised K-REACH is being implemented.
https://chemicalwatch.com/73215/us-backs-industry-concern-over-south-koreas-osha-changes
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Oral-B Glide Dental Floss Linked to Toxic PFAS Chemicals, Study Says
Jan 9, 2019 | New York Post
By Rob Bailey-Millado
This is nothing to smile about.
Oral-B Glide dental floss contributes to elevated levels of toxic PFAS chemicals in the body, according to a new study from the Silent Spring Institute in collaboration with the Public Health Institute in Berkeley, California.
Scientists are concerned about widespread exposure to PFAS (per- and polyfluoroalkyl substances) in the population because the water- and grease-proof substances have been linked with kidney and testicular cancer, thyroid disease, high cholesterol, low birth weight, decreased fertility and immune system damage.
The new research, published this week in the Journal of Exposure Science & Environmental Epidemiology, offers new insight into how these chemicals end up in people’s bodies and how consumers can limit their exposures by modifying their behavior.
“This is the first study to show that using dental floss containing PFAS is associated with a higher body burden of these toxic chemicals,” says lead author Katie Boronow, a staff scientist at Silent Spring. “The good news is, based on our findings, consumers can choose flosses that don’t contain PFAS.”
Researchers measured 11 different PFAS chemicals in blood samples taken from 178 middle-aged women enrolled in the Public Health Institute’s Child Health and Development Studies, a multigenerational study of the impact of environmental chemicals and other factors on disease.
To understand how people’s behavior influences their exposure to PFAS, the researchers then compared the blood measurements with results from interviews in which they asked the women about nine behaviors that could lead to higher exposures. Half of the women in the analysis were non-Hispanic white and half were African-American.
Women who flossed with Oral-B Glide tended to have higher levels of a type of PFAS called PFHxS (perfluorohexanesulfonic acid) in their body compared with those who didn’t. To further understand the results, the researchers tested 18 dental flosses (including three Glide products) for the presence of fluorine — a marker of PFAS — using a technique called particle-induced gamma-ray emission (PIGE) spectroscopy.
All three Glide flosses tested positive for fluorine, as did two store brands with “compare to Oral-B Glide” labels. One floss touting itself as a “single strand Teflon fiber” also tested positive for fluorine.
A representative for Procter & Gamble, which manufactures Glide products, tells The Post, “The safety of the people who use our products is our No. 1 priority. Our dental floss undergoes thorough safety testing and we stand by the safety of all our products.”
Boronow’s team points out that the public also is exposed to PFAS in fast-food packaging, nonstick pans, waterproof clothing and stain-resistant carpets. African-American women who reported that they frequently ate prepared food packaged in coated cardboard containers, such as french fries or takeout, had elevated blood levels of four PFAS chemicals compared to women who rarely ate such food. Researchers did not see the same relationship with prepared food among non-Hispanic whites.
“Overall, this study strengthens the evidence that consumer products are an important source of PFAS exposure,” says Boronow. “Restricting these chemicals from products should be a priority to reduce levels in people’s bodies.”
https://nypost.com/2019/01/09/oral-b-glide-dental-floss-linked-to-toxic-pfas-chemicals-study-says/
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Manufacturer's Objections Likely to Stall FDA Lead Acetate Ban
Jan 10, 2019 | Chemical Watch
By Kelly Franklin
The US FDA is set to put on hold its final rule banning the use of lead acetate as a colour additive in hair dye, following objections from a manufacturer.
The rule, which followed the agency’s consideration of an April 2017 petition filed by the Environmental Defense Fund and other NGOs, was published in October 2018. In it, the FDA said new data indicates there is "no longer a reasonable certainty of no harm" from the use of lead acetate in products used to gradually darken grey hair.
The FDA’s plans to amend the colour additive regulations were scheduled to take effect 3 December, with a one-year period of enforcement discretion to allow industry to reformulate.
But within the 30-day period for filing objections, personal care products company Combe International requested a formal evidentiary public hearing on the US FDA’s final rule, effectively placing the action on hold.
Chemical Watch understands that the FDA was planning to publish a Federal Register notice in late 2018 staying the rule, pending resolution of the objections. That action, however, has been delayed due to the partial shutdown of the federal government.Objections
Combe International – the manufacturer of Just for Men and Grecian Formula – said in its 30 November objections that the FDA had failed to show there is no longer a reasonable certainty of no harm for the use of lead acetate in progressive hair dyes.
Among the company’s concerns was the FDA’s use of an "unvalidated and novel computer analysis". This did not appear in the NGO petition, nor was it made available during the public comment period.
The company also said that the FDA had "erroneously discarded a landmark clinical study" which it had partially relied on in its original 1980 approval of the colour additive.
"The science supports the continued safety of lead acetate in hair dye," added Combe.Petitioner blasts move
In a blog post, the EDF’s chemicals policy director, Tom Neltner, said it was "unbelievable that a company is standing up for the use of the heavy metal in their product".
Noting that Combe has reformulated its products to no longer include lead acetate, he questioned whether a desire to reduce exposure to litigation motivated the objections.
"FDA acknowledged that the study on which the original safety decision was made in 1980 had five serious deficiencies," said Mr Neltner. "If the company allows FDA’s ban to stand unchallenged, they are particularly vulnerable to legal challenges."
Anthony Santini, senior vice president and general counsel to Combe, confirmed to Chemical Watch that the company no longer manufactures or distributes hair colouring products containing lead acetate.
But he said that the original formula of Grecian Formula was "safely used by loyal consumers for over five decades", and that the FDA has "significantly misconstrued the evidence concerning lead acetate and erred in its conclusions regarding the colour additive petition."
"Combe trusts that through its objections and a formal evidentiary hearing, the record will be corrected regarding the long-time safe use of lead acetate in progressive hair dye products," added Mr Santini.
Mr Neltner said his organisation plans to participate in the hearing and cross-examine the company’s witnesses. "EDF and others are ready to defend FDA’s decision to get the lead out of hair dyes," he added.
https://chemicalwatch.com/73210/manufacturers-objections-likely-to-stall-fda-lead-acetate-ban
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Imported Articles Key Part of EU Enforcement Priority Plan
Jan 10, 2019 | Chemical Watch
By Luke Buxton
Imports of articles containing substances of concern and cooperation with customs will be key for Echa’s Enforcement Forum activities until 2023.
Its recently released work programme lays out priorities for the next five years that are aligned with the agency's strategic plan for the same period.
Echa’s plan highlights the need for a level playing field "fostered through firm and fair enforcement". The work programme report puts emphasis on substances of concern and the need to improve consistency and integration in implementing EU chemicals legislation.
Actions related to enforcement in the European Commission’s 2018 REACH Review report will also be reflected in the forum’s work over the coming five years, the report added. This includes ensuring equality between economic operators in and outside the EU regarding imported articles containing substances subject to authorisation and restrictions.
Cooperation with customs "should become a standard part" of an enforcement project when checking imports and the related duty holders (such as importers and only representatives), the report said. The focus on imports will be a "suitable" enforcement approach to address changes in responsibilities of market actors, it added, pointing to the UK’s imminent withdrawal from the EU as an example.Internet sales
The sale of dangerous substances online is another priority. In June last year, the forum announced that the eighth REACH Enforcement project (Ref-8) would see EU national enforcement authority (NEA) inspectors concentrating on online sales of substances, mixtures and articles.
Enforcement must address provisions with a specific focus on remote selling via the internet (for example, Article 48 of the CLP Regulation), as well as products sold online, the report said. The related duty holders should be targeted with compliance checks and adequate enforcement actions.
The forum should "strive to harmonise" approaches to enforcing regulatory compliance of sales of chemicals via the internet, it said. Internet sales, it added, should be addressed both in specific enforcement actions (such as coordinated enforcement and pilot projects) as well as in relevant routine inspections of NEAs.
It also committed to "proactively promote and explore" ways of NEAs working together in cross-border cases through, for instance, the use of IT tools.REACH and CLP
NEAs will "continually aim" to include routine checks on substance registration – especially for imports – following the third and final REACH registration deadline.
According to the forum report, this can also include control of the registrant’s duty to keep dossiers up to date and consistent with market activities and uses.
A growing number of regulatory risk management measures are being put in place, such as authorisations, restrictions and safe use information in the supply chain, based on substance registration data, it said. Enforcement activities will need to address obligations emerging from these new measures in future.
Meanwhile, the report said obligations ensuring safe use of chemicals by consumers under CLP "require specific attention". It pointed to correct hazard communication in line with CLP – that is, proper classification and labelling – being of "major importance".
Outcomes from the Ref-6 project on CLP duties for mixtures "may steer" future work on compliance with safe use requirements under the Regulation, the report said.
Additionally, new provisions relating to information on hazardous mixtures for national appointed bodies and poison centres according to Annex VIII of CLP require "major efforts from a very broad number" of downstream users (especially formulators) and all importers.
A number of NEAs will therefore be focusing on oversight of these new notification requirements and the relevant duty holders.
And inspections of duties under the prior informed consent (Pic) Regulation are expected to become part of the NEAs’ enforcement routine. The forum said it will base further actions on the findings and recommendations of the pilot project on Pic.
https://chemicalwatch.com/73226/imported-articles-key-part-of-eu-enforcement-priority-plan
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(ACC Mentioned) Commentary: We’re Paying Less at the Pump – and That’s Just the Start
Jan 10, 2019 | Post Bulletin
By Nicolas Loris
Media outlets rarely dwell on positive trends, but it’s been hard to miss the good news at the gasoline pump. As 2018 ended, gas prices fell to their lowest in nearly two years — below $2 a gallon in some states.
That was certainly helpful at Christmas time. Spending less on fuel means Americans had more money for their families during the holidays.
But the good news goes beyond what we spend fueling our cars and trucks. In many ways, 2018 was the story of America’s continued energy dominance.
Throughout the year, American energy producers broke records and surpassed domestic supply levels that we haven’t seen in many decades. Last September, the U.S. became the world’s largest crude oil producer, surpassing Russia and Saudi Arabia.
According to the federal government’s Energy Information Administration (EIA), crude oil production increased from about 9.5 million barrels per day in the beginning of 2018 to 11.7 million barrels per day by year’s end. In December, EIA announced that the U.S. exported more oil and refined petroleum products than it imported – the first time in more than 35 years.
America’s energy revolution is a remarkable story that demonstrates the rewards of human ingenuity and entrepreneurial passion. Those rewards trickle down to the driver through lower prices. While many factors influence the price at the pump, we cannot overlook the fact that domestic supply continues to roar ahead.
Oil isn’t the only energy source that thrived in 2018. The U.S. continues to be the global leader in natural gas production, ranking number one for the past decade. According to a new report from EIA, “When final data become available in the coming months, EIA expects that U.S. natural gas production will have reached record levels in 2018.” Increased supplies spell more affordable, dependable power for American households.
Abundant, low-cost power is also a win for energy-using businesses, especially America’s energy-intensive manufacturing base. Natural gas is not only an important energy source, but also an important raw material for many manufacturing processes for fertilizers, chemicals and pharmaceuticals, food processing, industrial boilers and much more.
In fact, capital investment from the chemical and plastics industries topped $200 billion in 2018, an extraordinary number that’s generated hundreds of thousands of direct and indirect jobs. When investment surpassed $200 billion (on 333 projects since 2010), American Chemistry Council president Cal Dooley remarked, “The U.S. remains the most attractive place in the world to invest in chemical manufacturing. We look forward to continuing to transform energy into a stronger economy and new jobs.”
Domestic producers are shipping more liquefied natural gas (LNG) to our friends overseas, too. For the first time ever, LNG exports surpassed 5 billion cubic feet per day. We’re now shipping LNG to 30 different countries across five continents. Furthermore, LNG exports would bolster U.S. national security and the security of America’s allies by reducing the ability of any one nation to use its control of energy resources to threaten U.S. interests. LNG exports can be an integral source for Europeans pining for energy freedom.
Natural gas shipments to Mexico traveling via pipeline exceeded 5 billion cubic feet per day, too. With a new zero-tariff on energy trade deal and new pipeline construction in the works, our neighbors to the south are benefitting tremendously from the glut of U.S. energy abundance.
The success of American energy production in 2018 provides a lot of positive momentum for the New Year. With a new Congress, there are several broken policies to fix that take energy choice away from Americans.
We continue to pick winners and losers among energy technologies using the tax code. The federal government mandates that we blend corn ethanol into our fuel, and more than half the states in the Union have mandates that force a certain percentage of their electricity generation come from renewables. Quite simply, if these energy sources are cost-competitive, they won’t need mandates.
In addition, advances in different small modular nuclear reactors continue to improve, though frustrating regulatory obstacles have proven a giant thorn in the side of nuclear innovation.
When policymakers fully empower producers and consumers by removing all of the government-imposed barriers to innovation, America’s energy renaissance will be firing on all cylinders.
https://www.postbulletin.com/opinion/other_views/commentary-we-re-paying-less-at-the-pump-and-that/article_d3443b20-2805-5815-8abb-e2a231c1185a.html
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Dems Seek Longer Comment Period for ANWR Drilling Proposal
Jan 9, 2019 | E&E News PM
By Margaret Kriz Hobson
Five Democratic senators are calling on the Interior Department to give the public more time to comment on the Trump administration's plans to allow oil and gas lease sales in the coastal plain of the Arctic National Wildlife Refuge.
In a letter sent today to Interior acting Secretary David Bernhardt, the senators argued that the timeline should be extended "due to the extreme sensitivity of the resources affected by leasing, the great complexity of the analysis, the overlapping public comment periods for other actions taking place in the Refuge and the continued government shutdown."
The lawmakers also noted that public input was constrained because regulators announced the environmental assessment of the coastal plain immediately before the holiday season. The documents were disclosed Dec. 20, two days before the partial government shutdown began. The environmental analysis wasn't published until Dec. 28.
The letter to Interior was signed by Sens. Tom Udall of New Mexico, Maria Cantwell of Washington, Tom Carper of Delaware, Michael Bennet of Colorado and Ed Markey of Massachusetts.
At issue is the Bureau of Land Management's proposed draft environmental impact statement for drilling on the 1.6-million-acre coastal plain. Congress opened the door to development on the coastal plain through the 2017 tax bill.
Noting that the tax bill provision gives regulators until 2021 to begin leasing on the coastal plain, the lawmakers said that Interior has "ample time to conduct robust and meaningful public engagement through the National Environmental Policy Act and to fully vet and consider the impacts of this contentious and high-stakes program."
"An arbitrarily short comment period restricts that process," the letter states.
The Democrats want Interior to give the public 120 days to comment on the draft EIS. The current 45-day deadline ends Feb. 11.
The lawmakers argue that Interior has its hands full with other projects. In addition to the proposed EIS, regulators are drafting a proposal to allow oil development in the Beaufort Sea and a new integrated activity plan for the National Petroleum Reserve-Alaska.
Interior also intends to release an environmental assessment for seismic exploration in the coastal plain and to hold a comment period on an associated incidental take regulation for polar bears, the letter said.
The senators are weighing in as the Trump administration continues to speed plans to open oil drilling on Alaska federal lands even as negotiations to end the government shutdown remain deadlocked.
The Bureau of Land Management is seeking to set up public meetings this month in seven Alaska communities and in Washington, D.C. (Energywire, Jan. 8).
Last fall, Joe Balash, Interior's assistant secretary for land and minerals management, noted that BLM is seeking to set its first oil and gas lease sale in ANWR's coastal plain later this year.
Environmentalists support the Democrats' request for a timeline extension. Robert Dewey, vice president for government relations at Defenders of Wildlife, said, "The sole focus of the Trump administration should be on ending the government shutdown, not rushing to drill in this national treasure.
"We applaud Senators Cantwell, Udall, Markey, Carper and Bennet for pushing back on this slipshod approach and calling on the Interior Department to extend the comment period to give all Americans their right to participate in the management of their Arctic National Wildlife Refuge," he continued.
https://www.eenews.net/eenewspm/2019/01/09/stories/1060111475
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House Democrats Introduce Bills to Curtail Offshore Oil, Gas Development
Jan 9, 2019 | Natural Gas Intelligence
By Charlie Passut
Despite impossible odds of passing the GOP-controlled Senate, House lawmakers on their third day of control Tuesday introduced seven bills designed to block the Trump administration's plans to expand offshore oil and gas drilling.
Access to full text unavailable – subscription required.
Story can be found here: https://www.naturalgasintel.com/articles/117016-house-democrats-introduce-bills-to-curtail-offshore-oil-gas-development
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Joint Venture Proposes Offshore Oil Terminal South of Freeport
Jan 10, 2019 | Houston Chronicle
By Sergio Chapa
Crude oil from the Permian Basin and Eagle Ford Shale may soon have another export option.
A joint venture led by Canadian pipeline and storage terminal company Enbridge is proposing to build an offshore export terminal that will be capable of receiving supertankers in the Gulf of Mexico just south of Freeport.
Enbridge, Houston-based pipeline operator Kinder Morgan and Hamburg, Germany-based storage tank company Oiltanking are proposing to build the Texas Colt Offshore Loading Terminal about 40 miles offshore.
The proposed terminal will require approval by federal regulators, but early plans show that the facility will be supported by an underwater pipeline. If approved and completed, the terminal will be able to receive and fully load Very Large Crude Carriers, or VLCCs, which can carry up to 2 million barrels of oil.
Under current plans, the Texas Colt terminal will receive domestically produced light sweet crude oil from three onshore pipelines including the Gray Oak Pipeline — a venture by Enbridge, Phillips 66 Partners and Marathon Oil Corp. that is expected to be in service later this year. The Gray Oak Pipeline is designed to move 900,000 barrels of crude per day from the Permian Basin and Eagle Ford Shale to Freeport and three other destinations along the Texas Gulf Coast.
"Supply access will be critical to the success of this facility, and we plan superior connectivity to key supply basins and storage facilities," Enbridge Executive Vice President D. Guy Jarvis said about the Texas COLT project during a Dec. 11 investors call. "It's clearly a competitive environment when it comes to developing export options, but we're confident with our position. We have the capabilities amongst our partners to construct and operate this facility, there's strong interest from a broad base of potential customers, and a plan is in place that targets an in-service date as early as late 2021 or early in 2022."
Enbridge, Kinder Morgan and Oiltanking are not the only companies seeking to build an offshore export terminal along the Texas Gulf Coast.
VLCC tankers are attractive to crude oil exporters because the supertankers create economies of scale and lower transportation costs for shipping. However, their massive size and weight prevents them from using any Texas ports when fully loaded. Ship channels along the Texas Gulf Coast average around 45 feet deep, but a fully loaded VLCC can require up to 66 feet of water — making offshore terminals attractive.
Swiss commodities trader Trafigura is seeking to build a VLCC-capable offshore terminal off the coast from Corpus Christi while Houston-based Enterprise Products Partners is proposing to build another south of Galveston. Dallas-area pipeline and storage terminal company JupiterMLP announced in May 2018 that it is seeking to build an offshore export terminal near the Port of Brownsville.
Meanwhile, the Port of Corpus Christi is deepening and widening the Corpus Christi Ship Channel to accommodate supertanker traffic.
Port officials also want to build a VLCC-capable export terminal at Harbor Island near Port Aransas. Meanwhile, some of the South Texas waterway's tenants have already started testing their capabilities to accommodate supertankers.
Houston pipeline and storage terminal company Moda Midstream partially loaded a VLCC tanker at its Port of Corpus Christi facility last month.
San Antonio-based NuStar Energy tested loading a Suezmax-sized tanker at its Port of Corpus Christi facility in September. Suezmax tankers are one size below VLCC tankers.
https://www.chron.com/business/energy/article/Enbridge-led-JV-proposes-offshore-supertanker-13517493.php
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DOE Researches Removing, Reusing Carbon to Avert Warming
Jan 9, 2019 | BNA Daily Environment Report
By Bobby Magill
The Energy Department is researching ways to create a “renewable carbon-based” economy to address climate change without fully sidelining fossil fuels, an official said Jan. 9.
Such an economy would continually recycle carbon dioxide once it has been emitted, Ian Rowe, technology manager at the department’s Bioenergy Technologies Office, said at the annual conference of the National Council for Science and the Environment in Washington.
This would involve using plants or other methods of removing carbon dioxide from the atmosphere or capturing it from a power plant and then finding new uses for it. These could include transportation fuels and products that don’t involve emitting additional carbon dioxide.
Land and forests could also be managed to store more carbon dioxide in tree roots and soils, Katharine Mach, a Stanford University scientist studying the carbon cycle, said at the conference.
Negative EmissionsFinding ways to capture, recycle, and store carbon dioxide is vital to addressing climate change, Rowe said.
Industrial carbon emissions are causing the earth’s climate to warm to the point that “we change the world as we know it today,” he said. “Any goals we have to reduce these emissions all rely on activity related to carbon-negative emissions, and these activities have to start very soon and on a scale that before we have not really looked it.”
Getting to negative emissions involves drawing down global climate pollution to zero and then removing existing carbon dioxide directly from the atmosphere. No negative emissions technology has been shown to work at a large enough scale to make a difference for global warming.
The U.N. Intergovernmental Panel on Climate Change and other scientific bodies have said that removing climate pollution from the atmosphere is necessary to meet the goals of the Paris climate agreement and to keep global temperatures from increasing more than 2 degrees Celsius (3.6 degrees Fahrenheit).
While the Energy Department is researching technologies to address carbon pollution, the U.S. plans to withdraw from the Paris accord.
Oil Industry BenefitsNegative emissions technology may prove to be a boon for the oil industry because it can continue to produce fossil fuels while removing carbon dioxide from the atmosphere, potentially leading to carbon-neutral fossil fuels.
Two oil companies, Occidental Petroleum Corp. and Chevron Corp., announced Jan. 9 investments in Carbon Engineering, a Canadian firm developing technology that would use giant fans to remove carbon dioxide directly from the ambient air.
The oil industry could offer carbon-neutral gasoline, certified as such by proving that they are able to remove the emissions from the atmosphere and store them safely underground, Klaus Lackner, director of Arizona State University’s Center for Negative Carbon Emissions, said at the conference.
https://news.bloombergenvironment.com/environment-and-energy/doe-researches-removing-reusing-carbon-to-avert-warming
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Oil Industry Makes Landmark Investment in CO2 Air Capture
Jan 10, 2019 | E&E Energywire
By Christa Marshall
Chevron Corp. and Occidental Petroleum Corp. are forming the first major collaboration between the oil industry and a company deploying technology to capture carbon dioxide from the air.
In an announcement yesterday, Chevron's venture capital arm and Oxy Low Carbon Ventures LLC, an Occidental subsidiary, said they would invest in Carbon Engineering, a Canadian-based firm supported by Microsoft Corp. co-founder Bill Gates and other entrepreneurs.
"It is a very important time for the air capture field right now," said Steve Oldham, the CEO of Carbon Engineering. "CE's relationships with Occidental and Chevron, and these new investments, will allow us to accelerate the deployment."
The companies did not disclose the dollar amount of the Carbon Engineering partnership, but a CE spokeswoman said the company is on track to reach a goal of raising $60 million by the end of the first quarter of this year.
The move is the latest boost for direct air capture, which envisions sucking greenhouse gas from the atmosphere and storing it or converting it to fuel. Last year, Congress passed legislation that would allow direct air capture to qualify for federal tax credits for carbon storage, and multiple groups, universities and former Energy Secretary Ernest Moniz announced air capture initiatives.
Noah Deich, executive director of the organization Carbon180, said the announcement was "big," considering it is the first time oil companies have provided public equity investment in a direct air capture company.
"Energy companies have the financial capital and technical knowledge needed to scale direct air capture companies swiftly and effectively, and this announcement shows that these energy companies believe that it is a smart investment," Deich said.
Carbon Engineering, which was founded by Harvard University professor David Keith, has been operating a pilot air capture plant in Squamish, British Columbia, since 2015.
The company has separate technology that successfully converted captured CO2 and hydrogen split from water into transportation fuel for the first time in 2016. Theoretically, that fuel would be carbon neutral if burned, since any emissions would rerelease CO2 originally pulled from the air.
The product could be used in existing vehicles and airplanes without the need to rebuild fueling infrastructure, according to Oldham. Money from the oil companies would "accelerate" commercialization of the technologies, he said.
In a statement, Occidental Petroleum's senior vice president of operations support, Richard Jackson, said the deal would complement the company's enhanced oil recovery business, where CO2 is pumped in fields to release more fuel.
Barbara Burger, president of Chevron Technology Ventures, said air capture technologies are a "prime target area" for investments in cutting greenhouse gases.
Carbon Engineering is one of several companies aiming to deploy or expand the technology.
Two years ago, Switzerland-based Climeworks AG opened the first facility in the world to capture CO2 at industrial scale from air and sell it directly to a buyer. It has since opened two more facilities, and in December partnered with Coca-Cola HBC Switzerland to use CO2 captured from the air in carbonated beverages.Air-capture criticism
Direct air capture has been a source of criticism from some environmentalists and scientists who say it would be more cost-effective to try to capture carbon dioxide directly from power plants and industrial emitters. Carbon dioxide in the air is about 300 times more dilute than it is in emissions from a coal-fired power plant, making it potentially costlier to separate, according to the National Academies of Sciences, Engineering and Medicine.
In 2016, two European scientists released a paper in Science arguing that negative-emissions technologies like direct air capture facilities are an "unjust gamble" because they distract from other climate solutions.
"Negative-emission technologies are not an insurance policy. ... There is a real risk they will be unable to deliver on the scale of their promise," the paper said.
Yet Keith and other researchers released a study in the journal Joule last year concluding that the cost of direct air capture could range between $94 and $232 per metric ton of CO2, at least three times lower than previous estimates.
In October, the National Academies released a report concluding that technologies that remove carbon dioxide from the atmosphere, including through direct air capture facilities, should play a "significant" role in addressing climate change. The report recommended the launch of a major research initiative to lower costs and increase deployment of carbon removal strategies.
Direct air capture has essentially "unlimited capacity" and is unexplored, the report said.
Last February, President Trump signed the Furthering Carbon Capture, Utilization, Technology, Underground Storage and Reduced Emissions (FUTURE) Act, which included air capture as eligible for tax credits under Section 45Q of the tax code.
Since then, several groups have announced new initiatives on direct air capture. The nonprofit Energy Futures Initiative led by Moniz, for example, said it was developing a federal plan to promote technologies for removing carbon dioxide from the atmosphere (Greenwire, Sept. 10, 2018).
https://www.eenews.net/energywire/2019/01/10/stories/1060111481
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Inside the Troubling Rise of CO2 at Power Plants
Jan 10, 2019 | E&E Climatewire
By Benjamin Storrow
The power sector has long been the engine behind America's reduction in carbon dioxide emissions.
Not anymore.
A recent analysis from the Rhodium Group, an economic consulting firm, estimates that carbon emissions from U.S. power plants increased 1.9 percent in 2018. That would mark the first emissions bump from the sector since 2013, when carbon levels rose slightly.
The development contains several worrying signs for environmental advocates. Greening the power sector is relatively easy compared to transportation and the residential and industrial sectors of the economy, where low carbon alternatives to fossil fuels are limited and more costly.
And failing to limit carbon emissions from power plants makes it more difficult to clean up tailpipes, buildings and factories. Most deep decarbonization scenarios envision using large amounts of wind, solar and other non-emitting sources of electricity generation to power cars and trucks, heat and cool homes, and fuel factories.
"To get anywhere near our climate goals, we need our electric grid to be dramatically cleaner than it is today," said Daniel Cohan, a professor at Rice University who studies the power sector.
If power plants fail to clean up faster than other sectors of the economy, meeting the 26 percent reduction in emissions envisioned by the Paris Agreement "becomes impossible," Cohan said.
American utilities have made impressive progress in cutting their carbon output in recent years. Emissions from power plants fell 28 percent between 2005 and 2017, according to federal figures. Total energy-related emissions, by contrast, were down 14 percent.
The trend made the power sector a bright spot for greens who are distraught by President Trump's dismantling of environmental protections and his promotion of coal. In 2017, the U.S. was one of a few countries worldwide to post a reduction in carbon levels, thanks in large part to the continued decline in emissions from power plants (Climatewire, March 23, 2018).
Much of those reductions came as utilities traded coal plants for facilities fueled by natural gas. The U.S. Energy Information Administration estimates that coal to gas switching accounted for roughly two-thirds of all power sector emission reductions between 2005 and 2017.
But last year illustrated the limitations to that approach as a climate strategy.
Coal plant retirements approached record highs (Climatewire, Jan. 2). But falling emissions from coal plants were offset by natural gas generators, which ran harder to satisfy an increase in electricity demand.
Rhodium's analysis found that coal generation fell by 52 kilowatt-hours in the first 10 months of the year, while gas generation rose 166 kWh. Power sector carbon emissions increased by 34 million tons as a result, helping fuel an estimated 3.4 percent increase in overall U.S. carbon emissions (Climatewire, Jan. 9).
"Gas has been rising to the challenge of meeting demand in 2018 in a way it hadn't needed to in the past because electricity demand hadn't risen as quickly," said John Larsen, a former Department of Energy official in the Obama administration who leads Rhodium's power sector research.
Part of the demand spike could be temporary. A hot summer and cold winter last year, combined with a galloping economy, meant demand for power outpaced gains in energy efficiency, which has helped mitigate rising electricity use in recent years.
Other factors point to the difficult challenges facing climate hawks. Little coal remains in the Northeast and on the West Coast, meaning future carbon reductions will have to come from elsewhere, said Jesse Jenkins, a researcher at Harvard University.
"The low-hanging fruit, swapping out coal for some combination of natural gas and renewables, is starting to get picked," Jenkins said. "Now, the challenge is to displace gas plants with low-carbon resources."
Whether America can add enough renewables to significantly reduce gas generation and its resulting emissions is an open question. EIA estimates that wind will account for 46 percent of all new power plant capacity in 2019, the last year for the federal wind production tax credit. Gas and solar, by comparison, represent 32 percent and 18 percent of new capacity, respectively. But gas overtakes wind as the top source of new capacity in 2020 and 2021, according to federal projections.
When renewables are brought online, their emissions impact could be mitigated by the retirement of nuclear plants. Offshore wind in the Northeast will largely replace power from a series of retiring nuclear facilities in the region, analysts noted.
The dynamic speaks to the continued need for new policies to drive power sector reductions, they said. California recently passed a bill requiring all of its electricity to come from carbon-free sources by 2045. And several newly elected Democratic governors have signaled they intend to follow suit with similar plans.
But analysts said action at the federal level is needed to ensure that emissions reductions from the power sector don't stall out.
"We've been saying there will be a limit to what increasingly cheap renewables and continuously cheap natural gas can deliver with respect to emissions," Larsen said. "We're not done yet."
https://www.eenews.net/climatewire/2019/01/10/stories/1060111501
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Massachusetts to Issue Nation’s First Clean Peak-Energy Standard
Jan 9, 2019 | BNA Daily Environment Report
By Adrianne Appel
Massachusetts will issue by the end of 2019 a first-in-the-nation requirement that utilities and electric suppliers draw on clean energy sources during times of peak demand, the state’s top energy official said Jan. 9.
The requirement will help the state further lower harmful carbon emissions that lead to climate change, said Judith Judson, commissioner of the Massachusetts Department of Energy Resources.
A final clean energy standard for peak-demand times would take effect in 2020, Judson said. Major electric suppliers Eversource Energy and National Grid Plc, along with about 30 competitive electricity suppliers operating in the state, would have to comply with the new standard.
“This is a high, high priority,” Judson told CEOs and others during a meeting in Boston with the Environmental Business Council, a group of companies interested in environmental issues.
“We strongly support the state’s push towards sustainability through clean energy. We are working with other key stakeholders to evaluate the most cost-effective solutions to implement this standard,” Reid Lamberty, spokesman for Eversource, told Bloomberg Environment on Jan. 9.
“National Grid will be an active participant in the stakeholder process and we look forward to providing input on policy and technical issues,” Robert Kievra, National Grid spokesman, told Bloomberg Environment Jan. 9.
Utilities won’t be eager to comply with a peak-energy standard, said Haskell Werlin, business director of Solar Design Associates and a member of MassSolar is Working Inc., a solar advocacy group.
The utilities have dragged their feet on complying with state renewable goals and “are the biggest opponents to distributed and renewable energy,” Werlin said.
More Pollution and CostDuring peak-demand times—such as on very cold or hot days or weekdays between 5 p.m. and 8 p.m.—consumers use more electricity. To meet the demand, electricity suppliers turn to older, more polluting power sources as a last resort.
Peak electricity is also more expensive. The department found that the top 10 percent of peak hours accounted for 40 percent of the total amount spent on electricity in a year by consumers and businesses in the state, which is equal to billions of dollars, Judson said.
Major electric suppliers, including Eversource, National Grid, and Unitil, currently are required to rely on renewable energy, such as solar, wind and hydro, for 20 percent of all the electricity they offer to consumers under a 2017 Massachusetts rule. By 2050, 80 percent of their electricity must come from clean energy sources, according to the department.
But Judson said it’s not enough: “We want to slow climate change, but also to have a more resilient energy infrastructure.”
The rulemaking will take about a year, Judson said. The state will first solicit informal feedback from interested groups as a first step, she said.
“Since we’re first in the nation, we don’t have other models to look at,” she said.
Within weeks, the state will release a set of about 30 questions about a peak standard for stakeholders to answer, Judson said. Once the state gets the answers back, it will issue a “straw proposal,” she added.
New StandardThe new standard will set a percentage requirement for the amount of clean power the utilities and suppliers will have to include in their peak energy mix, Judson told Bloomberg Environment in an interview. Like the non-peak standard, the percentage will increase over time, she said.
Utilities will likely turn to new energy storage technology to meet the new standard, Judson said.
These battery-type technologies store the energy that solar panels make when the sun is shining so it can be used later when it is cloudy.
“Storage is a game changer,” Judson told Bloomberg Environment.
https://news.bloombergenvironment.com/environment-and-energy/massachusetts-to-issue-nations-first-clean-peak-energy-standard-2
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Trade war cuts U.S. LNG exports to China in 2018
Jan 9, 2019 | Reuters
By Scott DiSavino
The number of U.S. liquefied natural gas vessels that went to China in 2018 fell by around 20 percent from the prior year as the trade war between Beijing and Washington heated up.
In recent weeks, however, that dispute has cooled somewhat with talks in China this week between Chinese and U.S. trade teams raising hopes additional tariffs can be avoided.
As the trade war escalated during the last six months of 2018, only six LNG vessels went from the United States to China, down from 25 during the same period in 2017. China imposed tariffs on U.S. LNG in September.
That happened even though Chinese LNG purchases last year reached all-time highs and the United States sold record amounts of the fuel.
China, the fastest growing consumer of the fuel, became the world’s second biggest LNG buyer in 2017 as the government weans the country off dirty coal to reduce pollution. The United States, meanwhile, is on track to become the world’s third biggest LNG exporter by capacity in 2019 as additional export terminals enter service.
(For a graphic on U.S. LNG shipments to China, see: tmsnrt.rs/2RIUq80)
In total, 24 U.S. vessels went to China in 2018 - mostly during the first half of the year - versus 30 in 2017.
Companies proposing new U.S. LNG export terminals expressed optimism a new U.S.-China trade agreement could help advance their projects.
The U.S. LNG export industry has been particularly vulnerable to the U.S.-China trade war, Mike Sommers, head of the American Petroleum Institute industry group, said on Tuesday, adding that he hopes negotiators will soon resolve the dispute.
China imported about $447 million of LNG from the United States in 2017, about 15 percent of the LNG the U.S. shipped that year, making it the third biggest buyer of the fuel from the United States.
Prior to the slowdown, China was on track to import 141.6 billion cubic feet (bcf) of U.S. LNG in 2018, up from 103.4 bcf in 2017 and 17.2 bcf in 2016. It imported no LNG from the United States in 2015.
One billion cubic feet of gas is enough to fuel about 5 million U.S. homes for a day.
China likely bought less than 90 bcf of U.S. LNG in 2018.
To be sure, some of the handful of vessels that left the United States in December are still sailing across the Pacific and could stop in China.
In addition to the trade war, LNG analysts noted the slowdown in U.S. vessels going to China last year was also due to milder winter weather and an increase in exports from Australia and other LNG exporting countries closer to China.
https://www.reuters.com/article/us-usa-trade-china-lng/trade-war-cuts-u-s-lng-exports-to-china-in-2018-idUSKCN1P32HV
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(ACC Mentioned) House Democrat Urges Key GOP Senator to Back CFATS Extension
Jan 9, 2019 | Inside EPA
House Homeland Security Committee Chairman Bennie Thompson (D-MS) is urging his Senate GOP counterpart, Sen. Ron Johnson (R-WI), to back the lower chamber's just approved bill extending the Department of Homeland Security's (DHS) existing industrial facility security program for two years while lawmakers work to revise it.
In a Jan.8 statement, Thompson warns against letting DHS' Chemical Facility Anti-Terrorism Standards (CFATS) expire Jan. 19 as current law allows and pushes back on plans by Johnson, chairman of the Senate Homeland Security and Governmental Affairs Committee, to provide a longer extension as well as a host of programmatic changes backed by industry.
“It is critically important that we ensure our nation’s chemical facilities are kept safe from terrorist threats,” Thompson says, urging Johnson and other senators to support the House-passed extension.
“Extending CFATS will giving us time to work together improve the program while still keeping Americans safe,” he adds. “We cannot allow this critical national security program to expire and make all Americans more vulnerable because of petty partisan politics."
His statement comes after the House, on an overwhelming 414-3 vote, Jan. 8 approved H.R. 251, Thompson's bill that would extend CFATS for two years. The program requires that industrial facilities report their holdings of certain chemicals to DHS and then craft plans to comply with the agency's risk-based security standards.
The strong backing for extending the program comes despite recent calls from GOP senators to streamline facilities' compliance obligations and from some House Democrats and the Government Accountability Office (GAO) to strengthen requirements for facilities data disclosures to first responders.
DHS and industry trade groups, including the American Chemistry Council and the American Petroleum Institute have been seeking a multi-year reauthorization of CFATS, arguing that facilities have invested millions of dollars and instituted thousands of security measures to comply with the regulation that will soon expire.
But the renewal has faced uncertainty given the ongoing partial government shutdown and controversy surrounding the Trump administration's approval of industry requests to delay and scale back the Obama EPA's January 2017 final rule updating that agency's Risk Management Plan (RMP) facility accident prevention program with new requirements.
Johnson Sept. 4 introduced a bill seeking a five-year CFATS reauthorization that also would ease regulations on facilities that demonstrate compliance with industry best practices. Specifically, S. 3405 would limit DHS facility audits or inspections to not more than once every two years, and not more than once every three years at facilities that qualify for a new CFATS Recognition Program the law would enact.
Meanwhile, Rep. Frank Pallone Jr. (D-NJ), chairman of the House Energy and Commerce Committee, and other Democrats have sought to preserve provisions of the Obama-era rule strengthening EPA's RMP program that required greater disclosure of facility data to first responders.
GAO has backed calls to strengthen information sharing in DHS' CFATS, recommending in an Aug. 8 report that DHS bolster access to the chemical information that facilities report to the program, coordination required under EPA's Obama-era update to RMP, which the Trump administration is seeking to revise early this year.
https://insideepa.com/daily-feed/house-democrat-urges-key-gop-senator-back-cfats-extension
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Putting the Brakes on Crude Oil Train Regulation
Jan 10, 2019 | The Regulatory Review
By Mark Nakahara
In 2013, a runaway crude oil train derailed and exploded in the center of Lac-Megantic, Quebec, killing 47 people. Similar derailments of crude oil trains occurred in North Dakota in 2013 and Oregon in 2016.
Despite federal legislation demanding improved rail safety, safety experts charge that a recent policy change adopted by the Trump Administration will leave the public exposed to the dangers of rail accidents.
The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration(PHMSA) last fall announced that it had rescinded a mandate on installing electronically controlled pneumatic brakes (ECP). After completing a study required by the Fixing America’s Surface Transportation Act (FAST Act) of 2015, PHMSA stated that “the expected costs of requiring ECP brakes would be significantly higher than the expected benefits of the requirement,” although railroads are still free to install ECP brakes should they wish.
Recent reporting by the Associated Press that PHMSA’s analysis underestimated the benefits of requiring ECP brakes has reinvigorated the debate over the Trump Administration’s rule rescission.
ECP brakes offer many benefits compared to traditional air brakes, according to a 2006 Federal Railroad Administration report. Air brakes require each freight car to brake “individually, at the speed of the air pressure moving from car to car, along trains that are often well over a mile in length.”
The ECP brake system, by contrast, allows engineers to apply brakes simultaneously on all train cars, allowing for quicker stops than with air brakes. ECP brakes also provide engineers with better control over their trains and lower risk of derailment or broken couplings between cars, according to the Federal Railroad Administration. Since less time is spent braking, engineers can operatetrains at top speeds for longer, increasing fuel efficiency and decreasing emissions. ECP brakes can even self-diagnose for maintenance issues, allowing freight trains to make longer trips without stopping for brake inspections.
PHMSA released its analysis of the viability of mandating ECP brakes in 2017, and pointed to the Australian freight rail system as a useful comparison. Australia has widely adopted ECP brake systems on its freight railroads with positive results. A report from the Australian Department of Resources, Energy and Tourism—now part of the Department of Industry, Innovation and Science—notes fuel savings of 4 percent to 11 percent on trains with ECP brakes.
PHMSA’s analysis, however, identifies several obstacles to installing these brakes present in the United States, but not in Australia. In addition to lower projected benefits, PHMSA noted that freight cars in the United States are owned by shippers, not by the railroads. Furthermore, North American railroads are already engaged in the costly process of installing positive train control—an automated system for safely controlling train movement—across their systems.
The Australian report also highlights the costs of implementing an ECP brake system. Each tank car costs about $5,600 to retrofit, and the cars are out of service during this process.
To realize the full benefits of ECP brakes, the approximately 415,000 tank cars in service in the United States would require upgrades, and railroads would have to train their employees to use the new system. Hundreds of freight locomotives would require retrofitting as well.
According to PHMSA’s analysis, the costs of installing ECP brakes would outweigh the expected benefits. Over a 20-year period, PHMSA estimates the costs to range from $427.3 million to $554.8 million. PHMSA’s calculations for total benefits, however, range from $257.5 million to $374 million.
PHMSA also notes that crude oil movements by rail are difficult to forecast in the long run. North American railroads carried over 380 million barrels worth of crude oil in 2014, but by 2017 the volume was down to about 140 million barrels. PHMSA projects that crude oil traffic will rebound and eventually surpass 2014 levels, but even this optimistic forecast does not provide enough benefit to justify ECP brakes, the agency says.
In the wake of the Lac-Megantic incident, PHMSA authorized other specifications for tank cars in addition to ECP brakes, in accordance with the FAST Act. These regulations also established a schedule for retrofitting older cars to make them more fire-resistant. PHMSA now requires thermal protection systems on tank cars, along with metal jackets to protect these systems. PHMSA rules also specify weight limits and thickness of the car bodies.
Although mandatory ECP brakes for crude oil trains are off the table for the moment, PHMSA stated that its rescission of the rule “does not affect the ability of a railroad to implement ECP brakes” themselves. Railroads will still have to implement PHMSA’s other measures to improve safety on their trains, and the option of ECP brakes remains available if railroads wish to pursue it.
https://www.theregreview.org/2019/01/10/nakahara-putting-brakes-crude-oil-train-regulation/
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Forecast for U.S. Federal and International Chemical Regulatory Policy 2019: Hazardous Materials
Jan 10, 2019 | National Law Review
G. HAZARDOUS MATERIALS TRANSPORTATION1. Predictions and Outlook for the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration for 2019
The U.S. Department of Transportation's (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) is charged with a vital, if often taken for granted, task: protecting the public from the hazards associated with the transportation in commerce of hazardous materials. While its operations may lack the high profile of some of its federal sister agencies, its mission is, literally, one of life and death. Lethal train derailments and explosions, fires aboard aircraft, and spills of toxic materials are all potential -- and real -- consequences if PHMSA fails to exercise its duty effectively.
PHMSA operates in a dynamic and challenging environment. In 2019, the scope and complexity of its mission will continue to grow, requiring it fundamentally to rethink how it will use data, information, and technology to achieve its safety goals.
PHMSA’s mission is to protect people and the environment by advancing the safe transportation of energy and other hazardous materials that are essential to our daily lives. To do this, it establishes national policy, sets and enforces standards, educates, and conducts research to prevent incidents. It also prepares the public and first responders to reduce consequences if an incident does occur. In this context, PHMSA has updated its strategic framework to focus on risk reduction, and much of what it is anticipated to do in 2019 reflects this revamped strategy.
PHMSA oversees the safe movement of hazardous materials and energy-related products. The consistently safe delivery of these commodities supports the growth of American industry -- ensuring that packagers, shippers, and transporters can move these products to the consumers, homes and businesses that rely on them. PHMSA’s safety programs advance industry safety systems, promote safety standards, encourage innovation and research, provide comprehensive safety inspections and, when necessary, initiate enforcement actions.
PHMSA is responsible for promoting the safe and reliable transportation of dangerous goods by air, water, highway, rail, and pipeline. The expansive U.S. pipeline network extends more than 2.7 million miles and moves more than 16 billion barrels of hazardous liquids and gases safely and without incident 99.9997 percent of the time; and, PHMSA’s safety operations add less than one cent per barrel to achieve this unmatched safe delivery rate.
Surface, air, and vessel transportation of hazardous materials accounts for more than 2.7 billion tons of regulated hazardous products annually with a value of 3.1 trillion dollars. Despite the amount of activity and risk posed by hazardous materials, safe delivery occurs 99.9994 percent of the time. PHMSA’s safety operations add about three cents per ton of material shipped to maintain this significant rate.
PHMSA works to improve the safety systems of the more than 40,000 companies involved in the commercial manufacture, packaging, and transportation of DOT-regulated hazardous commodities as well as the operators responsible for the nation’s expansive 2.7 million mile network of liquid and gas pipelines.
(PHMSA’s authorities extend to transportation of hazardous materials by pipeline, rail, air, and highway. This forecast does not address pipeline hazardous materials issues.)
New information and research will drive much of what PHMSA undertakes in 2019. Advances in technology, enhanced commerce, and a rapidly evolving global trade in hazardous materials must be matched by PHMSA if it is to satisfy its mandates. At this point, PHMSA appears to recognize these new challenges and is poised to maintain its highly honed edge on hazardous materials transportation.
1.1 FAST Act Implementation -- High Hazard Flammable Trains
In 2019, PHMSA is expected to continue to carry out the legislative requirements in the Fixing America's Surface Transportation (FAST) Act of 2015 (Pub. L. No. 114-94) that call for PHMSA to improve the safe movement of liquefied natural gas and crude oil transported by rail. On December 4, 2015, President Obama signed the FAST Act into law. The new law requires PHMSA to undertake a number of regulatory and other actions to safeguard the transportation of flammable crude oil by rail and highway. Passage of the act was catalyzed by a number of incidents involving so-called “high hazard flammable trains.”
PHMSA is slated to promulgate a final rule pursuant to the FAST Act that will expand the applicability of comprehensive oil spill response plans based on thresholds of liquid petroleum that apply to an entire train. The rulemaking would also require railroads to share information about high-hazard flammable train operations with state and tribal emergency response commissions. The rule also will include a reference to an initial boiling point test for flammable liquids for better consistency with the American National Standards Institute and the American Petroleum Institute Recommended Practice 3000, “Classifying and Loading of Crude Oil into Rail Tank Cars.”
PHMSA is considering revising the Hazardous Materials Regulations (HMR) to establish vapor pressure limits for unrefined petroleum-based products and potentially all Class 3 flammable liquid hazardous materials that would apply during the transportation of the products or materials by any mode. PHMSA was prompted to do this via a petition for rulemaking submitted by the Attorney General of the State of New York regarding vapor pressure standards for the transportation of crude oil. The petition requests that PHMSA implement a Reid Vapor Pressure (RVP) limit less than 9.0 pounds per square inch (psi) for crude oil transported by rail. On January 18, 2017, PHMSA issued an (ANPRM) in response to the petition; after several extensions, comments were due by May 19, 2017. 82 Fed. Reg. 5499. PHMSA will use the comments submitted in response to this ANPRM to help assess and respond to the petition and to evaluate any other potential regulatory actions related to sampling and testing of crude oil and other Class 3 hazardous materials. PHMSA will also evaluate the potential safety benefits and costs of utilizing vapor pressure thresholds within the hazardous materials classification process for unrefined petroleum-based products and Class 3 hazardous materials.
1.2 Transportation of Lithium Batteries by Air
Lithium batteries are found in virtually every commercial aircraft that flies in the U.S. airspace. They are found in everything from laptops, cellphones, iPods, wheelchairs, and other devices. If not properly packaged and transported, they can -- and have -- caused fires on board commercial aircraft. PHMSA is thus developing a rule amending the HMRs applicable to the transport of lithium cells and batteries by aircraft. The rule is likely to contain three amendments:A ban on the transport of lithium ion cells and batteries as cargo on passenger aircraft;A requirement that lithium ion cells and batteries be shipped at not more than a 30 percent state of charge aboard cargo-only aircraft; andLimits on the use of alternative provisions for small lithium cell or battery shipments to one package per consignment or overpack.
PHMSA believes the rule is necessary to address an immediate safety hazard and harmonize the HMRs with emergency amendments to the 2015-2016 edition of the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions).
1.3 Conversion of Special Permits
PHMSA will continue to convert special permits into the text of the HMRs. Specifically, as mandated by Sections 33012(c) and (d) of the Moving Ahead for Progress in the 21st Century Act (MAP-21), PHMSA will amend the HMRs to adopt provisions contained in certain widely-used or long-standing special permits that have an established safety record. This rulemaking action is intended to provide wider access to the regulatory flexibility offered in special permits and eliminate the need for numerous renewal requests. The rulemaking action will also reduce paperwork burdens and facilitate commerce while maintaining an appropriate level of safety. PHMSA conducted an extensive analysis of active special permits, approvals, and related petitions, and those deemed suitable will be adopted into the HMR.
1.4 International Standards Harmonization
PHMSA is required by law to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. Harmonization yields many benefits: it enhances safety, facilitates compliance, and improves the efficiency of the global transportation system by minimizing the regulatory burden on the public, thus promoting trade. After a thorough review of the provisions recently adopted by various international regulatory bodies, PHMSA has identified areas in the HMR in which harmonization with international regulations will provide an enhanced level of safety, an economic benefit, or in many instances both increased safety and economic benefits. As a result, PHMSA has proposed a rule (issued November 27, 2018) that amends the HMR, where appropriate, to maintain alignment with international standards and consequently facilitate the safe global trade of hazardous materials. 83 Fed. Reg. 60970. Proposals in this rulemaking action include, but are not limited to: non-testing alternative methods for classifying corrosive materials, a classification scheme and transport provisions for articles containing hazardous materials that do not already have a proper shipping name, provisions to recognize one-time movement approvals issued by Transport Canada, and the incorporation by reference of various international standards including the latest editions of the UN Model Regulations on the Transport of Dangerous Goods, the International Maritime Dangerous Goods Organization (IMDG) Code, the ICAO Technical Instructions, and the International Organization for Standardization (ISO) technical standards applicable to cylinders. Comments are due by January 28, 2019.
1.5 Research Gaps and Priorities
To its credit, PHMSA has given significant attention to identifying perceived research gaps and prioritizing projects for research, with an emphasis on risk identification and mitigation. Gaps identified by PHMSA include:Risk Analysis and Perception:Hazards, Risks and Mitigation;Data Development;Modeling Techniques;Systems Approaches;Risk Communication and Perception; andHazmat Release Consequences.Emerging Materials and Technologies:Batteries and Emerging Energy Products;Automated and Connected Vehicles; andTechnologies for Safety and Decision Maker.Emergency Planning and Response:Guidance Development;Education and Training; andCommunication, Tracking and Detection.Materials and Equipment Testing:Hazardous Material Characterization and Testing;Package Lining and Corrosion Resistance; andMonitoring and Inspection.
Consistent with its identification of these research gaps, PHMSA has identified over 30 prioritized research projects. These include:Development of an Overarching Structure for Assessing and Managing Risks through the Hazmat Transportation Supply Chain;Understanding Failure Rates of New and Reconditioned Hazmat Drums in Transportation;Understanding the Impact of Recycled Material Content on Failure Rates of Hazmat Containers;Understanding and Preparing for Changes in Lithium Battery Uses, Characteristics, and Commercial and Non-Commercial Transportation; andTesting Methods and Criteria for the Classification of a Material as a Corrosive Solid.
1.6 Conclusion and Summary
PHMSA can be expected to continue to promulgate rules in compliance with its statutory mandates but it also recognizes the need to shore up gaps and to keep pace with an accelerating array of products that are transported in commerce. New information and research will drive much of what PHMSA undertakes in 2019. Advances in technology, enhanced commerce, and a rapidly evolving global trade in hazardous materials must be matched by PHMSA if it is to satisfy its mandates. At this point, PHMSA appears to recognize these new challenges and is poised to maintain its highly honed edge on hazardous materials transportation.H. TRADE
1. Introduction
B&C’s and Acta’s clients manufacture innovative and essential products that span all sectors of the economy and that are distributed across the globe. But the efficacy of these products means little if barriers to trade -- such as prohibitive tariffs, intellectual property (IP) theft, lack of a trade agreement and unfair or illegal trade practices -- block or restrict them from entering other nations and getting into the hands of those who need them. Our clients consequently have a substantial interest in anticipating and responding to the destabilizing developments on international trade that have taken the spotlight over the past year, and that loom large for 2019.
A bedrock platform of Donald Trump's Presidential campaign was his promise to take actions on trade that he believes will disclose unfair practices; he also promised to promote free, fair, and reciprocal trade and strongly enforce U.S. trade laws. When Mr. Trump accepted the Republican nomination for President in Cleveland in July 2016, he avowed that “[n]o longer will we enter into these massive deals, with many countries, that are thousands of pages long -- and which no one from our country even reads or understands. We are going to enforce all trade violations, including through the use of taxes and tariffs, against any country that cheats.”
Mr. Trump promised to take several unilateral actions. He stated he would punish China and other “cheaters” with crippling tariffs. Calling the North American Free Trade Agreement (NAFTA) “the worst deal ever,” he vowed to dismantle it. Decrying multi-lateral trade agreements, Mr. Trump claimed that he would withdraw from the Trans-Pacific Partnership (TPP), cease negotiations on the Transatlantic Trade and Investment Partnership (T-TIP), and focus instead on securing bilateral agreements.
President Trump threatened to take actions on specific products to protect American workers and industry, even if that meant imposing restrictions on our closest trading partners; and he promptly did so. On March 8, 2018, he issued two proclamations that imposed a 25 percent tariff on imported steel and a ten percent tariff on imported aluminum. The President claimed the tariffs were necessary for national security justifications, citing Section 232 of the Trade Act of 1974 (Trade Act) (Pub. L. No. 93-618). The tariffs impacted Canada, Mexico, the EU, and other close trading partners. The President eventually suspended the duties against Canada and Mexico, citing on-going NAFTA discussions. And DOC subsequently promulgated procedures for excluding products from the tariffs. But these exclusions only apply to individuals or organizations using steel or aluminum articles identified in the proclamations. Nonetheless, the bell in the ring had been clanged. It was clear that President Trump intended to follow through on his promises regarding trade.
Mr. Trump has made good on his promises, and more. Since taking office, the President has taken scores of actions on trade issues -- often unprecedented actions that at times unsettled global financial markets -- and 2019 promises to be equally as turbulent. The President will no doubt continue to advance his “America First” trade agenda, and that is a recipe for more uncertainty and angst for any company that trades outside the U.S.
Prognosticating on what specifically may occur in the next year is made even more difficult by the fact that the President and his staff often telegraph conflicting messages on trade. At the G20 Summit in December, however, President Trump and Chinese President Xi Jinping did reach an agreement of sorts on trade issues and agreed to begin 90 days of negotiations on trade issues. B&C will soon be releasing a podcast on trade issues as part of its “All Things Chemical™” series available on iTunes, Spotify, Stitcher, and Google Play Music. Please stay tuned!
2. Pillars of U.S. Trade Policy
President Trump has launched a new era in American trade policy. His agenda is driven by a determination to use the leverage available to the world’s largest economy to obtain fairer treatment for American workers. This policy rests on the following five major pillars:Trade Policy that Supports National Security Policy;Strengthening the American Economy;Negotiating Trade Deals that Work for All Americans;Enforcing and Defending U.S. Trade Laws; andStrengthening the Multilateral Trading System.
2.1 Trade Policy that Supports National Security Policy
Consistent with the National Security Strategy President Trump announced in December 2017, the President’s trade policy recognizes that economic prosperity at home is necessary for American power and influence abroad. Free, fair, and reciprocal trade relations are a key component of the President’s strategy to promote American prosperity. Therefore, the Trump Administration is working and will continue to work aggressively to address trade imbalances, promote fair and reciprocal trade relationships, enforce U.S. rights under existing trade agreements, and work with like-minded countries to defend our common prosperity and security against economic aggression. The President’s Trade Policy Agenda states “[c]ountries that are committed to market-based outcomes and that are willing to provide the United States with reciprocal opportunities in their home markets will find a true friend and ally in the Trump Administration.” In 2019, the U.S. will continue to take steps to protect its national interests against hostile policies imposed by China, Russia, or any other countries. The United States will respond to unfair economic competitors by using all available tools to discourage any country from undermining true fair market competition.
2.2 Strengthening the American Economy
The President’s trade agenda seeks to build on the economic momentum provided by the Tax Cuts and Jobs Act passed in December 2017 and the Administration’s efforts to reduce regulatory burdens. The Trump Administration believes that its focus on fair and reciprocal trade, combined with the President’s tax cuts and regulatory relief, will lead to more efficient markets and make it easier for American workers and companies to succeed.
2.3 Negotiating Trade Deals that Work for All Americans
The Trump Administration will seek an extension of Trade Promotion Authority until 2021 and aggressively use that authority to negotiate or revise trade agreements so they are fair and balanced and support American prosperity. The Trump Administration intends to reach other agreements designed to promote fair, balanced trade and support American prosperity. As part of this effort, the U.S. and the UK established a Trade and Investment Working Group to lay the groundwork for commercial continuity and prepare for a potential future trade agreement once the UK leaves the EU. The Administration will continue preparing for other potential bilateral agreements, including in the Indo-Pacific and African regions.
2.4 Enforcing and Defending U.S. Trade Laws
The Trump Administration is committed to using all tools available under U.S. law to combat unfair trade. For example, in January 2018, President Trump exercised his authority under Section 201 of the Trade Act to provide safeguard relief to U.S. manufacturers injured by imports of washing machines and solar panels. This was the first time Section 201 had been used to impose tariffs in 16 years. In 2017, the Trump Administration launched a self-initiated Section 301 investigation with an in-depth probe into Chinese practices related to forced technology transfer, unfair licensing, and IP policies and practices. More discussion on this investigation is below. The Trump Administration has successfully litigated a number of World Trade Organization (WTO) disputes, helping force countries to abandon unfair practices and preserving the U.S. right to enact fair laws.
2.5 Strengthening the Multilateral Trading System
President Trump is no fan of the WTO. He claims that the WTO is not operating as the contracting parties envisioned and, as a result, is undermining America’s ability to act in its national interest. The Trump Administration will work with like-minded countries to address these concerns.
3. U.S. - China Trade Dispute: “The Entire World Is Worried.”
Deem it a war, battle, skirmish, or whatever military confrontation moniker you choose, there is little doubt that President Trump is pursuing an aggressive and retaliatory assault on China for what the administration believes are unfair trade practices and an indefensible trade deficit with the second largest economy on the planet -- and China is punching back.
The President’s ire towards China’s trade practices are not likely to abate. He has stated that China is one of the chief violators of unfair trade practices. The U.S. and China are, and in 2019 likely will continue to be, engaged in a tit-for-tat trade and tariff confrontation as the two countries battle for superiority in Asia.
Although President Trump has stated that he is confident he can reach an agreement with China at the G20 Summit, consider this: for the first time in 29 years, the Asia-Pacific Economic Cooperation Summit concluded on November 18, 2018, with officials failing to issue a joint closing statement. The 21 countries at the summit represent 60 percent of the world economy. The day before the summit closed, Vice President Mike Pence and Chinese President Jinping criticized each other in speeches, adding to the tension and uncertainty over whether the U.S. and China can resolve their trade disputes. Press accounts paint the meeting in Papua New Guinea as acrimonious, highlighting widening divisions between China and the U.S. The holdup was that the U.S. and China could not reach common ground on language over trade. Draft versions of the communique showed the U.S. wanted strong language against unfair trade practices that it claims China practices. China wanted a reaffirmation of opposition to protectionism and unilateralism that it says are hallmarks of the U.S. trade strategy. The spat seems to have boiled down to one sentence in the draft joint closing statement: “[w]e agreed to fight protectionism including all unfair trade practices.” China reportedly objected to that sentence, as it is accused by the U.S. as the main culprit of “protectionism” and “unfair trade practices.” That disagreement is a small slice of the growing rivalry between the world’s two biggest economies. Perhaps Papua New Guinea Prime Minister Peter O'Neill, who hosted the summit, summed it up best when at the end of the summit he told reporters: “[t]he entire world is worried.”
President Trump’s actions towards China began soon after he took office. In August 2017, he issued a memorandum directing the U.S. Trade Representative (USTR) to determine if China’s policies regarding IP theft and forced technology requirements “may be harming American [IP] rights, innovation, or technology development,” and thus warrant USTR action under Section 301 of the Trade Act. Following the memorandum, on August 18, 2017, the USTR initiated an investigation under Section 301 of the Trade Act into China’s acts, policies, and practices related to technology transfer, IP, and innovation. 82 Fed. Reg. 40213 (Aug. 24, 2017). Then, in January 2018, the USTR submitted to Congress its annual report on China’s WTO compliance. The report states that “it seems clear that the United States erred in supporting China’s entry into the WTO on terms that have proven to be ineffective in securing China’s embrace of an open, market-orientated trade regime.”
It was not until March 2018, however, that things really started heating up. On March 22, 2018, the USTR released its report. Among other things, it found that China: uses joint venture requirements, foreign investment restrictions, and administrative review and licensing processes to force or pressure technology transfers from American companies; uses discriminatory licensing processes to transfer technologies from U.S. companies to Chinese companies; directs and facilitates investments and acquisitions that generate large-scale technology transfer; and conducts and supports cyber intrusions into U.S. computer networks to gain access to valuable business information. Taken in sum, the USTR and an interagency team of subject matter experts and economists estimated that China’s policies result in harm to the U.S. economy of at least $50 billion per year.
President Trump swiftly took action. In April, he proposed to impose a tariff of 25 percent on $50 billion worth of imported Chinese goods. He eventually culled this list in June down to $34 billion worth of goods. In July, however, Trump struck China again, imposing a 25 percent tariff on some $16 billion worth of Chinese imports; and in July he dropped the hammer -- setting a ten percent tariff on $200 billion worth of imported Chinese products. That tariff is slated to increase to 25 percent in January 2019, unless the U.S. and China can reach an agreement. In short, at this time virtually every item imported from China is subject to additional tariffs. China, of course, has retaliated and imposed its own tariffs on goods from the U.S.
Adding to the tensions, on November 20, 2018, the USTR updated its Section 301 report on China. The USTR found that the tariffs and other actions imposed by the U.S. have not deterred China’s practices, and that China denies its practices are unfair or illegal. The USTR’s findings are likely to inspire further action by the Trump Administration.
At the G20 summit, President Trump and President Jinping called a 90-day truce on raising tariffs and agreed to begin negotiations on trade. USTR Robert Lighthizer -- considered a trade hawk -- is leading the negotiations. The deadline for the negotiations is March 1, 2019, and Mr. Lighthizer has stated that is a “hard” deadline. He has also stated that the President wants China to implement trade practices that protect U.S. technology and IP and increase market access for American companies. “If that can be done, the President wants us to do it. If not, we'll have tariffs,” he stated, specifying how the U.S. will increase tariffs on $200 billion worth of Chinese goods from ten percent to 25 percent if a deal hasn't been struck by March 1, 2019. Trump could also impose tariffs on $267 billion in additional Chinese goods.
It remains to be seen whether President Trump, author of “The Art of the Deal,” can strike an accord with China on trade issues. Tensions between the two nations are high. What is certain is that the continued trade spat will upset global financial markets and supply chains and breed festering uncertainty for U.S. companies that trade with China.
4. Renegotiating NAFTA
Candidate Trump loved to rail against NAFTA and vowed that he would dismantle and renegotiate it in a manner that yields better returns for the U.S. against its North American neighbors. He did exactly that.
After he was sworn in in May 2017 as the USTR, Mr. Lighthizer said that the U.S. was going to renegotiate NAFTA. Three days after taking office, Mr. Lighthizer formally notified Congress, as required under the Trade Act, that the U.S. intended to renegotiate NAFTA. The purpose of the renegotiation would be to support higher-paying jobs in the U.S. and to grow the U.S. economy by improving U.S. opportunities to trade with Canada and Mexico. The notification stated that the renegotiation will address chapters in NAFTA that are “outdated and do not reflect modern standards.” Specific trade agendas that the negotiation may address include digital trade, IP rights protection, regulatory practices, state-owned enterprises, services, customs procedures, sanitary and phytosanitary (SPS) measures, small and medium-sized enterprises as well as labor and environmental standards.
Canada, however, was, at least in the eyes of the White House, slow to get on board with the negotiations. President Trump, thus, decided to move ahead and negotiate with Mexico. In August 2018, the U.S. and Mexico announced that they had reached “a preliminary agreement in principle” to update NAFTA. The swiftness with which the U.S. and Mexico were reaching agreement forced Canada to participate more directly in the negotiations.
The negotiations ended on September 30, 2018, when the U.S., Mexico, and Canada reached agreement on the revamped accord. Now dubbed the United States-Mexico-Canada Agreement (USMCA), the agreement is more of a modification to NAFTA than a complete rewrite of it. According to Administration officials, USMCA will include new provisions on textiles that incentivize greater North American production in textiles and apparel trade, strengthen customs enforcement, and facilitate broader consultation and cooperation among the parties. More specifically, USMCA will promote greater use of Made-in-the-USA fibers, yarns, and fabrics.
Reviews from industry and others on the renegotiated trade pact garnered positive initial reviews. It is believed that the USMCA will include increased labor protections for workers, increased standards for duty-free auto shipments, increased access to the Canadian dairy market for U.S. farmers, and improvements to the dispute-resolution system. Stocks surged after the trade deal was announced.
Implementation of the USMCA is underway. The devil is in the details, however. Whether the revised agreement lives up to its promises is yet to be seen, but it appears to be a positive step in leveling the playing field for North American trade.
5. Abandoning Multi-Lateral Trade Agreements
President Trump wasted little time in following up on his vow to scuttle multi-lateral trade agreements. Just three days after taking office, on January 23, 2017, President Trump announced the withdrawal of the U.S. from the TPP Negotiations and Agreement. In making the announcement, he stated that it “is the policy of my Administration to represent the American people and their financial well-being in all negotations [SIC], particularly the American worker, and to create fair and economically beneficial trade deals that serve their interests.” He further added that it is his intention to abandon multilateral trade deals and instead deal directly with individual countries on a one-on-one basis in negotiating future trade deals. Similarly, the U.S. abandoned the multi-year negotiations with the EU on the T-TIP accord.
In place of these multilateral agreements, the President has forged ahead with his intent to ink bilateral agreements. On October 16, 2018, Trump formally notified Congress that the U.S. has launched negotiations with the UK on a trade accord. His announcement has received immediate and high praise from many in Congress and the business community. The USTR has also begun trade negotiations with several other nations.
https://www.natlawreview.com/article/forecast-us-federal-and-international-chemical-regulatory-policy-2019-hazardous
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Shutdown Means E.P.A. Pollution Inspectors Aren’t on the Job
Jan 9, 2019 | New York Times
By Coral Davenport
The two-week-old shutdown has halted one of the federal government’s most important public health activities, the inspections of chemical factories, power plants, oil refineries, water treatment plants, and thousands of other industrial sites for pollution violations.
The Environmental Protection Agency has furloughed most of its roughly 600 pollution inspectors and other workers who monitor compliance with environmental laws. Those scientists, engineers and analysts are responsible for detecting violations that endanger human health, as they did, for example during an August 2018 airborne inspection that found that oil and gas fields in Karnes County, Tex., were leaking illegal levels of chemicals into the atmosphere, in violation of the Clean Air Act.
While the inspection personnel represent a relatively small proportion of the E.P.A.’s total of about 15,000 workers, their absence increases the chances that, either by design or by accident, companies might emit illegal levels of contaminants into the air or water without detection, for weeks on end, according to people familiar with the E.P.A. inspections.
“There are plants that discharge wastewater into streams and rivers, places that store hazardous chemicals in containers that could leak — we show up and test these places to see if they’re meeting pollution laws,” said Garth Connor, a furloughed E.P.A. inspector based in Philadelphia who has been off the job since Monday. “Now there’s nobody out there to check if they’re complying.”
Mr. Connor inspects for air and water pollution and hazardous waste disposal at sites throughout the Mid-Atlantic.
The inspectors “are the cops on the beat,” Cynthia Giles, who headed the E.P.A. enforcement division during the Obama administration, wrote in an email.
She noted that, in 2017, E.P.A. workers performed about 11,700 such inspections, averaging to about 225 inspections per week, according to theagency’s records. The numbers suggest that hundreds of such inspections may have already been canceled this year, with the potential for hundreds more to not take place should the shutdown continue for days or weeks more.
“Those weeks can never be made up,” Ms. Giles wrote. “In addition to the violations not found and the inspections not done, there is also the impact of no inspectors in the field doing unannounced inspections,” she added, asking: “Will that result in more violations because companies know E.P.A. isn’t watching?”
Andrew Wheeler, the acting administrator of the E.P.A., did not respond to an email requesting comment. On Wednesday, President Trump formally nominated Mr. Wheeler, who was confirmed last year as the deputy chief of the agency, to formally take over as the agency head.
When on the job, E.P.A. inspectors regularly cite companies for violations that endanger human health. For example, during an April 2016 inspection at a Firestone rubber plant in Sulphur, La., E.P.A. inspectors discovered that the plant was emitting illegal levels of butadiene, a carcinogen, into the community.
A telephone message left at the plant was not returned.
Some E.P.A. inspections are unannounced. Others take the form of two- and three-week on-site visits.
Still other examinations don’t happen on-site: E.P.A. experts sitting in labs or at computers will review documents detailing a plant’s own reported emissions of pollution or wastewater, checking whether legal limits were met or violated. These activities, too, are on pause during the shutdown.
Inspectors need to read those reports “and say, ‘no, you can’t do that,’” said Eric Schaeffer, who worked at the E.P.A. on enforcement from 1990 to 2002 and now runs the Environmental Integrity Project, an advocacy group. “Then they follow up and go on-site. But none of that is happening.”
Unlike other federal agencies affected by the government shutdown, the E.P.A. continued to operate through the week of Dec. 24, but pollution inspections, along with most of the rest of the work of the agency, had ceased by New Year’s Eve.
Mr. Schaeffer recalled the effect on pollution enforcement of the longest government shutdown in history, which ran from Dec. 16, 1995, to Jan. 6, 1996.
“That was one of the worst years ever at the E.P.A. in terms of numbers of inspections and enforcement,” he said. He added that the damage to the work of pollution inspections didn’t end completely once the government reopened. “Everything was ground to a halt, bogged down. You can’t just restart at 100 miles per hour. You have to reschedule everything.”
Another former E.P.A. official who now lobbies on behalf of industry offered a different view, saying that a shutdown of even a few weeks was unlikely to make much difference in the amount of illegal pollution emitted or detected.
“What you have is a delay,” said the former official, Jeffrey Holmstead, who served in the E.P.A. during both Bush administrations and now works for some of the largest coal companies and electric utilities in the country. “I don’t think it’s true that all of a sudden, because E.P.A.’s inspectors are not there, that most people will take advantage of that,” he said. “There may be a few folks who believe they can get away with more, but I don’t think that’s the biggest issue.”
Among Mr. Holmstead’s clients are several companies that have been cited for violations by the E.P.A., including the electric utility Southern Company, which has had 52 sites with violations over the past five years, including 23 sites with current violations, according to E.P.A.’s enforcement database. An email sent to a Southern Company spokesman requesting comment on the violations was not answered.
Another of Mr. Holmstead’s clients, the electric utility, Ameren, owns 23 sites that have been cited for pollution violations over the past five years. A telephone message left with an Ameren spokeswoman was not returned.
In many years, about 10 to 20 percent of the E.P.A.’s pollution inspections turn up significant violations, according to the agency’s data.
Most operators “really are doing a good job,” said Adam Kushner, a former top legal official at the E.P.A. “But there’s a 1 percent that are bad actors, who will continue to do what they’re going to do, unless inspectors find them. And then there are sites where the operator just may not have identified the problem, and they’re putting bad stuff out into the air without knowing it.”
Angela McFadden, a furloughed E.P.A. environmental engineer who inspects water sites, said that in just about every inspection she does, “I always find violations, even if it’s not things that are illegal.” For example, she said, in inspecting municipal water systems in rural West Virginia she frequently found that cities and towns over-chlorinate or under-chlorinate their water — not a legal violation, but a potentially harmful situation that is easily corrected when identified by an inspector.
Ms. McFadden recalled a more frightening inspection she once performed that found excessive nitrate levels in a municipal water supply. Nitrates can sap oxygen from the blood and, when found in high levels in drinking water, are linked to “blue baby syndrome,” in which infants struggle to deliver enough oxygen to their bodies.
“Right now, E.P.A. is not monitoring any of that,” Ms. McFadden said. “Things are falling through the cracks.”
https://www.nytimes.com/2019/01/09/climate/epa-pollution-inspection-shutdown.html
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Unions Tout Waxman-Markey As Alternative To 'Green' Deal, Carbon Tax
Jan 10, 2019 | Inside EPA
By Dawn Reeves
Seven energy-related labor unions are urging Congress to revisit the Waxman-Markey cap-and-trade climate bill that passed the House in 2009 in lieu of both a carbon tax and a so-called “Green New Deal” that are gaining political traction, putting further strain on an already divided Democratic caucus.
The unions last month crafted a position paper, "Preliminary Labor Positions on Climate Change Legislation," that expresses worry about the job implications of a carbon tax and "grave concerns about unrealistic solutions" in the Green New Deal -- a plan by progressive Democrats to transition to an entirely renewable electricity sector by 2030.
Instead, the paper says a market-based "emission allowance trading program such as that developed in the 2009 Waxman-Markey bill” is a “good starting point for discussions about future climate legislation. Improving upon that bill could offer strong technology incentives while delivering significant longer-term emissions reductions.”
The push by the unions -- part of the AFL-CIO as well as the Union for Jobs and Environmental Progress, representing boilermakers, electrical workers, mine workers, iron workers, plumbers and pipefitters, and transportation workers -- to revive cap-and-trade comes as House Speaker Nancy Pelosi (D-CA) also appeared to float the idea of using that bill as a starting point for legislation in the opening days of the 116th Congress.
“We couldn't pass in the Senate our climate bill, and we'll be returning to that,” she told a Jan. 3 MSNBC town hall.
Sponsored by then-Reps. Henry Waxman (D-CA) and Ed Markey (D-MA), the measure narrowly passed the House 219-212 in June 2009. A year later, then-Senate Majority Leader Harry Reid (D-NV) said upcoming energy legislation would not include a cap on greenhouse gas emissions, effectively killing the effort.
In response, President Barack Obama said there is “more than one way to skin a cat,” and directed EPA to develop sector-specific GHG rules including the Clean Power Plan (CPP) and other measures the Trump administration is now rolling back.
The Waxman-Markey bill would have created a carbon trading market to reduce emissions 17 percent from 2005 levels by 2020. Republicans and larger industry groups roundly criticized the measure as a job killer, with many observers arguing that cap-and-trade approaches became too politically toxic to embrace at the federal level.
Even though the legislation was not enacted, experts say the United States might still hit the 17 percent target by 2020 -- a goal the Obama administration first floated during 2009 international climate talks in Copenhagen.
But the issue and cap-and-trade are both back on the table again, at least in the new Democratic-controlled House. Pelosi called climate change the "existential threat of our time" when she retook the Speaker's gavel Jan. 3 and also revived a select climate committee to boost attention to the issue.
Labor unions, which helped draft parts of Waxman-Markey, now see it as a much better approach than a carbon tax or the Green New Deal, in particular because the prior bill included provisions to encourage carbon capture and sequestration (CCS), including a "bonus allocation program" granting two-for-one credits if a power plant installed and operated CCS.
"If a plant used CCS it would get a two-for-one bonus, so for every ton that was stored through CCS it would get an extra allowance . . . to put on the market to defray the cost of CCS," one policy adviser to the unions explains. That concept was taken from the earlier acid rain trading program adopted in 1990, which offered bonus allowances for plants that complied early by installing scrubbers, the source adds.
'Instant Death'
The unions "do not want to see the elimination of fossil fuel" and believe the two other oft-discussed climate mitigation approaches would quickly lead to that outcome.
The source calls a carbon tax "instant death" regardless of the selected tax rate because coal plants would immediately shift to natural gas. "You could not shut down the coal plants fast enough," the source says, noting that is what happened when Northeast and Mid-Atlantic states adopted the Regional Greenhouse Gas Initiative (RGGI), which set low carbon prices of $2 and $3 per ton. "That's why RGGI states lost their coal generating capacity" so quickly.
Intended for Congress, the position paper was crafted throughout December and went through a half dozen drafts before winning support from the unions, the source explains.
Regarding Pelosi's comments referencing the cap-and-trade bill, the source says it is “gratifying” that she also appears to believe Waxman-Markey is “the appropriate starting point for deliberations by the select committee on climate. The position recommended by the seven labor unions recognized that the use of an allowance allocation program with bonus allowances for CCS deployment was the best means to ensure widespread commercial use of CCS technology. That in turn can be expected to generate significant job benefits for CCS construction and operation."
The source cites comments on the Green New Deal by freshman Rep. Alexandria Ocasio-Cortez (D-NY) on the Jan. 6 broadcast of 60 Minutes, where she called the plan to transition to an all-renewable energy system in 11 years a "goal" that is "ambitious."
She is "basically acknowledging . . . that this cannot be done. . . . It's just an aspirational goal. It is difficult to take seriously when it's not a bill, and I'd sure like to see the bill that accomplishes that,” the source says.
The paper similarly criticizes the Green New Deal -- which also promises a federal job guarantee with a living wage for all Americans willing and able to work -- and says any legislation addressing carbon emissions reductions must also minimize the impact on the millions of fossil fuel-reliant jobs.
It notes that the unions have "consistently advocated for a comprehensive, economy-wide legislative solution" and calls legislation "essential for crafting appropriate worker adjustment assistance programs.”
The paper outlines a host of principles for any cap-and-trade legislation, including that it cover all major emitting sectors and that each be given their own cap; that caps should not be imposed for a decade after passage to allow time for compliance planning; that the bill should include the CCS bonus program; that prescribed emission reductions be determined based on technology cost and availability; and that utilities should receive a longer time frame to comply due to the need to develop CCS.
The unions are advocating for a single federal trading program rather than state-by-state caps, with interstate trading allowed. They also call for the free distribution of allowances, opposing auctions as a form of "double taxation;" few limitations on banking and borrowing; language to maintain fuel diversity among fossil, nuclear and renewables; a dramatic boost in the Energy Department's budget to accelerate CCS commercialization; and protections for workers in adversely impacted industries.
The paper also notes that legislation is far preferred over EPA GHG rules, because "the Clean Air Act is not an appropriate vehicle" to address the problem.
'Reverse Hands Of Time'
It is not clear if the push to again consider cap-and-trade will gain steam, given significant energy on the left for a Green New Deal, though many top Democrats, including Energy and Commerce Committee Chairman Frank Pallone (D-NJ) -- is throwing cold water on the feasibility of moving to an all-renewable electricity system within 11 years as envisioned in progressive's plan.
At the same time, some industry groups and moderate Republicans see a carbon tax as a simpler way to reduce emissions.
There is also unlikely to be much support in the GOP-controlled Senate to consider climate policies, and it is highly doubtful President Donald Trump would sign any legislation on the matter.
The union paper could be an early response to concerns that Trump could lose to a progressive Democrat in 2020, who would then seek to revive the strict Obama regulatory climate policies such as the CPP.
Even so, this is not the first time that observers have openly wondered whether the energy industry would have been better off if Waxman-Markey had been enacted. In 2015, Rep. John Yarmuth (D-KY) at an EPA budget hearing discussed the state of play if Waxman-Markey had passed.
"Is it fair to say that if [the bill] had been enacted into law and not been stopped by Senate Republicans that we would not be involved with the Clean Power Plan rules right now?" he asked. In response, then-EPA Administrator Gina McCarthy said, "It might have impacted the choice considerably and the requirements moving forward."
Also expressing support for the bill was Quin Shea of the Edison Electric Institute, who earlier that year suggested taking a poll of those "would like to reverse the hands of time [and create] a national program that tried to minimize winners and losers instead of a piecemeal regulatory approach?”
https://insideepa.com/daily-news/unions-tout-waxman-markey-alternative-green-deal-carbon-tax
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Democrats See Need for Mix of Newcomers, Veterans on Climate Panel
Jan 9, 2019 | BNA Daily Environment Report
By Dean Scott
House Democrats face a choice in filling slots on their resurrected climate committee: fill it with some of the 40 newcomers pushing for faster action on climate change, or mix and match with more seasoned members on energy and climate policy.
House Democrats are still a week or two away from filling rosters not only on the new House Select Committee on the Climate Crisis but also on most other committees. Thus far Democrats have only decided the chairmanship of the climate panel, tapping Rep. Kathy Castor (D-Fla.), first elected in 2006.
Climate activists disappointed in the modest authority awarded the committee—it won’t be able to move legislation or subpoena witnesses—are looking for a win.
They want to see a good number of committee slots go to newly elected Democrats who endorsed a Green New Deal, which calls for fueling the U.S. on 100 percent clean energy in a decade.
A spokesman for the most prominent Green New Deal backer, Rep. Alexandria Ocasio-Cortez (D-N.Y.), cited both the subpoena and legislative limitations of the committee.
“A car without wheels isn’t very useful in getting you places,” the spokesman told Bloomberg Environment Jan. 9.
But he declined to say which committee assignments Ocasio-Cortez has requested, including whether she wants a slot on the climate panel. He said only that she is requesting “multiple committees.”
Sunrise Movement co-founder Varshini Prakash tweeted Jan. 7 that House Speaker Nancy Pelosi (D-Calif.) and other Democratic leaders “may have shut down” a powerful committee, “but they can’t hold our generation back.”
Sensenbrenner InterestedThe exact timing on announcements, including which Democrats will land on the 15-member climate panel, depends on when House Democrats’ Steering and Policy Committee is able to meet and recommend committee rosters.
The larger House Democratic caucus then would ratify those selections, Drew Hammill, Pelosi’s deputy chief of staff, told Bloomberg Environment Jan. 8.
On the Republican side, Rep. Jim Sensenbrenner (Wis.) is one of the few in his party openly seeking a spot on the climate panel, Sensenbrenner spokesman Chris Krepich said.
Sensenbrenner has questioned whether the planet is warming and opposed action to curb U.S. emissions of heat-trapping gases and is the only House Republican left from the previous climate panel member Pelosi created in 2007.
Several senior Energy and Commerce Committee Republicans said they are keeping their distance. Rep. John Shimkus (R-Ill.) told Bloomberg Environment he is focused mostly on winning the ranking minority slot on Energy and Commerce’s environment subcommittee.
Former GOP panel member Marsha Blackburn (Tenn.), now a senator, said she would advise House members considering a climate panel slot to keep expectations modest.
“One thing to bear in mind is a select committee cannot push forward any legislation,” she said. Significant climate legislation, then and now, has “to go through Energy and Commerce.”
Rep. Earl Blumenauer (D-Ore.), who also was a member of the previous climate committee, sees it differently.
“It was absolutely some of the more important time I spent” in Congress, Blumenauer told Bloomberg Environment.
“What’s different now, eight years later, is we have the business community, colleges, universities, churches, all are moving forward. Oil companies are putting a price on carbon in their financial planning,” Blumenauer said. “This is a different world.”
Subpoena RecommendationsThe previous climate committee had subpoena power but used it only once.
In 2008, Democrats and Republicans voted unanimously to subpoena EPA former Administrator Stephen Johnson for documents that then-Rep. Ed Markey (D-Mass.), the chairman of the climate committee, sought from the Bush administration on whether it viewed carbon dioxide as a danger to human health and welfare. Markey is now a senator from Massachusetts.
The new panel can’t issue subpoenas or take sworn depositions on its own. Instead it is authorized to refer requests to other committees, including the House Committee on Oversight and Reform.
Rep. Elijah Cummings (D-Md.), chairman of that committee, told Bloomberg Environment that he will take such referrals seriously. He also plans joint hearings with the climate panel.
Deciding the climate committee roster could be an opportunity to showcase younger members whose wins helped Democrats pick up 40 seats in the House, according to Cummings.
“Some of these young members, they are fresh from the front, and they bring a new approach,” Cummings said.
Castor Bridges the GapA senior Democrat on the Energy and Commerce Committee and chairman of the House Foreign Affairs Committee, Rep. Eliot Engel (D-N.Y.), said tapping Florida’s Castor, also an energy committee member, provides some flexibility.
Castor has been a “forceful voice to combat climate change,” but “can bridge the gap” between newer and senior members, Engel told Bloomberg Environment.
Veteran members deserve some consideration because they “have been fighting these battles for years in Congress, often with a Republican majority, to no avail,” he said.
But Democrats also owe a huge debt to the wave of new members, he said.
Among freshmen Democrats potentially in the mix: Rep. Mike Levin (Calif.), who won a district held for years by Republican Rep. Darrell Issa. The Democrat, who has made clean energy and climate change a high priority, has expressed interest, a Levin aide said Jan. 8.
https://news.bloombergenvironment.com/environment-and-energy/democrats-see-need-for-mix-of-newcomers-veterans-on-climate-panel-1
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