AM ACC Clips Report - March 6, 2019

Industry and Association News

1. (ACC Mentioned) Who Will be Trump's Next Regs Czar? Here Are 4 Contenders

   Mar 5, 2019 | E&E Greenwire

   By Niina Heikkinen
   
   
   The agency leading the Trump administration's deregulation agenda could soon be on the search for a new administrator.
2. (ACC Mentioned) Chemicals Sector Crucial for South Africa's Industrialisation

   Mar 6, 2019 | Creamer Media's Engineering News

   By Schalk Burger
   
   
   As one of 18 sectors identified by a Presidential working group as being crucial to accelerating gross domestic product (GDP) growth in South Africa, the chemicals sector has a foundational role to play in supporting the growth of the country's industrial sectors.
3. Democratic State AGs See New Heads, Same Tactics at EPA, Interior

   Mar 6, 2019 | BNA Daily Environment Report

   By Abby Smith
   
   
   Democratic attorneys general are confident their success rate in challenging Trump climate rollbacks won’t change, even though they’ll face savvier new EPA and Interior Department leaders more experienced in Washington policy making.
4. GOP Senators Blast Department's FOIA Plans

   Mar 6, 2019 | E&E News PM

   By Michael Doyle
   
   
   Two senior Republican senators today joined Democrats and a host of citizens in sharply criticizing Interior Department proposals that critics fear will crimp the Freedom of Information Act.
5. Why a Meaningful US-China Trade Deal Could Be Hard to Reach

   Mar 5, 2019 | AP (In the New York Times)

   By Joe McDonald and Darlene Superville
   
   
   Under President Donald Trump, America's trade deficit with China has so far worsened. That gap represents an unfulfilled Trump pledge just as talks between the world's two largest economies may be nearing a potential deal to suspend their trade war.
6. Crafting a Federal Ban on Single-Use Plastics

   Mar 5, 2019 | Earth Island Journal

   By Erica Cirino
   
   
   Every minute an estimated 2 million single-use plastic bags are handed out at checkout counters across the world.

TSCA News

7. Calendar of TSCA Developments in 2019 and Beyond

   Mar 6, 2019 | Lexology

   By Ryan J. Carra, Mark N. Duvall, Sarah A. Kettenmann and Timothy M. Serie
   
   
   EPA faces many TSCA statutory and regulatory deadlines for actions in 2019 and 2020. It has also announced plans to take numerous actions not subject to such a deadline.

Chemical Management News

8. (ACC Mentioned) BGOV Bill Summary: Final S. 483, Pesticide Registration

   Mar 5, 2019 | BNA Daily Environment Report

   By Adam M. Taylor
   
   
   The Environmental Protection Agency’s pesticide registration programs and related fees would be reauthorized through fiscal 2023 under the S. 483, which was cleared for the president.
9. US EPA Delayed, Dropped Chemical Risk Assessments

   Mar 6, 2019 | Chemical & Engineering News

   By Britt Erickson
   
   
   Top officials at the US Environmental Protection Agency have halted evaluations of the human health risks of nine chemicals, including formaldehyde, a March 4 report by the Government Accountability Office (GAO) concludes.
10. Members of Congress to Question EPA, DoD on Response to 'Forever Chemicals'

    Mar 5, 2019 | ABC News

    By Stephanie Ebbs
    
    
    Members of Congress on both sides of the aisle are increasingly raising concerns the government has not done enough to handle chemical contamination from military bases, airports and industrial sites around the country.
11. EPA Touts 10-Year TRI Cuts To Bolster Rollbacks Despite Annual Increase

    Mar 6, 2019 | Inside EPA

    By Maria Hegstad
    
    
    Top EPA officials touted just-released analysis of the Toxic Release Inventory (TRI), which show a decline in releases over 10 years, to renew arguments that such improvements show that the Trump administration's deregulatory efforts can be advanced without increasing risks, though the analysis showed an increase in total annual releases.
12. Overall Toxic Releases Up, With Declines in Air, Water, EPA Says

    Mar 5, 2019 | BNA Daily Environment Report

    By Sylvia Carignan
    
    
    The overall amount of chemicals discharged into the environment increased from 2016 to 2017, largely due to an uptick in land disposal, with metals mining being the largest source, the EPA said March 5.
13. New Mexico Sues Feds Over Air Force Base Pollution

    Mar 6, 2019 | BNA Daily Environment Report

    By Brenna Goth and Steven M. Sellers
    
    
    Years of firefighting training exercises at two U.S. Air Force bases in New Mexico has contaminated groundwater with fluorinated chemicals that need to be cleaned up, the state charged in a lawsuit filed March 5.
14. Mapping PFAS Chemical Contamination at 106 U.S. Military Sites

    Mar 6, 2019 | Environmental Working Group

    By Melanie Benesh, Scott Faber and Audrey Lothspeich
    
    
    The Environmental Working Group has identified and mapped 106 military sites in the U.S. where drinking water or groundwater is contaminated with fluorinated chemicals, known as PFAS, at levels that exceed the Environmental Protection Agency’s health guideline.
15. How a New Epoxy Could Boot BPA from Cans

    Mar 5, 2019 | Chemical & Engineering News

    By Melody M. Bomgardner
    
    
    A chemical of concern that first grabbed headlines in 2008 could finally be on its way out of metal food packaging.
16. BASF, Monsanto to Fight Leukemia Case at Pennsylvania Top Court

    Mar 6, 2019 | BNA Daily Environment Report

    By Martina Barash
    
    
    BASF, Monsanto, and several other pesticide manufacturers obtained Pennsylvania Supreme Court review of the reinstatement of a golf groundskeeper’s leukemia case March 5.
17. Honeywell Wins Dismissal of U.K. Mechanics’ Asbestos Claims

    Mar 5, 2019 | BNA Daily Environment Report

    By Peter Hayes
    
    
    Honeywell International Inc. won dismissal of asbestos product liability claims filed by British nationals in New Jersey.
18. Expert Focus: Strategy to Mitigate Supply Chain Disruption in a No-Deal Brexit

    Mar 6, 2019 | Chemical Watch

    It was almost unthinkable two years ago that the terms of the UK’s exit would not be agreed by this point. But, with less than a month to go before the Brexit date of 29 March, the likelihood of any deal – or whether the Article 50 deadline will be extended – is unclear.

Energy News

19. Senate Energy Panel Seeks To Spur 'Pragmatic' Climate Policy Discussions

    Mar 5, 2019 | Inside EPA

    By Lee Logan
    
    
    A Senate energy committee hearing on the power sector and climate change -- billed as the chamber's first hearing to explicitly address the issue in five years -- focused largely on low-carbon technology and incentives to reduce carbon emissions, omitting some of the highly partisan fights over climate policy that have gained steam in recent months.
20. Rules Reward Companies That Let Methane Leak — Study

    Mar 6, 2019 | E&E Energywire

    By Jenny Mandel
    
    
    Driven by regulatory pressures more than financial incentives, natural gas distribution companies aren't taking all cost-effective opportunities to stop leaks, according to a recent study.
21. Chevron-Exxon Texas Showdown Spells Trouble for Frackers

    Mar 5, 2019 | Bloomberg

    By Liam Denning
    
    
    In case you missed it, Tuesday morning brought confirmation that it is officially on in Texas. Even as Mike Wirth, CEO of Chevron Corp., was wrapping up a session with analysts that could have been headlined “We rule in the Permian,” Exxon Mobil Corp. teased its own session coming on Wednesday with a press release that could have been headlined “Nah, we rule.”
22. Cheniere Energy Expected to Sign $18 Billion LNG Deal with China's Sinopec

    Mar 6, 2019 | Houston Chronicle

    By Sergio Chapa
    
    
    Houston liquefied natural gas company Cheniere Energy is expected to sign an $18 billion LNG supply deal with China, two media outlets are reporting.
23. Pennsylvania AG Said Again Investigating Natural Gas Industry

    Mar 5, 2019 | Natural Gas Intelligence

    By Jamison Cocklin
    
    
    Pennsylvania Attorney General (AG) Josh Shapiro’s office is said to be conducting an investigation of the environmental impacts caused by unconventional natural gas drilling operations in the southwestern part of the state.
24. DOE Approves La. Export Project

    Mar 5, 2019 | E&E News PM

    By Jenny Mandel
    
    
    The Department of Energy today approved exports of liquefied natural gas from a new facility to be built in Cameron Parish, La., making it the first to win its two key federal approvals under the Trump administration.
25. Battle Lines Drawn in Colo. over Sweeping Drilling Reforms

    Mar 6, 2019 | E&E Energywire

    By Mike Lee
    
    
    Hundreds of people flooded Colorado's state Capitol yesterday as legislators took up an omnibus bill that could overhaul the way the state regulates oil and gas drilling.

Chemical Security News

26. Illinois Democrats Urge Update of Sterigenics Plant’s Risks

    Mar 5, 2019 | BNA Daily Environment Report

    By Stephen Joyce
    
    
    Six Illinois congressional Democrats urged a federal agency to update its 2018 health findings for Willowbrook, Ill., after a spike in ethylene oxide emissions was seen near a Sterigenics U.S. LLC facility.
27. Top Cyber Officials Stress China's 'Scary' Threat

    Mar 6, 2019 | E&E Energywire

    By Blake Sobczak
    
    
    Last year, the Department of Homeland Security warned that Russia-linked hackers had broken into parts of the U.S. power grid and other vital energy networks.

Transportation and Infrastructure News - There are no clips to report at this time.

Environment News

28. Gorsuch Claim On Deference’s Decline Raises Stakes For EPA’s Discretion

    Mar 6, 2019 | Inside EPA

    By David LaRoss
    
    
    Supreme Court Justice Neil Gorsuch in a new dissent claims there is “mounting criticism” of the Chevron principle that gives primacy to EPA and other agencies’ interpretations of unclear laws, raising the stakes for pending cases that could give the court’s strengthened conservative majority an opening to narrow or scrap the doctrine.
29. Eastern States, Senate Democrats Fault EPA Interstate Air Pollution Policy

    Mar 5, 2019 | Inside EPA

    By Stuart Parker
    
    
    Eastern states and Senate Democrats are attacking what they say is EPA’s inadequate approach to policies for curbing interstate air pollution hindering states’ attainment of federal air standards, with several states ramping up technical and legal challenges to the agency while senators attack funding cuts to key emissions programs.
30. States Fighting Rule Rollbacks Point to Higher Emissions

    Mar 6, 2019 | E&E Climatewire

    By Ellen M. Gilmer
    
    
    Immense levels of greenhouse gas emissions are on the line in state lawyers' efforts to fight the Trump administration's regulatory rollbacks.
31. In GOP Senate, a Rare Climate Hearing and Hints of More

    Mar 6, 2019 | E&E Climatewire

    By Mark K. Matthews
    
    
    It's been some time since the Senate Energy and Natural Resources Committee has held a hearing on climate change, so naturally its top two lawmakers felt compelled to get a couple of things out of the way during yesterday's roughly two-hour meeting.
32. Climate Committee Could Kick off Hearings This Month

    Mar 6, 2019 | E&E Daily

    By Nick Sobczyk
    
    
    The first hearing in the Select Committee on the Climate Crisis could come this month, a much-anticipated moment that could help define climate debates in the 116th Congress.
33. Senate Republicans Put Green New Deal on Today's Agenda

    Mar 6, 2019 | E&E Daily

    By Nick Sobczyk
    
    
    A group of Republicans is planning to take to the Senate floor today to blast the Green New Deal, yet another step in the GOP's full-on war on the progressive climate plan.
34. Top Military Leaders Decry Trump's Climate Review

    Mar 5, 2019 | E&E News PM

    By Scott Waldman
    
    
    Dozens of top military leaders who served in Republican and Democratic administrations are condemning a White House effort to conduct an "adversarial" review of climate science and the risks it poses to national security.

Industry and Association News

1. (ACC Mentioned) Who Will be Trump's Next Regs Czar? Here Are 4 Contenders

   Mar 5, 2019 | E&E Greenwire

   By Niina Heikkinen

   The agency leading the Trump administration's deregulation agenda could soon be on the search for a new administrator.

   The current head of the White House Office of Information and Regulatory Affairs, Neomi Rao, may soon be confirmed to replace Justice Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit.

   That would leave yet another top post open in an administration already facing numerous high-profile vacancies, from White House chief of staff to the head of the Interior Department.

   Some observers suggested the president may simply choose to rely on an acting administrator for the foreseeable future, given the challenge of getting a new one confirmed.

   Such a move would be similar to what happened during the Obama years, which saw monthslong leadership under two consecutive acting administrators after Cass Sunstein's departure.

   The president has broad latitude in picking acting replacements, and if President Trump follows the pattern of past administrations, there are a handful of people and places he could turn to.

   Bridget Dooling, a research professor at the George Washington University Regulatory Studies Center, said acting chiefs have included OIRA's deputy administrator and individuals in the White House Office of Management and Budget's Office of General Counsel.

   Adam White, executive director of the C. Boyden Gray Center at George Mason University, described the OIRA leader's role as involving the interplay of statutory and constitutional law with technical policy analysis and broad questions of regulatory reform.

   "It's a very unique job," he said.

   White noted the president could be looking to move onto the next stage of the administration's aggressive push to establish a strict regulatory budget for federal agencies.

   "The thing is now that we are two years into the administration, now it becomes a shift from initial implementation to maintenance and execution, so that might call for a different set of tools," he said.

   Here are some of the people who could move up to take the helm at OIRA.Dominic Mancini

   Deputy OIRA leader Mancini served as acting administrator before Rao's confirmation in July 2017. During those months, he led the agency's efforts to provide guidance on the implementation of the president's controversial executive orders, including on E.O. 137771.

   That order required the repeal of two existing rules for every new significant one, setting the course for the administration's aggressive deregulatory push.

   In an April 2017 memo, Mancini emphasized federal agencies would still be required to weigh the benefits and costs when considering which existing rules to undo.

   "Except where prohibited by law, agencies must continue to assess and consider both the benefits and costs of regulatory actions, including deregulatory actions, when making regulatory decisions, and issue regulations only upon a reasoned determination that benefits justify costs," Mancini wrote (Greenwire, April 7, 2017).

   Mancini also told agencies in May how they should comply with the president's "energy independence" executive order, which called for the review of regulations and guidance that put a "burden" on domestic production. EPA cited this order in its repeal of the Clean Power Plan.

   Mancini previously served as the second acting administrator of OIRA in March 2013 following Sunstein's departure from the agency in August 2012.

   Before becoming deputy administrator, Mancini was branch chief for OIRA's Natural Resources and Environment Branch, and was senior economist for health, transportation and general government at the agency. He has also worked as an economist at the Food and Drug Administration.Paul Ray

   Ray, OIRA's associate administrator, is the agency's second in command.

   Ray arrived at the agency last summer following a stint as counselor to Labor Secretary Alex Acosta. Before that, he had worked as an associate at the global law firm Sidley Austin LLP.

   Peter Keisler, a partner at Sidley Austin who supervised Ray on some cases after he joined the firm in 2014, said Ray worked on a broad range of regulatory and litigation matters.

   "He was a real standout in terms of someone who is very smart and sophisticated in his legal analysis, above and beyond what you would expect of someone at his age," he said.

   Keisler declined to discuss the clients Ray worked with, but reporting by ProPublica shows he worked with trade groups spanning a wide range of industries.

   In 2017, the investigative news outlet reported said Ray had received compensation for legal services from the American Chemistry Council, American Forest and Paper Association, National Association of Manufacturers (NAM), Portland Cement Association, and U.S. Chamber of Commerce, among others.

   Ray clerked for conservative Supreme Court Justice Samuel Alito and 2nd U.S. Circuit Court of Appeals Judge Debra Livingston.Mark Paoletta

   Paoletta is OMB's general counsel; he joined that arm of the White House in January 2018 after serving as counsel to Vice President Mike Pence.

   White suggested that if Paoletta got the acting post, it could signal the White House was moving to put more emphasis on legal skills. Paoletta has expertise in congressional investigations and oversight.

   Picking Paoletta as acting head of OIRA could also mean the White House is moving toward more oversight of independent agencies, according to White.

   OIRA had already shifted in this direction last April when it signed a memorandum of understanding with the Treasury Department, allowing the regulatory agency to review tax regulatory action.

   Paoletta has a range of experience working in both the public and private sector. Before joining the Trump administration, he was most recently a partner at DLA Piper LLP and Dickstein Shapiro LLP.

   For a decade, he served as the chief counsel for oversight and investigations for the House Energy and Commerce Committee.

   Paoletta is also a veteran of President George H.W. Bush's administration. He served as the president's assistant counsel. Prior to that, he was deputy associate director of presidential personnel.Rosario Palmieri

   Palmieri, senior counselor to the administrator, has close industry connections as the former vice president of legal, labor and regulatory policy at NAM.

   In January 2017, Palmieri testified before members of the Senate Homeland Security and Governmental Affairs Committee about the high cost of environmental regulations to manufacturers, particularly small ones.

   "Agencies are failing in their responsibility to conduct analysis that would better assist them in understanding the true benefits and costs of their rules," Palmieri told the Subcommittee on Regulatory Affairs and Federal Management in written testimony.

   "Our regulations should be designed to most effectively meet regulatory objectives while minimizing unnecessary burdens," Palmieri said.

   He has previously critiqued specific EPA rulemaking, including national ambient air quality standards for ozone, the Clean Power Plan and the Clean Water Rule.

   Palmieri has been a proponent of retrospective reviews of existing regulations and has proposed the creation of a congressional equivalent to OIRA for reviewing regulatory costs.

   Before joining NAM, Palmieri spent a few years as a regulatory subcommittee staffer on Capitol Hill, working for the House committees on Small Business and Government Reform between 2002 and 2006.

   https://www.eenews.net/stories/1060123181
   

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2. (ACC Mentioned) Chemicals Sector Crucial for South Africa's Industrialisation

   Mar 6, 2019 | Creamer Media's Engineering News

   By Schalk Burger

   As one of 18 sectors identified by a Presidential working group as being crucial to accelerating gross domestic product (GDP) growth in South Africa, the chemicals sector has a foundational role to play in supporting the growth of the country's industrial sectors.

   The chemicals sector has a 12 times multiplier effect for job creation and about a 5.5 times multiplier on GDP, says Chemical and Allied Industries Association (CAIA) chairperson Rod Humphris.

   "The chemicals sector is largely an upstream sector to the mining, manufacturing and agricultural industries, and its success depends on the downstream sectors performing well and growing. Therefore, an integrated approach is necessary to support growth in the chemicals sector. The sector provides input to 23% of total manufacturing gross value in South Africa," he noted during a responsible chemical management dialogue, held in Sandton, on Tuesday.

   The chemicals sector is possibly the most important sector to ensure sustainability and sound waste management, United Nations Environment Programme Southern Africa head Cecilia Kinuthia-Njenga added.

   Environmental Affairs Minister Nomvula Mokonyane, in a prepared speech delivered by CAIA executive director Deirdré Penfold, agreed on the essential role chemicals companies play in society and the economy, but said there was a need to ensure that chemicals are produced and used in a way that has minimal adverse impacts on the environment and human health.

   Meanwhile, American Chemical Council president and CEO Cal Dooley emphasised that the sustainability of the chemicals sector provided a direct contribution to the bottom line of chemical sector companies, as well as their value chain partners, because it emphasised efficiency, monitoring, control and continuous improvement.

   He detailed the regeneration of the chemicals industry in the US on the back of the exploitation of natural gas, from shale gas, as a feedstock for the industry, which had a direct impact on the competitiveness of the industry and also had a knock-on effect that stimulated the regeneration of the manufacturing industry, which had waned by 25% in competitiveness between 1990 and 2004.

   Significantly, the discovery of gas reserves off South Africa's coast, in the Outeniqua basin, could have a similarly significant impact on the reindustrialisation of South Africa, owing to the presence of a mature petrochemicals sector, said South African Oil and Gas Alliance (SAOGA) CEO Niall Kramer.

   Estimates by the SAOGA indicated that the development of an oil and gas industry could have a larger economic impact than the mining sector has had and could be a significant benefit to the developmental State. Kramer highlighted Norway, which had a national sovereign wealth fund of $1-trillion with which to stimulate its economy and manage any economic shocks owing to its use of revenue derived from North Sea oil operations.

   However, he emphasised that oil and gas were not a guarantee of prosperity, unless exploitation thereof was underpinned by sensible policy and capacitated execution, but it could act as an engine for growth. The readiness of the local economy was, therefore, a crucial puzzle piece that had to be developed over the next five to ten years as the production of gas and condensates ramp up.

   New Partnership for African Development business foundation energy project manager John Rochahighlighted the growing natural gas exploration activities, onshore and offshore, taking place across Africa, and how these sources of chemical feedstocks could facilitate the growth of chemicals companies, and specifically South African companies, into the continent.

   Department of Trade and Industry director-general Lionel October, meanwhile, pointed out that the department was working on the gas industrialisation strategy and aimed to use it as a means to bring about structural change to the industrial sectors and the broader economy.

   He highlighted the success of Germany in developing its industrial capacity on the back of a robust and effective chemicals sector and compared the impact that the discovery of diamonds and gold had on the industrialisation of the local economy, as well as the establishment of unrelated industries that arose from the discovery of mineral resources, such as banks to facilitate the capital requirements of gold mining, as an example.

   "We can take the mineral resources that we are endowed with and use it to enrich the nation. If we get it right, we can go the Norway route, which had been a mainly agricultural and forestry economy prior to its discovery of oil wealth, and uplift our entire society, but this requires that business, government and labour collaborate."

   Kramer emphasised that the country should leverage the knowledge and expertise of existing companies to accelerate its exploitation of the natural resource, as they brought the best practices, equipment, experience and capital to effectively and efficiently exploit the resource.

   October added that Total, which had made the discovery of the Brulpadda natural gas reserves, was a multinational who had achieved a Level 1 broad-based black economic empowerment rating. He compared this to the German focus on social transformation during its reindustrialisation following the Second World War, which was comparable to transformation in South Africa.

   The involvement and development of South Africans was not exclusive to the development of the chemical and oil and gas industries, he explained.

   However, to grow the chemicals sector, as a mainly scientific and knowledge industry, requires knowledgeable and skilled people, but South Africa's poor education outcomes drag on any potential growth aspirations, said Humphris.

   The collaboration of business, government and labour was, therefore, key to the revitalisation of all aspects of the South African economy, including the work to grow the chemicals sector and use the natural gas reserves to promote industrialisation.

   http://www.engineeringnews.co.za/article/chemical-sector-crucial-to-industrialisation-sustainability-focus-can-accelerate-growth-2019-03-06
   

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3. Democratic State AGs See New Heads, Same Tactics at EPA, Interior

   Mar 6, 2019 | BNA Daily Environment Report

   By Abby Smith

   Democratic attorneys general are confident their success rate in challenging Trump climate rollbacks won’t change, even though they’ll face savvier new EPA and Interior Department leaders more experienced in Washington policy making.

   “The original leaders of EPA and the Department of Interior were perhaps more eccentric than their successors,” Maryland Attorney General Brian Frosh (D) told reporters at a March 5 press conference. “The new guys aren’t riding their horses to work as far as I know and haven’t engaged in repeated violations of the federal rules on ethics.”

   But Frosh and other Democratic state attorneys general said the work of Andrew Wheeler, now administrator of the Environmental Protection Agency, and David Bernhardt, tapped to lead the Interior Department, to roll back Obama-era climate rules are equally vulnerable to legal attack as their predecessors’ attempts to delay those regulations.

   “I don’t think we’ll see the tactics change,” Massachusetts Attorney General Maura Healey (D) said.

   Wheeler previously worked as a lobbyist for a number of energy companies, including Murray Energy, and before that as a long-time staffer for Republican senators on the Senate environment committee. Bernhardt worked for years as a fossil fuel lobbyist and natural resources lawyer whose clients included the large oil producers Noble Energy Inc. and Halliburton Co.
   Ripe Rules

   The state attorneys general—working with New York University Law School’s State Energy and Environmental Impact Center—outlined in a March 5 report six rollbacks of Obama-era climate rules as ripe for legal challenges. These include five at the EPA and one at the Interior Department.

   Those include the EPA’s proposals to repeal and replace carbon limits for existing power plants; to rewrite limits on the potent greenhouse gas methane from the oil and gas and landfill sectors; and to freeze federal vehicle fuel economy limits at 2020 levels.

   The state attorneys general highlighted early wins they had in the courts challenging the EPA and Interior Department’s attempts to delay Obama-era climate rules.

   For example, the U.S. Court of Appeals for the District of Columbia Circuit in July 2017 sided with the coalition of states and environmental groups, reversing the EPA’s decision to delay methane limits on new oil and gas drilling operations and forcing the agency to implement the rule.
   Science and Data

   The attorneys general now say the legal battle is moving beyond whether the Trump administration is following administrative law.

   The next phase of the fight is over whether the administration’s proposals to relax Obama-era climate rules are grounded in science and data, New York Attorney General Letitia James (D) said.

   “The policies being put into place fly in the face of the U.S. government’s findings, and they’ve got to underpin their rules with something that is fact-based,” Frosh said, referring to the November 2018 National Climate Assessment written by 13 federal agencies.

   That study is the most comprehensive detailing to date of climate change’s impacts on the United States, which the assessment says could cost the country billions and damage public health.

   If the EPA and other agencies can’t find the basis for their rules in the government’s science, “they’re going to have a very difficult time showing they have a reasonable basis” for weakening or removing rules, Frosh added.

   https://bnanews.bna.com/environment-and-energy/democratic-state-ags-see-new-heads-same-tactics-at-epa-interior
   

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4. GOP Senators Blast Department's FOIA Plans

   Mar 6, 2019 | E&E News PM

   By Michael Doyle

   Two senior Republican senators today joined Democrats and a host of citizens in sharply criticizing Interior Department proposals that critics fear will crimp the Freedom of Information Act.

   In a pointed bipartisan and bicameral letter, Republican Sens. John Cornyn of Texas and Chuck Grassley of Iowa reinforced two Democrats in calling on Interior to withdraw the controversial FOIA proposals.

   "The American people have the right to access information from DOI, and the proposed rule needlessly encroaches on that right," the lawmakers wrote.

   Democratic Sen. Patrick Leahy of Vermont and Rep. Elijah Cummings of Maryland, the chairman of the House Oversight and Reform Committee, also signed the two-plus-page letter to acting Interior Secretary David Bernhardt.

   They did not pull their punches, citing a "significant concern" about the "troubling changes" proposed by Interior in December and urging an outright retraction rather than some fixing up around the margins.

   "The proposed rule appears to restrict public access to DOI's records and delay the processing of FOIA requests in violation of the letter and spirit of FOIA," the lawmakers warned.

   The letter amplifies similar complaints raised during a public comment period that ended in late January, during which Interior received more than 65,000 comments. Many of the comments borrowed identical phrasing; few seemed to favor the new ideas.

   "While we are in the middle of an ongoing rulemaking we are unable to comment on specific provisions," the department said in a statement today. "Unfortunately, the Department's actions in regard to its FOIA program and the proposed regulatory changes have consistently been misunderstood by those in the media and many in the FOIA community."

   Under Interior's new FOIA proposals, the department said it "will not honor a request that requires an unreasonably burdensome search or requires the bureau to locate, review, redact or arrange for inspection of a vast quantity of material" (Greenwire, Jan. 29).

   The proposed changes would allow Interior to "impose a monthly limit for processing records ... in order to treat FOIA requests equitably by responding to a greater number of FOIA requests each month."

   Interior could also ask to know how FOIA requesters who call themselves educators, students or journalists intend to use the information that is provided to them, with higher standards applied.

   "Those who have followed the issue understand that exponential increases in requests and litigation have overwhelmed the Department's capacity to timely process the public's FOIA requests," the department said in a statement today. "Our efforts to respond accurately, completely, and in a timely manner to every request have been further hindered by the dramatic increase in litigation."

   Between fiscal 2016 and 2018, FOIA requests to Interior increased 30 percent, from 6,428 to over 8,350. The Office of the Secretary's FOIA office saw a 210 percent increase since 2016.

   The voluminous FOIA requests, in turn, have helped uncover illuminating email chains, memo treasure troves, congressional correspondence, visitor logs, political appointees' calendars and more.

   The FOIA requests themselves are made public through FOIA requests; revealing, for instance, how one individual sought documents about one particular meeting that Interior officials held Sept. 13, 2018, with members of a Montana tribe. Others are all-encompassing, like a request for every conceivable piece of communication containing the phrase "native Hawaiian."

   "Rather than clarifying DOI's FOIA process, the proposed rule would make the process more confusing and potentially expose it to politicization and unnecessary litigation," the four lawmakers cautioned in their new letter.

   Reporter Kevin Bogardus contributed.

   https://www.eenews.net/eenewspm/2019/03/05/stories/1060123191
   

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5. Why a Meaningful US-China Trade Deal Could Be Hard to Reach

   Mar 5, 2019 | AP (In the New York Times)

   By Joe McDonald and Darlene Superville

   Under President Donald Trump, America's trade deficit with China has so far worsened. That gap represents an unfulfilled Trump pledge just as talks between the world's two largest economies may be nearing a potential deal to suspend their trade war.

   Despite signals from Chinese and U.S. officials that some truce could soon be at hand, there are few signs of any truly transformed trade relationship. Beijing's longstanding policy of subsidizing its own businesses and charges that it illicitly obtains U.S. technology remain key obstacles.

   During the first 11 months of 2018, America's trade deficit in goods with China — the gap between the value of U.S. goods that China buys and the higher value of what it sells to the U.S. — swelled to a record $382 billion. And a government report to be released Wednesday is expected to show the U.S. deficit with China reaching a new high above $400 billion.

   A senior Trump administration official asserted that progress had been made during trade talks over the past two weeks, only to acknowledge that the eventual outcome remains a mystery and that China faced no timetable for responding to the U.S. priorities. The official insisted on anonymity to discuss private conversations.

   U.S. and Chinese officials have hinted that some kind of agreement could be finalized by the end of March, with Trump and President Xi Jinping possibly meeting to formalize the deal at Trump's private club in Mar-a-Lago, Florida.
   

   For its part, Beijing is publicly expressing its intent to crack down on policies that have long enabled Chinese companies and local government officials to force American and other foreign businesses to share their technology as the price of admission to the vast Chinese market. But such public pledges represent far less than the enforceable commitments to reform such policies that U.S. negotiators are seeking.

   Last year, Trump imposed a series of tariffs on Chinese goods in hopes of pressuring Beijing to support more favorable terms for the United States. In June, the White House levied import taxes of 25 percent on $50 billion of Chinese imports. It followed in September with 10 percent duties on an additional $200 billion. All told, the U.S. tariffs covered roughly half of what the U.S. buys from China.

   But the blowback from the Trump tariffs — and China's retaliatory import taxes on U.S. goods — has been steady, at home and abroad. Many businesses are now paying higher costs to import electrical components and other goods from China that aren't made in the United States. The duties cost consumers $1.4 billion a month and businesses $3 billion a month by the end of last year, according to research released last week by Mary Amiti, an economist at the Federal Reserve Bank of New York, and economists from Princeton and Columbia universities.

   And a survey led by the Federal Reserve Bank of Atlanta found that the tariffs had caused U.S. companies to cut their spending on large equipment by 1.2 percent, or $32.5 billion, last year.Editors’ PicksHer Husband Did the Unthinkable. This Is a Play About Everything After.There Are No Five Stages of GriefBigger, Saltier, Heavier: Fast Food Since 1986 in 3 Simple Charts

   Both figures are relatively modest, given that the U.S. economy produces $20 trillion of goods and services a year. But there are also secondary effects. The stock market plummeted 19 percent last fall, partly on fears that the trade war would inflict severe damage.

   Nor have the tariffs provided the negotiating leverage that Trump sought. Many of China's concessions appear designed to appease some U.S. concerns, rather than establish guidelines for trade that each country would be bound to follow.

   Beijing has offered to buy more American farm goods and energy — a pitch that Xi made to Trump when they met during a December dinner at a global conference in Buenos Aires with the idea of narrowing the U.S. trade gap with China.

   China's ceremonial legislature was poised this week to back a law that would discourage officials in the country from pressuring U.S. companies to hand over technology. It was a response to concerns about Chinese disrespect for intellectual property that Trump had raised when he first imposed import taxes on Chinese goods.

   But it's unclear whether China would actually enforce this commitment — a concern that could potentially prevent a meaningful trade agreement. Speaking to a House panel last week, U.S. Trade Representative Robert Lighthizer said, "I can point to many examples" of Beijing signing onto an agreement "and in very few cases have they actually kept their obligations."

   Lighthizer also stressed that it wouldn't be enough for Beijing to agree to additional purchases of American soybeans, natural gas another goods. Any far-reaching agreement, he said, would need to include changes in China's policies toward intellectual property protection, forced technology transfer and the subsidization of Chinese companies.

   Erin Ennis, vice president at the U.S.-China Business Council, said that agreeing on an enforcement mechanism is a huge challenge. The Trump administration wants to be able to impose tariffs on China if it violated its promises in any future pact — without retaliation. Yet Beijing would likely regard such a mechanism as infringing on its sovereignty.Sign Up for On Politics With Lisa Lerer

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   But without enforcement, "it's difficult to see how they will conclude a deal," Ennis said.
   

   Beijing is also resisting U.S. demands to change industrial policies, said Willy Lam, a political analyst at the Chinese University of Hong Kong. And instead of pulling back on support for technology development, Premier Li Keqiang, in his report to the national legislature on 2019 government goals, promised even more such support.

   "The Chinese will never agree to compromise on this, because it is key to the country's future," Lam said. "The whole socialist approach to high-tech innovation involves the state playing a big role. The Chinese will never give this up."

   That said, China does appear at least open to prying open more of its financial sector, which has largely been closed off to U.S. and European banks.

   "What is certain is that in opening up the financial sector, China and the United States can fully agree on each other," Guo Shuqing, the chairman of China's banking regulator, told reporters Tuesday.

   https://www.nytimes.com/aponline/2019/03/06/us/politics/ap-us-us-china-trade-talks-obstacles.html
   

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6. Crafting a Federal Ban on Single-Use Plastics

   Mar 5, 2019 | Earth Island Journal

   By Erica Cirino

   Every minute an estimated 2 million single-use plastic bags are handed out at checkout counters across the world. They contribute to the 300 million tons of plastic waste generated each year, much of which ends up in the environment where it threatens wildlife, endangers public health and costs billions to clean up.

   How do you solve a problem this big?

   According to legal analysts who advised Congress at a briefing in January, the United States could reduce its contribution to the global plastic pollution crisis by implementing sweeping federal policies that restrict plastic use and hold manufacturers accountable for responsibly handling waste.

   The expert group, composed of members from Frank G. Wells Environmental Law Clinic at UCLA and ocean conservation organization Surfrider Foundation, specifically recommended that Congress craft federal legislation banning single-use plastic products such as bags, straws, and expanded polystyrene foam food containers. They also called for establishing “extended producer responsibility” schemes, which hold plastic manufacturers responsible for the waste they create.

   Their recommendations, along with a new report, drew on research into existing legislation targeting plastic pollution in the United States and across the world. The experts found that the key to reducing plastic pollution is curbing consumption. The report and its presentation resulted from a semester-long project by UCLA students Charoula Melliou and Divya Rao, in collaboration UCLA attorney Julia E. Stein, Surfrider’s legal expert Angela Howe, and plastic bag legal expert Jennie Romer.

   “We have to stem the tide of plastic entering our waterways and landfills by reducing our consumption in the first instance,” says Stein. 

   What Works

   There are currently no federal laws restricting single-use plastics, but that doesn’t mean there aren’t good examples that could serve as useful templates.

   According to Stein, Congress could shape federal policy by following existing local and state laws that have already been crafted to tackle plastic problems with bans on all types of single-use plastic items, from bags to expanded polystyrene foam food containers to straws. California made headlines in February after lawmakers proposed a phaseout of all plastic products that aren’t completely recyclable.

   Such laws are grounded in scientific evidence that plastics are problematic because they don’t break down in the natural environment and pose a danger to wildlife and probably people.

   There’s a precedent for using state and local laws to help craft national legislation: microbeads. After several states and municipalities banned the sale and manufacture of health and beauty products containing these ecologically damaging exfoliating plastic beads, the United States passed a federal actdoing the same.

   Most experts agree banning single-use plastic products is a more useful strategy for reducing plastic use and pollution than recycling, which is much less effective. A ban also tackles the issue at the source, helping to curb greenhouse gases coming from the rapidly expanding petrochemical industry that uses fossil fuels to produce plastic.

   Commonly Used Plastics

   With plastic so ubiquitous, where to start? Experts say that banning just the most commonly used and littered items could cut pollution significantly.

   That puts single-use plastic bags front and center.

   Plastic bags are among the top five most commonly found items on shorelines, according to global beach cleanup data. So it comes as little surprise that the most legally targeted plastic item worldwide has become the plastic bag. On the whole, research suggests focused legislation is highly effective at reducing plastic bag use and the presence of bags in the natural environment.

   “Single-use plastic bags are particularly problematic as a source of marine debris because of both the quantity generated as well the mobility of bags,” says Anastasia Telesetsky, a professor of law at the University of Idaho who has argued for the need for a global treaty banning most single-use plastics. “Some products are definitely more problematic than others though regrettably most single-use plastic packaging products can be found as part of ‘mismanaged waste’ somewhere in the world.”

   Suffolk County on Long Island, New York, adopted a five-cent plastic bag fee at the beginning of 2018. According to county legislator William “Doc” Spencer, in just a few weeks, several grocery stores reported drops in plastic-bag use of as much as 80 percent.

   And Suffolk County isn’t an isolated case. Many success stories about plastic bag legislation are documented in the briefing report. Washington, DC saw an 85-percent reduction in plastic bag use after a five-cent tax was implemented in 2009. In San Francisco, plastic bag pollution dropped 70 percent following a complete ban on plastic bags with a 10-cent fee on compostable and paper bags that went into place in 2007.

   While plastic bag legislation may help reduce use and pollution on a local level, the expert group’s briefing report highlights a lack of consistency in US plastic bag legislation. And some states have implemented or attempted to implement rules that prohibit legislation regulating plastic bags and other problematic plastic consumer products, which is why proponents of plastic bans are pushing federal action.

   According to the experts, the ideal federal legislation on plastic bags would mirror what’s been found to be the most effective on both local and national levels elsewhere: A ban on all thin plastic bags, and a fee on all other kinds of bags such as those made from paper, thick plastic, and compostable materials. And it would be sweeping, so no part of the country could obstruct such a ban.

   To further curb use and pollution of throwaway plastics, states and municipalities have also begun to ban plastic straws, plastic foodware like cups and utensils, expanded polystyrene foam food containers, and cigarette smoking on beaches. Several companies have stopped using plastic straws and other single-use plastic items to create less waste.

   The briefing’s authors suggest that Congress should, at minimum, create a rule ending automatic distribution of plastic straws at all restaurants and bars and ban expanded polystyrene foam products outright.

   “In the United States, where local efforts to enforce source control laws are under threat of preemption in several states, having comprehensive federal legislation that requires source control is a way to protect and augment the work of local governments that are trying to combat plastic pollution,” Stein says.

   Broader Focus

   Besides banning common problematic single-use plastic products, the expert group also recommends Congress pass legislation that would hold corporations accountable for handling plastic waste at the end of its life.

   Extended producer responsibility regulations require manufacturers of plastic products to take their items back for reuse, recycling, or disposal to increase recycling rates and prevent plastic waste from entering landfills and the natural environment. Container-deposit legislation is one example of such a program that’s widespread — though not ubiquitous — around the United States.

   Telesetsky says these schemes may be useful when designed to manage long-lasting plastic products, but they’re trickier to implement and incentivize when plastic packaging is involved. “The problem with applying extended producer responsibility principles to existing single-use plastic is that there is simply no market for all of the reprocessed cheap packaging plastics that are being generated,” says Telesetsky. “Cheap plastics have a finite usable life before they are inevitably landfilled or burned.”

   Telesetsky praises the new briefing because it raises awareness of a critical problem. But unlike the briefing group, she proposes banning single-use plastic products outright, on a global scale, in addition to incentivizing innovation in creating new biodegradable products and packaging, which she argues would stop plastic pollution more closely to its source. And it would address the issue on what she sees as a more radical and international — and thus more impactful — scale.

   Yet Stein emphasizes that while her briefing has a national focus specifically tailored to US Congress, the wider view is international.

   “We support international efforts to address plastic pollution, but the United States also needs to take responsibility at home for its own contribution to the problem.”

   Will Congress take up that challenge?

   Stein says she and other members from the UCLA-Surfrider group who traveled to Washington, DC in January held several legislative briefings for Congressional members and staff, including those involved with last year’s 2018 Save Our Seas Act.

   The act provides some funding for federal marine cleanup and waste-prevention efforts through NOAA’s Marine Debris Program. Already, two of the bill’s cosponsors, Senators Dan Sullivan (R-AK) and Sheldon Whitehouse (D-RI), have begun working on a revamped “2.0 version.”

   “Overall, we felt the reception was positive — plastic pollution is a topic that is on the minds of the American public and the congresspersons who represent them,” Stein says. “We’re hopeful that Save Our Seas 2.0 legislation in the Senate may provide a chance to think about comprehensive federal strategies to reduce plastic pollution.”

   http://www.earthisland.org/journal/index.php/articles/entry/single-use-plastics-pollution-law
   

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TSCA News

7. Calendar of TSCA Developments in 2019 and Beyond

   Mar 6, 2019 | Lexology

   By Ryan J. Carra, Mark N. Duvall, Sarah A. Kettenmann and Timothy M. Serie

   EPA faces many TSCA statutory and regulatory deadlines for actions in 2019 and 2020. It has also announced plans to take numerous actions not subject to such a deadline. Industry should anticipate upcoming developments and be prepared to provide comments or take other action.

   Acronyms and abbreviations used in this calendar are defined at the end.

   January 1, 2019EPA began the year with about 550 PMNs, MCANs, SNUNs, and section 5 exemption applications under section 5 pending review. It expects to receive about 1,000 additional PMNs MCANs, SNUNs, and section 5 exemption applications during 2019.

   January 14, 2019Deadline for comments on EPA’s draft risk evaluation for Pigment Violet 29, the first of the draft risk evaluations for the first 10 chemical substances to be the subject of risk evaluations per section 6(b)(2)(A). 83 Fed. Reg. 57473 (Nov. 15, 2018).

   January 28, 2019First day of work at EPA following the partial government shutdown, which for EPA began on December 29, 2018. Work on the New Chemicals Review Program fully resumed beginning January 31, 2019, 33 days later.

   January 31, 2019Due date for polymer exemption reports for 2018 per the polymer exemption rule, § 723.250(f).

   February 8, 2019EPA extended the review periods for all PMNs, MCANs, SNUNs, and section 5 exemption applications pending as of December 29, 2018 by 33 days per section 5(c). 84 Fed. Reg. 2851 (Feb. 8, 2019).

   February 13, 2019EPA issued a Notice of Violation of TSCA in connection with GenX and related PFAS. The NOV alleged violations of the PMN requirements, a section 5(e) order, a SNUR, and CDR, and indicated that EPA may allege additional violations.

   February 14, 2019EPA published its PFAS Action Plan, which reviewed EPA’s ongoing actions under section 5 to regulate PFASs.

   February 18, 2019EPA published the updated Inventory designating chemical substances as either active or inactive per section 8(b)(4)(A). This triggered a 90-day period during which manufacturers and processors may submit a Form B for any substance listed as inactive that EPA should list as active per § 710.30(b)(2).

   March 13, 2019EPA will hold a webinar on future reporting per the Inventory Reset rule.

   March 22, 2019Last day for EPA to announce candidates for high-priority and low-priority substances (9 months prior to December 22, 2019, the due date for EPA to begin risk evaluations for 20 high-priority substances and designate 20 low-priority substances, 3½ years after LCSA enactment, per section 6(b)(2)(B)). The prioritization process must last between 9 and 12 months per section 6(b)(2)(C) and § 702.1(d); thus, March 22, 2019 is the last possible date to announce the candidates to meet the December 22, 2019 deadline. There will be a 90-day review period per section 6(b)(1)(C)(i) and § 702.7(d), subject to a possible three-month extension per 6(b)(1)(C)(iii) and § 702.7(e).Effective date for import certification requirements for composite wood products, component parts, and finished goods per § 770.30(d).Last day for sale of composite wood products certified by a third-party certifier approved by the California Air Resources Board and that is also recognized but not accepted by EPA, and component parts and finished goods made from such composite wood products, per § 770.15(d).

   March 2019GAO issued a report, “Chemical Assessments: Status of EPA’s Efforts to Produce Assessments and Implement the Toxic Substances Control Act.” The report found that “EPA faces challenges with its ability to implement TSCA, such as managing the risk posed by ongoing litigation, ensuring appropriate resources, developing guidance documents to ensure consistency, and ensuring that the new chemicals review process is efficient and predictable.”

   Spring 2019 or Later (Timing Uncertain)Publication of a supplemental notice of proposed rulemaking for a SNUR for LCPFACs and perfluoroalkyl sulfonates. The Fall 2018 Regulatory Agenda predicted publication in October 2018 (RIN 2070-AJ99).Publication of a second notice of proposed rulemaking for revisions to the list of recipient organisms eligible for the Tier I and Tier II exemptions under the MCAN rule. The Fall 2018 Regulatory Agenda predicted publication in October 2018 (RIN 2070-AJ65).Publication of a final SNUR on toluene diisocyanates and related compounds. The Fall 2018 Regulatory Agenda predicted publication in November 2018 (RIN AJ91).Publication of a final methylene chloride rule. The Fall 2018 Regulatory Agenda predicted publication in December 2018 (RIN 2070-AK07). A draft final rule has been under review at OMB since December 21, 2018, along with a pre-rule on methylene chloride certification and limited access program for commercial paint and coating removal training. This rule is not subject to the amended section 6 requirements so long as it is consistent with applicable section 6 requirements per section 26(l)(4).Publication of a final SNUR on asbestos. The Fall 2018 Regulatory Agenda predicted publication in January 2019 (RIN 2070-AK45).Publication of a proposed rule to establish a plan to review all confidential business information (CBI) claims for specific chemical identities. The final rule is due 1 year after EPA published the active substances list (i.e., by February 19, 2020) per section 8(b)(4)(C). The Fall 2018 Regulatory Agenda predicted publication by January 2019 (RIN AK21). A draft proposed rule has been under review at OMB since February 28, 2019.Publication of final amendments to the SNUR rules updating the hazard communication program and regulatory framework; also making minor amendments to the PMN reporting requirements. The Fall 2018 Regulatory Agenda predicted publication in February 2019 (RIN AJ94).Publication of a final rule making technical amendments to the formaldehyde emission standards for composite wood products under Part 770. The Fall 2018 Regulatory Agenda predicted publication in March 2019 (RIN AK47).Publication of the next version of EPA’s New Chemicals Decision-Making Framework: Working Approach to Making Determinations under Section 5 of TSCA, and public meeting to solicit comments and describe the working approach within 60 days of publication. This commitment came in a letter from then-acting Administrator Wheeler to Senator Carper (Wheeler letter) in December 2018.

   May 16, 2019Oral argument scheduled in litigation challenging EPA’s risk evaluation framework rule, Safer Chemicals Healthy Families v. USEPA, No. 17-72260 and companion cases (9th Cir.).

   May 19, 2019Start date for submitting a Form B for any chemical substance listed as inactive on the Inventory prior to manufacture. Per the definition of “inactive substance” in § 710.23, the inactive designations announced on February 18, 2019 take effect 90 days after EPA identifies them as inactive, i.e., on May 19, 2019. Thereafter, manufacturers must submit a Form B no more than 90 days prior to initiating manufacture of an inactive substance per § 710.30(b)(1).

   May 31, 2019Date by which EPA has committed to ensure that all new PMNs, their attachments, including any health and safety studies, any modifications thereto, and all other associated information are placed online into electronic dockets accessible via ChemView within 45 days of their receipt following an evaluation for CBI, per the Wheeler letter.

   June 20, 2019First day that EPA may propose to designate 20 proposed high-priority and 20 low-priority substances per section 6(b)(1)(C)(ii) and § 702.9. This action will probably be delayed while EPA evaluates the comments received on the list of candidate substances. There will be 90-day comment period per section 6(b)(1)(C)(ii) and § 702.9(g).

   June 22, 2019Last day for EPA to propose risk management rules for persistent, bioaccumulative, and toxic chemical substances (PBTs) designated per section 6(h)(1) (3 years after LCSA enactment). EPA designated 5 chemical substances as PBTs under this provision. 83 Fed. Reg. 24305 (May 25, 2018).Last day for EPA to propose a rule per section 8(a)(6)(A) on limiting the reporting requirements for CDR or other section 8(a) rules for manufacturers of inorganic byproducts that are recycled, reused, or reprocessed. In 2017, EPA convened a Federal Advisory Committee on this issue, but the committee was unable to make a consensus recommendation to EPA. EPA is likely to combine this rulemaking with other proposed changes to the CDR rule. The Fall 2018 Regulatory Agenda predicted publication by December 2018 (RIN AK33). The proposal is expected prior to June 22, since a proposed rule amending the CDR has been under review at OMB since January 29, 2019.

   Late June 2019 (Specific Date Not Publicly Available)Due date for an EPA report to Senator Carper describing how EPA is complying with and will comply with section 14, with specific information and statistics related to implementation of section 14(g) (review of CBI claims and unique identifiers), as well as information on how and when the public will be able to track the status of EPA’s reviews of CBI claims and have access to EPA’s CBI determinations and associated documents on EPA’s website, per the Wheeler letter.

   July 1, 2019Due date for submission of mercury reports for 2018 to EPA per section 8(b)(10)(D) and § 713.17(b).

   October 20, 2019Last day for EPA to publish proposed risk evaluations for the initial 9 chemical substances (other than that for Pigment Violet 29, which was published in 2018), subject to a 6-month extension. Per section 6(b)(4)(G), the final risk evaluations must be published by December 19, 2019, 3 years after initiation of the risk evaluation, which began with designation of the first 10 chemical substances in 81 Fed. Reg. 91927 (Dec. 19, 2016). There must be 60-day comment period prior to that date per § 702.49 (a) (section 6(b)(4)(H) requires at least a 30-day comment period). October 20 is 60 days prior to the December 19, 2019 deadline for the final risk evaluations. EPA will probably publish the 9 proposed risk evaluations well before this date, since it needs to evaluate the comments received prior to publishing the final risk evaluations.

   November 2019Predicted date for publication of the final SNUR for LCPFACs and perfluoroalkyl sulfonates per the Fall 2018 Regulatory Agenda (RIN 2070-AJ99).

   December 19, 2019Last day for EPA to publish final risk evaluations for the first 10 chemical substances, subject to a 6-month extension (3 years after initiation of risk evaluation, which began with designation of the first 10 chemical substances on December 19, 2016), per section 6(b)(4)(G) and § 702.49(b).

   December 22, 2019Last day for EPA to designate 20 chemical substances as high-priority substances and 20 chemical substances as low-priority substances (3½ years after LCSA enactment). Risk evaluations on the 20 high-priority substances must begin on this date per section 6(b)(2)(B). At the time of designation, EPA will publish a preliminary list of manufacturers subject to risk evaluation fees under per § 700.45(b)(3)(i). A comment period of at least 30 days must be provided per § 700.45(b)(4).Last day for EPA to adopt a final rule on limiting the reporting requirements per the CDR rule or other section 8(a) rules for manufacturers of inorganic byproducts that are recycled, reused, or reprocessed, per section 8(a)(6)(B). EPA will probably combine this rulemaking with the proposed CDR amendments. The Fall 2018 Regulatory Agenda predicted publication by October 2019 (RIN 2070-AK33).

   January 1, 2020Effective date of a prohibition on the export of certain mercury compounds per section 12(c)(7)(A).

   February 19, 2020Last day for EPA to adopt a final rule to establish a plan to review all CBI claims for specific chemical identities (1 year after EPA published the active substances list) per section 8(b)(4)(C).

   April 1, 2020Due date for EPA inventory of mercury supply, use, and trade in the U.S. per section 8(b)(1)(B).

   June 19, 2020Last day for EPA to publish final risk evaluations for the first 10 chemicals, if there is a 6-month extension.

   June 22, 2020Last day for EPA to publish scope documents for the risk evaluations for the 20 high-priority substances (6 months after initiation of the risk evaluations) per section 6(b)(4)(D). By this date EPA will publish the final list of manufacturers subject to the risk evaluation fee per § 700.45(b)(7). The fee is $1,350,000 per § 700.45(c)(2)(ix), using allocation procedures at § 700.45(f)(3).

   September 30, 2020Last day for EPA to complete its risk evaluation of two substances requested by the manufacturer under section 6(h)(5), per EPA’s Initial Report to Congress on the EPA’s Capacity to Implement Certain Provisions of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Jan. 2017).

   December 19, 2020Last day for EPA to propose risk management rules for the first 10 chemical substances (1 year after publishing final risk evaluations) per section 6(c)(1)(A), if EPA determines that any of these chemical substances presents an unreasonable risk.

   December 22, 2020Last day for EPA to adopt final risk management rules for PBT chemical substances (18 months after the proposed rules) per section 6(h)(3).

   Acronyms and AbbreviationsTSCA - Toxic Substances Control ActLCSA - Frank R. Lautenberg Chemical Safety for the 21st Century Act, enacted on June 22, 2016Section - sections of TSCA as amended by the LCSAPart and § - to 40 C.F.R.CBI - confidential business informationCDR - the Chemical Data Reporting rule under Part 711Inventory - TSCA Inventory of Existing Chemical Substances under Part 710LFPAC - long chain perfluoroalkyl carboxylate substanceMCAN - microbial commercial activity notice under Part 725PFAS - per- and polyfluorinated alkyl substancesPMN - premanufacture notice under Part 720SNUN - significant new use notice under Part 721SNUR - significant new use rule under Part 721

   https://www.lexology.com/library/detail.aspx?g=2a893439-f94c-4c8c-baa4-5a55df0551ea
   

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Chemical Management News

8. (ACC Mentioned) BGOV Bill Summary: Final S. 483, Pesticide Registration

   Mar 5, 2019 | BNA Daily Environment Report

   By Adam M. Taylor

   The Environmental Protection Agency’s pesticide registration programs and related fees would be reauthorized through fiscal 2023 under the S. 483, which was cleared for the president.

   The previous authorization (Public Law 112-177), expired on Dec. 21, 2018, after a series of short-term extensions ran out. It was briefly revived by a three-week stopgap spending law (Public Law 116-5) that ended the 35-day government shutdown and lapsed again after it wasn’t included in the fiscal 2019 spending deal (Public Law 116-6) that was enacted Feb. 15.

   The measure would increase aggregate caps on maintenance fees collected from pesticide manufacturers through the program, which was created by the 1947 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and later amended by the Pesticide Registration Improvement Act (PRIA).

   The law requires pesticides to be registered with the EPA before they can be sold. Applicants have to demonstrate that using the pesticide according to specifications “will not generally cause unreasonable adverse effects on the environment.”

   The bill would update the FIFRA fee schedules by removing and adding categories, and adjusting fee amounts. Many categories wouldn’t be affected.
   Maintenance Fees & Reregistration Fund

   The measure would extend the EPA’s authority to collect maintenance fees, which are annual charges to maintain pesticide registrations, through fiscal 2023. It would increase the total amount the EPA can collect to $31 million from $27.8 million.

   It also would increase the maximum amount a company can be charged per year, as follows:Those with more than 50 registrations could be charged $207,000, increased from $184,800.Those with 50 or fewer registrations could be charged a total of $129,400, increased from $115,500.Small businesses with more than 50 registrations could be charged $136,800, increased from $122,100.Small businesses with 50 or fewer registrations could be charged $79,100, increased from $70,600.

   FIFRA defines a small business as having 500 or fewer employees and average annual global gross revenue from pesticide sales of as much as $60 million over the previous three years.

   The measure would clarify that money in the Reregistration and Expedited Processing Fund, which is supported by annual maintenance fees, could be used to:Offset costs from reviews required by the Endangered Species Act.OOffset costs of tracking and implementing decisions of registration reviews.Enhance information systems to improve tracking of decisions on applications.

   
   The bill would set aside $500,000 from the fund each year through fiscal 2023 for evaluating products claiming to treat “invertebrate pests of significant public health or economic importance,” such as bed bugs or pet-related pests.

   Data collection guidance for applicants related to invertebrate pests would have to be released as follows:Guidance on bed bug treatments would be due 30 days after the bill’s effective date.Draft guidance on Premise, a termiticide made by Bayer AG, would have to be finalized by Sept. 30, 2019.Draft guidance for fire ants and pet pests would be due by June 30, 2019, and would have to be finalized by March 31, 2021.

   Guidance would have to be periodically updated. The EPA would have to issue regulations on collecting performance data for products in these categories by Sept. 30, 2021.

   An additional $500,000 from the fund would be set aside each year through fiscal 2023 to enhance good laboratory practice inspections. As part of the enhancements, a preliminary summary of any inspection would have to be provided to the relevant lab within 60 days of each inspection.

   The bill would extend through fiscal 2023 a requirement that the EPA use between one-ninth and one-eighth of the fees collected each year to review inert ingredients.
   Service Fees & Pesticide Registration Fund

   The bill would extend a 5 percent registration fee surcharge for applications filed beginning on Oct. 1, 2019. An additional 5 percent increase would apply to applications received on or after Oct. 1, 2021, instead of Oct. 1, 2015.

   The bill would phase out registration service fees beginning in fiscal 2024. The fees would be reduced by 40 percent in fiscal 2024, 70 percent in fiscal 2025, and eliminated beginning in fiscal 2026. The previous authorization started phasing out in fiscal 2018.

   The measure would extend set-asides for worker protection, partnership grants, and pesticide safety education from the Pesticide Registration Fund -- which includes collected service fees -- through fiscal 2023. The bill would require the fund to focus on field-worker populations in the U.S.

   The EPA would have to find ways to streamline its process for reviewing new registration applications and to provide timely feedback to applicants during reviews.
   Other Provisions

   The measure would extend the prohibition on EPA imposing other fees for pesticide registration through Sept. 30, 2025. The prohibition is due to expire after fiscal 2019.

   Requests for “Gold Seal letters” would be ineligible for fee waivers and reductions. The letters are EPA certificates that state the registration status of a pesticide.

   The measure would clarify that applications for experimental use of pesticides covered by other parts of FIFRA are subject to the general application requirements and timelines, rather than the 120-day experimental use review period, which is shorter than most other applications.

   The ban on EPA fee collections for testing tolerance levels for pesticide residue on food products, which expired in 2017, would be reinstated through Sept. 30, 2023.

   The measure would reinstate through March 1, 2023, a requirement for the EPA to report to Congress on pesticide registrations, including updates on implementing changes under the bill. The requirement expired March 1, 2017.
   Business Impact

   Companies with pesticide registrations that would be affected by the bill include BASF SE, Bayer AG, Cargill Inc., Clorox Co., Dow Chemical Co., DuPont Co., Monsanto Co., and Procter & Gamble Co.
   Group Positions

   CropLife America, which represents the pesticide industry, SUPPORTS the bill.

   “PRIA represents a collaborative effort between a diverse group of organizations ranging from agriculture, commercial pesticide users, state and federal regulators, and environmental advocacy groups,” Chris Novak, the group’s president and CEO, said in a Feb. 25 news release. “This law provides certainty for consumers, farmers and our members, ensuring pesticides are reviewed and re-reviewed in a thorough and timely manner.”

   The Council of Producers and Distributors of Agrotechnology and Household & Commercial Products Association also SUPPORT the measure.

   A coalition including the National Association of State Departments of Agriculture, Natural Resources Defense Council, Farmworker Justice, American Chemistry Council Biocides Panel, and Biopesticide Industry Alliance SUPPORTED a previous reauthorization bill (H.R. 1029 in the 115th Congress), according to a May 2017 letter.
   Previous Action

   The Senate originally passed S. 483, the “Pesticide Registration Improvement Extension Act,” by voice vote on Feb. 14.

   The measure is also referred to as “PRIA 4" because it would be the fourth reauthorization of that law.

   The House amended the measure, reportedly after a drafting error was discovered, and passed it by unanimous consent on Feb. 25. The Senate cleared the House’s changes by voice vote Feb. 28.

   Both chambers passed H.R. 1029 in the 115th Congress, though they were unable to resolve differences between the two versions, and the measure expired at the end of that Congress.

   https://bnanews.bna.com/environment-and-energy/bgov-bill-summary-final-s-483-pesticide-registration
   

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9. US EPA Delayed, Dropped Chemical Risk Assessments

   Mar 6, 2019 | Chemical & Engineering News

   By Britt Erickson

   Top officials at the US Environmental Protection Agency have halted evaluations of the human health risks of nine chemicals, including formaldehyde, a March 4 report by the Government Accountability Office (GAO) concludes.

   This comes after the EPA postponed the release of many chemical assessments for nearly six months last year, says the GAO, the nonpartisan, investigative arm of Congress. The delay occurred while EPA leaders reevaluated the priorities of the agency’s Integrated Risk Information System (IRIS) program. IRIS assessments are used by the EPA to set contaminant cleanup levels for water, air, and soil, as well as by state and local governments.

   In May, the IRIS program was working on 22 chemical assessments, according to the GAO. By December, the number dwindled to 13, and the agency reassigned several staffers to work part-time on risk assessments required under 2016 amendments to the Toxic Substances Control Act (TSCA). That law governs the manufacture of commercial chemicals.

   From June to December 2018, the EPA asked its program and regional offices to choose which chemicals the IRIS program should continue working on. The agency received responses from the Office of Water and the Office of Land and Emergency Management for 11 chemicals: arsenic (inorganic), chromium (VI), mercury salts, methylmercury, polychlorinated biphenyls (for noncancer effects), perfluorononanoic acid, perfluorobutanoic acid, perfluorohexanoic acid, perfluorohexane sulfonate, perfluorodecanoic acid, and vanadium and its compounds. EPA announced in December that IRIS would focus on those 11 chemicals, plus two others—ethyl tertiary butyl ether and tert-butyl alcohol. EPA’s Office of Air and Radiation did not indicate it needed IRIS assessments for any chemical.

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   The EPA provided no explanation of why it put the other nine chemical assessments on hold. As the GAO points out, IRIS assessments for four of the nine chemicals—acrylonitrile, n-butyl alcohol, formaldehyde, and polycyclic aromatic hydrocarbons—were in the final stages of development.

   US Sen. Tom Carper (D-Del.), who requested the GAO report, and other Democrats in the Senate, along with House Science, Space, and Technology Committee Chair Eddie Bernice Johnson (D-Texas), are urging the EPA finalize the formaldehyde assessment. They are also asking the agency to investigate whether David Dunlap, an EPA political appointee who oversees IRIS, violated the EPA’s scientific integrity policy by stopping the formaldehyde assessment.

   Dunlap is recused from working on the formaldehyde assessment because he formerly worked for Koch Industries. The company has a long history of working with other chemical producers to stop the EPA from releasing the assessment, which shows a link between formaldehyde and leukemia.

   “EPA’s continued efforts to delay the publication of a report that describes the risk of cancer associated with exposure to formaldehyde will do nothing to eliminate or reduce that risk. Moreover, delaying this report only serves to further erode the public trust in the Agency whose mission is to protect human health and the environment,” lawmakers wrote in a March 4 letter to EPA Administrator Andrew Wheeler.

   https://cen.acs.org/policy/chemical-regulation/US-EPA-delayed-dropped-chemical/97/i10
   

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10. Members of Congress to Question EPA, DoD on Response to 'Forever Chemicals'

    Mar 5, 2019 | ABC News

    By Stephanie Ebbs

    Members of Congress on both sides of the aisle are increasingly raising concerns the government has not done enough to handle chemical contamination from military bases, airports and industrial sites around the country.

    In the first of several expected hearings targeting the Environmental Protection Agency under the Trump administration, a House oversight subcommittee will question officials from the EPA and the Department of Defense on their response to chemicals contaminating water all over the country.

    The topic for Wednesday's hearing has become a bipartisan focus for many lawmakers on Capitol Hill, many of whom are facing pressure from constituents affected by contaminated water.

    Formally called PFAS, the group of chemicals being discussed is nicknamed "forever chemicals" because once they're introduced into the soil or water by a military base or industrial facility they're very difficult to remove from the environment. They are used in firefighting foam, nonstick pans and waterproof household products like carpets.

    These chemicals have been used for decades, but some types were voluntarily pulled because of health concerns.

    Recent research has increased concern that people in communities dealing with contamination could be at higher risk for health problems including thyroid issues, immune disorders or some kinds of cancer.

    Former EPA Administrator Scott Pruitt promised action on the chemicals a year ago, and the Environmental Protection Agency recently released an "action plan" to pursue more regulations of the chemicals.

    However, many lawmakers were disappointed the plan promised to look into setting more rules about when the chemicals have to be cleaned up instead of setting limits on when they're used. Critics also say the new plan only pledges to consider taking more steps to regulate the chemicals when it should make immediate changes.

    The EPA says the agency is committed to setting a mandatory limit for the chemicals in drinking water but is still considering whether to pursue other ways to regulate them.

    Now, a bipartisan group of senators is pushing their own bill to force the EPA to move faster.

    A newly proposed Senate bill and its companion in the House would require the EPA to list PFAS chemicals as hazardous within a year, opening up hundreds of communities to become Superfund sites and require the Air Force to spend millions of dollars in cleanup costs.

    Six Republican senators signed on to the effort with eight Democrats supporting the legislation.

    Two members of Congress, Rep. Dan Kildee (D-Mich.) and Rep. Brian Fitzpatrick (R-Pa.), will testify on how it has impacted their states. Kildee and Fitzpatrick have also launched a bipartisan task force intended to recruit more colleagues to push for legislation on this issue.

    On Wednesday, the oversight environment subcommittee led by Rep. Harley Rouda (D-Ca.) will question the head of the EPA's water office Dave Ross and Maureen Sullivan, a top DOD official focused on the environment, on whether they are doing enough to help communities impacted by these chemicals.

    https://abcnews.go.com/Politics/members-congress-question-epa-dod-response-forever-chemicals/story?id=61484723
    

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11. EPA Touts 10-Year TRI Cuts To Bolster Rollbacks Despite Annual Increase

    Mar 6, 2019 | Inside EPA

    By Maria Hegstad

    Top EPA officials touted just-released analysis of the Toxic Release Inventory (TRI), which show a decline in releases over 10 years, to renew arguments that such improvements show that the Trump administration's deregulatory efforts can be advanced without increasing risks, though the analysis showed an increase in total annual releases.

    “The latest TRI analysis confirms that under President Trump the U.S. continues to improve its air quality while growing its economy,” EPA Administrator Andrew Wheeler said in a March 5 statement.

    Alexandra Dunn, EPA's recently confirmed toxics chief, delivered a similar message on a March 5 conference call with reporters. “The most recent TRI news give proof that economic growth and an improved environment can go hand in hand,” she said.

    The message is not a surprising one for EPA under the recently-confirmed Wheeler, who announced in his first address to EPA staff as acting administrator last year that one of his top priorities is improving EPA's risk communication.

    He and other officials have sought to make the case that regulators need to better communicate the improvements in environmental quality -- and limited risks -- as a way to justify some of the agency's deregulatory efforts. Their efforts, however, have struggled in the face of public skepticism of the Trump administration's deregulatory efforts and top officials' past industry connections.

    Wheeler and other officials' comments come as EPA March 5 unveiled its analysis of 2017 TRI reporting data which shows reduction in releases when measured over 10 years but an increase compared to the 2016 data.

    Among other things, the analysis shows that TRI covered-facilities reported nearly 4,000 new projects that eliminate or reduce chemical waste; releases to air declined by 11 million pounds from 2016, dropping 57 percent from 2007 levels; and 87 percent of the 31 billion pounds of TRI-covered chemical waste “managed by facilities [in 2017 was] stopped from release by preferred waste management of recycling and treatment,” Wheeler said.

    Wheeler noted that during the last decade TRI releases have declined “while the U.S. economy has grown,” and he highlighted as well a 6 percent drop in air releases of lead and a 9 percent drop in air releases of mercury between 2016 and 2017.

    “The bottom line: the U.S. continues to make significant environmental progress. Some people think air quality is getting worse. We need your help to get this information to the public,” Wheeler told reporters. “This information also demonstrates we can continue to clean the environment and grow the economy at the same time.”

    Annual Increase

    But the analysis, and some agency officials, acknowledged an increase in total releases compared to 2016. For example, the analysis states that from 2016 to 2017, “[t]otal releases to the environment increased by 13%, driven by the 21% increase (433 million pounds) in on-site land disposal.”

    The analysis shows the metal mining sector accounted for 50 percent of total 2017 releases, some 1.95 billion pounds, “which were primarily in the form of on-site land disposal.” The chemicals sector was the second highest release sector for 2017, with 13 percent of total releases.

    Of the total releases in 2017, eight chemicals comprised 76 percent of total releases, the analysis shows, with lead and zinc the top individual substances released. Lead represented 25 percent of the total, while zinc is 19 percent.

    Some EPA regions acknowledged the increases. For example, EPA Region 5 said in a press release that although overall releases were up in the region by 7 percent for 2017, they are down by almost 40 percent from 2007.

    “The increased releases in Region 5 during 2017 are due to increased off-site transfers of waste for disposal and on-site land disposal. The increased releases are primarily due to increases from the hazardous waste sector,” the region said.

    Wheeler and other officials largely sidestepped the increase. They also argued that context is important when considering TRI data, which is just one source of information about chemicals.

    “It's important to note that just because there is a chemical release, it doesn't mean there is a risk. Information must be presented in context,” Wheeler said.

    Asked what changes EPA is making to try to better provide context around TRI data, Wheeler replied, “The TRI release data is just that. Hopefully for the most part releases are fully permitted and within permitted limits. That's why it doesn't necessarily mean a negative for health effects.”

    Wheeler added that TRI “is not an exposure tracking system. What's important is, where anybody lives, they can go online and see the facilities in their communities and what they are releasing.”

    Like Wheeler, Dunn noted during a second March 5 conference call with Region 5 Regional Administrator Cathy Stepp that “just because there is a chemical release does not mean there is a human health risk. TRI information must be presented in context. It must be paired with the health effect in question and whether the heath effect is likely to present a risk.”

    Fenceline Communities

    Asked how EPA might discuss this context with fenceline communities, those closest to facilities and exposed to their emissions, such as the town of Willowbrook, IL, where residents are concerned about ethylene oxide releases from a Sterigenics medical sterilization facility, Dunn replied, “TRI is one source of data. . . . The emissions that are reported have to be paired with information about the hazard of the chemical as well as the nature of exposure. When you talk about fenceline communities, that would be a piece of information. They might want to seek information from the facility about those emissions. This data is reported by facilities to EPA, they are aware of the information and should be able to answer followup questions from the community.”

    She did not comment on a recent report that the company dropped its past voluntary practice of reporting its TRI releases, providing no 2017 release information.

    A Sterigenics spokeswoman previously told Inside EPA the company is not required to file TRI reports for its facilities but did not explain why. She added that “Sterigenics . . . like many other companies, made a business decision to no longer voluntarily file TRI reports.” 

    https://insideepa.com/daily-news/epa-touts-10-year-tri-cuts-bolster-rollbacks-despite-annual-increase
    

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12. Overall Toxic Releases Up, With Declines in Air, Water, EPA Says

    Mar 5, 2019 | BNA Daily Environment Report

    By Sylvia Carignan

    The overall amount of chemicals discharged into the environment increased from 2016 to 2017, largely due to an uptick in land disposal, with metals mining being the largest source, the EPA said March 5.

    However, the amount of toxic chemicals companies released into the air and water declined, the Environmental Protection Agency said at a March 5 news conference.

    The EPA’s Toxics Release Inventory tracks the permitted release and disposal of about 650 different chemicals, including metals such as lead and mercury, dioxin compounds, and hazardous air pollutants such as hydrochloric acid.

    “Total releases to the environment increased by 13 percent, driven by the 21 percent increase (433 million pounds) in on-site land disposal,” the agency said in its annual report.

    According to the agency, reported air emissions totaled 303.4 million pounds in 2017, down slightly from 306 million pounds the year before. Surface water discharges were down by less than 5 percent, the report said. 
    

    But, a decline in air emissions does not necessarily mean health risks have decreased.

    “You have to look at the exposure data before you come up with a risk assessment,” EPA Administrator Andrew Wheeler said March 5. “This is not an exposure tracking system.”

    In December, the agency said it would maintain but not tighten toxic air pollution standards for various industrial sectors, noting that no new health risks were found.

    The Toxics Release Inventory analysis looks at data from manufacturing, chemical manufacturing, paint and coating manufacturing, electric utilities, metal mining, and federal facilities, with manufacturing being the broadest. Toxic releases from the manufacturing sector have dropped 25 percent since 2007, the agency said, attributing the declines to reduced air emissions and off-site disposal.

    The EPA is highlighting its inventory this year to increase agency transparency, Alexandra Dapolito Dunn, who heads the EPA’s chemical safety office, said during the teleconference.

    “This is an area where the EPA has fallen short in the past, but we have made it a top priority to improve communications with the public,” Wheeler said.

    —With assistance from Amena H. Saiyid

    https://bnanews.bna.com/environment-and-energy/overall-toxic-releases-up-with-declines-in-air-water-epa-says
    

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13. New Mexico Sues Feds Over Air Force Base Pollution

    Mar 6, 2019 | BNA Daily Environment Report

    By Brenna Goth and Steven M. Sellers

    Years of firefighting training exercises at two U.S. Air Force bases in New Mexico has contaminated groundwater with fluorinated chemicals that need to be cleaned up, the state charged in a lawsuit filed March 5.

    The March 5 complaint filed against the federal government and manufacturers of per- and polyfluoroalkyl chemicals known as PFAS in U.S. District Court for the District of New Mexico escalates an ongoing fight over the compounds, used in firefighting foams, among other applications.

    The chemicals were produced for years by 3M, DowDuPont Inc., and other chemical makers to make nonstick coatings and firefighting foams.

    A similar suit was filed Feb. 7 against 3M and Dupont by a diary farmer who alleges he lost $1 million in revenues because of PFAS contamination from Cannon Air Force Base near Clovis, N.M.
    State Hazardous Waste Law

    The state alleged in its complaint the Air Force violated New Mexico’s hazardous waste act by failing to address previous use of the chemicals, which have been linked to higher risk in humans of testicular cancer, kidney cancer, thyroid cancer, high cholesterol, and pregnancy-induced hypertension, among other thing.

    The litigation follows a notice of violation the state issued to the Air Force last year, charging that the contamination is affecting residents and dairies in the area. The Air Force then sued New Mexico over its hazardous waste definition.

    The New Mexico Environment Department and state attorney general are now trying to make the Air Force clean up contamination at Cannon and the Holloman Air Force Base near Alamogordo, N. M.

    They also want pay for abatement, according to the lawsuit. The state also recently collected water samples near the bases, a press release said.

    “No one has a right to pollute New Mexico’s vital water resources,” Attorney General Hector Balderas said in a statement.

    Representatives of the Air Force declined to comment on ongoing litigation but said that the Air Force has had a “very aggressive” response to drinking water contamination from the chemicals.

    In New Mexico, the agency has provided alternate water and worked with the community and regulators on a long-term solution, Mark Kinkade, spokesman for the Air Force, told Bloomberg Environment in an email.

    Air Force actions at the bases named in the lawsuit include sampling nearby drinking water sources and working with residents, Kinkade said. The agency now uses a “more environmentally responsible” firefighting foam and works to limit its entrance into the environment, he said.

    The case is New Mexico v. United States, D.N.M., No. 1:19-cv-00178, 3/5/19.

    (Updates throughout. )

    https://bnanews.bna.com/environment-and-energy/new-mexico-sues-feds-over-air-force-base-pollution-1
    

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14. Mapping PFAS Chemical Contamination at 106 U.S. Military Sites

    Mar 6, 2019 | Environmental Working Group

    By Melanie Benesh, Scott Faber and Audrey Lothspeich

    The Environmental Working Group has identified and mapped 106 military sites in the U.S. where drinking water or groundwater is contaminated with fluorinated chemicals, known as PFAS, at levels that exceed the Environmental Protection Agency’s health guideline. But this is only the tip of a toxic iceberg that is largely hidden and still growing.1

    PFAS contamination on military installations is widespread because for nearly 50 years, the Department of Defense, or DOD, has used firefighting foam – so-called aqueous film-forming foam, or AFFF – that contains PFAS chemicals. Studies link PFAS exposure to kidney and testicular cancer, thyroid disease and weakened childhood immunity, among an array of serious health problems. PFAS chemicals bioaccumulate in human tissue and blood and can stay there for years.

    The interactive map below shows sites of PFAS contamination identified through DOD reports analyzed by EWG. Clicking on a dot brings up details about tests of drinking water or groundwater and the levels of PFAS detected.

    Last year, the Pentagon said there were 401 installations where there are known or suspected releases of the two best known PFAS chemicals, PFOS and PFOA, into groundwater. But the information released then was incomplete and imprecise. EWG has submitted a Freedom of Information Act request for more details but has not yet received a complete response.

    In addition, as of 2014, there were 664 current or former military fire- or crash-training sites, all of which are likely contaminated with PFAS chemicals. It is unclear how many of those sites were included in the Pentagon count last year. Also, as a number of states continue testing for PFAS contamination, it is possible that more military sites will be identified.

    PFAS chemicals were first created and introduced into commerce in the 1940s. The two best known are PFOA, formerly used to make DuPont’s Teflon, and PFOS, formerly an ingredient in 3M’s Scotchgard. The family is defined by the presence of one or several carbon-fluorine bonds, the strongest chemical bond in nature. They do not break down in the environment, leading some experts to dub them “forever chemicals.”

    This strong bond makes PFAS chemicals heat resistant. They can also form a film on the surface of petroleum, making them particular effective at suppressing and extinguishing high-heat petroleum-based fires. In the early 1960s, the Navy worked with 3M to develop firefighting foams containing a combination of PFAS chemicals. In 1969, the military adopted specificationsrequiring the use of these AFFF foams for fire training and emergencies.

    In addition to fire emergencies, the military has historically used AFFF for training exercises and equipment testing that have also resulted in the discharge of large volumes of AFFF. These discharges can create PFAS contamination in groundwater that may be used as drinking water, in soils and sediments, and even in food. From there the chemicals get into the bodies of people and animals. Last year, high levels of PFOS in fish and deer near the decommissioned Wurtsmith Air Force Base in Michigan prompted officials to advise against eating them.

    Despite concerns voiced by both 3M and Navy scientists as early as the 1970s, the military has continued to require the use of AFFF containing PFAS for nearly 50 years. In 2000, the military learned from an EPA official that 3M had decided to stop the production of PFOS, the primary PFAS chemical in firefighting foams.

    In 2001, an internal memo indicated that DOD knew PFOS was “persistent, bioaccumulating, and toxic.” But the department waited another decade to issue a “risk alert” with guidelines to reduce future releases and another four years beyond that to begin to phase out the use of AFFF produced with PFOA and PFOS.

    According to reporting by Sharon Lerner of The Intercept, the phaseout began in 2015. The Air Force completed the transition in 2018. The Army is not scheduled to replace AFFF with PFOA and PFOS until this year, and the Navyis not scheduled to replace the old formulations until 2020.

    That will not eliminate health concerns, because studies of the replacement PFAS chemicals that remain in AFFF show that they present many of the same health concerns. There are more than 4,000 PFAS chemicals, although the EPA estimates that only 602 are actively used in commerce. 

    However, there are fluorine-free alternatives that have been proven effective at controlling jet fuel fires. In November, tests by a consortium of oil companies concluded that the fluorine-free foams performed “exceptionally well.”

    Fluorine-free foam is also used at several international airports, including London Heathrow and all major airports in Australia, Copenhagen and Dubai. During a fire emergency at Heathrow in 2013, fluorine-free foam was used to extinguish the fire in less than three minutes, and all 80 passengers were evacuated safely. DOD is researching AFFF alternatives but has so far reported that “no commercially available PFAS-free foam has met DOD’s performance requirements.” However, the department has taken no steps to change its performance requirements.The Military’s Legal Obligations and Potential Liability

    The primary law governing the cleanup of contaminated sites is the Comprehensive Environmental Response, Compensation, and Liability Act, better known as Superfund. The Superfund Amendments and Reauthorization Act of 1986 clarified that federal facilities, like active and decommissioned military facilities, are subject to the cleanup requirements in the Superfund law. The amendments also established the Defense Environmental Restoration Program to address pollution at both active and decommissioned military facilities.

    Superfund primarily facilitates the cleanup of pollution from chemicals that have been designated as hazardous substances. However, Superfund also requires action when there is a release or substantial threat of release of any “pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare.” PFAS chemicals are considered “pollutants or contaminants,” but they are not yet considered hazardous substances under Superfund. The EPA is considering this designation, and bipartisan bills have been introduced in the Houseand Senate.

    Once PFAS chemicals have been designated as hazardous substances, the EPA will have the power to clean up contaminated military installations, order polluters to clean up contaminated sites, and recover cleanup costs from polluters. The hazardous substances designation also triggers reporting requirements for releases of those substances.

    Under Superfund, cleanup can take the form of short-term removal in response to imminent danger, or longer-term remedial actions designed to permanently address the risks from the contamination. Although some removal actions are relatively quick – sometimes as short as weeks – remedial actions can take years or decades to complete and usually cost millions of dollars. Remedial actions are reserved for sites that have been placed on EPA’s priority list of contaminated sites, called the National Priorities List.

    The EPA reported in June 2018 that it was engaged in PFAS-related activities at 58 federal facility National Priorities List sites. But the EPA suspects that there is PFAS contamination at many of the 140 Defense Department facilities on the list. Since the military has identified 401 sites with known or suspected releases of PFAS chemicals, this list is likely to grow. 

    Superfund is a “strict liability” statute, meaning that a responsible party, like the military, can be held liable even if it did not act negligently. This liability is not limited to damages within the boundaries of the facility but can extend to wherever a hazardous substance has migrated. Because some kinds of PFAS chemicals, particularly the new-generation PFAS chemicals that have replaced PFOA and PFOS, are known to migrate, this could expand the extent of liability for the military at some Superfund sites.

    There are some differences between the cleanup procedures at federal and non-federal facilities under Superfund. Non-federal sites can be cleaned up through a special government fund called the Superfund Trust Fund. But cleanup at federal facilities like military installations must be done with funds appropriated to the liable agency. Likewise, states are obligated to pay part of the cost of cleaning up non-federal sites that are financed through the Superfund Trust Fund. Because federal facilities must use appropriated funds for cleanup, states are not required to share the cost of cleaning up of federal facilities.

    How and to what degree a specific contaminant like PFAS at an individual Superfund site must be cleaned up is not specified by the law. Instead, specific cleanup requirements are determined on a site-by-site basis. In general, the law requires “applicable, relevant, and appropriate requirements” to protect human health and the environment. These can be state or federal requirements or other criteria. But remedial actions are required to meet the same goals as the federal drinking water and clean water laws.

    There are no federally enforceable standards for PFAS chemicals. In May 2016, the EPA issued a lifetime health advisory for PFOA and PFOS in drinking water of 70 parts per trillion, or ppt, either individually or in combination. But this guideline is not a legally enforceable limit, so polluters are not required to take cleanup actions that meet the guideline under Superfund.

    What’s more, many public health and environmental experts believe the EPA’s guideline is not sufficiently protective of public health. In 2016, Philippe Grandjean of the Harvard T.H. Chan School of Public Health and Richard Clapp of the University of Massachusetts at Lowell calculated that an approximate safe dose of PFOA and/or PFOS in drinking water would be 1 ppt. Nonetheless, in a June 2018 report to Congress, the Pentagon recommended an astounding groundwater cleanup level of 380 ppt.

    Federal facilities that are not on the National Priority List are also required to comply with any state laws requiring removal and remedial action, so long as those requirements are not more stringent than those applied to non-federal actors. Since the Pentagon has identified 401 sites with known or suspected PFAS releases, but there are only 140 DOD sites on the National Priority List, there could potentially be many federal facility Superfund sites subject to remediation levels set by states. Indeed, both the Navy and Army have acknowledged that state-promulgated PFAS standards “will likely be considered” applicable under Superfund. Bipartisan legislation introduced in the Houseand Senate last year would require cooperative agreements between states and these federal facilities to expedite cleanups.

    This is significant because states have been very active in proposing and setting PFAS standards. In 2018, New Jersey set a drinking water standard – a Maximum Contaminant Level, or MCL – of 13 ppt for another PFAS chemical, PFNA. New Jersey has also accepted, but not finalized, recommended MCLs of 14 ppt for PFOA and 13 ppt for PFOS. In January, New Jersey proposed interim groundwater cleanup values of 10 ppt for PFOA and PFOS.

    Additional MCLs for PFAS chemicals have been proposed in New York and New Hampshire. Alaska, Michigan, New Hampshire, New Jersey, New York, Vermont and Washington state will also consider additional drinking water limits this year. Drinking water standards set by these states could impact the cleanup standards for the Defense Department, significantly influencing the cost and scope of cleanup at military sites that are not on the National Priority List.

    Despite the scope of likely contamination and the threat posed to service members and their families, military officials are pushing back against attempts to force the Defense Department to pay for cleanup of contaminated bases, or even monitor the health of military families and neighbors.

    This year, the Air Force told Michigan it did not have to follow state regulations limiting to 12 ppt the amount of PFAS chemicals that can enter surface water. Tests in Michigan near the former Wurtsmith Air Force base have found PFOS in groundwater at levels as high as 42,000 ppt. City officials in Dayton, Ohio, have also found the response from the Air Force to cleanup contamination at Wright Patterson Air Force Base to be inadequate.

    The Navy is also fighting a lawsuit in Pennsylvania that would require it to pay for medical monitoring of families that were exposed to high levels of PFAS chemicals near Naval Air Station Joint Reserve Base Willow Grove and/or the Naval Air Warfare Center Warminster. The military is also fighting lawsuits related to AFFF contamination in Newburgh, N.Y., New Mexico, and Washington state.   

    Instead of fighting efforts to clean up contaminated installations, the Pentagon should be leading efforts to protect military families. Last month, EPA proposed a PFAS action plan that delays action on a hazardous substance designation under Superfund or the development of drinking water standards under the Safe Drinking Water Act. The EPA plan would not end the use of foams or other products made with PFAS chemicals and would not expand efforts to monitor for PFAS in water.

    To prevent future contamination and accelerate cleanup of military installations, Congress and the Trump administration should:Stop adding more PFAS chemicals to the environment. PFAS should be banned from firefighting foam, especially that used in military training exercises. In addition, PFAS should be banned from consumer products, including cookware, food packaging, cosmetics, carpeting and clothing.Stop approving new PFAS chemicals. More than 4,000 PFAS chemicals exist, so there’s no reason for the EPA or the Food and Drug Administration to let any more on the market.Find out where PFAS chemicals already are. Requiring military bases, water utilities and regulators to monitor for PFAS in water, air and food, and improving the tools to measure contamination, would tell us the extent of the PFAS contamination crisis. Agencies like the EPA, the Defense Department and the Centers for Disease Control should also conduct body burden testing, medical monitoring and health impact studies of people affected by PFAS contamination, especially military families.Find out where they’re coming from. Adding PFAS chemicals to the Toxic Release Inventory would disclose who is releasing them into our water, soil and air. Polluters and the Defense Department should also be required to warn neighboring communities of their potential exposure.Add PFAS to the Superfund cleanup law. Classifying PFAS as a hazardous substance under the Superfund law will help communities begin to clean up contaminated sites, including contaminated military installations. The EPA should also make sure PFAS chemicals are properly disposed of.Set an enforceable limit for PFAS in tap water. More than 1,500 drinking water systems serving about 110 million Americans may be contaminated with PFAS chemicals. Setting an MCL will require utilities to treat tap water to remove or lower PFAS contamination.Make polluters pay their fair share. Many of the companies who manufactured or used PFAS knew the risks to human health but failed to protect workers or nearby residents or notify the EPA, Defense Department or state and local regulators. Adding PFAS to Superfund will ensure that polluters pay. Polluters should also be responsible for taking back and safely disposing of their PFAS products, like firefighting foams. Other measures, such as a cleanup trust fund, should also be created, and Americans impacted by PFAS pollution should be allowed to take action through the court. Since the EPA and the Defense Department have dragged their feet for decades, state action is essential.

    According to Safer States, a coalition of state-level chemical safety groups, this year at least 13 states will consider legislation, ranging from bills to require more PFAS disclosure to bans on PFAS in food packaging, firefighting foam and flame retardants. Proposed legislation, detailed in Safer States’ interactive map, includes:

    Banning PFAS in food packaging: At least eight states will consider policies to eliminate or reduce PFAS in food packaging. States considering bans include Connecticut, Massachusetts, Maine, Minnesota, New Jersey, New York, Rhode Island and Vermont.

    Banning PFAS in firefighting foam: At least nine states will consider policies to ban the use of PFAS in firefighting foam. Washington state passed a ban on PFAS in foam last year, and the Federal Aviation Administration has been directed to rewrite regulations to allow for PFAS-free foams at airports. States considering bans are Alaska, Connecticut, Michigan, Minnesota, New Hampshire, New York, Rhode Island, Virginia and Vermont.

    Addressing PFAS in drinking water: Beyond regulating PFAS in firefighting foam, at least seven states will consider policies to limit levels of PFAS in drinking water, as well as fund cleanup of contaminated drinking water, including medical monitoring and testing. States considering actions include Alaska, Minnesota, New Hampshire, New Jersey, New York, Vermont and Washington.

    https://www.ewg.org/research/pfas-chemicals-contaminate-us-military-sites
    

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15. How a New Epoxy Could Boot BPA from Cans

    Mar 5, 2019 | Chemical & Engineering News

    By Melody M. Bomgardner

    A chemical of concern that first grabbed headlines in 2008 could finally be on its way out of metal food packaging.

    The substance, bisphenol A, was once prevalent as a monomer used to make epoxy linings for food and beverage cans. Scientists and nongovernmental organizations raised the alarm that BPA’s ability to act as an artificial estrogen in the body could harm reproductive and developmental health. In response, many brands and retailers vowed to replace it.

    Yet replacing BPA in food and beverage cans proved difficult because epoxy does its job unusually well. It prevents corrosion across all manner of foods and beverages, on both steel and aluminum, and regardless of processing method.

    Food brands, coatings companies, and can manufacturers spent several years working to develop and deploy replacement linings for steel cans. Eventually they settled mainly on acrylic and polyester formulas. By early 2018, 90% of food-can production used the alternative materials, according to the Can Manufacturers Institute.

    The beverage industry, which uses aluminum rather than steel, has not made equivalent progress removing BPA. But that could soon change, thanks to intense chemical sleuthing and material development work by scientists at the coatings company Valspar, which is now part of Sherwin-Williams.

    Rather than look in the toolbox of epoxy alternatives for food and beverage cans, Valspar sought to develop a new epoxy without using monomers that affect the endocrine system. And it sought scientists who had raised the alarm about BPA’s potential to harm human health to weigh in on its lead candidate.

    Now, after a decade of effort, Sherwin-Williams is commercializing a new can-lining epoxy, built from the ground up with a new monomer. The company says it is safe and performs just like those made with BPA.

    The epoxy is already being used in beverage cans in California, where food and beverage cans with BPA-containing liners require a health warning under Proposition 65. As the company continues to scale up the new polymer, called valPure V70, it aims to expand its use in other states and into food cans as well.

    In 2008, Valspar, like other coatings companies, was diligently searching for a replacement for BPA-based epoxies, recalls Tom Mallen, now director of global regulatory and strategic services at Sherwin-Williams. Valspar evaluated formulations made from materials already approved for food contact by US regulators. But none were epoxies, and none worked as well as the BPA-based epoxies that brands wanted to move away from.

    So the company decided to devote time and resources to designing a new material. “We started blazing this new trail in chemistry to make epoxy without BPA,” Mallen says. “It was not a trivial challenge.”

    Jeff Niederst, now Sherwin-Williams’s global marketing director for beverage coatings, led the charge. He understood that there were good reasons why, back in the 1950s, the packaging industry chose an epoxy resin rather than acrylics or polyesters. He felt those alternatives were still lacking compared with epoxy.

    “My belief is we’d be offering up technology that has already proven to be less robust. This is not the type of industry that likes to see a reduction in performance or higher risk,” Niederst says. “But we saw, and still see, a lot of our competitors are trying to get new light through those old windows.”

    Niederst made the case to his bosses that his team could achieve high performance without using BPA. The trick was to find a substance that would be a one-for-one swap for BPA but without the endocrine activity. The team looked at various members of the bisphenol family of monomers. They built a computer model to predict how each would fit into hormone receptors and if it would function in an epoxy.

    First they dialed the number and length of side chains all the way up. That resulted in molecules that did not react with cells or receptors but were too clunky to perform in a polymer. But it turned out that a bisphenol with four short side chains was biologically inert while reactive enough to make a polymer and a coating.

    The next challenge was to get enough of the monomer, tetramethyl bisphenol F (TMBPF), to scale up the new polymer. They called all the usual chemical companies, without success. Eventually they found a company in India that was making the molecule in a commercial process. Niederst and his colleagues visited the firm, Deepak Chemicals, which quickly got on board. It has since scaled up production of TMBPF and continues to be a supplier to Sherwin-Williams.

    Deepak got an early assignment to provide TMBPF for assays to measure endocrine activity. Valspar provided unrestricted research funds and substances extracted from cans coated with the new epoxy for outside researchers to test. The outside scientists, in turn, suggested tests that went beyond those required by regulatory agencies.

    Ana M. Soto, a professor of immunology at Tufts University School of Medicine, studies sex steroids, endocrine disruption, and fetal origins of adult disease. She and her collaborators tested TMBPF using in vitro and in vivo assays. The team also tested migration products of the polymeric coating by using a bioassay of estrogen-sensitive human breast cancer cells (Environ. Sci. Technol. 2017, DOI: 10.1021/acs.est.6b04704).

    Soto’s research showed that the Valspar epoxy differed from BPA-based epoxies in two important ways. One is that the TMBPF monomer did not show estrogen activity in assays or in rat studies. The other is that tests of the epoxy polymer showed that migration of the monomer, such as into food, was below the detection limit of 0.2 ppb. In the paper, Soto’s team concluded that there is “compelling evidence” of an absence of endocrine activity and negligible human exposure.

    Soto’s team performed the follow-through necessary to confirm that a chemical does not activate endocrine receptors, Soto tells C&EN. “A simple assay can tell you if something is an estrogen or partial estrogen agonist. But to prove that it is not, you have to do more work.”

    Sherwin-Williams calls the method it used to select its materials “safety by design.” Soto says she is pleased with the company’s approach to developing the epoxy. “Starting with a monomer that is not estrogenic and is in a polymer that doesn’t break down into estrogenic compounds—but is very similar to the regular epoxy—I think that is very clever,” she says. “I also like the idea they are going beyond what is normally done for testing.” Credit: Sherwin-Williams A Sherwin-Williams researcher mixes an epoxy in the laboratory.

    With research results in hand, Valspar connected with advocacy groups. One of those groups was Safer Chemicals, Healthy Families. “We’ve had a lot of interest in BPA over the years,” says Mike Schade, director of the organization’s Mind the Store campaign. “We coauthored a bunch of reports and publicly campaigned for leading grocery chains and food firms to eliminate or reduce BPA in canned foods.”

    Other coatings manufacturers did not reach out to his organization the way Valspar did, Schade says. Valspar “developed a pretty exhaustive approach to develop the material and evaluate its safety.”

    Sherwin-Williams is now applying for approval under the European Union’s chemical regulations and continues to test V70 for developmental end points in animals, which requires examining multiple generations.

    It will take some time to find out how far V70 will go in the food-and-beverage-packaging world, cautions Tom Van Kuren, a packaging coatings consultant at Vantek Surface Solutions. Valspar’s approach lowers the risk to customers that want to avoid introducing a new chemical with unknown human health risks, he says, but it can still take years of formula and cost optimization to gain market share.

    “Can manufacturers want the same speed of application, cure rate, output, and performance in the packaging,” Van Kuren says. “Those challenges are not simple.”

    Sherwin-Williams’s Mallen says beverage-can manufacturers want to continue to use an epoxy because it’s what their manufacturing lines were designed to use. To date, he says, V70 has been applied to 15 billion beverage cans in California.

    Coca-Cola’s website tells consumers that it uses BPA-based coatings in its beverage cans and that US Food and Drug Administration reviews show the coatings are safe. However, a federal indictment in a trade-secret theft case last month revealed that Coca-Cola has been working hard to find replacements for the coatings. The beverage company had a confidential R&D pact with six materials firms that collectively spent an estimated $106 million on the effort by the summer of 2017.

    The canned-food industry, meanwhile, is confident in the solutions it has in hand, emphasizes Sherrie Rosenblatt, vice president for communications at the Can Manufacturers Institute. But she also says a material’s effectiveness on multiple food types is an important performance requirement. For now, different linings are needed for different types of foods, such as peaches, peas, and tomatoes. In contrast, Sherwin-Williams says its epoxy is as versatile as older, BPA-based epoxies.

    Even if the Sherwin-Williams epoxy doesn’t take the packaging world by storm, advocates and health scientists would like to see the company’s approach to finding and selecting biologically benign materials catch on. The recent finding that some paper takeout containers are coated with per- and polyfluoroalkyl substances (PFAS) shows that prioritizing human health when choosing food-contact materials is still not routine, they say.

    PFAS are in some ways “becoming the new BPA,” Schade says. As they seek reform in how chemicals used in food packaging are regulated, Safer Chemicals, Healthy Families and others will keep up the public pressure on food manufacturers and retailers, he says. “In many respects, we have transformed the food-packaging industry away from BPA,” Schade says. “It is a success story.”

    https://cen.acs.org/business/consumer-products/new-epoxy-boot-BPA-cans/97/i10
    

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16. BASF, Monsanto to Fight Leukemia Case at Pennsylvania Top Court

    Mar 6, 2019 | BNA Daily Environment Report

    By Martina Barash

    BASF, Monsanto, and several other pesticide manufacturers obtained Pennsylvania Supreme Court review of the reinstatement of a golf groundskeeper’s leukemia case March 5.

    A lower court improperly barred the experts for the estate of Richard Walsh from testifying and then dismissed the case that alleges pesticides the man used at several golf courses in the Pittsburgh area caused his terminal illness, the Pennsylvania Superior Court said in June 2018.

    The appeals court, in reviving the suit, said a trial judge exceeded his authority when he scrutinized studies cited by the estate’s witnesses, and concluded that reliance on them wasn’t scientifically acceptable.

    Both the literature on the topic, and studies cited by the estate, support the general scientific principle underlying the experts’ opinions that long-term exposure to pesticides can cause or increase the risk of leukemia, the appeals court said.

    The companies, in seeking the state top court’s review, argued the trial court was properly acting as a “gatekeeper” and didn’t abuse its discretion.

    D’Amico Law Offices LLC represents Walsh’s estate.

    Eckert Seamans Cherin & Mellott, LLC represents the petitioners.

    The case is Walsh v. BASF Corp., 2019 BL 73247, Pa., No. 359 WAL 2018, petition granted 3/5/19.

    https://bnanews.bna.com/environment-and-energy/basf-monsanto-to-fight-leukemia-case-at-pennsylvania-top-court
    

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17. Honeywell Wins Dismissal of U.K. Mechanics’ Asbestos Claims

    Mar 5, 2019 | BNA Daily Environment Report

    By Peter Hayes

    Honeywell International Inc. won dismissal of asbestos product liability claims filed by British nationals in New Jersey.

    The claims by the spouses of four deceased residents of the United Kingdom should instead be heard in the U.K., a New Jersey appeals court affirmed in an unpublished ruling.

    The claims are “localized” in the U.K., not New Jersey, because the allegations arise from employment there, where most witnesses in the cases reside, the Superior Court of New Jersey, Appellate Division said March 5.

    Importing cases from European countries with adequate forums could open “floodgates” that would be a burden on the state court system, the appeals court said.

    If, however, the U.K. declines to accept jurisdiction over the claims, the matter should return to New Jersey, the court said.

    The plaintiffs were lifetime residents of the U.K., where they worked as car mechanics, using Bendix Corp. brakes that contained asbestos. Honeywell is the corporate successor of Bendix.

    The plaintiffs sued Honeywell in New Jersey because that is its principal place of business.

    Judges Edward W. Hoffman, Karen L. Suter and Lisa A. Firko issued the opinion.

    Szaferman, Lakind, Blumstein, Blader, PC, and Phillips & Paolicelli LLP represent the plaintiffs.

    McCarter & English, LLP, and Gibbons PC, represent Honerywell.

    The case is Rebbeck v. Honeywell Int’l, Inc., 2019 BL 72864, N.J. Super. Ct. App. Div., Nos. A-4989-16T1, A-4990-16T1, A-4991-16T1, A-3204-17T1, unpublished 3/5/19.

    https://bnanews.bna.com/environment-and-energy/honeywell-wins-dismissal-of-u-k-mechanics-asbestos-claims
    

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18. Expert Focus: Strategy to Mitigate Supply Chain Disruption in a No-Deal Brexit

    Mar 6, 2019 | Chemical Watch

    It was almost unthinkable two years ago that the terms of the UK’s exit would not be agreed by this point. But, with less than a month to go before the Brexit date of 29 March, the likelihood of any deal – or whether the Article 50 deadline will be extended – is unclear.

    UK MPs will have a 'meaningful vote' on Brexit by 12 March and, if they reject the proposed deal, they will vote on 13 March on whether or not to accept leaving the EU without an agreement. If MPs reject the option of leaving without a deal, there will be a further vote on 14 March on whether to delay Brexit by extending Article 50. This would also require the agreement of other EU member states.

    Brexit is not just a British issue, however. Businesses based outside the UK with operations and/or a supply chain involving the UK should also be concerned.  

    So, with all this uncertainty, what should business be doing? It’s not too late for companies to ensure that a contingency plan is in place in the event of a no-deal Brexit on 29 March.Contingency planning

    In the chemicals context, the key is to ensure ongoing compliance with REACH, which is effectively a 'passport' for REACH-compliant movement into and around the European Economic Area. In the event of a no-deal Brexit, the UK will implement UK-REACH.

    If post Brexit a transition period until 31 December 2020 is agreed as part of a Brexit deal, then REACH-related compliance issues will be deferred in practice until that date. However a transition period cannot be assumed.EU-REACH registration made by a UK-based company

    Does your company or supply chain rely on an EU-REACH registration made by a UK-based company, for compliance?

    In the event of a no-deal Brexit, UK-based REACH registrations will be invalid from 29 March. Supply chains will lose their 'passports' for free movement into and around the EU-27.  Without action to keep a supply chain compliant, EU entities potentially face disruption and/or will have additional REACH compliance obligations.Steps for EU-27 based businesses

    EU-27 based businesses should be discussing with their UK suppliers how they plan to deal with this. 

    If the UK supplier manufactures/formulates the substance, it will be entitled to appoint an only representative (OR) in the EU-27 to register on its behalf. This will mean that companies and other EU-based customers will be treated as 'downstream users' under EU-REACH, provided that certain steps are taken. Echa has provided guidance on how UK-based registrants can transfer REACH registrations to an OR through REACH-IT.

    'Steps must be taken during the Brexit window of 12-29 March'

    Steps must be taken during the Brexit window of 12-29 March. This should not be left to the last minute.

    This may well mean action to transfer these registrations before it is known when (or even if) there will be a no-deal Brexit. Equally, contractual arrangements will need to be agreed with any appointed OR to ensure that the UK appointor can call for those registrations to be transferred back in appropriate circumstances.

    Alternatively, companies may be able to transfer the registration to a different entity in the EU-27, but issues such as data access, customs, logistics and legal concerns can take time to resolve. Again, this should not be left to the last moment.

    The bottom line is that if a UK-based supplier of key substances/products cannot sort this out with a valid EU-REACH registration, then companies will have to find a new supplier in the EU-27 or register that substance post Brexit.Steps for UK-based companies

    UK-based businesses relying on a REACH registration by an EU-27 legal entity and/or their own EU-REACH registrations also need to act.

    The UK government has released the draft legislation to implement UK-REACH. This includes provisions to 'grandfather' existing EU-REACH registrations into UK-REACH, and also to ensure that UK-based businesses benefiting from an EU-27 legal entity’s REACH registration (a downstream user) can continue to import those substances for two years post Brexit.

    In order to benefit from these 'grandfathering' provisions, steps have to be taken to ensure ongoing compliance. For registrations, for example, limited information has to be submitted within 60 days of Brexit, and for downstream users within 180 days. And a complete registration dossier has to be submitted within two years of this.  

    The key impacts for UK businesses are ensuring appropriate data access and the requirement for former downstream users to submit a UK-REACH registration two years post Brexit in order to continue importing or source those substances from a UK-based registrant.

    Many former downstream users will have no experience registering under REACH and so will be unfamiliar with the process. It may be, for some, that the costs of registration for the UK only are uneconomic. Unlike in the implementation of EU-REACH there are no phased deadlines based on tonnage.

    Panellists at the House of Commons Environmental Audit Committee observed that the potential cost of registrations/re-registrations for UK-REACH in a no-deal Brexit scenario is likely to be significant. On the basis that data access costs will need to be replicated (as typically data access agreements limit use to EU-REACH), it was estimated at £450m on top of the £550m already invested by businesses.

    This will fundamentally be a matter of commercial negotiation around whether owners are prepared to share the data and if so, on what terms, including cost. If negotiation is unsuccessful, repeat testing will be necessary, with a potentially significant impact on animal testing. 

    Cefic, in its guidance, put forward arguments against data owners requiring additional financial compensation for data access for the purposes of UK-REACH by those which already had access for EU-REACH. However, the trade body concludes that it is for each contracting entity to decide. It remains to be seen whether business will adopt this approach.

    Equally, this does not help UK-based registrants which are downstream users, nor EU-27 based entities reliant on a UK- based REACH registration which will have to submit new EU- REACH registrations.

    'Questions also remain about whether the UK-REACH IT system will be ready in time'

    Questions also remain about whether the UK-REACH IT system will be ready in time. The UK Health and Safety Executive (HSE) confirmed in its additional no-deal REACH guidance that this system, mirroring EU-REACH IT, which is being built for registrations and notifications, will be operable from 29 March. However, there are indications that its development still has some way to go. It is also unclear whether it will have the same functionality as EU-REACH IT.  UK-based REACH authorisations

    UK-based REACH authorisations will also be invalid from 29 March. So, where a particular use of a specific substance in the EU-27 requires an authorisation under REACH, that use will no longer be allowed.

    EU-27 based businesses should be discussing with their UK suppliers how they plan to deal with this.

    If the use of the authorised substance takes place in the EU-27, ask the UK entity that holds the authorisation what it plans to do. If it’s a manufacturer or formulator, it may be able to appoint an OR in the EU-27.

    Alternatively, the manufacturer/formulater may be able to transfer the authorisation to a different legal entity in the EU-27. This may trigger a review of the authorisation by the European Commission.

    Otherwise, companies may need a new EU-27 authorisation, but that is not a quick fix. The process takes more than two years and is costly. It may mean that certain supply chains cannot continue post Brexit.

    If the use of the authorised substance only takes place in the UK and an article is imported into the EU-27 then this supply chain will not require a new authorisation. Authorisation applies to the use of a substance, including where a substance subject to this is incorporated into an article. However, it does not apply to a finished article itself. 

    As supply chains are increasingly globalised, businesses outside the EU-27 further down the supply chain may not be aware that their product has been manufactured through the use of a UK authorisation. They should make appropriate enquiries along the supply chain, with a view to anticipating any likely issues, while acknowledging that some suppliers may be reluctant to disclose relevant information.Steps for downstream users

    UK-based businesses holding a REACH authorisation/benefiting from one held by an EU-27 entity (downstream users) also need to take steps. These authorisations will be grandfathered into UK-REACH provided that certain steps are taken, including supplying technical information relating to the authorisation to the HSE within 60 days of Brexit. UK downstream users’ authorisation will only be grandfathered while the EU authorisation continues to have effect.Steps where there is an application for an authorisation

    UK-based businesses which have submitted applications for authorisation (for example, so that they can continue to use a relevant substance after the sunset date) that have not yet been decided, will only benefit from grandfathering, where that application is at the "final decision stage" . This means, that among other things, the applicant has not received the final opinions of the Echa Committee for Risk Assessment (Rac) and Committee for Socio-Economic Analysis (Seac).Companies obtaining articles from the UK

    Often businesses are unaware that REACH also impacts articles (that is, completed products such as a shoe or chair). The main REACH obligation relates to passing information on substances of very high concern (SVHCs) along the supply chain. 
    
    In the short term, EU-27 business can rely on UK-REACH provisions to require UK suppliers to provide information. However, over time, the UK and EU list of SVHCs may change such that EU and/or UK businesses may have to undertake their own testing to meet their own compliance obligations, subject to specific contractual arrangements.Conclusion

    The key to this is understanding the supply chain and taking steps to prepare for a no-deal Brexit on 29 March. Businesses waiting until the UK’s vote on 13 March may well find that in the event MPs accept a no-deal Brexit, there will be insufficient time to prepare.

    https://chemicalwatch.com/74789/expert-focus-strategy-to-mitigate-supply-chain-disruption-in-a-no-deal-brexit
    

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Energy News

19. Senate Energy Panel Seeks To Spur 'Pragmatic' Climate Policy Discussions

    Mar 5, 2019 | Inside EPA

    By Lee Logan

    A Senate energy committee hearing on the power sector and climate change -- billed as the chamber's first hearing to explicitly address the issue in five years -- focused largely on low-carbon technology and incentives to reduce carbon emissions, omitting some of the highly partisan fights over climate policy that have gained steam in recent months.

    “Clearly the effort here is to get a bipartisan conversation going,” said Energy and Natural Resources (ENR) Committee Chairwoman Lisa Murkowski (R-AK). “The rhetoric surrounding the issue of climate and climate change can be so heated and animated, and so oftentimes just a very toxic discussion that you cannot get to focusing on the solutions, on where we're going in a positive way.”

    The March 5 hearing was the Senate's first to directly address climate change since 2012, though ENR hosted a proceeding in early February on “energy innovation” that included significant discussion of low-carbon technology and acted as a de facto climate hearing.

    While senators and witnesses at the recent hearing praised the “robust” and “serious” discussion on the power sector's low-carbon transition, the event nonetheless showcased the limits of the current political environment on climate policy.

    For example, only two Republicans besides Murkowski participated in the discussion -- with Sen. Cory Gardner (R-CO) praising energy savings performance contracts and tax incentives for carbon capture and advanced nuclear technologies, and Sen. Bill Cassidy (R-LA) largely arguing that states with more ambitious carbon policy face higher electricity prices.

    That dynamic underscores that Murkowski is one of the few in the GOP caucus willing to engage publicly on climate mitigation policy, with most Republicans largely opposed to carbon controls or seeking to sidestep the issue.

    Additionally, witness Joseph Kelliher of the power generator NextEra Energy, noted at one point that debating the benefits and drawbacks of various types of climate legislation “assumes there's some consensus on carbon policy.”

    Left unsaid in his testimony is that Congress is far from achieving such a consensus on the need to cut greenhouse gas emissions to address climate change.

    Nevertheless, Murkowski and committee ranking member Joe Manchin (D-WV) promoted a “reasonable” and “pragmatic” policy that relies largely on developing low-carbon technologies and providing incentives for their deployment -- while eschewing “mandates” to reduce emissions.

    Manchin, who has long supported coal and other fossil fuels and opposed Obama EPA GHG rules, said that any climate legislation must address the threats fossil-dependent states face from a shift to low-carbon energy.

    Such a bill “must offer states like West Virginia opportunities, not additional economic burdens,” he said, adding that it should “ensure our citizens have a role in the clean energy future.”

    He also urged environmentalists to accept the “reality” that “fossil fuels aren't going anywhere anytime soon,” particularly in developing countries, and that the United States should thus develop carbon capture and other technologies to control emissions from those sources.

    Murkowski focused at length on climate-related damages that are occurring in her home state, including a significant loss of sea ice and permafrost, as well as efforts to deploy low-carbon micro grids to help address reliability and cost issues in the state's rural areas.

    “In Alaska, we view there is no choice here” but to begin addressing climate change, she said.

    Incentives & Mandates

    Many witnesses broadly embraced her view that “incentives” to reduce emissions are preferable to “mandates,” though that notion faced occasional pushback.

    Kenneth Medlock of Rice University's Center for Energy Studies, for instance, said lawmakers should be “open to disincentives” such as “pricing mechanisms” that discourage higher-carbon resources.

    “If you're trying to alter the economic landscape, typically one of the best ways to do that is through pricing mechanisms, and tax is actually a viable approach,” he said, offering implicit support for a carbon tax.

    Additionally, Lisa Jacobson, president of the Business Council for Sustainable Energy, testified that Congress in the future could consider “market-based mechanisms to address carbon emissions” such as cap-and-trade programs.

    She later added that “what's key is building bipartisan, durable policies that the market can invest on.” If a policy causes significant “economic harm, it's going to be rejected over time.”

    Jacobson -- whose group includes natural gas, renewables and energy efficiency firms -- added that the hearing represented a “refreshed, robust, serious conversation” on climate change, and that Congress could start with a broad consensus on research and development for low-carbon technology, “and maybe build out from there.”

    Green New Deal

    Another issue that was largely missing from the ENR hearing was discussion of the Green New Deal (GND) climate resolution that has consumed the climate debate in Congress over the past several months -- with Republicans seeking to paint the plan as extreme in often exaggerated terms.

    Cassidy mentioned the GND once in passing as part of a broader point on the economic risks of carbon mitigation efforts, and Manchin offered indirect pushback to the plan's call to achieve a carbon-free power system within the next decade, arguing that is not “possible.”

    But both Murkowski and Manchin pledged a continued focus on climate policy. “I do think this is one of the exciting areas where we can truly make a difference for our nation's economy, for our nation's environment and really for our nation's health,” Murkowski said.

    Manchin added that the hearing is “is just the beginning. It's not the ending, one and done.” 

    https://insideepa.com/daily-news/senate-energy-panel-seeks-spur-pragmatic-climate-policy-discussions
    

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20. Rules Reward Companies That Let Methane Leak — Study

    Mar 6, 2019 | E&E Energywire

    By Jenny Mandel

    Driven by regulatory pressures more than financial incentives, natural gas distribution companies aren't taking all cost-effective opportunities to stop leaks, according to a recent study.

    That means there may be opportunities for cost-effective policies that address climate change by limiting natural gas losses, similar to the climate benefits that can accrue from energy efficiency improvement programs, the study argues.

    The paper considers the commodity value, cost of climate damages and safety value of reducing methane leakage from natural gas distribution pipeline systems and compares those figures with the costs of leak detection and abatement and with wholesale pipeline replacement programs.

    Methane is the key component of natural gas, making up the vast majority of the commodity that is delivered by pipeline to homes, businesses and industrial facilities for heating and process energy. It is also a powerful forcer of climate change, trapping 80 times more heat than carbon dioxide over a 20-year period.

    Most natural gas distribution companies are heavily regulated with set reimbursement rates based on the natural gas they move through their systems, and "lost" gas is fully reimbursed as a cost of doing business.

    "Price regulations have introduced a distortion in the natural gas distribution market" by removing the incentive for utilities to avoid leakage of their product, the study published in the Journal of the Association of Environmental and Resource Economists argues.

    The authors — Catherine Hausman, an assistant professor at University of Michigan's Gerald R. Ford School of Public Policy, and Lucija Muehlenbachs of the University of Calgary in Canada — analyzed information on how much gas utilities spend to repair leaks and the value of those leaks in commodity terms, drawing on data covering 1,500 utilities over nearly 20 years.

    Their analysis found that companies on average had realized leak abatement costs of around $0.48 per million cubic feet of gas, far below the commodity value of $5.25 per million cubic feet of gas or the climate damage cost they estimated at $27 per million cubic feet of gas.

    The gap between the amount spent on leak abatement and the commodity value of the gas represents a missed opportunity that companies could be better incentivized to close, the authors said, while the far greater difference between the amount spent and the externalized cost of climate damages marks a tougher climate policy gap.

    The authors suggest that revamping the reimbursement policies that public utility commissions use with natural gas utilities could lead to a cost-effective reduction of methane leaks.

    One framework to do that would be allowing reimbursement for the national average leak rate rather than a utility's own leak rate, to tighten up leaky distribution networks without eliminating payments for lost gas.

    But the authors say data gaps could complicate efforts to address distribution pipeline methane leakage, including imprecision in utilities' own measurement of "unaccounted for gas."

    Noting that natural gas production, processing and transmission have been increasingly studied to identify ways to reduce methane leakage, they call for further research on distribution networks and regulatory incentives to capture cost-effective climate policy options.

    https://www.eenews.net/energywire/2019/03/06/stories/1060123243
    

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21. Chevron-Exxon Texas Showdown Spells Trouble for Frackers

    Mar 5, 2019 | Bloomberg

    By Liam Denning

    In case you missed it, Tuesday morning brought confirmation that it is officially on in Texas. Even as Mike Wirth, CEO of Chevron Corp., was wrapping up a session with analysts that could have been headlined “We rule in the Permian,” Exxon Mobil Corp. teased its own session coming on Wednesday with a press release that could have been headlined “Nah, we rule.”

    The frack-off not only says a lot about where these two companies are, but also where all those other Permian players find themselves in early 2019.

    Chevron projects that, at a $60-a-barrel oil price assumption, it will produce 900,000 barrels of oil equivalent a day in the Permian Basin in 2023, more than double its current level. Exxon, meanwhile, announced plans to increase its Permian production by almost 80 percent to more than 1 million barrels-equivalent by “as early as 2024.”

    Apart from the spectacle of America’s two oil majors battling to be king of Texas, what’s striking about those targets is that they imply both companies will be relying on the Permian for roughly one of every four barrels they produce within the next five years. That is a most un-major-like level of concentration in one asset, especially one at home and not in some far-flung corner of the world. The supermajor rationale of get-together-and-go-forth, expounded in the megamergers of 20 years ago, isn’t dead exactly, but it’s no longer the guiding mantra.

    The rationale was captured in Wirth’s comment that Chevron’s “risk is decreasing as our capital spending becomes more weighted towards smaller, shorter-cycle investments.” The vast majority of Chevron’s anticipated increase in production to 2023 will come from projects that are already sanctioned, and 60 percent of them will be in the Permian Basin. Roughly another 30 percent relates to other tight-oil reserves.

    Wirth’s predecessor was dogged by years of big-ticket, delayed mega-projects that burned cash and hurt returns. In that way, Chevron exemplified a wider degradation in the majors’ reputation as stewards of capital. In addition, the specter of climate change and peak oil demand has, in effect, raised the risk premium on new long-term projects. Winning hearts and minds on Wall Street now involves keeping a tight rein on spending, having flexibility on drilling and production and paying out a bigger chunk of cash flow year in, year out.

    For Chevron, shale — and Permian shale in particular —  is the key to that. The same goes for Exxon, even though it is playing catch up there, having had to buy its way into a big Permian position and lacking Chevron’s advantage in terms of low or no-royalty barrels.

    Both companies claim relatively low costs to produce each Permian barrel and are investing to make their integrated model work, linking the basin with in-house pipelines, refineries and export facilities. They have yet to prove that this will work in terms of delivering cash returns. But it is fascinating to see both companies essentially go all-in on it — especially when shale’s pioneers, the smaller exploration and production companies, are struggling with their own model.

    Having led the surge in U.S. oil production, the E&P sector is facing a reckoning as investors, activists among them, ask why a decade of success in output hasn’t translated into good returns on, and of, capital. It is telling that these stocks, leveraged to growth and oil prices, have lagged Chevron and the broader market since crude bottomed out in February 2016 (Exxon, not so much).

    As Roger Diwan of IHS Markit puts it: “The outperformance of the independents is completely gone.” Chevron isn’t promising 10 percent production growth overall, but it is guiding for growth of 3 to 4 percent a year on a bigger base and, crucially, dividends and buybacks. The next several years will show whether a major can make the Permian pay in that way. What is clear today is that investors casting a wary eye at promises of reform from E&P companies have another option for their money.

    https://www.bloomberg.com/opinion/articles/2019-03-05/chevron-exxon-texas-showdown-spells-trouble-for-frackers
    

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22. Cheniere Energy Expected to Sign $18 Billion LNG Deal with China's Sinopec

    Mar 6, 2019 | Houston Chronicle

    By Sergio Chapa

    Houston liquefied natural gas company Cheniere Energy is expected to sign an $18 billion LNG supply deal with China, two media outlets are reporting.

    Cheniere declined to comment but both The Wall Street Journal and S&P Global Platts report that the Houston company is close to signing a long-term LNG supply deal with China's state-run oil company Sinopec.Recommended Video

    00:3301:10

    The $18 billion deal could be announced as part of a broader US-China trade deal at a summit between U.S. President Donald Trump and Chinese President Xi Jinping at the end of March, the Journal reported.

    A Beijing-based Cheniere executive who did not want to be identified told S&P Global Platts that the Houston company has been in talks with Sinopec "for some time" but declined to provide further details about the potential deal.

    Green Lights: Feds approve commercial operations at Corpus Christi LNG

    News of the potential deal comes days after the Federal Energy Regulatory Commission gave Cheniere the green light to put the first production unit at its Corpus Christi LNG unit into service and begin exports.

    The potential Sinopec deal also comes roughly a year after Cheniere signed two LNG supply deals with PetroChina International Co. The PetroChina deal was signed weeks after Trump led a November 2017 trade mission to China.

    The deal with Sinopec could also include financing from state-owned Chinese banks for Cheniere to further expand its export capacity, the Wall Street Journal reported.

    Fuel Fix: Get daily energy news headlines in your inbox

    Originally founded in 1983, Cheniere Energy employs nearly 1,400 people in Texas and Louisiana. Amid a record 273 export cargoes to 32 nations, the company closed 2018 with a $471 million profit on $8 billion of revenue.

    https://www.chron.com/business/energy/article/Cheniere-Energy-expected-to-sign-18-billion-LNG-13664998.php
    

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23. Pennsylvania AG Said Again Investigating Natural Gas Industry

    Mar 5, 2019 | Natural Gas Intelligence

    By Jamison Cocklin

    Pennsylvania Attorney General (AG) Josh Shapiro’s office is said to be conducting an investigation of the environmental impacts caused by unconventional natural gas drilling operations in the southwestern part of the state.

    AG spokesman Joe Grace said he couldn’t “confirm or deny any investigation.” However, court records indicate that an investigation is underway, and Washington County residents living near shale operations in the state have had contact with the AG’s office.

    Stephanie Hallowich, whose family filed a lawsuit against Range Resources Corp. and other defendants in 2010, including the state Department of Environmental Protection, testified before a statewide grand jury in Pittsburgh last month, her former attorney Peter Villari told NGI’s Shale Daily.

    “We have no idea whether the AG’s investigation even relates to that civil action, none,” he said of his firm. “But when Stephanie received the subpoena, out of an abundance of caution, she called me.” Hallowich notified Range and several other defendants in the case as required by a nondisclosure agreement the family signed after it reached a settlement. None of the defendants, Villari said, objected to her testimony, which is permitted if she is subpoenaed by authorities.

    The Hallowich’s $750,000 settlement was revealed in 2013 after news media pushed the county court to unseal it. Range’s unconventional drilling operations in Washington County allegedly caused the family harm. 

    The Pittsburgh Post-Gazette, which first reported the AG’s investigation, is also pushing to unseal court documents in another case that was settled with Range related to widely covered environmental issues at the company’s former Yeager impoundment in Amwell Township.

    According to the motion filed in the Washington County Court of Common Pleas to unseal documents in the case, the Post-Gazette discovered that Shapiro had sent letters to attorneys in the case informing them that his office has “assumed jurisdiction over several criminal investigations involving environmental crimes in Washington County.”

    State regulators in 2014 fined Range $4.15 million for a series of violations at its impoundments in the region. At the time, it was the largest financial penalty ever levied against an unconventional operator. The pits, capable of holding millions of gallons of water, have proved contentious in Appalachia, where some residents have complained of odors, possible contamination and the amount of time they remain in service.

    Under a consent order with the state, Range was required to close most of the leaky impoundments and upgrade two others. It’s unclear if the company has been contacted by the AG’s office regarding the lawsuits it’s faced in the region.

    A grand jury’s deliberations are not public. Terry Madonna, director for the Center for Politics and Public Affairs at Franklin & Marshall College in Lancaster, PA, said an investigation into private industry is not at all uncharacteristic of the AG’s office or outside of its scope.

    The oil and gas industry has had to deal with investigations in the state before. In 2015, ExxonMobil Corp. subsidiary XTO Energy Inc. reached a settlement with then-AG Kathleen Kane’s office nearly three years after criminal charges were filed for an alleged discharge of wastewater at a drilling site in 2010. The company paid a civil penalty and provided additional funds for environmental projects.

    Kane also filed a wide-ranging lawsuit the same year against Chesapeake Energy Corp. and its affiliates for deceptive business practices. The complaint was filed after more than a year of investigation that involved hundreds of landowners and industry cooperation. That litigation, which Grace said is “live, active and ongoing” under Shapiro, seeks restitution and civil penalties from Chesapeake, which has been accused of deducting post-production expenses from royalty checks to cover marketing costs.

    Under Shapiro, however, the AG’s office has been particularly active. Since he took office in 2017, Shapiro, a Democrat, has released a grand jury report alleging sexual abuse of minors in Catholic dioceses across the state that garnered national attention. He also recently entered a long simmering battle for market share between two major health insurers in the state by filing a lawsuit against one of them and he has repeatedly targeted the Trump administration’s policies in multiple lawsuits.

    “He’s one of the more aggressive attorneys general in modern history,” Madonna said. “He’s gone after the Catholic church for sexual abuse, he’s been involved in a variety of other issues at both the state and national level. I think he’s been -- right from the get go -- very, very clear that he’s going to be an activist attorney general. I don’t think there’s any doubt about that.”

    https://www.naturalgasintel.com/articles/117618-pennsylvania-ag-said-again-investigating-natural-gas-industry
    

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24. DOE Approves La. Export Project

    Mar 5, 2019 | E&E News PM

    By Jenny Mandel

    The Department of Energy today approved exports of liquefied natural gas from a new facility to be built in Cameron Parish, La., making it the first to win its two key federal approvals under the Trump administration.

    Venture Global LNG's proposed Calcasieu Pass project will now be able to export up to 1.7 billion cubic feet per day of natural gas to buyers in countries that don't have U.S. free-trade agreements, an important step in an industry dominated by buyers in nations like China, Japan and India.

    Last month, the Federal Energy Regulatory Commission granted the company permission to construct the plant, following a breakthrough by commissioners who were deadlocked over questions including how to assess the facility's contribution to climate change (Energywire, Feb. 22).

    "Projects such as Calcasieu Pass's LNG export project represent a tremendous opportunity for the United States," Energy Secretary Rick Perry said in a statement. "To secure our place among the top LNG exporters in the world brings great benefits to both the United States and our trading partners around the world."

    DOE Undersecretary Mark Menezes said LNG exports would "cement the United States' role as an energy leader and achieve our goal of American energy independence."Break from past

    DOE's rapid approval less than two weeks after the construction go-ahead marks a break from the agency's history of waiting months after FERC's decision until nonjudicial challenges known as rehearing requests were resolved.

    Analysts at ClearView Energy Partners today noted the window for rehearing requests on FERC's order runs through March 25, while the window for DOE's order runs through April 4.

    Previous challenges to authorizations by either agency have all been turned down by the U.S. Court of Appeals for the District of Columbia Circuit, ClearView noted, adding, "We do not expect challenges to Calcasieu Pass would result in a different outcome."

    DOE has been under pressure from natural gas interests and their Hill allies to speed up the permitting process and reduce the total time from project proposal to final approval.

    Sen. Bill Cassidy (R-La.) commended DOE for issuing its decision. "Approving these projects unleashes American energy and fuels Louisiana's economy," Cassidy said. "Exporting U.S. natural gas strengthens our energy dominance, weakens America's enemies and provides a cleaner source of energy to our allies."

    The White House has sought to increase the pace of permitting with its "One Federal Decision" executive order, issued in 2017, which aimed to put a single agency in charge of quarterbacking complex authorizations.

    But environmental reviews by statute require a broad array of viewpoints, and public comment periods and opportunities to challenge the decisions also add time and complexity.FERC speedup

    One factor that has held back approvals has been the current vacancy among FERC's commissioners, which has left the organization with a Republican-Democratic split of 2-2.

    Natural gas interests have been eager to see the White House nominate a fifth commissioner to break the partisan split related to climate change.

    At a meeting today of Perry's advisory board, Deputy Secretary Dan Brouillette commended FERC for reaching a compromise that allowed it to advance Venture Global's project.

    "The approval of that export facility is very, very important. We hope that it sets the model and the construct for future applications to be considered," he said.

    Brouillette also highlighted a recently issued rule to expedite DOE permitting for small-scale LNG exports by avoiding the need for individual permit approvals.

    That decision is expected to mostly affect projects selling into small, close-by markets in the Caribbean and Central America.

    Last year, the House passed a bill that would have codified that rule change, but the Senate did not pass a corresponding measure.

    Reporter Rod Kuckro contributed.

    https://www.eenews.net/eenewspm/2019/03/05/stories/1060123201
    

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25. Battle Lines Drawn in Colo. over Sweeping Drilling Reforms

    Mar 6, 2019 | E&E Energywire

    By Mike Lee

    Hundreds of people flooded Colorado's state Capitol yesterday as legislators took up an omnibus bill that could overhaul the way the state regulates oil and gas drilling.

    More than 350 people signed up to speak in person and by video feed from locations around the state. And competing rallies drew hundreds of supporters and opponents to the Capitol in Denver.

    As of 11:30 p.m. Eastern time, testimony was still rolling in and the state Senate's Transportation and Energy Committee had yet to vote on the bill.

    Divides surrounding the Democratic proposal were clear, with opponents warning that the language would cripple the state's oil and gas industry and supporters hailing the bill as a step toward stronger and much-needed oversight to protect the public and the environment.

    The bill, S.B. 181, would require the Colorado Oil and Gas Conservation Commission — the state's main energy regulator — to focus on protecting health and safety. Currently, state law requires the commission to balance health and environmental concerns against the need to foster energy development.

    The language, sponsored by Senate Majority Leader Stephen Fenberg and House Speaker K.C. Becker, both Democrats, would also clarify that cities and counties can control the location of wells, tanks and other facilities, and regulate surface impacts such as noise and traffic. Other provisions would require pollution monitoring, new bonding requirements for oil and gas wells and changes in the state's forced pooling system for assembling blocks of mineral rights into drilling units.

    If it passes in its current form, Colorado would be one of the few oil patch states to allow local governments to oversee drilling.

    Critics argued that the proposal could trigger job losses that would primarily harm rural areas.

    "If you recently visited rural Colorado, you know well-paying jobs are hard to come by," said Gary Melcher, speaking on behalf of the Colorado Farm Bureau. "The few jobs that are available will be gone."

    Trade groups including the Colorado Oil and Gas Association said they'd been denied a chance to help write the bill and questioned why it was being considered two business days after it was introduced Friday.

    But the bill's backers, who believe they have a strong chance of winning because of Democratic gains in the 2018 elections, countered that Colorado's current system doesn't protect homeowners from pollution, the downsides of drilling.

    They were joined by Erin Martinez, whose husband and brother were killed two years ago in a pipeline explosion that destroyed their home (Energywire, March 1).

    "Under the current system ... local governments simply do not have a seat at the table when it comes to oil and gas decisions," said Eva Henry, a commissioner from Adams County.A political signal

    The oil and gas industry spent the Obama years arguing that state agencies — not the federal government — are best-positioned to regulate development. The industry also pushed back against cities and counties.

    In 2015, Texas and Oklahoma both enacted laws that curtailed local governments' authority after the city of Denton, Texas, passed a local ban on fracking.

    Several cities and counties in Colorado have tried to pass limits on fracking in their jurisdictions, but the state under former Gov. John Hickenlooper (D) maintained that they were exceeding their authority.

    In November, voters rejected a statewide initiative that would've imposed a 2,500-foot setback between oil and gas facilities and surrounding buildings. But at the same time, voters elected Democratic Gov. Jared Polis, who favors stricter oil and gas regulation, and gave Democrats control of both legislative chambers.

    For Democratic state Rep. Chris Hansen, the election was a clear signal from voters.

    "The signal is, 'We want you to address these problems,'" he said on a conference call sponsored by analysts from Robert W. Baird & Co.

    Hansen predicted the bill would be amended but ultimately passed. It would likely result in some production cuts, particularly in Boulder County and other suburbs outside Denver. But Weld County, the heart of Colorado's shale boom, wouldn't see much impact.

    Indeed, Anadarko Petroleum Corp., the state's largest driller, said Monday that the bill would have little impact on its operations. Most of its Colorado acreage is in Weld County.

    "We have sufficient approved permits and inventory of drilled, uncompleted wells to maintain planned activity into next year and fully expect to continue working collaboratively with communities in the DJ Basin to responsibly and safely produce oil and natural gas in the years to come," the company said on its website.

    Yesterday, Anadarko issued a second statement opposing the bill, saying, "More time is necessary to debate, assess, and amend a bill this complex."

    https://www.eenews.net/energywire/2019/03/06/stories/1060123259
    

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Chemical Security News

26. Illinois Democrats Urge Update of Sterigenics Plant’s Risks

    Mar 5, 2019 | BNA Daily Environment Report

    By Stephen Joyce

    Six Illinois congressional Democrats urged a federal agency to update its 2018 health findings for Willowbrook, Ill., after a spike in ethylene oxide emissions was seen near a Sterigenics U.S. LLC facility.

    Sens. Tammy Duckworth and Richard Durbin, as well as Reps. Sean Casten, Bill Foster, Dan Lipinski, and Brad Schneider, on March 4 asked the Agency for Toxic Substances and Disease Registry for the update after December testing showed increased concentrations of ethylene oxide at monitoring sites near the Willowbrook facility.

    “Given this concerning new data, we request that an updated site-specific Health Consultation for Sterigenics be prioritized and conducted by ATSDR as soon as possible,” the letter from Illinois lawmakers said.

    Sterigenics has been in the crosshairs of the public and Illinois lawmakers, who have been urging the Environmental Protection Agency to crack down on its facility near Chicago for allegedly releasing too much ethylene oxide. Ethylene oxide is a highly flammable gas used at the facility to sterilize medical equipment, and EPA has concluded the gas elevates the risk of cancer.

    Duckworth told Bloomberg Environment she met with Sterigenics’ CEO and the head of its parent company, Sotera Health LLC, in Durbin’s office earlier this year. She said she didn’t receive answers to why the company would make upgrades to the plant if they didn’t think there was a problem.

    “I wanted to know more detail as to, when did you know about it, how long has a leak going on, all of these things,” Duckworth said.

    More recent data from monitoring sites near the facility showed emissions of the gas as high as 11.7 micrograms per cubic meter on Dec. 6 and 10.8 micrograms per cubic meter on Dec. 26, compared to a peak level of 6.31 micrograms per cubic meter in November.

    A Sterigenics spokeswoman didn’t immediately respond to Bloomberg Environment’s request for comment.
    Site Shut Down

    The site is currently shut down after the Illinois Environmental Protection Agency blocked the company’s use of ethylene oxide in a Feb. 15 order.

    Sterigenics sued the agency days later, claiming its plant had valid permits and was shuttered without proper judicial process. It is seeking preliminary injunctive relief against enforcement of the state EPA’s order.

    The toxic substances agency, part of the Department of Health and Human Services, staffs each of the U.S. EPA’s 10 regional offices.

    The head of Sterigenics has had at least half a dozen conversations with the EPA’s top air official, as the agency considers tougher standards for ethylene oxide.

    —With assistance from Tiffany Stecker.

    (Updated with comments from Sen. Tammy Duckworth. )

    https://bnanews.bna.com/environment-and-energy/illinois-democrats-urge-update-of-sterigenics-plants-risks
    

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27. Top Cyber Officials Stress China's 'Scary' Threat

    Mar 6, 2019 | E&E Energywire

    By Blake Sobczak

    Last year, the Department of Homeland Security warned that Russia-linked hackers had broken into parts of the U.S. power grid and other vital energy networks.

    Yesterday, a top DHS cybersecurity official issued a similar warning here about China.

    "There's every reason in the world to believe that China has the exact same interest" in hacking America's critical infrastructure, DHS's Chris Krebs told the RSA Conference here.

    China's state-backed hacking teams are the threat du jour at the annual security gathering, drawing warnings from leaders in industry, DHS and the FBI.

    "We look at Russia as the hurricane — comes in fast and hard. And China as climate change — long, slow and pervasive," Rob Joyce, senior cybersecurity adviser at the National Security Agency, said at an RSA roundtable to discuss the latest Chinese threats. RSA refers to encryption technology developed by RSA Data Security Inc.

    Joyce cited recent activity from APT40, a China-linked cyber espionage campaign that has taken aim at engineering, transportation and defense firms, according to a report released Monday by the U.S. cybersecurity firm FireEye Inc.

    That group has been particularly focused on "crucial technologies" in the maritime sector, FireEye noted, and is likely to expand its target base beyond firms tied to activities in the South China Sea.

    Concerns around intellectual property theft have been central to the Trump administration's ongoing trade negotiations with Chinese President Xi Jinping.

    The Department of Justice has unveiled a string of charges recently against Chinese individuals accused of intellectual property theft and cyber crimes, including a December indictment against two people accused of hacking into managed service providers on behalf of Chinese spy agencies.

    Asked about those recent cases, FBI Director Chris Wray said here they weren't related to the Trump administration's negotiations.

    "This is not about trade. This is not about politics. It's not even about diplomacy — it's about the rule of law," he said, drawing applause when he said his office would continue to pursue counterintelligence and cyber espionage cases, "and I don't care what some foreign government has to say about it."

    Wray pointed out the FBI has open counterintelligence investigations into Chinese nationals across nearly all of the agency's 56 field offices.

    "For too long, this country has been under-focused on the counterintelligence threat — which has cyber dimensions — that China poses," he said.

    U.S. intelligence director Dan Coats underscored the urgency of the cyberthreat posed by Beijing in a worldwide threat assessment posted in January. "China has the ability to launch cyberattacks that cause localized, temporary disruptive effects on critical infrastructure — such as disruption of a natural gas pipeline for days to weeks — in the United States," he concluded (Energywire, Jan. 24).

    That shocking statement drew a swift response from the pipeline industry, where executives were initially scratching their heads over whether U.S. spies were privy to a specific, new threat to their systems. A classified briefing last month revealed no information about an urgent threat, sources said (Energywire, Feb. 20).

    Asked about the "days to weeks" assessment, DHS's Krebs, who directs the agency's Cybersecurity and Infrastructure Security Agency, said on the sidelines of RSA that hackers were "able to get information on pipeline systems" in the early 2010s.

    "Then poof! They're gone. We don't see anything," he said. "So we know enough that there's someone out there that has capabilities in the [industrial control systems] space."

    E&E News reported in 2017 that that "someone" was Wang Dong, an alleged Ministry of State Security hacker who goes by the nickname "UglyGorilla" (Energywire, May 23, 2017).

    Other Chinese hackers have proved skilled at siphoning off information from American companies and agencies, experts say.

    China's state-backed hackers "are doing research on some of the most sensitive and difficult topics in information security," such as how to break out of virtual machines or "hypervisors," said Dave Aitel, chief security technical officer at the cybersecurity firm Cyxtera Technologies, who has recently been tracking the activities and online connections of a prolific Chinese operative.

    "The U.S. often refers to China as our 'near peer' in cyberspace, but if you look at the actual research, what's available publicly — we're the 'near peer.' That's the scary thing."

    https://www.eenews.net/energywire/2019/03/06/stories/1060123261
    

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Environment News

28. Gorsuch Claim On Deference’s Decline Raises Stakes For EPA’s Discretion

    Mar 6, 2019 | Inside EPA

    By David LaRoss

    Supreme Court Justice Neil Gorsuch in a new dissent claims there is “mounting criticism” of the Chevron principle that gives primacy to EPA and other agencies’ interpretations of unclear laws, raising the stakes for pending cases that could give the court’s strengthened conservative majority an opening to narrow or scrap the doctrine.

    Gorsuch, well-known as an opponent of deference principles, released a dissenting opinion to the March 4 decision BNSF Railroad Co. v. Loos that one observer has already said effectively “dances on Chevron’s grave” -- even though support for an outright repeal of the precedent by the nine-member high court still appears slim.

    While BNSF and other pending cases testing Chevron do not involve EPA as a legal party, any ruling by the justices to reduce or undo the doctrine would have major implications for the agency’s rulemaking discretion.

    In his dissent to the 7-2 BNSF ruling, which deals with the meaning of the Railroad Retirement Tax Act (RRTA), Gorsuch points out that even though the case deals with an unclear provision of the law Chevron was absent from the parties’ briefs and Justice Ruth Bader Ginsburg’s majority opinion that part of a $126,000 award that a BNSF employee received due to an on-the-job injury was considered taxable “compensation” under the RRTA.

    “In the past, the briefs and oral argument in this case likely would have centered on whether we should defer to the IRS’s administrative interpretation of the RRTA. . . . But nothing like that happened here. BNSF devoted scarcely any of its briefing to Chevron. At oral argument, BNSF’s lawyer didn’t even mention the case until the final seconds -- and even then ‘hate[d] to cite’ it. No doubt, BNSF proceeded this way well aware of the mounting criticism of Chevrondeference,” Gorsuch writes in his dissent, joined by Justice Clarence Thomas.

    Chevron, based on a landmark 1982 high court decision, requires judges to defer to agencies’ “reasonable” interpretations of unclear statutory language. The doctrine has been decisive in litigation over a lengthy list of high-profile EPA rules, and will be key to the Trump EPA’s chances of defending its deregulatory agenda in court, as efforts such as its attempt to pare back the scope of the Clean Water Act and to undo a Clean Air Act climate rule for power plants, because they rely on the agency’s interpretation of the water and air laws.

    But Chevron has fallen out of favor with many conservatives, both in Congress and on the bench.

    Republicans introduced bills in the last Congress to repeal the doctrine, although they failed to reach the 60 votes needed to overcome Senate filibusters.

    The Supreme Court has avoided taking up cases over whether to overturn or limit Chevron through a new ruling, although it is considering whether to scrap the related doctrine of Auer deference, which applies to agencies’ readings of their own rules as opposed to statutes.

    The Auer challenge, known as, Kisor v. Wilkie, has already emerged as a test case for the justices’ position on deference generally and its stature is only likely to grow as it approaches oral argument on March 27. Sen. Sheldon Whitehouse (D-RI) on March 4 filed an amicus brief where he casts that case as part of “a sustained effort” to weaken EPA and other agencies that has been brought by industry, conservative groups and other “influencers.”

    “This case comes before the Court as part of a larger strategy to disable public interest regulation, as a ‘stalking horse for much larger game.’ It must be seen in the larger context of the age-old contest between powerful influencers who seek to bend government to their will, and a general public that counts on government to protect it from the influencers,” Whitehouse’s brief says.

    ‘Defanged’ Doctrine

    But Gorsuch’s BNSF dissent gives weight to the growing impression that regardless of whether Chevron and Auer are repealed, deference has become less important to the high court.

    For instance, it echoes recent comments to Inside EPA by Robert Percival, director of the University of Maryland Carey School of Law’s Environmental Law Program, where he said attorneys “are pulling back from making Chevron arguments” because they know the court’s right wing is unlikely to support that line of thinking.

    And in a March 4 post at SCOTUSblog titled “The Doctrine That Dare Not Speak Its Name,” Daniel Hemel, an assistant professor at the University of Chicago Law School, says Ginsburg’s deliberate avoidance of Chevronreinforces Gorsuch’s point.

    “Indeed, her opinion studiously avoids any reference to Chevron whatsoever. The dissent, by contrast, dances on Chevron’s grave,” Hemel writes. “It seems clear enough that Ginsburg, in order to cobble together a majority, had to steer clear of Chevron in her analysis. And if an opinion relying on Chevron can’t muster a majority, then the doctrine has been defanged, even if not overruled.”

    But the Natural Resources Defense Council’s John Walke is pushing back on that narrative, writing on Twitter that even if the high court is downplaying Chevron in its own decisions, the doctrine is still in force for lower courts -- including the U.S. Court of Appeals for the District of Columbia Circuit, which decides most EPA regulatory challenges.

    “Considering only 2 of 9 justices have called for overruling Chevron, & the vast, vast majority of [federal] agency cases are decided by appellate courts -- especially the D.C. Circuit -- which rely on Chevron regularly, as do litigants, this take is questionable,” he wrote in response to Hemel’s article.

    He also quoted from the late Justice Antonin Scalia’s majority opinion in the 2013 case City of Arlington, TX, v. FCC, where the court held that Chevron deference applies to agencies’ interpretations of the limits of their authority, as “an apt rejoinder” to Gorsuch.

    There, Scalia wrote that limiting deference to agencies on the question of where they have authority to regulate “would simply punt that question back to the Court of Appeals, presumably for application of some sort of totality-of-the-circumstances test-which is really, of course, not a test at all but an invitation to make an ad hoc judgment regarding congressional intent. Thirteen Courts of Appeals applying a totality-of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron.” 

    https://insideepa.com/daily-news/gorsuch-claim-deference%E2%80%99s-decline-raises-stakes-epa%E2%80%99s-discretion
    

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29. Eastern States, Senate Democrats Fault EPA Interstate Air Pollution Policy

    Mar 5, 2019 | Inside EPA

    By Stuart Parker

    Eastern states and Senate Democrats are attacking what they say is EPA’s inadequate approach to policies for curbing interstate air pollution hindering states’ attainment of federal air standards, with several states ramping up technical and legal challenges to the agency while senators attack funding cuts to key emissions programs.

    The push-back against the agency, highlighted at a March 5 Senate Environment & Public Works Committee (EPW) air panel hearing and in recent letters and legal filings, reflects long-running concern from downwind states that the Trump administration is not taking necessary steps to help them cut air pollution from upwind states.

    Members of the Ozone Transport Commission (OTC) of 12 Mid-Atlantic and Northeastern states have attempted to force EPA to regulate upwind states’ emissions through use of Clean Air Act section 126, which allows them to petition the agency for such regulations. But the administration has said it does not believe new federal action is necessary to help states attain national ambient air quality standards (NAAQS) and has rejected several petitions.

    Sen. Tom Carper (D-DE), ranking member of the full EPW, said at the hearing that “instead of working with states on solutions to our clean air problems, Administrator [Andrew] Wheeler’s EPA has actually made it more difficult for states, especially downwind states, to meet clean air goals,” citing the section 126 petitions as an example.

    EPA’s position is underpinned by air quality modeling that shows almost all areas of the country, except California, attaining NAAQS for ozone by 2023.

    But states and environmentalists suing the agency say this target date is irrelevant and unlawful, and OTC is now pushing back on EPA’s technical analysis by calling it deeply flawed.

    In a Jan. 23 letter to EPA air chief Bill Wehrum, OTC says EPA’s approach wrongly predicts ozone NAAQS attainment, when high levels of the criteria pollutant will in fact persist beyond 2023.

    OTC Chair Shawn Garvin, who also serves as Delaware’s environment secretary, takes aim at EPA’s technical analysis underpinning its recent decisions on interstate ozone pollution. EPA is showing a “discernible trend” to “present technical information in an incomplete way that favors EPA’s preferred policy,” he says.

    The agency “selectively presents information that undermines and mischaracterizes the continued need for emission reductions from upwind states,” Garvin says.

    He singles out for criticism an Aug. 31 memo by Peter Tsirigotis, director of EPA’s Office of Air Quality Planning and Standards, which “indicates that EPA intends to revise the threshold used to determine significant ozone contribution from upwind states to downwind nonattainment areas."

    The Tsirigotis memo allows states to depart from the Obama EPA’s yardstick to determine “significant contribution,” which employed a threshold of 1 percent of the applicable NAAQS, combined with an assessment of cost-effective control technology options. States could now use a higher 1 ppb threshold instead, although EPA does not mandate this change.

    Using a higher threshold could allow states to claim they have no significant contribution and escape the need to impose more-stringent control measures in good neighbor state implementation plans, which are emissions reductions plans states craft to detail how they will attain NAAQS.

    The memo “weakens the effectiveness” of the good neighbor provisions and “appears to be based on faulty technical analyses,” Garvin says. “The significance thresholds in the EPA/Tsirigotis memorandum do not provide relief” for coastal states “and will further delay public health protection to our citizens.”

    The OTC letter also faults the “overly optimistic” modeling EPA uses to predict near-universal ozone NAAQS attainment by 2023, which includes failings states are likely to cite in litigation over section 126 petition denials.

    For example, Garvin says EPA ignored modeling results it did not like; used inaccurate assumptions to estimate emissions profiles for sources of ozone precursor chemicals; failed to properly characterize “key meteorological regimes and conditions for ozone transport;” assumed emissions reductions not backed by enforceable controls; failed to consider low-cost controls that can be implemented before 2023; and failed to factor in the effect of Trump EPA regulatory rollbacks on future emissions.

    Pending Litigation

    Litigation over several Trump EPA denials of section 126 petitions is already pending in federal court, with a case in the U.S. Court of Appeals for the District of Columbia Circuit moving to the substantive briefing stage.

    Also, East Coast states and environmentalists in separate March 4 filings to the D.C. Circuit set out issues they intend to raise in State of New York, et al. v. EPA, et al., a lawsuit challenging EPA’s Dec. 21 finding that 20 Eastern states will meet EPA’s 2008 ozone NAAQS by 2023.

     EPA says that attainment by these states of the 2008 NAAQS, set at 75 parts per billion (ppb) by the George W. Bush EPA, will satisfy the states’ “good neighbor” obligation to eliminate their air pollution that contributes “significantly” to problems attaining or maintaining NAAQS in other states downwind. The agency relies on this finding to avoid further toughening of its Cross-State Air Pollution Rule (CSAPR) power plant emissions trading rule, finding that states need only meet the program’s existing state emissions caps.

    But East Coast states reject the agency’s analysis as flawed and unrealistic. Further, EPA is not taking additional steps to help states meet the tougher 2015 ozone NAAQS, set by the Obama EPA at 70 ppb. The agency predicts almost all areas of the country will attain the tougher NAAQS by 2023.

    States including New York, Connecticut, Delaware, Maryland, Massachusetts and New Jersey in their filing say EPA’s reliance on 2023 as a target year to model compliance is “inconsistent with applicable precedent, and arbitrary and capricious because it failed to evaluate, consider, or account for present and ongoing nonattainment and/or maintenance problems with the 2008 ozone standard in downwind areas."

    The states face attainment deadlines in 2021, and cost-effective measures are available now to help states meet that goal, yet EPA refused to consider these, the states argue.

    Further, EPA’s stance “relies on overly optimistic assumptions regarding the impacts of existing rules,” relies on “no enforceable emission limitations,” and is dependent on “stale data and limited analyses,” the states say. Environmentalists in their filing raise very similar arguments.

    Senate Hearing

    At the EPW Clean Air and Nuclear Safety Subcommittee hearing, Carper and other Democrats faulted the administration’s approach to air pollution. They said it appears at odds with EPA’s stated goal of “cooperative federalism” through which it would give greater environmental policy powers to states.

    Panel Republicans held the hearing to criticize the Obama administration’s approach, deemed heavy-handed by GOP critics, and contrast this with the Trump administration’s supposedly more state-friendly approach.

    But EPW member Sen. Sheldon Whitehouse (D-RI) said, “I think cooperative federalism is a sham,” citing in particular the agency’s denial of section 126 petitions from Connecticut, Delaware and Maryland. “The Trump EPA has zero intention of listening to the states,” he said.

    “One state’s onerous regulation is a neighboring state’s clean air,” he said. Rhode Island cannot regulate “a spewing power plant” in Pennsylvania, West Virginia or Ohio, Whitehouse said, yet EPA will not force upwind states to cut ozone-forming emissions of nitrogen oxides that contribute to coastal ozone problems.

    Carper separately said that EPA is rejecting the requests to tackle interstate air pollution even as the agency seeks to reduce federal funding to states to help with their emissions reduction programs.

    “So we have a situation in which Administrator Wheeler’s EPA is denying downwind states’ efforts to hold upwind states accountable for their own air pollution and expanding air pollution that crosses state borders, while taking away critical financial tools and programs that helps states address pollution,” he said.

    GOP senators at the hearing did not address the interstate ozone issues, but focused instead on alleged Obama-era federal overreach and what they said is an improved state-federal relationship under President Donald Trump’s EPA. 

    https://insideepa.com/daily-news/eastern-states-senate-democrats-fault-epa-interstate-air-pollution-policy
    

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30. States Fighting Rule Rollbacks Point to Higher Emissions

    Mar 6, 2019 | E&E Climatewire

    By Ellen M. Gilmer

    Immense levels of greenhouse gas emissions are on the line in state lawyers' efforts to fight the Trump administration's regulatory rollbacks.

    That's the bottom line of a report released yesterday by the State Energy and Environmental Impact Center, which helps coordinate legal action among progressive attorneys general.

    While states successfully blocked many early agency efforts to sideline environmental rules, "the Trump administration is not giving up," Executive Director David Hayes said at a press conference yesterday.

    The new report looks at regulatory repeals and rewrites affecting four high-emitting areas: coal, oil and gas, landfills, and the automotive industry. All told, the changes could result in an additional 209 million metric tons of carbon dioxide equivalent in the atmosphere each year, as compared with leaving major Obama-era rules intact.

    "If the administration is successful, our nation will have lost its most important near-term opportunity to start reducing greenhouse gas emissions as we know we must and as the law requires us to do," said Hayes, a former Interior Department official.

    The emissions estimates come from the State Impact Center's review of six major environmental regulations the Trump administration is attempting to sideline or weaken: the Clean Power Plan; clean car standards; "glider" regulations for pollution from heavy-duty trucks; methane standards for landfills; methane standards for oil and gas on public lands; and methane standards for new oil and gas operations.

    If the Trump administration's efforts to scale back those rules survive in the courtroom, it will nullify President Obama's attempt to put "commonsense" controls on major sources of greenhouse gas emissions, Hayes said.

    Democratic attorneys general have turned out in force to block President Trump's deregulatory agenda. Many of the biggest fights are yet to come, as EPA works to finalize its plan to replace the Clean Power Plan and weaken emissions standards for vehicles.

    "In the face of what are obvious signs of climate change, this is outrageous," Maryland Attorney General Brian Frosh (D) said at yesterday's event.

    Massachusetts Attorney General Maura Healey (D) vowed that states will continue to fight the Trump administration in court to address climate change.

    Yesterday's event also featured Letitia James and William Tong, the newly minted Democratic attorneys general from New York and Connecticut, respectively.

    Tong noted that he and other members of the State Impact Center coalition are constantly in touch to plan legal strategies and share information.

    James highlighted the disproportionate impacts of climate change and conventional pollution on low-income communities. She targeted the Trump EPA's proposed replacement for the Clean Power Plan in particular.

    "It will do nothing," she said, "but surrender to climate change and surrender our government to those individuals who continue to pollute our air."

    The state lawyers also roundly rejected an EPA official's recent assertion that the Trump administration's regulatory decisions have been held to a higher standard than those of its predecessors.

    EPA General Counsel Matt Leopold made the comment last month at a legal conference, contending that administrative law has developed in recent years, leading judges to be tougher on Trump.

    "Fortunately, the courts have been there to hold the Trump administration to standards," Healey said. "This is an administration that doesn't respect standards, high or low, to be frank."

    https://www.eenews.net/climatewire/2019/03/06/stories/1060123257
    

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31. In GOP Senate, a Rare Climate Hearing and Hints of More

    Mar 6, 2019 | E&E Climatewire

    By Mark K. Matthews

    It's been some time since the Senate Energy and Natural Resources Committee has held a hearing on climate change, so naturally its top two lawmakers felt compelled to get a couple of things out of the way during yesterday's roughly two-hour meeting.

    Global warming is "directly impacting our way of life," said Sen. Lisa Murkowski, the Alaska Republican who leads the panel.

    Sen. Joe Manchin of West Virginia, the top-ranking Democrat, added, "There's no doubt that humans have made a tremendous impact on what we're dealing with."

    It's a baseline of understanding that, by now, seems obvious to most climate scientists.

    But it was a milestone moment for the Senate panel.

    Manchin said yesterday was the first time since 2012 the committee had held a hearing on climate change. (In response, a Republican aide pushed back with the argument that climate change is a frequent topic of discussion on the panel.)

    Irrespective of the timeline, Manchin and Murkowski both represent states that lean heavily on the energy industry, and their simple acknowledgement of the climate crisis yesterday was enough to draw small applause from some corners.

    "It is significant that we even had the hearing — particularly when you have two leaders on the committee, both of whom come from fossil fuel states," Sen. Angus King (I-Maine) said in an interview afterward. "There were some differences on the level of urgency, but I think the underlying premise is that this is something we have to deal with."

    Melinda Pierce, legislative director for the Sierra Club, had a similar takeaway. The "hearing was notable because it actually occurred," she said. "It is a good day when a Republican-led committee actually listens to experts about real climate impacts, clean energy and innovation."

    But Pierce added this caveat: "This wasn't revolutionary in terms of setting an agenda for bold action, but it was a start."

    Indeed, the committee mostly skimmed over potential solutions — touching on ideas such as microgrids, carbon capture technology and better energy efficiency for buildings. As the main thrust of the hearing was about climate change and the electricity sector, Murkowski made sure to note also that a reduction in carbon emissions is only part of her committee's responsibility.

    "As more renewables come online ... our committee will focus on maintaining grid reliability and resiliency," she said. "We'll prioritize keeping energy affordable, [and] we'll be working to advance cleaner energy technologies that can help reduce greenhouse gas emissions."

    Manchin wanted to make clear, too, that he was skeptical of efforts to dramatically shrink the United States' carbon footprint in the near future. "Solutions must be grounded in reality, which requires the recognition that fossil fuels aren't going anywhere anytime soon," he said.

    At another point in the hearing, he noted the vast reserves of natural gas beneath his home state. "We have an ocean of gas under us in West Virginia — an ocean of gas," he said.

    Neither of these comments is likely to assuage the concerns of climate hawks, but they do suggest there could be a window for Congress to make small changes to energy policy in the short term.

    "Responsible Republicans and Democrats are considering realistic, durable solutions to the issue," said Alex Flint, executive director of the conservative Alliance for Market Solutions, which backs the idea of using a carbon tax to fight global warming. "They represent the evolving state of climate change politics."

    It's unlikely, however, that any recommendation from the Senate committee will approach the scale of something like the Green New Deal, which supporters argue is the only way to head off the worst effects of climate change.

    Murkowski said, "We do have a considerable role to play in developing reasonable policies that can draw bipartisan support that I think will be a pragmatic contribution to the overall discussion."

    She specifically cited topics such as new research and energy efficiency. "I think you'll likely see these as subjects of further discussion," she added.

    https://www.eenews.net/climatewire/2019/03/06/stories/1060123255
    

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32. Climate Committee Could Kick off Hearings This Month

    Mar 6, 2019 | E&E Daily

    By Nick Sobczyk

    The first hearing in the Select Committee on the Climate Crisis could come this month, a much-anticipated moment that could help define climate debates in the 116th Congress.

    "We're going to aim for the end of the month," Chairwoman Kathy Castor (D-Fla.) told reporters last night. "But I'm going to sit down with ranking member Graves, hopefully before the week is out, to talk about schedule and some of the nuts and bolts."

    The first hearing, which Castor said could get pushed until April, will likely help set the tone for how House leadership in both parties wants to talk about climate change.

    Though the committees of jurisdiction have already started holding hearings, the select committee's members and purview have been heavily influenced by leadership, and it could offer a broader look into how both caucuses are thinking — or not thinking — about climate.

    Both Castor and Rep. Garret Graves of Louisiana, the top Republican on the select panel, said they were largely unfamiliar with each other, but both suggested they would be interested in a close working relationship.

    Graves said taking on the Republican lead "wasn't really on my radar" until he was approached about it by other members and people off Capitol Hill. For now, he said he's still trying to feel out what the tone will be on the committee, adding that he's open to bomb-throwing and bipartisan work.

    "We've got to redefine this and probably prevent this from becoming a big grenade-launching committee, which right now I think it's on a trajectory to be," Graves told reporters yesterday. "And if that's where we're going, then I'm fine playing in that space, too; I just don't think it's productive."

    Castor, though, struck a generally optimistic tone, even if it's still unclear whether the rest of the GOP side of the committee will offer its perspective on climate change or express skepticism of the science as it has done for years.

    "We're all in this together, really, and I've noticed a change in the rhetoric on the Republican side of the aisle this Congress when it comes to climate change," she said. "They're not questioning whether it's happening anymore. I'm curious if that will hold true for the members appointed to the Climate Crisis Select Committee."'Time is short'

    Graves said he wants to use the committee to "redefine the narrative" for Republicans, mirroring comments by some other GOP members, including Energy and Commerce Chairman Greg Walden (R-Ore.).

    "I said years ago that I think that flat-out science denial is an unsustainable policy position," Graves said, citing his work on sea-level rise and coastal restoration as a state official in Louisiana.

    To that point, he said his priority on the committee will be sea-level rise adaptation, an issue that he acknowledged is pressing in Louisiana. The state has lost more than 2,000 square miles of land since 1932 due to a combination of rising seas, hurricane damage and land subsidence, according to the U.S. Geological Survey.

    "While certainly there's some long-term greenhouse gas intensity, emissions reductions things that we need to be working on — I want to be clear, that's an objective — I think it's also really important for us to use the phrase 'look at the wolf that's closest to the door,'" Graves said, "and that's adaptation measures that we need right now."

    Graves has been a prominent proponent of disaster policy reform over his two terms in Congress, and he said that's work he'd like to continue on the select panel.

    The select committee itself doesn't have legislative authority, but whether that attitude will yield a discussion about emissions reduction policy on the panel is still an open question.

    The Republican roster includes a mix of perspectives and energy interests, some of which are decidedly more climate-skeptical than Graves (E&E Daily, March 1).

    Graves offered little in the way of policy proposals when asked last night, but he floated a few questions he wants to explore on the select committee.

    "How can we introduce efficiency measures? How can we use a capitalist approach to try to incentivize innovation?" he asked. "And look, I'll say this 100 times, there are ways where I think we can redefine this whole discussion and bring people to the table for very different reasons but at the same table, pushing the same direction to achieve a similar objective for different reasons."

    Castor said she's planning to start meeting with the chairmen of the standing committees now that her panel is staffed up.

    But for all the talk in recent weeks, will changing rhetoric on the Republican side yield agreement on long-term climate policy?

    "It better," Castor said. "Time is short."

    https://www.eenews.net/eedaily/2019/03/06/stories/1060123267
    

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33. Senate Republicans Put Green New Deal on Today's Agenda

    Mar 6, 2019 | E&E Daily

    By Nick Sobczyk

    A group of Republicans is planning to take to the Senate floor today to blast the Green New Deal, yet another step in the GOP's full-on war on the progressive climate plan.

    Environment and Public Works Chairman John Barrasso (R-Wyo.), among the most vocal Green New Deal critics, said "about 10" Senate Republicans have a time reserved on the floor to oppose the measure. They will likely repeat their claims that the "socialist" plan would blow a hole in the U.S. economy.

    It will be just the latest Republican attack on the Green New Deal resolution from Sen. Ed Markey (D-Mass.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.), which calls for a massive economic mobilization during the next 10 years to wean the country off fossil fuels.

    GOP leaders devoted nearly their entire weekly press conference to the Green New Deal yesterday, taking turns knocking it with the same talking points they've been using for weeks. Among their most repeated arguments is a study by a conservative group that found the plan could cost upward of $90 trillion over 10 years (Greenwire, Feb. 25).

    Majority Leader Mitch McConnell (R-Ky.) is planning a vote on the resolution but has stayed vague about the timing.

    He suggested yesterday it could come in the next few weeks, and Barrasso said he's expecting it the last week of March — after the congressional recess. But a leadership aide cautioned that the schedule for the vote is not yet set in stone.

    Absent from the leadership press conference, however, was any discussion of what Republicans would do to tackle climate change.

    That's a point Democratic leadership has seized on. Minority Leader Chuck Schumer (D-N.Y.) said their goal will be to ask Republicans three questions: Do you believe climate change is real? Do you believe it's caused by human activity? And do you believe Congress should take action?

    An affirmative answer to those three questions is listed in a resolution introduced last week and co-sponsored by all 47 Senate Democrats (Greenwire, Feb. 28).

    "We've had silence on that. Silence," Schumer told reporters yesterday. "And so it shows you once again, they can do their stunts, but we're on offense here. We're showing that they cannot even bring themselves to say climate change is real."

    Barrasso has been pushing carbon capture and nuclear technology legislation as his solution to climate change. He and Sen. Sheldon Whitehouse (D-R.I.) are the lead sponsors on the "Utilizing Significant Emissions With Innovative Technologies Act," a bill aimed at easing permitting for carbon capture and storage, and boosting the nascent direct air capture industry.

    The bill made it out of committee but never saw the floor in the last Congress, but Barrasso said he's looking to get it signed into law this year.

    Asked, however, whether Republicans should offer a more comprehensive climate plan to address what scientists say is a looming threat to the planet and economy, Barrasso demurred.

    "People have different opinions on this," he told reporters. "I think the way to go is what we're doing, which is actually making significant differences."

    https://www.eenews.net/eedaily/2019/03/06/stories/1060123249
    

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34. Top Military Leaders Decry Trump's Climate Review

    Mar 5, 2019 | E&E News PM

    By Scott Waldman

    Dozens of top military leaders who served in Republican and Democratic administrations are condemning a White House effort to conduct an "adversarial" review of climate science and the risks it poses to national security.

    The letter includes 58 intelligence leaders, combatant commanders and national security officials as well as former secretaries of Defense and State. The group of officials, who represent the Navy, Coast Guard and Army, argue that "imposing a political test on reports issued by the science agencies" will harm national security by creating blind spots for those tasked with protecting the nation.

    "It is dangerous to have national security analysis conform to politics," the group wrote. "Our officials' job is to ensure that we are prepared for current threats and future contingencies. We cannot do that if the scientific studies that inform our threat assessments are undermined. Our national security community will not remain the best in the world if it cannot make decisions based on the best available evidence."

    The letter's signers include retired Adm. Paul Zukunft, the former commandant of the Coast Guard; retired Gen. Stanley McChrystal; former Navy Secretary Ray Mabus; former Secretary of State John Kerry; and former Secretary of Defense Chuck Hagel.

    The White House is now weighing an effort to conduct an "adversarial" review of the science behind the National Climate Assessment that shows Americans face security risks from climate change. The science in that report, drawn from hundreds of studies, has already been peer-reviewed and put out for extensive public comment. It is not yet clear if the White House effort will be an informal ad hoc working group of federal scientists or if it will comprise researchers outside the government.

    Shortly after the letter was released today, a group of climate change skeptics launched a countereffort to rally support for the White House move, which is being led by William Happer, a senior director at the National Security Council and longtime climate contrarian. The effort to produce a letter to counter the military experts was being organized by Myron Ebell, who headed Trump's EPA transition team and is the director of the Center for Energy and Environment at the Competitive Enterprise Institute.

    "Climate change is the perfect national security threat for our military and national security bureaucracy: more funding, lots of planning meetings, favorable media, approval from the hostile left, no action required, no danger involved," Ebell wrote in an email obtained by E&E News. "We will be circulating a joint letter for signing by free market, conservative, and scientific groups soon in support of Will Happer's initiative to create a President's Commission on National Climate Security."

    A number of those who signed on to the military letter do not typically speak out, said Andrew Holland, chief operating officer of the American Security Project. He said the letter is an unusual rebuke from a group typically focused on mitigating threats, not governmental politics. It shows how strongly they feel climate is a dire threat for Americans and how wrongheaded they feel the White House will be, he said.

    "What the White House is doing here is so transparently political, it's undermining science and national security analysis, and those things shouldn't mix," he said. "The brazenness of this attempt by the White House is so political that that's engendered a pushback."

    In the letter, the military officials note the long history of reports that show climate change is threatening national security. They point to an increasing number of extreme storms, including Hurricane Florence last year, which caused $3.6 billion in damage to Camp Lejeune, the home to expeditionary units from the Marine Corps. What's more, the reports show that climate change has caused challenges on the battlefield and has been wielded as a weapon by adversaries of the U.S.

    "Its effects are even used by our adversaries as a weapon of war; ISIS used water shortages in Iraq, in part driven by a changing climate, to cement their hold on the population during their reign of terror from 2014 to 2017," the officials noted.

    The group urged Trump to trust the analysis of his own national security agencies that have identified climate change as a national security threat.

    https://www.eenews.net/eenewspm/2019/03/05/stories/1060123199
    

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