Preview Newsletter
AM ACC Clips Report - January 16, 2019
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(ACC Mentioned) As You Sow Seeks Transparency On Plastic Pellet Spills From Resin Producers
Jan 15, 2019 | Plastics Today
By Clare Goldsberry
Shareholder advocacy group As You Sow (Oakland, CA) is at it again, this time filing shareholder proposals to hold Chevron Phillips Chemical Co., DowDupont and ExxonMobil accountable for pellet spills from their operations that produce resin. -
(ACC Mentioned) LafargeHolcim Taps Kristin Beck For Senior VP of Supply Chain in the U.S.
Jan 16, 2019 | Aggregates Manager (blog)
By Kerry Clines
LafargeHolcim announced that Kristin Beck has assumed the role of senior vice president of Supply Chain for the United States. Beck has more than 23 years of experience in global supply chain and transportation management. -
Shutdown Shrinks As Thousands More Employees Called In To Work Without Pay
Jan 15, 2019 | PoliticoPro
By Sam Mintz, Beianna Guciullo, Brian Faler and Ben Lefebvre
Thousands of aviation safety inspectors and hundreds of food, drug and medical inspectors are heading back to work without pay — and so will tens of thousands of Internal Revenue Service employees if the government shutdown is still in place when tax season begins Jan. 28. -
Kasowitz Tells DC Circ. That Chem Cos. Hid Dangers
Jan 16, 2019 | Law 360
By Michael Phillis
Kasowitz Benson Torres LLP told the D.C. Circuit on Monday that a lower court got it wrong when it tossed the firm's suit accusing four chemical companies of violating the Toxic Substances Control Act by failing to tell the U.S. Environmental Protection Agency about a chemical's alleged danger. -
Two Moms Are Suing The Federal Government For Not Banning The Chemical That Killed Their Sons
Jan 16, 2019 | Buzzfeed
By Nidhi Subbaraman
Two women whose sons died after being exposed to a toxic chemical in paint strippers are suing the EPA in the latest attempt to compel the agency to ban the chemical. -
House Bill Seeks Fluorinated Chemical Cleanup Power for EPA (1)
Jan 16, 2019 | BNA Daily Environment Report
By Sylvia Carignan
Three Michigan members of Congress want to set a deadline for EPA to start ordering the cleanup of a ubiquitous family of chemicals through Superfund law. -
Environmentalists Expand Push For State PFAS Technology Standards
Jan 16, 2019 | Inside EPA
By Suzanne Yohannan
Environmentalists are petitioning officials in Michigan -- a state with extensive contamination from perfluorinated compounds -- to adopt technology-based drinking water standards for the entire class of chemicals, expanding on a campaign that has so-far focused on Northeast states. -
After EPA Vow, House Group Intensifies Push For PFAS Superfund Listing
Jan 15, 2019 | Inside EPA
By Suzanne Yohannan
A bipartisan group of House lawmakers from Michigan is intensifying its push for EPA to list all per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Superfund law, a step that would give the agency authority to compel cleanups, weeks after EPA agreed to list two of the most common PFAS substances. -
US Lawmakers’ Bill Would Trigger Cleanup Of PFAS
Jan 16, 2019 | Chemical & Engineering News
By Cheryl Hogue
A new US congressional bill that would deem all per- and polyfluoroalkyl substances (PFAS) as hazardous substances will pave the way for federal cleanup of PFAS-polluted sites, proponents say. -
Florida’s Natural Orange Juice Glyphosate Suit Out for Good
Jan 16, 2019 | BNA Daily Environment Report
By Julie Steinberg
Citrus World Inc. and Florida’s Natural Growers Inc. won’t have to face a proposed class suit alleging “Florida’s Natural” brand orange juice was misleadingly marketed because it contained trace amounts of the synthetic weedkiller glyphosate. -
Six More Chemicals Listed as High Concern by European Agency
Jan 15, 2019 | BNA Daily Environment Report
By Stephen Gardner
The European Chemicals Agency added six hazardous substances Jan. 15 to a list of high concern chemicals under the European Union’s REACH law, triggering new requirements for companies handling them. -
EU System for Checking Chemicals in Food Seen as Falling Short
Jan 15, 2019 | BNA Daily Environment Report
By Stephen Gardner
Some chemicals in foods are rarely monitored in the European Union, and the whole system of checks on compliance with rules on some 8,000 substances is overstretched, the European Union’s independent financial watchdog said Jan. 15. -
Cosmetics Animal Testing Ban 'Pointless' Due To Echa's Undermining – NGO
Jan 16, 2019 | Chemical Watch
By Caterina Tani
Echa is interpreting EU bans on animal testing in cosmetics so narrowly that it renders them pointless, an NGO has said. -
EU Glyphosate Approval Was Based On Plagiarised Monsanto Text, Report Finds
Jan 16, 2019 | The Guardian
By Arthur Neslen
Study for European parliament ‘explains why EU assessors brushed off warnings of pesticide’s dangers’, says MEP -
Gas Export Company Makes Urgent Plea to Divided U.S. Regulators
Jan 16, 2019 | BNA Daily Environment Report
By Rachel Adams-Heard
A company that wants to export liquefied natural gas from Louisiana made an urgent plea to regulators to greenlight its proposal, which was tabled at a meeting last month amid speculation about a partisan divide at the main agency tasked with permitting energy projects. -
Trump Administration To Bring Back Offshore Drilling Staff During Shutdown
Jan 15, 2019 | The Hill - E2 Wire
By Timothy Cama
The Trump administration is bringing dozens of federal employees back to work to carry out the administration’s plan to expand offshore oil and natural gas drilling. -
China’s U.S. LNG Imports Tanked in 4Q; Rebound Seen on Long-Term Supply Deal
Jan 15, 2019 | Natural Gas Intelligence
By Leticia Gonzales
China imported only two of the 69 liquefied natural gas cargoes sent from the United States in the fourth quarter of 2018, a dramatic fall from the 14 U.S. cargoes it imported a year earlier after a trade war erupted last fall, according to Genscape Inc.’s proprietary monitoring data. -
FERC Appointment Critical to Setting Market-Driven Energy Policy
Jan 15, 2019 | RealClear Energy
By Guy F. Caruso
On the campaign trail and in office, President Trump claims to support using domestic energy resources to restore America’s strength. In the immediate future, the president has an important chance to further that cause by filling a crucial vacancy on the Federal Energy Regulatory Commission (FERC) following the unfortunate passing of Republican Commissioner Kevin McIntyre. -
Pipeline Wars Arrive At Supreme Court. What's Next?
Jan 16, 2019 | E&E Energywire
By Pamela King
Legal fights over the expansion of natural gas pipelines across the East Coast are starting to make their way to the Supreme Court. -
One-Year Extension Eyed As Chemical Security Program Nears Expiration
Jan 15, 2019 | PolitcoPro
By Anthony Adragna
Senate Homeland Security Chairman Ron Johnson (R-Wis.) said he’s considering a one-year lifeline to a program aimed at preventing terrorist attacks on industrial facilities that hold large amounts of chemicals. -
'State Of Panic' — Details Surface On Triton Energy Hack
Jan 16, 2019 | E&E Energywire
By Blake Sobczak
The first emergency shutdown happened on a Saturday evening in June 2017. -
Warning Flags Raised Over Trump Plan
Jan 16, 2019 | E&E Energywire
By Peter Behr
This is the year that U.S. cyber war policy goes on the offensive to protect critical civilian infrastructure against significant threats from Russia, China and other state-backed hacker units, the Trump administration pledges. -
Washington State to Push Ambitious Climate Agenda, Governor Says
Jan 16, 2019 | BNA Daily Environment Report
By Paul Shukovsky
Washington state must embrace the promise of a post-carbon economy with an ambitious agenda to address climate change that includes more electric vehicles and renewable energy, Gov. Jay Inslee (D) said Jan. 15. -
New Congress, New House Push for Environmental Civil Rights
Jan 16, 2019 | BNA Daily Environment Report
By David Schultz
The new 116th Congress may spend more time examining the intersection of race and the environment, and specifically look at how poor and minority communities are affected by climate change. -
Skip Pollution Sensors Where Public Can’t Go, Industry Says
Jan 16, 2019 | BNA Daily Environment Report
By Amena H. Saiyid
Petroleum refineries, chemical companies, and iron and steel manufacturers are seeking what they call a practical approach to monitoring air pollution: It should be done only in areas where the public is exposed to it.
Industry and Association News
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Environment News
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(ACC Mentioned) As You Sow Seeks Transparency On Plastic Pellet Spills From Resin Producers
Jan 15, 2019 | Plastics Today
By Clare Goldsberry
Shareholder advocacy group As You Sow (Oakland, CA) is at it again, this time filing shareholder proposals to hold Chevron Phillips Chemical Co., DowDupont and ExxonMobil accountable for pellet spills from their operations that produce resin. The proposals ask for annual reports disclosing spills and measures taken to prevent and clean them up, said As You Sow’s latest release. As You Sow claims that plastic pellets are estimated to be the second largest direct source of microplastic pollution in the ocean by weight.
Operation Clean Sweep (OCS), a program started 28 years ago by the Plastics Industry Association (PLASTICS) in cooperation with the American Chemistry Council, developed a program to implement best practices to control pellet spills at resin manufacturing plants as well as plastics processing facilities.
Conrad MacKerron, Senior Vice President of As You Sow, said, “The industry’s effort to deal with pellet spills, Operation Clean Sweep, provides no transparency on the scope and nature of spills or efforts made to clean up. Given what we know about the alarming rates of plastic leakage into oceans, companies can no longer hide behind vague pledges of best practices. They need to provide prompt and detailed disclosure about specific actions taken to prevent spills, and when spills occur, information on spill size and actions taken to clean up.”
Pellet spills at processing plants have received much attention over the past couple of decades and most processors as well as resin producers are well aware that these spills can have negative environmental impacts. Pellet spills are also expensive—spilling plastic pellets results in higher costs for the processors, something they try to avoid.
The Dec. 5, 2018, issue of The Clean Sweep newsletter provides profiles of companies that participate in the Plastics Industry Association’s program. Inteplast Group in Lolita, TX, signed up in June 2014, and although the facility was already implementing resin loss and spill prevention practices, the company wanted to align with the OCS, according to Dan Martino, Senior Director, Texas Administration.
Martino explained that his team is “tasked with creating guidelines and policies that address resin control and loss prevention across the manufacturing facility. These policies are utilized by each plant in Lolita when developing specific controls within the manufacturing process. Our team also audits and monitors the 576-acre site for any uncontained resin.” The company is striving for a “zero pellet loss environment.”
Jared Deal, Compliance Manager at King Plastics Inc. (Orange, CA), said that his company joined in 2014 after he “observed signage for Operation Clean Sweep on the side of a railcar of resin in our receiving area,” said a profile in the OCS newsletter. Deal then visited the OCS website and realized that “we had already implemented several best management practices as part of our storm water pollution prevention program, making OCS a natural extension of that program.”
PLASTICS provides many other profiles of its OCS members that prove many companies are working hard to prevent pellet spills in order to save both money and the environment. All companies, including large processors as well as resin producers, are working to prevent spills of valuable plastic pellets. Companies typically are responsible for resin spills and don’t want to waste valuable resin.
While there may be no reporting requirements from members of PLASTICS’ Operation Clean Sweep, the increased work being done by all plastics companies is evident by their awareness of these spills. As You Sow’s efforts involve negative PR for the plastics industry and responsible plastics companies in an attempt to give them a “black eye.” They might want to learn that you catch more flies with honey than vinegar.
https://www.plasticstoday.com/sustainability/you-sow-seeks-transparency-on-plastic-pellet-spills-resin-producers/23590764160093
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(ACC Mentioned) LafargeHolcim Taps Kristin Beck For Senior VP of Supply Chain in the U.S.
Jan 16, 2019 | Aggregates Manager (blog)
By Kerry Clines
LafargeHolcim announced that Kristin Beck has assumed the role of senior vice president of Supply Chain for the United States. Beck has more than 23 years of experience in global supply chain and transportation management.
Before joining LafargeHolcim, Beck worked for Dow Chemical Co., where she has served as the Director, North American Road Logistics since 2014. Prior to that, she held roles of increasing responsibility, including Program Manager-Logistics at Insight Corp. and Senior Account Leader at Schneider Logistics.
Beck earned a bachelor’s degree in industrial science from Central Michigan University and is a certified Six-Sigma Green Belt. She holds certifications as QS/ ISO Quality Manager and Internal and External Auditor from the European Quality Association, as well as Apollo Root Cause Analysis from Effective Problem Solving, LLC.
Beck is a member of the American Chemistry Council and Transceaer, a voluntary national outreach effort that focuses on assisting communities to prepare for and to respond to a possible hazardous materials transportation incident. She has served as conference speakers for organizations, as well as Truckers Against Trafficking Industry, Dow Chemical Annual Core Carrier Conference, and Dow Chemical Annual Safety Director Conference, among others.
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Shutdown Shrinks As Thousands More Employees Called In To Work Without Pay
Jan 15, 2019 | PoliticoPro
By Sam Mintz, Beianna Guciullo, Brian Faler and Ben Lefebvre
Thousands of aviation safety inspectors and hundreds of food, drug and medical inspectors are heading back to work without pay — and so will tens of thousands of Internal Revenue Service employees if the government shutdown is still in place when tax season begins Jan. 28.
In addition, the Interior Department is bringing back dozens of furloughed employees to work on selling oil and gas drilling leases in the Gulf of Mexico — key to President Donald Trump's priority of promoting U.S. fossil fuel production.
Meanwhile, the Environmental Protection Agency has recalled dozens of employees, according to its revised shutdown plan, days after Senate Democrats questioned how the shuttered EPA could justify making workers prepare acting Administrator Andrew Wheeler for his confirmation hearing Wednesday. And the Department of Housing and Urban Development said it is bringing back an undefined number of "additional intermittent employees as needed."
The recalls come as federal agencies cope with the 25-day-long impasse by expanding the types of duties they consider essential, including tasks that have fueled public relations nightmares for agencies in charge of health and safety.
Details on some recalls were hard to come by Tuesday — because agencies had furloughed most of their spokespeople. But these are among the agencies adding to their rosters of on-duty workers even as the shutdown shows no signs of ending:
Federal Aviation Administration
More than 3,800 additional FAA employees are back at work compared with when the shutdown started in December, according to an updated Department of Transportation document published Tuesday. The move comes after union leaders complained that furloughs of inspectors had left the airlines "self-regulating," a trend they said would eventually compromise public safety.
"We are recalling inspectors and engineers to perform duties to ensure continuous operational safety of the entire national airspace," an FAA spokesperson said Tuesday. "We proactively conduct risk assessment, and we have determined that after three weeks it is appropriate to recall inspectors and engineers."
Michael Gonzales, a vice president with the Professional Aviation Safety Specialists union, said around 1,500 inspectors have been brought back to work effective Tuesday.
DOT has also recalled more than 100 workers at the U.S. Maritime Administration and made slight adjustments to the counts of furloughed employees at other subagencies, according to the updated document.
Internal Revenue Service
The IRS said Tuesday that it expects to have 46,052 employees on the job — more than half its workforce — if the shutdown stretches into tax-filing season in late January. That would be a huge jump from its initial shutdown plan, which kept only 9,946 workers on the job.
The IRS's revised shutdown plan said it will continue to process taxpayer refunds because that money is drawn from a "permanent, indefinite refund appropriation" it can tap despite the shutdown. The White House budget office announced last week that the IRS would issue tax refunds despite the shutdown, in a reversal of previous policy.
But many other functions will be shuttered or curtailed, the IRS warned. It will not conduct audits, and collection activities will be generally limited to those that are automated. The agency said it will have some people who can answer phone calls with questions, though the public should be prepared for longer wait times.
People who send snail mail to the agency should expect lengthy delays, the IRS said. The agency’s walk-in “taxpayer assistance centers” will be closed.
“While the government is closed, people with appointments related to examinations (audits), collection, appeals or taxpayer advocate cases should assume their meetings are cancelled,” the agency said.
Food and Drug Administration
The FDA, which has furloughed about 40 percent of its staff, said Tuesday that it’s bringing 400 more people back to work. The "vast majority are inspectors and others are to support inspectors," agency Commissioner Scott Gottlieb said on Twitter, which was serving as a quasi-official medium for many of the agency’s shutdown announcements.
"About 150 of 400 are focused on food inspections, rest are focused on other aspects of mission including medical devices (about 100 staff), drugs (about 70 staff) and biologics (90 staff)," Gottlieb added.
Under the agency's initial shutdown plan, most routine food safety inspections were halted, while unpaid workers were still carrying out tasks such as active investigations of foodborne illness outbreaks.
Gottlieb had said last week that FDA planned to restart food safety inspections at facilities that handle riskier products like fresh-cut produce and seafood. Even when fully funded, however, FDA is not inspecting such facilities very frequently.
Interior Department
Interior's new plan said it would designate dozens of employees as exempted from the furlough if the lapse in appropriations continued past Tuesday. The recalled employees include those working on offshore oil and gas lease sales, including one planned for March.
"Failure to hold these sales would have a negative impact to the Treasury and negatively impact investment in the U.S. Offshore Gulf of Mexico," the bureau said. Its original contingency plan released in December did not include recalls of furloughed employees to help prepare the lease sale documents.
Interior has already said its Bureau of Land Management would continue processing onshore drilling applications during the shutdown.
The department's plans to continue with onshore oil permitting had already drawn fire from Democrats who said the administration is overly focused on drilling over other types of government services, such as health care for American Indian tribes.
"Of all the things that have hit the public lands, of all the things that have hit Indian country because of the shutdown, that whole permitting process continues," House Natural Resources Chairman Raúl Grijalva (D-Ariz.) told POLITICO.
Environmental Protection Agency
An updated version of EPA's shutdown plan shows it now considers 28 employees "necessary to the discharge of the President's constitutional duties and powers," up from 12 in the plan's December iteration. The agency also increased the number of people considered "necessary to perform activities necessarily implied by law" from zero to 12.
EPA also increased the number of workers "necessary to protect life and property" from 794 to 845. That category includes employees such as security guards, emergency response personnel and scientists keeping crucial experiments running.
The total number of EPA workers still on the job, including 53 embedded Public Health Service officers, is now 944, or 6.8 percent of its total workforce.
The agency previously said it had "excepted a limited number of employees" who are authorized to help Wheeler prepare for his confirmation hearing, which the Senate is holding Wednesday despite being unable to find a way to reopen the government. Democrats on the Senate Environment and Public Works Committee cried foul last week about that use of agency resources.
"It is difficult to understand how preparing you for next week's confirmation hearing credibly falls within any of the categories listed in EPA's Contingency plan, particularly the category of employee that is 'necessary to protect life and property,'" Sens. Tom Carper of Delaware, Sheldon Whitehouse of Rhode Island and Ben Cardin and Chris Van Hollen of Maryland wrote in a letter to Wheeler.
The agency defended its actions.
"Participation in and preparation for a confirmation hearing that has been scheduled by Congress is clearly excepted under Department of Justice, Office of Legal Counsel, opinions," EPA General Counsel Matt Leopold said in a statement last week. "Additionally, the Constitutional appointment power allows for EPA to take the steps necessary to ensure the Acting Administrator is prepared for his hearing.”
Bernie Becker, Eric Wolff, Katy O'Donnell, Helen Bottemiller Evich and Sarah Karlin-Smith contributed to this report.
https://subscriber.politicopro.com/energy/article/2019/01/shutdown-shrinks-as-thousands-more-employees-called-in-to-work-without-pay-1088020
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Kasowitz Tells DC Circ. That Chem Cos. Hid Dangers
Jan 16, 2019 | Law 360
By Michael Phillis
Law360 (January 15, 2019, 8:46 PM EST) -- Kasowitz Benson Torres LLP told the D.C. Circuit on Monday that a lower court got it wrong when it tossed the firm's suit accusing four chemical companies of violating the Toxic Substances Control Act by failing to tell the U.S. Environmental Protection Agency about a chemical's alleged danger.
The law firm, acting as a whistleblower under the False Claims Act, said BASF Corp., Covestro LLC, Dow Chemical Co. and Huntsman International LLC are obligated to pay penalties for failing to disclose the alleged harm of isocyanate, which is used to produce polyurethane-based materials contained in products from mattresses to paints. The companies did not tell the EPA about the potential pulmonary injuries the chemical could allegedly cause, in violation of the TSCA's requirements, according to the brief.
That law requires a company to send substantial risk information, or SRI, to the EPA when it is presented with information a chemical could cause "substantial risk of injury to health or the environment."
"Defendants' conduct has resulted in injury to many unsuspecting consumers and workers and has prevented the EPA from discharging its hazard identification and risk assessment responsibilities," the brief said. "Defendants' internal documents establish that the conspiracy was motivated by defendants' interest in maintaining their substantial profits, because disclosure of their concealed SRI would likely result in regulatory action to limit or even completely ban the sale of these chemicals."
The appeal also asserts the chemical companies violated the FCA starting in May 2009, when the "scope of the FCA's reverse false claims provision" was expanded. It says the companies didn't adhere to their responsibilities to provide the SRI information, which obligated a penalty payment.
After uncovering information during discovery in personal injury cases, Kasowitz sued the chemical companies in May 2016, alleging they'd cheated the government out of billions of dollars by hiding the dangers of isocyanate for decades. The case was unsealed in August 2016 after the government declined to intervene. A lower court then tossed the suit in October 2017, ruling that the potential penalties could not be enforced under the FCA.
U.S. District Judge Rosemary M. Collyer ruled that an unassessed potential penalty does not create an "obligation" to pay the federal government under the reverse false claims provision, and the law firm's attempt to characterize alleged unreported SRI information as "property" also could not establish FCA liability.
The duty to pay "exists at the time of the fraudulent conduct" the judge said, adding, "An unassessed, contingent penalty is not an FCA 'obligation' subject to suit under the reverse false claims provision."
The suit claimed that every day since May 2009 that information wasn't provided to the government, the law "imposed an increased monetary penalty on each defendant." That obligation was further enforced by the EPA's Compliance Audit Program, or CAP Contract, from the 1990s that "obligated each defendant to audit and correct any past SRI-transmission failures."
Each of the four companies "breached its obligation to transmit the concealed SRI and instead falsely certified to the EPA that it had transmitted to the EPA all previously untrasmitted SRI," the suit said.
According to Monday's brief, the lower court's ruling "effectively eviscerates the EPA's statutory duty and right to collect any penalties for transmission violations that precede its determination of the violation."
The brief also said the lower court's decision improperly provided an incentive for companies to hide information.
"The district court's dismissal of the money-payment obligation claims not only contradicts the plain language and legislative history of TSCA, but also contradicts the language of the FCA and well-established equitable principles," the brief said. "Defendants' fraud was designed to prevent — and succeeded in preventing — the EPA from learning about the existence of the SRI that was necessary for the EPA effectively to discharge the very enforcement activities the district court held were preconditions to establishing defendants' payment obligations."
Alice Sox of Covestro said in an email to Law360 that the company "maintains its position that we strongly believe the allegations lack merit. Covestro has complied with all federal laws and regulations at issue."
Dow spokeswoman Ashley Mendoza said the lower court properly threw out the case.
"The decision is in accord with every other case to have considered such a theory, and with the position taken by the U.S. Department of Justice, which is that the False Claims Act does not allow such a suit. Furthermore, Dow has complied with all the federal laws and requirements at issue," Mendoza told Law360 in an email.
Huntsman said an appeal was expected and it expects the lower court's opinion to be affirmed.
BASF and Kasowitz Benson Torres declined to comment.
Kasowitz Benson Torres is represented by its own Daniel R. Benson, Hector Torres and Andrew A. Davenport.
Dow is represented by Christopher Landau of Quinn Emanuel Urquhart & Sullivan LLP, and Alice S. Fisher, Anne W. Robinson and Steven M. Bauer of Latham & Watkins LLP.
BASF is represented by Seth A. Rosenthal of Venable LLP.
Covestro is represented by William F. Goodman III and Fred M. Haston III of Bradley Arant Boult Cummings LLP.
Huntsman is represented by Raymond A. Cardozo, Brian A. Sutherland and Lawrence S. Sher of Reed Smith LLP.
The case is U.S. ex rel. Kasowitz Benson v. BASF Corp. et al., case number 18-7123, in the U.S. Court of Appeals for the District of Columbia Circuit.
--Additional reporting by Daniel Wilson. Editing by Breda Lund.https://www.law360.com/governmentcontracts/articles/1118639/kasowitz-tells-dc-circ-that-chem-cos-hid-dangers
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Two Moms Are Suing The Federal Government For Not Banning The Chemical That Killed Their Sons
Jan 16, 2019 | Buzzfeed
By Nidhi Subbaraman
Two women whose sons died after being exposed to a toxic chemical in paint strippers are suing the EPA in the latest attempt to compel the agency to ban the chemical.
Joshua Atkins was 31 when he died from exposure to methylene chloride while refinishing a bike part in a bathroom in his mother’s house. Atkins, who was a BMX biker, had been using Rust-Oleum Aircraft Remover, a solvent that strips finishes from metal.
“Had this been banned when it should have been banned, my son would still be here,” plaintiff Lauren Atkins, who lives in Pennsylvania, told BuzzFeed News.
The EPA under president Obama had proposed banning the use of methylene chloride in paint strippers for consumer products and commercial uses. But the agency has yet to implement the ban.
“The EPA is the one that deemed it unreasonably risky and hazardous to human health and they’re the ones that haven’t banned it,” Atkins said. “I don’t understand that.”
Rust-Oleum’s Aircraft Remover is one of many products that contain methylene chloride, along with paint removers, commercial adhesives, and cleaning products for machines and cars. (Rust-Oleum did not respond to a request for comment.) Most often, people are exposed to the chemical when they breathe it in, according to the CDC. High exposure can cause dizziness and nausea, burn the skin, and damage the central nervous system.
Ahead of an EPA ban, some sellers — including Walmart, Lowe’s, Sherwin-Williams, and Amazon — have committed to phasing out or dropping products that contain methylene chloride.
“It’s a very dangerous chemical, and since the [EPA] rule was proposed in 2017, there have been at least four deaths and there will probably be more deaths unless the EPA acts to get it off the market,” Bob Sussman, one of the attorneys representing Atkins and the other plaintiffs in this lawsuit, told BuzzFeed News. Sussman was the EPA’s deputy administrator under president Clinton and served as senior policy counsel to former administrator Lisa Jackson, who led the agency under Obama.In May of last year, after lawmakers questioned former EPA administrator Scott Pruitt about the agency’s delay in regulating the chemical, the agency announced that it intended to finalize the ban, and would send a final version to OMB “shortly.” That month, Pruitt met with the families of two men who died after being exposed to methylene chloride.
Wendy Hartley, who is also suing the EPA, was among those who met Pruitt last year. Her son Kevin died in April 2017 while he was working at his family’s company on a job finishing bathtubs. He was 21.
Kevin was using a paint stripper called White Lightning Low Odor Stripper, Hartley wrote in an op-ed last year in the Tennessean. “He was careful: he wore a respirator mask to filter out toxic chemicals, but that wasn’t enough. This chemical is so dangerous that it overcame the mask and Kevin succumbed to the fumes.” (NAPCO, which makes White Lightning, did not respond to a request for comment.)Since 2000, at least 14 workers have died while using products containing the chemical in bathtub refinishers, according to the Department of Labor’s Occupational Safety and Health Administration.
The lawsuit states that both Kevin Hartley and Joshua Atkins died from inhaling methylene chloride. In addition to Atkins and Hartley, the environmental groups Safer Chemicals, Healthy Families and the Vermont Public Interest Research Group are also included in this lawsuit. It was filed Monday in the US District Court for the District of Vermont.
The EPA sent the proposed ban language on Dec. 21 to the Office of Management and Budget, EPA spokesperson John Konkus told BuzzFeed News. This White House office is required to approve all big agency rules before they are published, but the government shutdown has left the review in limbo.
But experts are concerned that the EPA may be deviating from the ban that Pruitt committed to in May 2018. Another EPA filing to the OMB, also sent Dec 21., indicates that the final ban may only apply to consumers, excluding workers like Kevin Hartley. This “prerule” seems to suggest a training program for workers who use methylene chloride — which would be unnecessary if a full ban is in place.
“All the indications we’ve received suggest that they’re backing off on necessary protections for workers,” Jonathan Kalmuss-Katz, a staff attorney at the environmental group Earthjustice, told BuzzFeed News.“It’s disturbing that EPA is not taking action here and that even now is hedging its bets,” Sussman said.
Meanwhile, the EPA could be facing another wave of litigation. Earthjustice, which represents the Labor Council for Latin American Advancement and whose members are workers in construction and renovation, and Natural Resources Defense Council both filed paperwork with the EPA last year indicating they intended to sue.
https://www.buzzfeednews.com/article/nidhisubbaraman/methylene-chloride-ban-toxic-lawsuit
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House Bill Seeks Fluorinated Chemical Cleanup Power for EPA (1)
Jan 16, 2019 | BNA Daily Environment Report
By Sylvia Carignan
Measure would give EPA power to order PFAS cleanup
Michigan lawmakers set one-year deadline for EPA to update hazardous substances list
Three Michigan members of Congress want to set a deadline for EPA to start ordering the cleanup of a ubiquitous family of chemicals through Superfund law.
Michigan Reps. Dan Kildee (D), Debbie Dingell (D), and Fred Upton (R) introduced a bill (H.R. 535) Jan. 14 that would give the Environmental Protection Agency the power to order cleanups of per- and polyfluoroalkyl substances, which have been contaminating drinking water systems throughout the country.
States currently carry the burden of finding and asking parties to pay for cleanup.
The compounds, also known as PFAS, have been used to manufacture nonstick and stain-resistant coatings in clothing, fast-food wrappers, carpets, and other consumer and industrial products.
Michigan declared a state of emergency for Kalamazoo County last July to address an “unacceptable level” of PFAS in drinking water in the town of Parchment. States and the EPA haven’t reached a consensus on how much PFAS is safe to consume.
If the bill becomes law, the EPA would have one year to designate the substances “hazardous” under the Comprehensive Environmental Response, Compensation, and Liability Act, which guides the agency’s Superfund program. The EPA had been considering whether to give the substances that designation, but hasn’t yet made a decision.
That designation would give the EPA the ability to recover funds spent cleaning up PFAS, Peter Grevatt, who led the EPA’s efforts to address the substances, said at a House committee hearing in September. Grevatt left the agency in December.
The designation could also provide a “stronger regulatory basis” for states to intervene in cleanup at contaminated sites, Jeffrey Dintzer, environmental and land use lawyer at Alston & Bird in Los Angeles, said in an email.
A companion version of the bill has not been introduced in the Senate.
(Adds insight from Jeffrey Dintzer in eighth paragraph.)
https://news.bloombergenvironment.com/environment-and-energy/house-bill-seeks-fluorinated-chemical-cleanup-power-for-epa-1
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Environmentalists Expand Push For State PFAS Technology Standards
Jan 16, 2019 | Inside EPA
By Suzanne Yohannan
Environmentalists are petitioning officials in Michigan -- a state with extensive contamination from perfluorinated compounds -- to adopt technology-based drinking water standards for the entire class of chemicals, expanding on a campaign that has so-far focused on Northeast states.
While the Conservation Law Foundation (CLF), a New England environmental group, late last year began a campaign to press states in its region to set such standards, the Natural Resources Defense Council (NRDC) last month asked officials in Michigan to set both health-based chemical-specific drinking water levels for some per- and polyfluoroalkyl substances (PFAS) and technology-based drinking water standards for the class of chemicals, as the state undertakes a sweeping examination looking at the extent of contamination in Michigan from the chemicals.
In letters to then-Gov. Rick Snyder (R) and current Gov. Gretchen Whitmer (D), as well as the state Department of Environmental Quality (DEQ), NRDC called Michigan "the epicenter of a nationwide PFAS crisis" and urged officials to act now, in the absence of federal standards, to adopt both health-based drinking water standards for five PFAS as well as a technology-based "treatment technique" standard for the full class of PFAS.
NRDC's Dec. 5 petition asks the state to exercise its authority to regulate five PFAS: perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), perfluoronononanoic acid (PFNA), perfluorohexane sulfonic acid (PFHxS) and GenX, under its drinking water law and to issue treatment technique drinking water standards for total PFAS in drinking water.
"The present crisis necessitates swift adoption of stringent Maximum Contaminant Levels [(MCLs)] and Maximum Contaminant Level Goals [(MCLGs)] for PFOA, PFOS, PFNA, PFHxS, and GenX due to the clear and mounting evidence demonstrating the link between low dose-exposures to these chemicals and serious human health risks, including cancer and adverse immunological, developmental and neurological affects," the group says.
MCLGs are non-enforceable drinking water concentrations that are purely based on health effects, while MCLs are enforceable and consider costs and benefits in addition to the health effects covered by the MCLGs. MCLs are "the maximum permissible level of a contaminant in water delivered to users of a public water system," EPA says on its website.
Erik Olson, a senior attorney at NRDC, said in an interview that the group is targeting states such as Michigan because it has serious PFAS contamination issues, and environmentalists believe they can move the state forward on the matter.
Michigan is considered the "hotspot of the PFAS crisis" due to the increasing number of sites with PFAS contamination there, NRDC says. It has been found in communities throughout the state, including in drinking water in Ann Arbor, which serves a population of 114,000, as well as in individual water systems in several counties.
The group also notes the state's authority -- as well as citizens' enforcement abilities under state law -- to address drinking water contaminants. Michigan's drinking water law gives the DEQ explicit authority to issue standards for drinking water safety, and the Michigan Environmental Protection Act "imposes upon the state a broad mandate, enforceable by citizens," for protecting water from pollution or impairment, it says.
State Action
PFAS number in the thousands, and have become ubiquitous in the environment after being used in a multitude of applications, including in firefighting foam, textiles, cookware and other non-stick applications.
While exposure causes cancer and other harms, EPA has been slow to regulate the substances, and has warned that even if it decides to set MCLs, they would take years to complete.
That has left it up to states to step in -- though environmentalists, states and many lawmakers continue to press the agency to act.
As EPA has grappled with whether to set MCLs, CLF, the New England group, last year began petitioning Northeast states to set enforceable treatment technique standards for drinking water utilities to address the PFAS class -- an interim step that the group hopes will limit exposures while it awaits chemical-by-chemical MCLs.
NRDC's petition to Michigan echoes their approach, seeking both a treatment standard and individual MCLs for individual chemicals.
For example, NRDC urges Michigan to set an MCL within 180 days for PFOA, PFOS, PFNA and PFHxS at a combined concentration of 2 parts per trillion (ppt), far stricter than the 70 ppt EPA has set as an unenforceable drinking water health advisory level for PFOA and PFOS and which the state adopted as a groundwater cleanup standard.
The group also calls for an MCL of 5 ppt for GenX. The MCLG for all five chemicals should be 0 ppt, it says.
In addition, the group says that while there is limited data on other PFAS beyond the five it names, "a growing body of scientific research indicates that the class collectively poses similar threats to human health and the environment.
Therefore, Michigan should also set an MCLG and a treatment technique for the entire class of PFAS, it says. NRDC explains in a footnote that treatment techniques are "an enforceable procedure or level of technological performance which public utilities must follow to ensure control of a contaminant."
The group says the state should set an MCLG of 0 ppt for the PFAS class, and a treatment technique for the class "based on the best available detection and treatment technologies."
Further, it says Michigan should lower its 70 ppt groundwater cleanup standard to 2 ppt, and incorporate combined levels of PFNA and PFHxS into that standard. The groundwater cleanup level for GenX should be 5 ppt, it adds.
NRDC Report
The petition says NRDC plans to release a scientific report early this year on PFAS that will give the scientific basis for NRDC's recommendations for regulatory action by Michigan. It notes that a significant body of scientific literature shows the five chemicals' association with adverse effects such as immunotoxicity, developmental harm, and cancer.
NRDC says its report will further make the case for why even the federal Agency for Toxic Substances & Disease Registry's draft toxicological profile does not go far enough -- despite it citing draft risk values much more stringent for PFOA and PFOS than those EPA used for its health advisories. The group says despite EPA's announcement of undertaking an interagency effort to address PFOA and PFOS, it doubts any federal agency will set an enforceable standard regulating PFAS in drinking water in the foreseeable future -- maintaining a "woefully insufficient" posture toward protecting public health.
As to the entire class, the group says growing evidence shows that the substances pose similar threats to human health and the environment as the five PFAS that have been more thoroughly studied. The class of chemicals is persistent, highly mobile and has been associated with many different types of toxicity at very low exposure levels, it says.
"The 2014 Helsingor and 2015 Madrid Statements, founded on extensive reviews of the scientific literature, provided consensus from more than 200 scientists on the adverse health risks associated with the PFAS class," it says. Several adverse health outcomes have been reported for other PFAS, such as decreased antibody response and endocrine disruption, it says.
The class therefore poses a health threat and an MCLG of zero should be established for the entire class "to protect public health and avoid a 'whack a mole' problem whereby dangerous PFAS are swiftly replaced by one another and regulatory action fails to keep pace," it says.
Further, the state should set a treatment technique for the class within two years, relying on the best detection and treatment technologies available. "The state should, as part of the process, evaluate analytical techniques, including [total oxidizable precursor assay (TOPA)], to help measure the concentration of non-discrete and difficult to measure PFAS compounds." It explains that TOPA is a method using indirect measurement to more comprehensively assess the range of PFAS contamination of a sample.
An NRDC spokeswoman says Michigan has not yet taken action to initiate rulemakings in response to the group's request.
https://insideepa.com/daily-news/environmentalists-expand-push-state-pfas-technology-standards
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After EPA Vow, House Group Intensifies Push For PFAS Superfund Listing
Jan 15, 2019 | Inside EPA
By Suzanne Yohannan
A bipartisan group of House lawmakers from Michigan is intensifying its push for EPA to list all per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Superfund law, a step that would give the agency authority to compel cleanups, weeks after EPA agreed to list two of the most common PFAS substances.
Reps. Debbie Dingell (D), Dan Kildee (D) and Fred Upton (R), all from Michigan, Jan. 14 introduced H.R. 535, a bill dubbed the “PFAS Action Act” which would designate all PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA).
The bill is more aggressive than previous legislation the lawmakers introduced last fall, H.R. 6835, which would have required EPA to “make a determination” as to whether to designate PFAS as CERCLA hazardous substances, rather than compel the agency to do so, as the new bill would do.
But the measure comes after EPA privately agreed to a since-blocked deal with the Senate under which the agency would have listed the two most common PFAS -- perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) -- as hazardous substances under CERCLA.
The deal, which would also have seen EPA revise its controversial proposed “secret science” rule and advance the long-sought draft assessment of formaldehyde risks, was part of a package of steps the agency would have taken in exchange for confirmation of industry attorney Peter Wright to lead EPA's Office of Land and Emergency Management.
But as Inside EPA first reported, the deal fell apart when Sen. Robert Menendez (D-NJ) insisted on a recorded vote rather than allowing approval by unanimous consent.
PFAS is a broad class of widely used non-stick chemicals that have been linked to a host of adverse effects. Despite widespread contamination from the substances, EPA has been slow to take regulatory action, especially an enforceable drinking water standard -- or maximum contaminant level (MCL) that many states, environmentalists and lawmakers are seeking.
Nevertheless, the agency is considering several measures as part of a planned PFAS action plan slated for release early this year, including designating PFOA and PFOS as hazardous substances under CERCLA's section 102, or under other environmental laws.
In the absence of EPA action, many lawmakers -- especially those from Michigan, which has widespread PFAS contamination -- have been stepping up their push for the agency to act.
“Michigan has been hit hard by PFAS,” Dingell, the lead sponsor of H.R. 535, says in a Jan. 14 press release. “It's clear it's a threat to human health and our environment. It's been found in our drinking water, air, food, and consumer products. Our bipartisan legislation will list all PFAS as the hazardous chemicals we know they are and give the EPA the tools it needs to clean up contaminated sites.”
'Hotspot Of The PFAS Crisis'
Others agree that Michigan faces a heavy PFAS burden. The Natural Resources Defense Council (NRDC) recently called Michigan the "hotspot of the PFAS crisis" due to the increasing number of sites with PFAS contamination there.
The group last month petitioned state officials to craft a technology-based drinking water standard for all PFAS even as they await an MCL from EPA.
The state in late 2017 launched a multi-agency action team to comprehensively address the issue there -- with the team conducting state-wide testing of its public water systems and schools, as well as conducting tests on groundwater, lakes and streams, soils and sediment, and wastewater, according to the team's website. Among the issues have been PFAS contamination stemming from military sites, where the substances have been used in firefighting foam.
“This bipartisan legislation is an important first step to making sure federal agencies can clean up sites like [former] Wurtsmith [Air Force Base] in Oscoda, Buick City in Flint and others across the country,” Kildee says in the press release.
Sen. Gary Peters (D-MI) has also pressed EPA on the issue, most recently urging Acting EPA Administrator Andrew Wheeler in a Dec. 20 letter to move on actions such as the hazardous substance designation and groundwater cleanup standards.
Environmentalists and others have also been pushing for EPA to designate PFAS as hazardous substances in order to spur cleanups and ensure PRPs pay for them. Such a designation would give the agency the authority to issue orders against potentially responsible parties and seek contribution for PFAS contamination, Adam Baas, an attorney with DLA Piper, told a Sept. 12 seminar on PFAS hosted by the Environmental Law Institute.
That will also trigger states' adoption of the designation, “and, of course, more litigation,” he said.
Typically, for EPA to make such a designation, the agency would have to determine that the chemicals present a substantial danger to public health, welfare, or the environment. Then, the agency would have to issue regulations setting the level at which releases must be reported, he said.
Then-EPA's top PFAS official Peter Grevatt told a Senate panel last September that it would nonetheless take years to finalize any listing of PFAS as hazardous substances, and said at the time EPA was considering five possible statutory mechanisms to accomplish such a listing.
https://insideepa.com/daily-news/after-epa-vow-house-group-intensifies-push-pfas-superfund-listing
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US Lawmakers’ Bill Would Trigger Cleanup Of PFAS
Jan 16, 2019 | Chemical & Engineering News
By Cheryl Hogue
Legislation would designate all per- and polyfluoroalkyl substances as hazardous
A new US congressional bill that would deem all per- and polyfluoroalkyl substances (PFAS) as hazardous substances will pave the way for federal cleanup of PFAS-polluted sites, proponents say. But makers and formulators of these chemicals say lumping them together for regulation isn’t scientifically valid.
“Our bipartisan legislation will list all PFAS as the hazardous chemicals we know they are and give the [Environmental Protection Agency] the tools it needs to clean up contaminated sites,” says Rep. Debbie Dingell (D-Mich.), who introduced the bill Jan. 14 with fellow Michigan lawmakers Reps. Dan Kildee (D) and Fred Upton (R). The districts they represent, as well as others in the state, are contending with contamination of drinking water with PFAS leaching from industrial landfills or washed into groundwater from the use of fire-fighting foams that contain the chemicals.
The bill, which has not yet been assigned a number, would require the EPA to designate all PFAS as hazardous substances under the US federal Superfund law, which addresses cleanup of toxic waste sites. This designation, in turn, would require companies or others to report releases of PFAS into the environment and make them liable for cleanup. In addition, it would allow the federal government to clean up PFAS-polluted sites and recoup the costs from polluters.
Deeming PFAS as hazardous substances “would help potentially hundreds of communities impacted by PFAS contamination to hold polluters accountable and get resources to finally begin the desperately needed cleanup process,” says Scott Faber, a senior vice president of the advocacy group Environmental Working Group (EWG). The organization and researchers from Northeastern University are tracking known PFAS contamination sites in the US, listing 172 locations in 40 states as of July 2018. EWG estimates that water supplies for as many as 110 million US residents may be tainted with PFAS.
Exposure to some PFAS chemicals is linked to adverse effects in the liver, kidney, blood, and immune system and in fetuses, according to the EPA. But little, if any, toxicity data exist for thousands more of these substances in commerce. Some PFAS are polymers, which are likely to pose little risk for health effects.
Because of the diversity of these chemicals, manufacturers are raising concerns about the legislation that would treat them all the same.
“It is scientifically unsound to consider regulations or policies that address PFAS chemistry as a uniform class. PFAS are a broad and diverse class ... including many different substances that vary significantly in their structures, properties, uses, and hazard profiles,” the FluoroCouncil, an industry group of companies that make, process, or formulate PFAS products, says in a statement. Any regulation of these substances, the council adds, “should be informed by a full understanding of the risks and benefits of different PFAS.”
In September, Democrats in the Senate urged the EPA to regulate PFAS in drinking water as a class rather than to control each chemical individually. The agency pledged to issue a national plan by the end of 2018 for managing PFAS contamination. That action is in limbo as the federal government shutdown continues.
https://cen.acs.org/policy/legislation-/US-lawmakersbill-trigger-cleanup-PFAS/97/i3
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Florida’s Natural Orange Juice Glyphosate Suit Out for Good
Jan 16, 2019 | BNA Daily Environment Report
By Julie Steinberg
Product name not deceptive, court says
Survey data didn’t help plaintiff
Citrus World Inc. and Florida’s Natural Growers Inc. won’t have to face a proposed class suit alleging “Florida’s Natural” brand orange juice was misleadingly marketed because it contained trace amounts of the synthetic weedkiller glyphosate.
Alexandra Axon can’t state a plausible deception claim based on the name of the juice, the U.S. District Court for the Eastern District of New York said Jan. 14, dismissing the suit for good.
Other recent suits challenging the presence of glyphosate, including suits over Kellogg’s and Quaker Oats cereal products, haven’t focused on the word “natural,” but have alleged the manufacturers’ overall portrayal of the products as healthful was deceptive.
The juice case dismissal follows the court’s earlier ruling that consumers wouldn’t be fooled by the branding, but letting Axon try again.
Axon sought to file a new complaint, supported by a 2015 Consumer Reports survey purporting to demonstrate that a majority of consumers understand ‘natural’ claims on food products to mean pesticides are neither used nor present at any level in the products.
The court wasn’t moved. The conclusions Axon drew from the survey weren’t supported by its ambiguous language, the order said.
This case also differed from other “natural” cases because it involved only limited use of the word as part of the brand name, rather than using “natural” as part of a broader marketing or labeling campaign, the court said.
The Richman Law Group and Finkelstein, Blankinship, Frei-Pearson & Garber LLP represented the plaintiffs. Latham, Shuker, Eden & Beaudine, LLP and Catafago Fini LLP represented the defendants.
The case is Axon v. Citrus World, Inc., E.D.N.Y., No. 18-4162, 1/14/19.
https://news.bloombergenvironment.com/environment-and-energy/floridas-natural-orange-juice-glyphosate-suit-out-for-good
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Six More Chemicals Listed as High Concern by European Agency
Jan 15, 2019 | BNA Daily Environment Report
By Stephen Gardner
Substances could go on to be banned from use in the EU
Registration data shows the substances are little used
The European Chemicals Agency added six hazardous substances Jan. 15 to a list of high concern chemicals under the European Union’s REACH law, triggering new requirements for companies handling them.
The listing means companies must notify the chemicals agency if products they import into the EU contain one or more of the substances, and they must provide more safety information to business customers and consumers about the compounds. The chemicals are listed as substances of very high concern under REACH (Regulation No. 1907/2006 on the registration, evaluation, and authorization of chemicals).
In the case of the six substances added Jan. 15, however, the listing is likely to have little impact because they are little used.
For five of the substances, there are no active REACH registrations, meaning the substances are not being traded in the EU above one metric ton, unless they are being traded illegally.
Registration with the European Chemicals Agency is a requirement to trade in chemicals on the EU market.
The five substances with no REACH registrations are 1,7,7-trimethyl-3-(phenylmethylene)bicyclo[2.2.1]heptan-2-one, 2,2-bis(4’-hydroxyphenyl)-4-methylpentane, and three polycyclic aromatic hydrocarbons (PAH substances): benzo[k]fluoranthene, fluoranthene, and phenanthrene.
The agency added it didn’t have information on any uses of the substances outside the EU.
The sixth substance, pyrene, another polycyclic aromatic hydrocarbon, has one REACH registration, held by Czech company DEZA AS.
DEZA wouldn’t be affected by the listing because it has registered pyrene as an intermediate, or chemical used in the production of other chemicals, company spokesman Jan Pavlu told Bloomberg Environment Jan. 15. Intermediates, which can only be used in controlled conditions, are subject to less onerous requirements under REACH than more widely-used substances.
Other substances had been added to the high concern list as a precaution and so that importers of products containing the substances would be required to submit notifications, the European Chemicals Agency said in a statement to Bloomberg Environment. The notification obligation applies where a high-concern substance is present in a product above a concentration of 0.1 percent by weight.
The listing brings the number of REACH high concern chemicals to 197. Substances on the list can go on to be banned unless specific continued-use authorizations are granted to companies. So far, 43 substances have been made subject to bans under REACH.
The six substances were added to the high concern list because of their hazards, which include that they are toxic, carcinogenic or have endocrine disrupting properties.
https://news.bloombergenvironment.com/environment-and-energy/six-more-chemicals-listed-as-high-concern-by-european-agency
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EU System for Checking Chemicals in Food Seen as Falling Short
Jan 15, 2019 | BNA Daily Environment Report
By Stephen Gardner
Checks of food for pesticide residues and other chemical substances inadequate, European Court of Auditors finds
Some chemicals rarely monitored
Some chemicals in foods are rarely monitored in the European Union, and the whole system of checks on compliance with rules on some 8,000 substances is overstretched, the European Union’s independent financial watchdog said Jan. 15.
Shortcomings in food surveillance could be storing up problems because little is known about the cumulative health effects of substances that might be present in food, the European Court of Auditors’ report said.“Thousands of substances in practice are not checked,” and the European Food Safety Authority (EFSA), which carries out assessments, has backlogs, Janusz Wojciechowski, the Court of Auditors member who oversaw the report, said at a briefing in Brussels.
To minimize health risks, consumers should “prefer the products with the shorter lists” of additives, he said.
Companies that produce food additives and enzymes include Royal DSM NV, Novozymes AS and Associated British Foods Plc. Uses of additives and enzymes can change the flavor or appearance of food and promote digestion.
The European Food Safety Authority said the report “confirms the resource constraints of EFSA, a concern highlighted for several years.”
The European Parliament and EU countries are currently considering a revision of the bloc’s general food law, which sets out food safety rules. The Court of Auditors lacks legal powers, but works to improve the European Commission’s management of the EU budget and reports on EU finances.
The Court of Auditors report should be “used to inform the ongoing political discussions on this issue,” EFSA said.
‘Extremely Complex’ RulesEU rules “related to food additives are extremely complex and not easy to understand,” especially for smaller companies, Maryse Herve, secretary general of the Federation of European Specialty Food Ingredients Industries, told Bloomberg Environment Jan. 15.
Food additive companies should clearly communicate to the food companies they supply that they should “comply with all legislation applicable to final food to prevent excessive or irresponsible use of food additives in final food products,” Herve said.
The European Court of Auditors reported that while testing of food for residues of veterinary medicines and pesticides covers thousands of samples per year, testing for compliance with the rules around food flavorings, additives and enzymes is minimal, with only a handful of samples checked.
This could mean companies are getting away with using nonauthorized additives, using additives in excessive quantities or at insufficient purity levels, or using harmful enzymes, the report said. However, it said, companies had a “strong reputational and economic interest in ensuring the food they sell is safe,” and in practice complaints about the toxicity levels of specific foods were rare.
In the EU system, authorization of additives and other substances in food is decided at EU level, while compliance checking and enforcement are done by authorities in EU countries.
In preparing the report, the European Court of Auditors visited Italy, the Netherlands and Slovenia to study national-level compliance checking.
Reevaluation StressedFor some food additives, “original assessments may have been carried out several decades ago,” and it was “important to reevaluate each one periodically” in case safe use limits needed to be revised, said Nina McGrath, food and health science manager at the industry-backed European Food Information Council,.
Food enzymes, meanwhile, “exert their function during food processing, not in the final foods,” and therefore “it would not make sense to test for enzymes in final foods,” said Marc Leclerc, senior regulatory affairs adviser with Novozymes.
Elizabeth Kittle, spokeswoman for Associated British Foods, referred a request for comment to Association of Manufacturers and Formulators of Enzyme Products .
Food enzymes in the EU are “subject to rigorous safety evaluations by the European Food Safety Authority,” with which companies work to “ensure very thorough, meticulous evaluation,” said Patrick Fox, secretary general of the Association of Manufacturers and Formulators of Enzyme Products.
Royal DSM did not respond to a request for comment.
https://news.bloombergenvironment.com/environment-and-energy/eu-system-for-checking-chemicals-in-food-seen-as-falling-short
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Cosmetics Animal Testing Ban 'Pointless' Due To Echa's Undermining – NGO
Jan 16, 2019 | Chemical Watch
By Caterina Tani
Echa is interpreting EU bans on animal testing in cosmetics so narrowly that it renders them pointless, an NGO has said.
Cruelty Free International’s (CFI) criticism coincides with the launch of its petition calling on Echa to stop animal testing under REACH for chemicals used in cosmetics.
A testing ban on finished cosmetic products has been in force in the EU since 2004, while one on ingredients or a combination of them has applied since 2009.
Also in 2009 a marketing ban came into force for all human health effects with the exception of repeated-dose toxicity, reproductive toxicity and toxicokinetics.The ban extended to these in 2013, irrespective of the availability of alternative non-animal tests.
A year later, the EU executive and Echa clarified animal test bans under REACH, saying they do not apply to testing required for non-cosmetic uses of substances under REACH, exposure of workers or environmental endpoints.
The NGO said it is increasingly concerned Echa is ignoring EU legislation and that the agency "sidesteps" bans by labelling animal tests "as being for worker rather than consumer safety".
Animal tests required for UV filter octocrylene and preservative triclosan, both "used exclusively in cosmetics", are recent examples of Echa’s disregard for the cosmetic bans, it said.
It is now urging cosmetics companies, decision makers and supporters across Europe to sign a petition calling for Echa to:stop asking for the testing immediately; andensure the "ground-breaking" EU cosmetics testing bans are correctly implemented.
Furthermore, CFI said the agency’s interpretation of the cosmetics Regulation poses a risk to the future of cruelty-free cosmetics in Europe. Many such brands "are no longer able to reformulate their products because of the steady creep of regulatory testing", it said.
However, the Leaping Bunny certification, which tells consumers the company is free from animal testing, "remains stronger" than EU cosmetic testing regulations. It is the only certification that checks every step of the supply chain for animal testing, requiring a supplier monitoring system and regular independent audits, CFI said.Echa response
In its comments to Chemical Watch on 15 January, Echa said its work "has followed the Commission’s interpretation" of the interface between REACH and cosmetics regulations that was further clarified in 2014.
It has also published a factsheet to help industry "understand their obligation" and that, since then, the process has run "relatively smoothly".
"We work hard to try to minimise any unnecessary testing on animals in all aspects of our work," the agency said. REACH states, it added, that "animal testing should always be the last resort", when data is "not available from any other sources".Campaigns
Last year, CFI drew up a six-point plan for "more humane chemicals regulation". It followed a 2017 statement that the Commission and Echa's demands for such testing contradict the cosmetics Regulation.
Both CFI and NGO People for the Ethical Treatment of Animals (Peta) UK have filed complaints to the European ombudsman on the issue. In 2016 Peta asked – without success – for the joint statement by Echa and the Commission to be withdrawn.
In the meantime, CFI is waiting for a reply to its complaint over the EU executive’s failure to regularly update the list of alternatives to animal tests.
And a year ago MEPs backed plans to establish a global ban on animal testing for cosmetics by 2023.
https://chemicalwatch.com/73400/cosmetics-animal-testing-ban-pointless-due-to-echas-undermining-ngo
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EU Glyphosate Approval Was Based On Plagiarised Monsanto Text, Report Finds
Jan 16, 2019 | The Guardian
By Arthur Neslen
Study for European parliament ‘explains why EU assessors brushed off warnings of pesticide’s dangers’, says MEP
EU regulators based a decision to relicense the controversial weedkiller glyphosate on an assessment plagiarised from industry reports, according to a report for the European parliament.
A crossparty group of MEPs commissioned an investigation into claims, revealed by the Guardian, that Germany’s Federal Institute for Risk Assessment (BfR) copy-and-pasted tracts from Monsanto studies.
The study’s findings have been released hours before a parliamentary vote on tightening independent scrutiny of the pesticides approvals process.
The authors said they found “clear evidence of BfR’s deliberate pretence of an independent assessment, whereas in reality the authority was only echoing the industry applicants’ assessment.”
Molly Scott Cato, a Green MEP, said the scale of alleged plagiarism by the BfR authors shown by the new paper was “extremely alarming”.
“This helps explain why the World Health Organization assessment on glyphosate as a probable human carcinogen was so at odds with EU assessors, who awarded this toxic pesticide a clean bill of health, brushing off warnings of its dangers,” she said.
The study found plagiarism in 50.1% of the chapters assessing published studies on health risks – including whole paragraphs and entire pages of text.
The European Food Safety Authority (Efsa), based its recommendation that glyphosate was safe for public use on the BfR’s assessment.
An Efsa spokesperson said: “The report does not provide any new scientific information that calls into question the assessment and conclusions of glyphosate. Efsa stands firmly behind the integrity of its risk assessment processes and its conclusions on glyphosate.”
In a statement, the BfR rejected any notion of deliberate deception, saying that its authors had evaluated the relevant industry reports before selecting passages of text to “integrate”.
“We often see that the complexity of the conventional procedure for the re-approval of the pesticidal active substances is not understood properly,” said the BfR professor, Dr Andreas Hensel. “The term ‘plagiarism’ is not relevant in this context.”
A separate analysis of research methods used to evaluate glyphosate by the WHO’s International Agency for Research on Cancer (IARC) and the US Environmental Protection Agency (EPA) also raised questions about regulatory independence.
It found that EPA regulators used unpublished industry reports in 63% of the studies they evaluated, whereas the IARC relied solely on publicly available literature.
Almost three-quarters of the peer-reviewed papers looked at by IARC found evidence of genotoxicity in glyphosate, compared with just 1% of the industry analyses, according to the study published in Environmental Sciences Europe.
Jo Lewis, the Soil Association’s policy director, said: “It is unacceptable that pesticide-industry studies receive greater recognition than scientific peer-reviewed open literature in regulatory decision-making. Whilst this paper focuses on the US EPA, similar criticisms have been made of EU decisions and we fear that outside the EU, pressure to approve pesticides will increase.”
https://www.theguardian.com/environment/2019/jan/15/eu-glyphosate-approval-was-based-on-plagiarised-monsanto-text-report-finds
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Gas Export Company Makes Urgent Plea to Divided U.S. Regulators
Jan 16, 2019 | BNA Daily Environment Report
By Rachel Adams-Heard
Venture Global asks FERC to approve Louisiana LNG terminal
Agency is split 2-2 after death of Commissioner McIntyre
A company that wants to export liquefied natural gas from Louisiana made an urgent plea to regulators to greenlight its proposal, which was tabled at a meeting last month amid speculation about a partisan divide at the main agency tasked with permitting energy projects.
Virginia-based Venture Global LNG Inc. is ready to start construction on the Calcasieu Pass LNG export terminal as soon as the Federal Energy Regulatory Commission offers its final authorization, the company said in a letter Jan. 15. That would make it the seventh major LNG export facility under construction or operational in the lower 48 states.
FERC tabled an item on Calcasieu Pass at a meeting last month, when the group’s Republican chairman, Neil Chatterjee, implicitly blamed the hold-up on his Democratic counterpart, Cheryl LaFleur, who has advocated for more analysis of greenhouse gas emissions in the commission’s environmental reviews.
“In the past the commission has sought to accommodate these requests,” Rob Rains, an energy analyst at Washington Analysis LLC, said by telephone. The commissioners will have to “broker a compromise to get Commissioner LaFleur to a place where she feels comfortable with it.”
Split Adds to DelaysFERC has been split 2-2 between Democrats and Republicans since Kevin McIntyre, a commissioner and former chairman, died after a battle with brain cancer. In a Jan. 15 letter, Venture Global called on the remaining members to “follow through” on the process charted by the late chairman, who pushed for streamlined LNG export project approvals.
Venture Global has 20-year contracts for 80 percent of Calcasieu Pass’ export capacity with companies including Royal Dutch Shell Plc and BP Plc. The company has previously said it expects final authorization from FERC no later than Jan. 22, with a decision to commit necessary funding for the project “very soon after that.”
“We have made very significant financial commitments to our vendors and suppliers, acting in reliance on the expectation that the commission will act on a timely basis,” the company said in the letter. “It is imperative that the commission do so.”
FERC spokeswoman Tamara Young-Allen said the agency couldn’t “speculate” on the timing of the full order but referred to a line in an earlier letter that said a notice would be provided “if a schedule change becomes necessary.”
—With assistance from Stephen Cunningham.
https://news.bloombergenvironment.com/environment-and-energy/gas-export-company-makes-urgent-plea-to-divided-us-regulators
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Trump Administration To Bring Back Offshore Drilling Staff During Shutdown
Jan 15, 2019 | The Hill - E2 Wire
By Timothy Cama
The Trump administration is bringing dozens of federal employees back to work to carry out the administration’s plan to expand offshore oil and natural gas drilling.
The Interior Department’s Bureau of Offshore Energy Management (BOEM) updated its plan for the ongoing partial federal government shutdown last week to state that 40 workers would be brought in for offshore drilling, in addition to the 84 others who have already been working during the shutdown.
The employees are working in four areas: geological testing for offshore oil and natural gas in the Atlantic Ocean; the administration’s proposal last year to allow offshore drilling in the Atlantic, Pacific and Arctic oceans; environment review for that proposal and preparations for two upcoming offshore drilling lease sales in the Gulf of Mexico.
Other BOEM responsibilities, like opening offshore areas for wind energy development, remain closed.
Each of the areas is being financed through “carryover funds,” BOEM said.
Most federal employees who are being asked to work during the shutdown are there for a variety of very limited reasons, including “protection for life and property,” since federal law severely restricts who can work.
But BOEM made clear that the workers newly exempted from the shutdown are there to carry out President Trump’s agenda.
“In order to comply with the Administration’s America First energy strategy to develop a new OCS Oil and Gas leasing program, work must continue toward issuing the Proposed Program per the Outer Continental Shelf Leasing Act requirements,” BOEM said of bringing back workers for the plan to expand drilling.
As for the Gulf of Mexico sales, “Failure to hold these sales would have a negative impact to the Treasury and negatively impact investment in the U.S. Offshore Gulf of Mexico,” BOEM said.
BOEM and Interior did not respond to requests for comment.
Interior has been under fire by Democrats and environmentalists for bringing on workers in many areas related to fossil fuel extraction during the shutdown, while parks, wildlife refuges and other Interior responsibilities suffer.
Interior has been processing requests for permits to drill for oil and gas on federal land and working through the process to open the Arctic National Wildlife Refuge and the National Petroleum Reserve Alaska to drilling, among other responsibilities.
House Natural Resources Committee Chairman Raul Grijalva (D-Ariz.) has questioned whether Interior’s actions follow the law.
The employees coming back to work, like others in the shutdown, will not be paid until the affected agencies reopen.
https://thehill.com/policy/energy-environment/425501-trump-administration-to-bring-back-offshore-drilling-staff-during
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China’s U.S. LNG Imports Tanked in 4Q; Rebound Seen on Long-Term Supply Deal
Jan 15, 2019 | Natural Gas Intelligence
By Leticia Gonzales
China imported only two of the 69 liquefied natural gas cargoes sent from the United States in the fourth quarter of 2018, a dramatic fall from the 14 U.S. cargoes it imported a year earlier after a trade war erupted last fall, according to Genscape Inc.’s proprietary monitoring data.
Access to full text unavailable – subscription required.
Story can be found here: https://www.naturalgasintel.com/articles/117081-chinas-us-lng-imports-tanked-in-4q-rebound-seen-on-long-term-supply-deal
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FERC Appointment Critical to Setting Market-Driven Energy Policy
Jan 15, 2019 | RealClear Energy
By Guy F. Caruso
On the campaign trail and in office, President Trump claims to support using domestic energy resources to restore America’s strength. In the immediate future, the president has an important chance to further that cause by filling a crucial vacancy on the Federal Energy Regulatory Commission (FERC) following the unfortunate passing of Republican Commissioner Kevin McIntyre. The White House is vetting candidates for the position, which represents a pivotal vote on a FERC that is now divided 2-2 along ideological lines.
Why is filling the open FERC seat with the right person so significant? Because the commission is among the most influential policy-making bodies when it comes to shaping the overall trajectory of America’s energy sector. That’s why it is critical that whoever President Trump appoints as our newest commissioner recognizes and prioritizes sound market policy.
Here are three fact-based, market-driven principles that should guide the outlook of the new appointee:
First, picking winners and losers in the energy market through regulatory intervention is a disservice to both energy customers and taxpayers. This means opposing the wrongheaded push for a $34 billion rescue of uncompetitive coal and nuclear power plants in the name of national security, a plot uncovered by a leaked Department of Energy memo last year. This type of intervention not only wastes taxpayer dollars, but stifles prosperity and hurts energy development by tipping the scales away from true competition. Those are strong reasons why FERC commissioners, including McIntyre, have already unanimously rejected such a plan.
The market has already decided against coal, with reports showing coal customers moving away from coal for a variety of reasons, including cost, consumer demand, and environmental concerns. Federal data, in fact, shows that coal consumption has now fallen to its lowest level since 1979 and is expected to continue free falling. In one of America’s largest electric regions, the PJM Interconnection, coal-fired power was down 5% in 2018 while its competitor, natural gas, was producing 19% more electricity. Given these market realities, the last thing federal regulators should do is mandate more of a power source that the market has rejected.
That point leads to a second core principal that should be embraced by the next FERC appointee: the U.S. must fully recognize the value of natural gas. Aided by new technology and a wealth of proven reserves, natural gas is now responsible for a staggering 3 million jobs in the U.S., spurring capital investment of an estimated $1.9 trillion over two decades. Part of that investment is due to the fact that, unlike coal, natural gas has applications far beyond electricity production, including uses for the industrial, residential, commercial, and transportation sectors.
This should call into question views recently expressed by former Missouri utility regulator Terry Jarrett, who argues that fuel constraints and price spikes should make us skeptical about natural gas. Instead of propping up coal, as Jarrett suggests, the better approach is to invest in natural gas pipelines.
Domestic pipeline projects pump billions into the economy. A single project, Mariner East 2 which spans Pennsylvania, created 9,500 jobs annually and represented an estimated $9.1 billion investment during its six-year construction. More gas pipelines means more customer savings, as much as $1,200 by 2020 according to a recent report. Cost savings and low environmental impact are why the Economic Research Organization at the University of Hawaii coined gas pipelines “a cleaner fossil fuel.” Once FERC fully recognizes the value of natural gas pipelines, they can serve as drivers for big consumer savings.
In the same vein, the next FERC appointee should endorse a third principle: realizing America’s energy potential means building more LNG export terminals. The U.S. can help meet international trade demand for natural gas in places like China and India, but we must green light more LNG export terminals. As of December, FERC has 70 outstanding LNG export terminal applications awaiting review. Clearing roadblocks to these large-scale critical infrastructure projects will inject capital into local communities, bolster tax revenue, and allow the United States to fully pursue energy diversity. The US has huge resources of natural gas available for development.
Clearly, the president’s appointment to FERC is an important one. Hopefully, the next commissioner will embrace a free energy market, granting energy companies the freedom to operate, innovate, and collaborate in a way that best serves customers and our nation’s pursuit of energy diversity. Nominating a new FERC commissioner that prioritizes fairness and energy security will make good on the president’s desire for affordable, reliable American energy for decades to come.
Guy F. Caruso is a former head of the U.S. Energy Information Administration.
https://www.realclearenergy.org/articles/2019/01/15/ferc_appointment_critical_to_setting_market-driven_energy_policy.html
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Pipeline Wars Arrive At Supreme Court. What's Next?
Jan 16, 2019 | E&E Energywire
By Pamela King
Legal fights over the expansion of natural gas pipelines across the East Coast are starting to make their way to the Supreme Court.
Since October, pipeline challengers have filed at least three petitions that have reached the country's most powerful bench. More are expected.
Each case targets oversight of natural gas pipeline projects that have proliferated across the nation as a result of hydraulic fracturing in the Marcellus, Utica and other Appalachian shale plays. And each shows critics are becoming more savvy in their challenges, particularly against approvals by the Federal Energy Regulatory Commission.
"This is a reflection of the fact that opposition to the commission's pipeline permitting process is evolving over time," said Christi Tezak, a managing director at ClearView Energy Partners LLC.
Pipeline opponents have won some of their challenges in federal court. Notable victories include 4th U.S. Circuit Court of Appeals rulings that scrapped forest-crossing and species take permits for the 600-mile Atlantic Coast gas pipeline through West Virginia, Virginia and North Carolina. Recent court orders have halted construction on the project.
Pipeline critics have also suffered some losses, including three cases the Supreme Court could consider.
"Because of fracking, there's been so much natural gas pipeline-building activity for the last 10 years," said Alexandra Klass, an energy law professor at the University of Minnesota. "A lot of that is now happening in states on the East Coast where there's more organized opposition to building pipelines, versus places like Texas.
"You also have much more concerns these days about climate impacts, particularly in that part of the country," she added.
One pipeline-related petition is up for review Friday. The Supreme Court takes up just a tiny fraction of the thousands of cases it receives each year.
Here's a look at the projects and questions at the heart of the cases:
The three petitions now before the court center on two particular pipelines, but rulings in those cases could have ramifications for the broader network of gas transport projects along the East Coast.
Transcontinental Gas Pipe Line Co. LLC's Atlantic Sunrise project, a 200-mile Pennsylvania pipeline expansion, is at the center of Adorers of the Blood of Christ v. FERC and Delaware Riverkeeper Network v. Pennsylvania Department of Environmental Protection.
The 300-mile Mountain Valley gas pipeline through West Virginia and Virginia is the focus of the third petition, Orus Ashby Berkley v. FERC.
But the cases, petitioners say, have implications far beyond the projects from which the challenges stem.
"This case is not about the wisdom of building a pipeline," the Berkley petition says. "It is about individual liberty, the separation of powers doctrine that secures that liberty, and the Constitution that dictates that separation.
"It is not an 'anti-pipeline' action. Nor is it a 'pro-pipeline' action. The issue here is neither a 'left' issue nor a 'right' issue," the petition says. "It is, rather, a constitutional issue affecting the private property rights of all Americans (and even non-citizens) who either own property or wish to own property."
Each of the three petition poses a different question about federal oversight of natural gas pipelines.
The Berkley petition, which appeals a 4th Circuit ruling, raises concerns about FERC's use of eminent domain for the construction of the Mountain Valley project and other pipelines that are arguably not in the public interest. The Fifth Amendment of the Constitution requires that private land takings be conducted for public use and in exchange for appropriate compensation.
Challengers in the Adorers case, a group of Catholic nuns, contend that Atlantic Sunrise conflicts with the Religious Freedom Restoration Act (RFRA), which generally prevents the government from burdening religious exercise. A 3rd Circuit ruling on FERC's administrative process, they argue, has effectively boxed out their RFRA claim.
The Delaware Riverkeeper Network petition asks whether the 3rd Circuit violated the 10th Amendment, which preserves state authority, when it pre-empted the Pennsylvania Environmental Hearing Board's review of a key water permit for Atlantic Sunrise.
During each Supreme Court term, which runs from October to June, the justices receive about 8,000 petitions. The court typically hears just 80 cases each session.
The odds are therefore good that the court will reject all three cases, but it's still notable that pipeline challengers are raising these questions, said David Bookbinder, chief legal counsel at the Niskanen Center.
"The chances of any given certiorari petition being granted are small, but I think as they begin to stack up, the court will begin to look at them," he said.
Justice Department attorneys have already asked the justices not to take up the Berkley and Adorers cases.
"[T]he court of appeals correctly concluded that Congress required petitioners to bring their challenge to the siting of Transco's pipeline before FERC and then in the court of appeals, a 'judicial proceeding' in which they could 'obtain appropriate relief against a government' as guaranteed by RFRA," DOJ wrote in its response to the Adorers petition.
The federal government has not weighed in on Delaware Riverkeeper Network, which was filed last week.
At least four Supreme Court justices must vote in favor of accepting a case for review.
"The bottom line is there are probably different justices that are interested in one issue versus another," said Klass of the University of Minnesota. "The question is whether enough justices will coalesce around one particular case."
A number of other pipeline-related challenges are bubbling up through the court system, including a lawsuit over FERC's recent overhaul of its approach to climate analysis for natural gas projects, said Tezak of ClearView (E&E News PM, May 18, 2018).
"I don't think these are going to be the last," she said.
Click here to read the Adorers petition.
Click here to read the Berkley petition.
Click here to read the Delaware Riverkeeper Network petition.
https://www.eenews.net/energywire/2019/01/16/stories/1060114999
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One-Year Extension Eyed As Chemical Security Program Nears Expiration
Jan 15, 2019 | PolitcoPro
By Anthony Adragna
Senate Homeland Security Chairman Ron Johnson (R-Wis.) said he’s considering a one-year lifeline to a program aimed at preventing terrorist attacks on industrial facilities that hold large amounts of chemicals.
Johnson said he would oppose anything longer than a one-year extension to the Chemical Facility Anti-Terrorism Standards program, which expires on Jan. 18, because he wants to make changes to the program. He’s faced pressure from the Department of Homeland Security, House Democrats and industry groups to ensure its authorization does not lapse.
Johnson told POLITICO this week his preference for the one-year extension was "so we can actually work on it while I’m still chairman.”
On Tuesday, Johnson said he met with ranking member Sen. Gary Peters (D-Mich.) about reaching a compromise, and he hoped to have a final decision within a day or two.
Peters said the two lawmakers were "kicking around some ideas right now.”
It’s a potential shift for Johnson, who opposed a two-year extension passed by the House H.R. 251 (116) last week and warned on the Senate floor in late November he was willing to “let the program expire because I really do not think it really enhances the security of our nation.” He offered his own five-year reauthorization S. 3405 (115) of CFATS last fall with a number of changes, including a reduction in the number of inspections and exemptions for certain explosives regulated by other agencies, but Democrats objected to expedited passage.
Industry groups, including the the National Association of Manufacturers, National Association of Chemical Distributors, Agricultural Retailers Association and the Fertilizer Institute, have all urged Congress not to let the program expire. Homeland Security Secretary Kirstjen Nielsen urged lawmakers to pursue “a short-term reauthorization of the program in its current form” in a November 2018 letter.
“Regulatory certainty is key,” said Laura Berkey-Ames, director of energy and resources policy at the National Association of Manufacturers. “Manufacturers are really calling on Congress to reauthorize the CFATS program without delay and for the sake of our national security. We really can’t let our guard down with regard to these potential threats.”
Originally established in 2006, CFATS covers more than 3,300 facilities around the country, ranging from large chemical manufacturers and utilities to mining operations, and is tiered based on their assessed risks. Facilities submit security plans on their measures to protect their operations from potential terrorist attacks, which are then reviewed and approved by DHS. Inspections ensure they are properly being implemented.
CFATS was beset by management problems in its early years, but a GAO reportfrom August 2018 found substantial improvement at identifying facilities, evaluating their security plans and conducting inspections. It found first responders may lack sufficient information to respond to incidents at CFATS-covered sites.
A Democratic aide on the House Homeland Security Committee said Democrats were not necessarily opposed to changes to the program, but that they needed time to develop the public record to justify them and work through “really strong opinions” about the direction of CFATS.
“Any time you’re going to exempt an entity from regulation, that’s a decision you have to make really carefully and vet properly,” the aide said. “There are a lot of unanswered questions that we need the time to resolve.”
https://subscriber.politicopro.com/energy/article/2019/01/one-year-extension-eyed-as-chemical-security-program-nears-expiration-1086000
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'State Of Panic' — Details Surface On Triton Energy Hack
Jan 16, 2019 | E&E Energywire
By Blake Sobczak
MIAMI — The first emergency shutdown happened on a Saturday evening in June 2017.
Hackers had inadvertently brought down a critical safety system at a petrochemical plant in Saudi Arabia, putting workers there in danger of explosions or exposure to toxic hydrogen sulfide gases.
Two months later, the attackers disabled six separate Schneider Electric SE safety networks, triggering complete closure of the oil and gas facility, according to a new account from a first responder shared at the S4 security conference here in Miami Beach.
Not long after the second shutdown struck on Aug. 4, 2017, "we knew that we could be facing complete loss of control of the organization's [operational technology] systems at any point," recalled Julian Gutmanis, who at the time was working for Saudi Arabian Oil Co.
Gutmanis declined to share the name of his own employer or that of the victim company, identified only as a petrochemical plant that had Schneider Electric safety systems installed.
Outside sources verified he worked for Saudi Aramco but declined to name the victim company, other than to specify that it was not directly owned by the kingdom's top oil producer.
Gutmanis said that the hackers' target entered a "state of panic" once it became clear in August that the Schneider Electric safety systems had been specifically sought out and compromised — a fact that was initially overlooked in June. "They knew a relatively sophisticated attacker was in their organization, with significant capability to impact the integrity and the safety of the plant," he said.
Gutmanis offered new details of an unprecedented cyber event that spurred dozens of technical analyses and on-the-ground follow-up responses from both Schneider Electric and U.S. cybersecurity company FireEye Inc.
His account also revealed breakdowns in the target organizations' security practices and breakdowns of communication among cybersecurity analysts, oil and gas officials, and Schneider Electric, which supplied the Triconex safety devices exploited during the attack.
"We really didn't get much information back" from Schneider Electric in the wake of the attack, despite supplying them with details captured from the initial incident response, Gutmanis said. "It was really a one-way flow."
He said that he first received word of Schneider Electric's internal assessment of the hackers' intent in January 2018 at last year's S4 conference, when security specialists there disclosed their public takeaways from the incident.
"The attackers in this situation had unlimited resources: They had a lot of skill; they had a lot of time; they had unrestricted access to develop this," Schneider security executive Andrew Kling said at the time, adding that the intrusion had "all the hallmarks of a nation-state attack."
Analysts at FireEye later tied the cyberattack to a state-owned research institute in Moscow. The Central Scientific Research Institute of Chemistry and Mechanics is alleged to have developed the highly specialized malware needed to override the safety controls on Schneider Electric's products (Energywire, Oct. 24, 2018).
Cybersecurity experts have stressed that the Triton malware, also known as Trisis or HatMan, is one of the first digital tools aimed squarely at endangering human lives.
"While they were lucky and it wasn't a catastrophic incident or loss of the plant, it was still very expensive," Gutmanis said. "We're talking about multiple outages; each of these outages required the plant to be down for at least a week."
Following the first outage in June, the main safety vendor conducted an engineering and mechanical analysis of the safety controllers, in Gutmanis' telling. But investigators weren't thinking of cybersecurity at the time, representing "a missed opportunity to identify the attackers and prevent the subsequent outage in August," he said.
"There should have been an investigation from a cybersecurity perspective," Gutmanis said.
https://www.eenews.net/energywire/2019/01/16/stories/1060115423
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Warning Flags Raised Over Trump Plan
Jan 16, 2019 | E&E Energywire
By Peter Behr
This is the year that U.S. cyber war policy goes on the offensive to protect critical civilian infrastructure against significant threats from Russia, China and other state-backed hacker units, the Trump administration pledges.
The new offensive policy issued last fall calls for the military's U.S. Cyber Command to prepare means of penetrating state-backed hackers' domains in order to learn when a serious threat is about to be launched, and then to disrupt or block the attack before it begins (Energywire, Sept. 20, 2018).
The year also begins with a thick catalog by a score of experts on the risks and tensions the new policy presents, published in a new book, "Bytes, Bombs and Spies: The Strategic Dimensions of Offensive Cyber Operations." The questions the authors raise could fuel a week of congressional hearings.
Herb Lin, a cyber policy scholar at Stanford University's Hoover Institution, said the administration's decision last year to commit the Pentagon's U.S. Cyber Command to pre-emptive action to block hostile cyberattacks against critical U.S. networks reflects a political frustration over successful hacks against high-profile government and commercial targets in the United States.
"We're getting our clocks cleaned" by Russia and China, Lin said in an interview prior to the book's release by the Brookings Institution. Lin edited the volume with his Hoover Institution colleague Amy Zegart.
In one chapter, Jason Healey, senior research fellow at Columbia University and a Defense Science Board member, quotes former Rep. Ed Royce (R-Calif.): "Why aren't we hitting back?"
Even before President Trump took office vowing to harden U.S. action against state-backed cyberthreats, there was a broad realization that defense alone wasn't sufficient, Lin said. "It hasn't served our interests. What else might?" he added.
Up to this point, "cyber deterrence seems to be alive and well," Healey wrote. "Nations have proved just as unwilling to launch a strategic attack in cyberspace as they have in the air, on land, at sea, or in space."
But below a level of actual warfare, "the gloves are largely off, and nations have been more than happy to spy with few limits and to disrupt non-critical systems," Healey said. And the past decade's record includes headline cyberattacks on a few critical systems, including the Stuxnet cyber weapon unleashed on Iran, Russia's attacks on Ukraine power systems and Iran's takedown of computers in Saudi Arabia.
A crucial question posed, but not answered, in the book is whether an escalation of offensive cyber actions by the U.S. government, and possibly U.S. companies, would make cyberspace safer or more dangerous.
A full-court press by U.S. cyber soldiers could raise the stakes for Russian and Chinese state-backed hacking units, forcing them to look much harder to their defenses.
But some of the book's authors questioned whether the new "persistent engagement" strategy planned by the Pentagon could lead to dangerous cyber escalation and infections of unintended targets by damaging U.S.-designed malware.
Lin and Zegart observed, "In cyberspace, instruments used to gather intelligence and inflict damage are difficult to distinguish." An attempt to break into an adversary's networks could merely be passive intelligence gathering to map the terrain. Or it might be the first step in an attack. The defender can't be sure of the attacker's motives and could mistake an intelligence operation as an assault on a vital target, they wrote.Hidden 'back doors'
To create a credible threat of retaliation, cyber warriors often must first penetrate a target's systems, installing secret "back doors" that would be necessary if an attack becomes necessary, Lin and Zegart wrote.
So much of the cyber conflict among the major powers is hidden that outsiders can only guess whether Russia and China are instigating campaigns or retaliating against U.S. cyber surveillance at the moment, suggests Adam Segal, a security expert at the Council on Foreign Relations.
The release of 11 million documents from the Panamanian law firm Mossack Fonseca & Co., with its embarrassing disclosure of offshore banking accounts held by prominent Chinese, could have been a warning from the United States to China to watch its step, according to Segal.
Effective intimidation is much harder in the cyber realm than it is with conventional weaponry. North Korea's launch of an intercontinental ballistic missile in 2017 served immediate and dramatic notice of its new capability. The same message is harder to deliver in cyber conflicts, several authors said.
Cold War deterrence succeeded because there was no doubt what nuclear war would do. The United States might not know for sure whether a cyber weapon would actually hit and damage its intended target, Henry Farrell and Charlie Glaser of George Washington University wrote.
That uncertainty "could make U.S. leaders reluctant to order such an attack," undermining deterrence credibility, they said.
"With Russia, for example, how far does the United States need to escalate to get [Russian President Vladimir] Putin to back down?" Healey asked. "Perhaps the United States has not developed fearsome enough capabilities or struck back hard enough to deter."
But he added, "Getting 'just enough' fear is a hard effect to calibrate in the best of time," and harder still in the shadowy arena of cyber conflict.
To make deterrence work, the federal government may have to enlist the private sector's technology capabilities, whether firms are willing or not, Healey said.
"To create fear, the United States will likely have to continue to co-opt or coerce information technology companies, weaponize their technologies, and conduct widespread monitoring on or through their networks," he concluded.
The possible participation of private-sector U.S. technology and energy companies in offensive cyber actions and "hack back" retaliation opens one more can of worms, said Lucas Kello, a senior lecturer at Oxford University.
"A world in which private firms and citizen groups are free to carry out the prerogatives of national security policy against each other and against states" creates potentially grave risks, Kello wrote.
https://www.eenews.net/energywire/2019/01/16/stories/1060115221
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Washington State to Push Ambitious Climate Agenda, Governor Says
Jan 16, 2019 | BNA Daily Environment Report
By Paul Shukovsky
Bills expected in legislative session mandate electric vehicles, carbon-free grid
Petroleum refiners seek climate plan that balances environment, economic prosperity
Washington state must embrace the promise of a post-carbon economy with an ambitious agenda to address climate change that includes more electric vehicles and renewable energy, Gov. Jay Inslee (D) said Jan. 15.
“In just the past few years, our state experienced record high temperatures, record low snowpack in some locations, higher ocean temperatures, and high acidity in our waters,” Inslee said in his State of the State address before a joint session of the Legislature. “Historic wildfires blackened our air so much that we had the worst air quality in the world. Not China, not India. Washington state.”Inslee, who has made climate change his signature issue since serving in Congress in the 1990s, proposed a broad legislative agenda to cut greenhouse gases and stimulate the post-carbon economy.
Broad Climate AgendaNew bills coming in the session that starts Jan. 15 would mandate a 100 percent carbon-free electric grid by 2035, boost electric vehicles, and adopt stricter energy efficiency standards for buildings. Democratic lawmakers plan to introduce up to a dozen bills, including one that would implement a clean fuel standard requiring energy providers to reduce total carbon intensity by 10 percent by 2028 and 20 percent by 2030.
Catherine Reheis-Boyd, president of the Western States Petroleum Association, called for cooperation in developing a sustainable energy plan for the state. Her organization works on behalf of member companies such as BP, Marathon Petroleum, Phillips 66, and Shell, all of which have refineries in the state.
“Washingtonians can agree that we are in a time of transition on how energy is produced, distributed, consumed, shared and managed in the state and the West,” she said in an email to Bloomberg Environment. “As Washington’s leaders begin another legislative season, we hope all energy stakeholders will consider how we can set our differences aside, come together, and work towards a truly sustainable energy future.”
She urged the state to develop climate policies that balance environmental concerns with a shared economic prosperity.
Clean-Fuel Standards IntroducedInslee, who is considering a run for the Democratic nomination for president in 2020, framed climate change issues in an economywide perspective that could present a threat to fossil fuel companies that don’t diversify their business models.
“Clean energy and low-carbon technologies are increasingly competitive in the marketplace,” Inslee said. “Innovation brings us cleaner, cheaper, better fossil-fuel alternatives every day.”
He said he is optimistic about the prospects for his agenda because of the number of new legislators, most of whom are Democrats inclined to support his policies.
“With Governor Inslee’s state of the state today and the start of session, the House Environment & Energy Committee is also already considering needed policy to address global warming pollution by holding a hearing on a Clean Fuel Standard today,” Climate Solutions spokeswoman Kimberly Larson told Bloomberg Environment in a Jan. 15 email.
The clean fuel standards bill, HB 1110, would lower the greenhouse gas content of fuel to 10 percent below 2017 levels by 2028 and 20 percent below 2017 levels by 2035.
https://news.bloombergenvironment.com/environment-and-energy/washington-state-to-push-ambitious-climate-agenda-governor-says
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New Congress, New House Push for Environmental Civil Rights
Jan 16, 2019 | BNA Daily Environment Report
By David Schultz
Newly Democratic House may pursue environmental justice legislation
Many freshman lawmakers cite the issue as top priority
The new 116th Congress may spend more time examining the intersection of race and the environment, and specifically look at how poor and minority communities are affected by climate change.
Two dozen of the 101 new members of the House are people of color, and several of them told Bloomberg Environment they believe any environmental legislation must account for historically disadvantaged communities.
Additionally, Rep. Donald McEachin (D-Va.), co-founder of a congressional environmental justice task force, is now a member of the House’s Energy & Commerce Committee, which primarily handles environmental and energy issues.
He described climate change as “one of the most urgent civil rights issues of our time” and said he wants to ensure “green-collar jobs” are available to “minority communities and not just a fortunate few.”
Climate and RaceMcEachin joined several activists to discuss environmental justice and climate change at a Jan. 15 press conference commemorating what would have been the 90th birthday of Martin Luther King Jr.
In the past, environmental justice activists have focused on the way factories and other polluting facilities are frequently located in areas where minority or low-income residents live. A defining moment for the movement was the 1987 publication of the study, Toxic Wastes and Race, which found statistical links between race and hazardous waste sites.
But Mustafa Santiago Ali, an environmental justice official at the EPA during the Obama administration, said climate change is a crucial issue for the movement as well, because disadvantaged communities are often the least able to cope with the natural disasters, food shortages, and other effects of a warming planet.
“If we don’t win on environmental justice, we can’t win on climate change,” Ali, now a senior vice president for climate and environmental justice at the Hip Hop Caucus, said.
Local Buy-InWith Democrats back in control of the House, the odds are high that the lower chamber of Congress will at least consider some form of climate legislation.
Any comprehensive climate bill should include provisions that encourage the adoption of renewable energy, developing new energy technologies, and the rehabilitation of areas already suffering from climate change, McEachin said.
He said his biggest priority for climate legislation is that Congress follows the lead of, rather than dictates to, local communities.
“There needs to be folks at the table who are actually impacted by the decisions made,” McEachin said. “Without local buy-in, this just won’t work.”
But McEachin also said he has work to do to win over his fellow members of the Congressional Black Caucus.
Many of the caucus’ members “are worried about raising the price of energy,” he told reporters.
New MembersThe composition of the Congressional Black Caucus is significantly different than it was at the end of the last Congress.
This new session features nine new African-American lawmakers, all of them in the House and all of them Democrats. Additionally, the 2019 freshman class of Congress includes 10 Latinos, two Asian-Americans, two Native Americans, and one member of Middle Eastern descent.
Several of these new lawmakers come to Washington with environmental justice already at the top of their minds.
Rep. Jimmy Gomez (D-Calif.) worked on legislation that addressed the socioeconomic consequences of climate change as a member of the California legislature. Rep. Jesus “Chuy” Garcia (D-Ill.) told Bloomberg Environment that air pollution and lead poisoning are major problems in the urban Chicago district he represents.
Rep. Gil Cisneros (D-Calif.) told Bloomberg Environment that he’s already joined McEachin’s task force because “people who live and work in California’s most polluted environments are more commonly people of color.”
These freshman members of Congress bring “the enthusiasm and the passion” for environmental justice, McEachin told Bloomberg Environment.
Now, he said, it’s time for Congress to move into the next, more complicated phase of actually legislating—and striking deals with the Republican-controlled Senate.
https://news.bloombergenvironment.com/environment-and-energy/new-congress-new-house-push-for-environmental-civil-rights
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Skip Pollution Sensors Where Public Can’t Go, Industry Says
Jan 16, 2019 | BNA Daily Environment Report
By Amena H. Saiyid
Industries say EPA needs to explicitly define where public exposed to air pollution
Draft guidance falls short by limiting public access to land owned, operated by industries
Petroleum refineries, chemical companies, and iron and steel manufacturers are seeking what they call a practical approach to monitoring air pollution: It should be done only in areas where the public is exposed to it.
That approach sets up a conflict with the American Lung Association, which accuses the industries of wanting to avoid air-quality standards.
The industries argue the Environmental Protection Agency should only require air pollution monitoring where the general public would be exposed under new draft guidance. The EPA has said its draft guidance, released in November, is meant to make it easier for large industries to place the monitors required to show compliance with air pollution standards, clearing up confusion about what constitutes a facility’s fenceline.
“The final guidance should focus on assessing likely public exposure at a location based on the ability of the public to practically access a location,” Howard Feldman, the American Petroleum Institute’s senior director of regulatory and scientific affairs, told Bloomberg Environment.
The American Petroleum Institute, Portland Cement Association, and Tile Association of North America were among the industry groups backing the EPA’s initiative, because their members would need to install additional air pollution controls if monitors show a violation of national air quality standards.
The push comes as the EPA has tightened federal air quality standards for sulfur dioxide, a pollutant given off during industrial operations.
Comments were due Jan. 11 on EPA’s proposed changes to decades-old guidance that are in line with plans that Bill Wehrum, EPA assistant administrator for air and radiation, outlined in June to redo the new source review program.
Under the new source review program, refineries, manufacturing plants, paper mills, and power plants must install updated air pollution controls if they expand or make changes that increase their emissions. The ambient air quality monitors would pick up the air pollution increases.
More Practical Approach?Specifically, the EPA’s draft policy would replace the reliance on fences around industrial facilities to acknowledge other barriers, such as signs and surveillance that keep the general public from entering those areas.
What the industries want is a practical approach to monitoring, said Gale Hoffnagle, senior vice president and technical director for the Lowell, Mass.-based TRC Environmental Corp., an engineering and environmental consultant to the industry.
“They are asking to expand the area beyond the fenceline to locations where people work, live, go to school,” Hoffnagle said.
Janice Nolen, assistant vice president for policy at the American Lung Association, isn’t buying the industry’s approach.
“The industries are basically seeking to expand the footprint of these facilities and trying to avoid air quality standards,” she said.
Nolen noted that the sulfur dioxide at a short distance from the factories reacts with other air pollutants, forming fine airborne particle pollution, which is associated with aggravated asthma attacks.
Monitors located some distance away from the facilities will be less likely to detect whether the pollutant exceeds federal limit, she added.
A coalition led by the Natural Resources Defense Council argued that keeping the public out of a facility isn’t the same as preventing the public from being exposed to pollution.
https://news.bloombergenvironment.com/environment-and-energy/skip-pollution-sensors-where-public-cant-go-industry-says
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