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AM ACC 3/8/2019

Industry and Association News

(ACC Mentioned) Interactive: Global Chemical Production in January Rises but at Slower Rate – ACC
Mar 7, 2019 | ICIS
By Tracy Dang

Global chemical production improved slightly in January from December, but the smaller gain reflected a slow start to the year, the American Chemical Council (ACC) said in its latest Global Chemical Production Regional Index (CPRI).
(ACC Mentioned) Industry Coalition Eyes $500M Federal Push for Domestic Recycling
Mar 7, 2019 | Plastics News
By Steve Toloken

A coalition of plastics and other industry groups wants Washington to play a bigger role in recycling.
(ACC Mentioned) R.I. Business Groups Applaud Statewide Bag Ban Bill
Mar 7, 2019 | EcoRI

Several opponents of a statewide ban on plastic retail bags are now backing, or at least remaining silent on the issue, legislation to make the ban a reality.
Geoffrey Kabat’s Ties to Tobacco and Chemical Industry Groups
Mar 7, 2019 | U.S. Right to Know
By Stacy Malkan

Geoffrey Kabat, PhD, is a cancer epidemiologist and author of two books arguing that that health hazards of pesticides, electromagnetic fields, secondhand tobacco smoke and other environmental exposures are “greatly overblown.”

TSCA News

Chemical Makers Need to Better Explain Trade Secrets to EPA
Mar 8, 2019 | BNA Daily Environment Report
By Pat Rizzuto

Chemical manufacturers need to better justify their requests to keep information secret in EPA submissions, attorneys told Bloomberg Environment March 7.
GAO Affirms the Trump EPA's Political Manipulation of the IRIS Formaldehyde Assessment
Mar 7, 2019 | Environmental Defense Fund
By Richard Denison

I blogged last month about the Trump EPA’s corrupt actions to bury the long-awaited assessment of the carcinogen formaldehyde conducted by the agency’s Integrated Risk Information System (IRIS) program.
Merkley, Colleagues Intro Bill to Ban Asbestos in U.S.
Mar 8, 2019 | KTVZ

Sen. Jeff Merkley (D-OR), along with Rep. Suzanne Bonamici (D-OR), Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ), and Rep. Elissa Slotkin (D-MI), on Thursday introduced the Alan Reinstein Ban Asbestos Now Act of 2019, legislation to ban...

Chemical Management News

US Government Investigating Food Supply for PFAS Contamination
Mar 7, 2019 | Chemical & Engineering News
By Cheryl Hogue

The US government is broadening its focus on toxic fluorocarbon contamination beyond industrial sites and military bases to include the nation’s food supply.
Wheeler Prioritizes EPA Research on PFAS Impacts on Agriculture
Mar 7, 2019 | Inside EPA
By Suzanne Yohannan

EPA Administrator Andrew Wheeler is tasking the agency's Office of Research & Development (ORD) to lead efforts with other offices to steer existing funds toward projects that will aid in managing the impact of per- and polyfluoroalkyl substances (PFAS)...
N.M. Lawmakers Target PFAS Contamination
Mar 8, 2019 | E&E Daily
By Cecelia Smith-Schoenwalder

A toxic class of chemicals continues to get attention on Capitol Hill this week, with lawmakers from New Mexico introducing bicameral bills to help contaminated communities.
Kids Face Phthalate Risk Despite Toy Ban, Danish Council Says
Mar 7, 2019 | BNA Daily Environment Report
By Marcus Hoy

Existing and planned rules that ban hormone-disrupting chemicals in children’s toys may not be enough to prevent harmful exposures, according to Denmark’s state-funded Ecological Council.

Energy News

Senators Unveil New Plan to Counter Vladimir Putin’s Energy Influence in Eastern Europe
Mar 7, 2019 | Roll Call
By Niels Lesniewski

Bipartisan lawmakers are unveiling Thursday the latest Capitol Hill effort to counter Vladimir Putin’s energy activities in Eastern Europe.
Permitting Delay Raises Old Questions for New Project
Mar 8, 2019 | E&E Energywirre
By Jenny Mandel

State-level regulators in Oregon yesterday announced a six-month delay in the permit schedule for a pipeline that would feed a new liquefied natural gas export plant, calling into question whether the project could be derailed — again — by pipeline problems.
Dems Spar With Fisheries Chief Over Seismic Surveys
Mar 8, 2019 | E&E Daily
By Rob Hotakainen

House Democrats grilled NOAA Fisheries chief Chris Oliver yesterday over the agency's plan to allow new energy searches in the Atlantic Ocean, charging him with ignoring science and doing the bidding of the oil and gas industry.
Exxonmobil Mulls Cracker Projects Beyond 2025: Executive
Mar 7, 2019 | Platts
By Kristen Hays

ExxonMobil is mulling two more cracker projects beyond 2025, a top executive said this week.
Keystone XL Inching Ahead Has One State Bracing for Protests
Mar 7, 2019 | BNA Daily Environment Report
By Rachel Adams-Heard

As TransCanada Corp.’s contentious Keystone XL crude oil pipeline inches along, South Dakota is bracing for a fight.
Utilities, Unions Say Energy Sector Needs Better Skills Training
Mar 7, 2019 | BNA Daily Environment Report
By Tyrone Richardson

Academia and industry should join forces to provide skills training needed to help reverse workplace shortages in the U.S. energy market, advocates for the utility sector and organized labor told a House appropriations panel.

Chemical Security News

EPA Says Ethylene Oxide Emissions Spike at Sterigenics Facility (1)
Mar 7, 2019 | BNA Daily Environment Report
By Stephen Joyce

Ethylene oxide emissions at nearly every monitoring site near a Sterigenics U.S. LLC facility in Willowbrook, Ill. spiked in February to their highest levels in nearly a year.
N.J. Sues Exxon Mobil in Renewed Drive to Recoup Pollution Costs
Mar 7, 2019 | BNA Daily Environment Report
By John Herzfeld

New Jersey sued Exxon Mobil Corp. March 7 in a bid to recover damages from hazardous chemicals seeping into groundwater and other natural resources at a 12-acre industrial site.

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

Environment News

Senate Dems Float Bill to Halt White House Science Review
Mar 6, 2019 | E&E News PM
By Nick Sobczyk

Senate Democrats today introduced a bill to shoot down the White House's proposed "adversarial" review of climate science, joining a growing chorus opposing the effort.
How Trump's Climate Review Could Backfire
Mar 8, 2019 | E&E Climatewire
By Scott Waldman

A White House effort to challenge climate science could end up strengthening the case against the Trump administration's environmental rollbacks and potentially weaken future attempts to ignore research showing that humans are warming the planet.
Heated Climate Debate Might Help Both Parties
Mar 8, 2019 | E&E Daily
By George Cahlink and Nick Sobczyk

Texas Republican Sen. John Cornyn could hardly hide his frustration on the Senate floor this week, as his criticism of the "radical, socialist" Green New Deal drew frequent interruptions from Democrats.
Legal Pact Ensures 2020 Election Will Decide Fate of EPA Air Toxics Rules
Mar 7, 2019 | Inside EPA
By Stuart Parker

EPA and environmentalists have agreed to a draft legal settlement imposing deadlines in 2021 and later to review agency air toxics rules, ensuring the 2020 presidential election will decide whether a re-elected Trump administration will continue leaving such rules unchanged...
Final EPA Rule Easing Air Monitoring Mandates Rejects Critics’ Concerns
Mar 7, 2019 | Inside EPA
By Stuart Parker

EPA has finalized a rule easing emissions monitoring mandates for industrial sources of pollution to eliminate what it says are obsolete requirements, a move that is a win for several states and industry groups that sought the revision and that rejects concerns...
House Democrats Demand EPA, SAB Answers on Harvey Air Monitoring
Mar 8, 2019 | Inside EPA

House Democrats are pressing EPA and the head of the agency’s Science Advisory Board (SAB) on why the agency and Texas declined an air pollution monitoring mission planned by NASA to measure the air quality impacts of Hurricane Harvey on the Houston area...
D.C. Circuit Poised To Hear Rival Refrigerant Makers’ Fight Over HFC Rule
Mar 7, 2019 | Inside EPA
By Stuart Parker

A federal appeals court is poised to hear oral argument March 8 in a lawsuit where rival manufacturers of climate-warming hydrofluorocarbon (HFC) refrigerants are battling over the merits of EPA’s policy on replacing the substances...

Industry and Association News

(ACC Mentioned) Interactive: Global Chemical Production in January Rises but at Slower Rate – ACC

Mar 7, 2019 | ICIS

By Tracy Dang

Global chemical production improved slightly in January from December, but the smaller gain reflected a slow start to the year, the American Chemical Council (ACC) said in its latest Global Chemical Production Regional Index (CPRI).
With softness earlier than last year, the Global CPRI was up only slightly year on year on a three-month moving average (3MMA) basis.
January capacity utilisation was 83.1%, down by 0.2 percentage points from December. This was also below the January 2017 rate of 85.6%, as well as the long-term average of 86.5%.
“Among chemical industry segments, January results were mixed on a product basis, with gains in agricultural chemicals, inorganic chemicals, plastic resins, synthetic rubber, manufactured fibres, coatings, and other specialties, offset by weakness in consumer products, and bulk petrochemicals and organics,” the report said.
“Considering year-earlier comparisons, growth was strongest in coatings, followed by bulk petrochemicals and organics, and plastic resins.”
By region, January production rose month on month in North America and Asia. Latin America output was flat, while Europe production fell.
Year on year, January production rose in North America and Asia and fell in Europe and Latin America.
The Global CPRI measures the production volume of the business of chemistry for 33 key nations, sub-regions and regions, all aggregated to the world total. The index is comparable to the US' Federal Reserve Board production indices.
https://www.icis.com/explore/resources/news/2019/03/07/10329935/interactive-global-chemical-production-in-january-rises-but-at-slower-rate-0xe2-0x80-acc/

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(ACC Mentioned) Industry Coalition Eyes $500M Federal Push for Domestic Recycling

Mar 7, 2019 | Plastics News

By Steve Toloken

A coalition of plastics and other industry groups wants Washington to play a bigger role in recycling.
As part of that effort, the coalition is pushing $500 million in new federal money to shore up local waste management against challenges like China's ban on scrap imports.
The effort, which includes the Plastics Industry Association and the American Chemistry Council, is broader than plastic, with associations for glass packaging and the waste and recycling industries also signing on.
And it's about more than money. The coalition wants to shift Washington's thinking around recycling — to recognize local waste collection systems as a type of infrastructure that should get financial support just like roads or airports. Members hope to introduce legislation in the next few weeks.
The industry proposal comes as both the Trump administration and Congress, including the new Democratic majority in the House, signal support for a large federal infrastructure program. That's seen as the most likely legislative vehicle for the industry proposal, although it's far from clear a big infrastructure program will pass.
Scott DeFife, vice president of government affairs at the Plastics Industry Association, said the coalition argues that much of the municipal recycling collection infrastructure is several decades old and faces new challenges it wasn't designed to handle.
He said with China and now other Asian nations banning scrap imports and forcing local governments to scale back the plastic materials they accept for recycling — and with the plastics industry facing growing public concern about waste and pollution — it's a good time for an expanded role for Washington.
"We think the country needs a system upgrade on recycling," DeFife said. "It could use a jolt of support. We think of our effort as a stimulus on recycling."
While the plastics association has been talking about this approach since last spring and working with allied groups, the coalition is only now putting specific funding figures behind it and zeroing in on legislative details.
The proposed dollar amount could change based on what the bill's Congressional sponsors want, but DeFife said the group is floating $500 million in federal matching funds over five years.
The idea is that local and state governments or private capital would have to kick in funding as well to get the grants, potentially unlocking $1 billion.
Dollars aside, DeFife said a major goal is to build support in Washington for the idea that recycling's environmental and economic benefits make it a public utility like electricity and drinking water.
"The primary issue is getting the federal government to think about recycling and waste management as a public utility that should deserve support within an infrastructure context, that is the primary thrust of what we're trying to do," DeFife said.
Money for MRFs
While the potential $500 million funding is the centerpiece, the bill will also likely include provisions designed to upgrade material recovery facilities, which could include better sorting equipment to handle flexible films and other newer packaging.
The plastics industry, for example, is helping to pay for a demonstration project recycling such film in curbside systems in Pennsylvania.
As well, the legislation could call for quicker permitting for recycling facilities, including emerging "conversion" technologies like chemical recycling and pyrolysis. They're designed to break plastics back down into monomers, rather than traditional mechanical recycling. Such technology has been mentioned among innovations in the $1 billion, industry-funded Alliance to End Plastic Waste.
"This is not about easing environmental regulations as much as it is understanding that there's a new generation of conversion technology," DeFife said, adding that communities decide what approaches they want to take.
One thing that will not be part of this legislation that is part of the plastics industry's agenda: waste-to-energy and incineration. There's not enough agreement on that, DeFife said.
The legislative proposal will be a big part of a Washington lobbying fly-in the plastics association is planning for industry executives March 26-27.
NGOs lobby DC on plastics
Like the industry, environmental groups have been doing their own Washington lobbying around plastics issues, and they too are pushing for a bigger federal government role in waste and recycling.
Not surprisingly, though, they take a different approach.
In contrast to the industry proposal and its focus on stronger municipal collection, they put more attention on reducing consumption and solutions beyond recycling, including corporate producer responsibility for packaging.
The San Clemente, Calif.-based Surfrider Foundation and business partners brought more than 100 people to lobby Congress Feb. 28-March 1, with plastics pollution as one of the issues. Surfrider also held a plastic policy briefing for Congressional staff in mid-January.
The group argued that with plastic production expected to grow 40 percent in the next decade, a recycling only approach won't be enough, said Angela Howe, legal director for Surfrider.
"Similar to the [European Union], we see the top actions that our federal government can take to address plastic pollution involving regulatory mechanisms that go beyond mere recycling, including bans, consumption reduction measures (via creation of reusable foodware systems), extended producer responsibility and product redesign," she said in an email.
Surfrider also touted EU mandates for a 90 percent recycling rate for bottles though a deposit system, and 30 percent recycled content mandate for new bottles. The U.S. plastic bottle recycling rate is about 30 percent.
DeFife said the industry proposal does not include recycled content requirements for packaging, although letters the group has sent out discuss using more recycled content in infrastructure projects. Dow Chemical Co., for example, has worked on road building projects in the U.S. and Asia mixing waste plastic into asphalt.
DeFife said the plastics association supports "promoting" recycled content in packaging but is leery of legislative mandates and "moonshots."
"Our policy supports engaging with lawmakers and policymakers who want to do that, but it needs to be done in a way that, if you're going to do it, make it successful, don't make it punitive," he said. "You need to first have the infrastructure that allows for the material to be viable and available and competitive as far as prices go. And ratchet it up in a time frame that makes reasonable sense rather than these moonshot goals that can't be achieved."
The group sees a targeted shot of federal grant money for local recycling as its version of the reasonable option.
With the potential to unlock $1 billion for local recycling programs, DeFife compared it to the industry's January unveiling of the $1 billion plastic waste alliance to build recycling infrastructure in Asia.
"I think of this as the domestic complement to that focus," DeFife said. "Whereas that effort is putting in infrastructure where none exists on a global sense, while we have some here, ours is way behind."
"There are new MRFs coming online in Japan and Europe that are light years ahead of what's going on here," DeFife said. "We think the country could benefit from an infusion of capital on domestic infrastructure."
https://www.plasticsnews.com/article/20190307/NEWS/190305416/industry-coalition-eyes-500m-federal-push-for-domestic-recycling

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(ACC Mentioned) R.I. Business Groups Applaud Statewide Bag Ban Bill

Mar 7, 2019 | EcoRI

Several opponents of a statewide ban on plastic retail bags are now backing, or at least remaining silent on the issue, legislation to make the ban a reality.
In previous years, the Rhode Island Hospitality Association (RIHA), the Rhode Island Food Dealers Association, and the Greater Providence Chamber of Commerce were staunch critics of plastic bag prohibitions. The business groups had argued the virtues of plastic bags, such as their low cost, light weight, durability, and versatility. They railed against what they deemed overregulation by the state and the burden on retailers.
The RIHA said it had a change of heart, in part, because of the 11 cities and towns that have passed municipal bans. Although the bans are similar if not identical in each community, RIHA wrote in a letter that “businesses have been left scrambling to implement a patchwork of laws, all of which have different requirements.”
At a March 6 Senate hearing, business groups praised Gov. Gina Raimondo for inviting them to join the Task Force to Tackle Plastics. RIHA’s president and CEO Dale Venturini served as the task force’s co-chair.
“As soon as the business community was engaged, we came to the table in good faith and now we have a bill in front of us that pretty much every major business association is in support of,” said Sarah Brakto, RIHA’s legislative liaison.
One of the most persistent opponents of a statewide bag ban had been Tony Fonseca, co-owner of the food packaging distribution company Packaging & More Inc. of Central Falls. Fonseca also served on the plastics task force and applauded the 22-member committee for its diversity.
He was swayed by a latest bag ban bill (S410) because it includes a mandatory 5-cent fee on paper bags. The fee, he said, will improve the environmental benefits by encouraging shoppers to use reusable bags instead of paper bags, which have their own environmental drawbacks.
“I want (the fee) to be there to change consumer behavior,” Fonseca said.
He also liked that the fee goes to the retailer, allowing them to recoup the higher costs for paper bags.
The American Chemistry Council (ACC) didn’t support the bill, but didn’t object either. The ACC, which represents the largest fossil-fuel and chemical companies in the world, has fought bans on plastics and chemicals in Rhode Island and across the country. Its lobbyists also pushed for preemption laws that prevent municipal bans.
The ACC did speak against a similar bill (S268) that includes a ban on polystyrene foam containers.
Senate President Dominick Ruggerio, D-North Providence, sponsored the stand-alone bag ban bill at the request of the Rhode Island Department of Environmental Management.
There was only one objection to the mandatory 5-cent fee, which killed a Providence bag ban in 2018. The American Forest & Paper Association submitted a letter saying the fee wrongly penalizes paper bags — “a commodity that is recyclable, compostable, made of recycled material, and reusable.”
Several reusable bag supporters, including Raimondo, want to start a program to issue reusable bags to low-income residents.
“I will commit to implement a State-led program to distribute reusable bags to Rhode Islanders — with a focus on vulnerable populations — prior to a prohibition going into effect,” Raimondo wrote in a letter to the Senate committee.
If approved, the bag ban begins Jan. 1, 2021, or a year from passage.
Environmental groups uniformly backed the bill. A few asked that the definition of reusable bags include stitched handles, so that thicker plastic bags aren’t offered by retailers.
The bill was held for further study. A House version of the bill has yet to have a hearing.
https://www.ecori.org/government/2019/3/7/latest-bag-ban-bill-attracts-converts

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Geoffrey Kabat’s Ties to Tobacco and Chemical Industry Groups

Mar 7, 2019 | U.S. Right to Know

By Stacy Malkan

Geoffrey Kabat, PhD, is a cancer epidemiologist and author of two books arguing that that health hazards of pesticides, electromagnetic fields, secondhand tobacco smoke and other environmental exposures are “greatly overblown.” He is often quoted in the press as an independent expert on cancer risk. Reporters who use Dr. Kabat as a source should be aware of (and disclose) his longstanding ties to the tobacco industry and involvement with groups that partner with the chemical industry on PR and lobbying campaigns.
Front group leader and advisor
Dr. Kabat is a member of the board of directors of the Science Literacy Project, the parent group of Genetic Literacy Project, which works behind the scenes with Monsanto to promote and defend agrichemical products. Dr. Kabat is also a member of the board of scientific advisors of the American Council on Science and Health (ACSH), a group that receives funding from chemical, tobacco and pharmaceutical companies.
Both Genetic Literacy Project and ACSH partnered with Monsanto on a public relations campaign to attempt to discredit the International Agency for Research on Cancer (IARC) for its report that glyphosate, the main ingredient in Monsanto’s Roundup herbicide, is a probable human carcinogen. According to documents released via litigation:
·       A Monsanto PR plan (February 2015) named Genetic Literacy Project among the “industry partners”Monsanto planned to engage in its efforts to “neutralize [the] impact” of the IARC report. The goals of Monsanto’s plan were to “protect the reputation and FTO of Roundup” and “provide cover for regulatory agencies…” GLP has since posted more than 200 articles critical of the cancer agency.
·       Emails from February 2015 show that Monsanto funded ACSH on an ongoing basis and reached out to give ACSH the “full array” of Monsanto information about the IARC report on glyphosate. In the emails, Monsanto staffers discussed the usefulness of ACSH’s materials on pesticides, and one wrote, “You WILL NOT GET A BETTER VALUE FOR YOUR DOLLAR than ACSH.” (emphasis in original)
·       ACSH staffers told Monsanto the IARC glyphosate report was on their radar, and noted, “We are involved in a full-court press re: IARC, regarding ag-chemicals, DINP [phthalate] and diesel exhaust.”
These groups used similar messaging to attack the IARC cancer researchers as “scientific frauds” and “anti-chemical enviros” who “lied” and “conspired to misrepresent” the science on glyphosate. They cited Dr. Kabat as a key source for claims that IARC is “discredited” and “only enviro-fanatics” pay attention to reports on cancer hazard. Dr. Kabat has written that “there are literally no more studies we can do to show glyphosate is safe,” based on an interview with an anonymous expert.
Attacking scientists who raise cancer concerns
Another example of how Dr. Kabat aids the Monsanto-connected groups can be found in his efforts to discredit a different group of scientists who raised cancer concerns about glyphosate in a February 2019 meta-analysis. The meta-analysis, co-authored by three scientists who were tapped by EPA to serve on an expert scientific advisory committee on glyphosate, reported “compelling links” between exposures to glyphosate-based herbicides and increased risk of non-Hodgkin lymphoma.
Dr. Kabat skewered the analysis in an article that was first published on Forbes but was later removed after Forbes editors received complaints about Kabat’s lack of disclosure about his ties to ACSH. When questioned about the issue, Forbes said the article was pulled because it violated Forbes standards and Kabat would no longer be a contributor to Forbes.
Dr. Kabat’s deleted Forbes article can still be read on Science 2.0, a website run by the former director of ACSH, and a version appears on Genetic Literacy Project. GLP Executive Director Jon Entine promoted Dr. Kabat’s article along with suggestions that the scientists may have committed “deliberate fraud.”

For more information about industry-orchestrated attacks on IARC, see:
·       Secret Documents Expose Monsanto’s War on Cancer Scientists, by Stacy Malkan, TruthOut (7.16.18)
·       Monsanto Relied on These ‘Partners’ to Attack Top Cancer Scientists, USRTK fact sheet
Dr. Kabat’s longstanding tobacco ties
Dr. Kabat has published several papers favorable to the tobacco industry that were funded by the tobacco industry. He and his co-author on some of those papers, James Enstrom (a trustee of the American Council on Science and Health), have longstanding ties to the tobacco industry, according to a 2005 paper in BMJ Tobacco Control.
In a widely cited 2003 paper in BMJ, Kabat and Enstrom concluded that secondhand smoke does not increase the risk of lung cancer and heart disease. The study was sponsored in part by the Center for Indoor Air Research (CIAR), a tobacco industry group. Although that funding was disclosed, a follow-up analysis in BMJ Tobacco Control found that the disclosures provided by Kabat and Enstrom, although they met the journal’s standards, “did not provide the reader with a full picture of the tobacco industry’s involvement with the study authors. The tobacco industry documents reveal that the authors had long standing financial and other working relationships with the tobacco industry.” (emphasis added)

This table in the BMJ Tobacco Control paper reports the early ties:
In 2019, a search for Geoffrey Kabat in the UCSF Tobacco Industry Documents brings up over 800 documents, including a 2007 invoice to Phillip Morris for over $20,000 for “consulting on the health effects of low-yield cigarettes” billed at $350 an hour.
In 2008, Kabat and Enstrom published a paper partly funded by Phillip Morris reporting that previous assessments appeared to have overestimated the strength of the association between environmental tobacco smoke and coronary heart disease.
In 2012, Dr. Kabat co-authored a paper finding that mentholated cigarettes were not an important contributor to esophageal cancer. For that paper, Dr. Kabat declared he had “served as a consultant to a law firm and to a consulting firm on the health effects of menthol cigarettes.”
https://usrtk.org/pesticides/geoffrey-kabats-ties-to-tobacco-and-chemical-industry-groups/

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TSCA News

Chemical Makers Need to Better Explain Trade Secrets to EPA

Mar 8, 2019 | BNA Daily Environment Report

By Pat Rizzuto

Chemical manufacturers need to better justify their requests to keep information secret in EPA submissions, attorneys told Bloomberg Environment March 7.
The Environmental Protection Agency has promised Congress that by May 31 it will post online a range of documents that companies submit when they ask the agency for permission to make new chemicals and microbes, said Alexandra Dapolito Dunn, EPA’s assistant administrator for chemical safety and pollution prevention.
Dunn, speaking at the 2019 Global Chemical Regulations Conference, referred to promises EPA Administrator Andrew Wheeler made earlier this year in a letter to Sen. Tom Carper (D-Del.). The promises included posting new chemical documents online within 45 days of receiving them.
The changes will likely make chemical manufacturers more aware of what confidential business information claims they can assert and how to better explain those claims, according to Mark N. Duvall, a partner with Beveridge & Diamond PC, and Martha E. Marrapese, a partner with Wiley Rein LLP.
Before the agency posts any company documents, it reviews them to decide whether manufacturers are justified in asking the EPA to keep some business information secret, Ryan Wallace, an agency attorney, said March 6.
The original and amended Toxic Substances Control Act allows companies to claim protection for confidential business information about a wide variety of details, including the name of the company that wants to make a new chemical, the specific identity of that chemical, and the specific expected uses of the compound.
The amended TSCA required companies to explain why they wanted their business information confidential, and required the agency to make sure trade secret protection is only given when justified.
Insufficient Evidence
It’s generally justified when release of the information could cause substantial harm to a company’s competitive position, Wallace said.
The EPA often gets requests to make new chemicals that claim much of the information given to the agency must be kept confidential, he said. But companies often don’t explain why, and the EPA needs documentation explaining how economic harm would result, he said.
Traditionally chemical manufacturers claimed confidentiality for a lot of information they submitted to the EPA, Duvall said. Now they need to exercise restraint, he said.
When companies claim certain information is confidential on a new chemicals form from the EPA, called a premanufacture notice, they also provide the agency with a sanitized version that redacts confidential information, which the agency can make public.
If the EPA notices a discrepancy in the sanitized form—for example a company’s name is redacted in one part of the document but not another—it will ask the submitter to clarify, Wallace said. But some new chemical forms and related documents are hundreds of pages long, and the EPA isn’t likely to catch all possible errors, he said.
https://news.bloombergenvironment.com/environment-and-energy/chemical-makers-need-to-better-explain-trade-secrets-to-epa

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GAO Affirms the Trump EPA's Political Manipulation of the IRIS Formaldehyde Assessment

Mar 7, 2019 | Environmental Defense Fund

By Richard Denison

I blogged last month about the Trump EPA’s corrupt actions to bury the long-awaited assessment of the carcinogen formaldehyde conducted by the agency’s Integrated Risk Information System (IRIS) program. That post cited an article in the Wall Street Journal that noted a forthcoming report by Congress’ Government Accountability Office (GAO) that was expected to expose the suspect process used by conflicted political appointees at EPA to prevent public release and completion of that scientific assessment over the past 15 months. We also noted disturbing indications that EPA intends to redo the assessment of formaldehyde under the Toxic Substances Control Act (TSCA), under the control of political appointees who came to EPA directly from the chemical industry’s main trade association and while there led its efforts to undermine IRIS.
GAO’s report is out, and yesterday it featured prominently at a Senate hearing at which top GAO officials testified. That testimony confirms in spades the recounting in our earlier blog post of the concerted efforts by the agency’s political leadership to fabricate a rationale for abandoning the formaldehyde assessment, which has been ready for public and peer review since the fall of 2017.
In the wake of the GAO report, Senator Carper and other members of Congress from both houses have sent a letter to EPA Administrator Andrew Wheeler calling on him to complete the formaldehyde assessment and release documents pertaining to potential ethical and scientific integrity policy violations by EPA political appointees.
I won’t further rehash our earlier post, but will simply post a key excerpt from the hearing, an exchange between Senator Tom Carper (DE) and Mark Gaffigan, Managing Director for Natural Resources and Environment at GAO. I’ll highlight some key passages in which GAO describes what its investigation found.
EXCERPT FROM YESTERDAY’S GAO TESTIMONY
CARPER: The first question I have deals with chemical safety at EPA, and I just want to say thanks for being responsive on this front. The EPA’s chemical safety efforts have been on GAO’s High Risk List, as you know, for years. And on Monday, the GAO released a long report, one that I requested on chemical safety.
That report describes some disturbing developments about EPA’s Integrated Risk Information System, which has an acronym, IRIS like the iris in our eye. It’s called IRIS, which studies the health hazards posed by chemicals.
So here’s my — here’s my question. GAO’s report said that until recently EPA’s IRIS program had been implementing many of the recommendations made by both GAO and the National Academy of Sciences, but the report also said that that progress was almost a year ago when EPA’s political officials told the EPA’s career staff to stop working on some of its reports, including the formaldehyde health assessment. Is that correct?
DODARO: This is Mr. Gaffigan, who’s led the effort on that report.
CARPER: OK, thank you.
GAFFIGAN: Thank you, Senator Carper. What had happened is EPA has an IRIS assessment plan which they list all the chemicals they’re working on at the current time, and as of May of 2018 they had a list of about 20 — 22 chemicals that they were working on, including formaldehyde.
CARPER: Yes.
GAFFIGAN: They had checked in with the program offices because they — they do these studies on behalf of the program offices to meet their needs in assessing safety in various areas — land, in air or water, whatever it may be. And that May 2018 list was good to go, but they were told in June to hold off, that the leadership wanted to take a look at that list. They sent a survey out to the program offices to reconfirm their interest in those 20 — 22 chemicals.
They eventually — the survey had 20 chemicals listed on it. There were two that were already about to go to peer review, so they didn’t include those. They were at the later stages. And then they got the answer back from the program offices. Yes, indeed, we would like to look at these same 20. They reconfirmed that.
CARPER: Yes.
GAFFIGAN: But then later in October before they released the survey results, there was a further inquiry as to prioritization asking, again, the program offices to prioritize, yet they didn’t provide any criteria for deciding how to prioritize.
The next thing that we’re aware that happened is in December 2018 they released a new list. There were only 11 chemicals on there.
CARPER: So almost cut in half.
GAFFIGAN: Almost cut in half, and there’s no explanation as to why they decided to drop some chemicals. There are at least four chemicals in the sort of last stages ready to go to peer review, including formaldehyde, that vanished. And so, that raises a lot of uncertainty and questions about what happened and what was the rationale for doing that.
CARPER: All right, thank you. That’s a very good explanation. Just for my colleagues, let me just note for my colleagues that formaldehyde is a known carcinogen. It’s been reported that EPA’s career scientists have concluded that it causes leukemia. There have actually been chemical industry and congressional efforts to stall the publication of this report now for more than a decade.
Now we’d ask, Mr. Dodaro, for you and Mark [Gaffigan], GAO’s report also found that initially EPA’s water and superfund offices both said that they considered the completion of the formaldehyde report to be a priority — a priority.
But after that, EPA’s political officials asked for a new list of priorities, as Mark has mentioned, and magically vanishing, the formaldehyde report was not listed as a priority on this new list. That means EPA no longer plans to finish the formaldehyde report even though it has been ready for peer review since 2017 and they spent I’m told about $10 million on the research. Do I have all that right?
GAFFIGAN: And I would just add they’ve been working on it actually since 1997.
CARPER: Wow, 21 years or 22 — 22 years. Another question related to this, but I would ask again, Gene, if you and Mark, did GAO learn why EPA’s political officials asked for a new list of priorities that has resulted in a decision not to publish the formaldehyde health assessment?
GAFFIGAN: We never — we never gathered. This came in December towards the end of our report. We were never able to assess what the rationale was. There was some talk about trying to limit the budget, but as we had the conversation before, Congress fully funded the budget for IRIS which ended up about $20 million — $20 million, and it may have — with that list of 20 chemicals, they felt they had the resources to do all 20 with their budget.
So that explanation doesn’t seem to make sense unless, in fact, they were trying to not spend as much money in IRIS.
CARPER: Well for — thank you both for the response. Mark, especially thank you. For an agency that is so concerned about so called secret science, that it is writing a rule against the topic, EPA appears to be going to great lengths to keep its own science secret. Let me just note that for the record.
http://blogs.edf.org/health/2019/03/07/gao-affirms-the-trump-epas-political-manipulation-of-the-iris-formaldehyde-assessment/

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Merkley, Colleagues Intro Bill to Ban Asbestos in U.S.

Mar 8, 2019 | KTVZ

Sen. Jeff Merkley (D-OR), along with Rep. Suzanne Bonamici (D-OR), Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ), and Rep. Elissa Slotkin (D-MI), on Thursday introduced the Alan Reinstein Ban Asbestos Now Act of 2019, legislation to ban the mining, importation, use and distribution in commerce of asbestos, a known carcinogen, and any asbestos-containing mixtures in the U.S..
“It’s outrageous that in the year 2019, asbestos is still allowed in the United States,” Merkley said. “While the EPA fiddles, Americans are dying. It’s time for us to catch up to the rest of the developed world, and ban this dangerous public health threat once and for all.”
“Asbestos causes disease and death, and we must protect families and communities from this known carcinogen,” said Suzanne Bonamici. “It is unacceptable that Oregonians and thousands of people across the U.S. continue to die from asbestos-related diseases each year. I am proud to introduce the Alan Reinstein Ban Asbestos Now Act, legislation to ban the importation, manufacture, and distribution of asbestos. I thank my colleagues, Senator Jeff Merkley and Chairman Frank Pallone, and look forward to continuing working with them to advance this lifesaving bill.”
“It has been 40 years since EPA began the process of banning asbestos, yet this dangerous chemical is still being imported and used all across the country – and people are still falling ill and dying from exposure. American communities and American workers can’t wait any longer for EPA to act,” said Chairman Frank Pallone, Jr. “It’s time to put public health first, pass this bill and ban this toxic substance for good.”
“We need to treat environmental security like homeland security – and the fact that the use and purchase of asbestos is not banned by the EPA is a threat to our families’ and kids’ safety and health,” said Rep. Elissa Slotkin. “I’m proud to lead this bill that would ensure this toxic chemical stays out of our homes and our communities.”
The bill is named after Alan Reinstein, who passed away in 2006 at the age of 66 from mesothelioma, a disease caused by exposure to asbestos. Alan’s wife, Linda, co-founded the Asbestos Disease Awareness Organization (ADAO) in 2004.
“ADAO is thankful to Sen. Merkley, Congresswoman Bonamici, Chairman Pallone, Congresswoman Slotkin and the many original cosponsors for their leadership and dedication to public health,” said Linda Reinstein. “ARBAN will take long-overdue action to stop hundreds of tons of raw asbestos imports and asbestos containing products from entering the U.S. It will protect all Americans — workers, consumers, and children — from being exposed to this deadly threat. With the passage of ARBAN, we will finally join over 60 countries who put public health over corporate profit and banned asbestos.”
Asbestos is still legal in the United States, even though it has been banned in more than 60 other developed countries. Asbestos in all forms is known to be a leading cause of mesothelioma, lung cancer, and other chronic respiratory diseases.
Although the Environmental Protection Agency included asbestos on its list of the first ten chemicals for risk reviews under the 2016 revised Toxic Substances Control Act, EPA’s safety assessment must be completed before EPA can consider any controls on asbestos, and the EPA is not required to ban it.
Despite the bipartisan spirit of the historic 2016 agreement to reform the Toxic Substances Control Act, President Trump and his handpicked leadership at the EPA have made clear that they will not prioritize taking dangerous chemicals off of the market.
Specifically, the legislation would:
·         Amend the Toxic Substances Control Act (TSCA) to direct EPA, within one year after the date of enactment of the bill, to ban the manufacturing, processing, use, and distribution in commerce of asbestos and any mixture or article containing asbestos.
·         There is an exemption for national security purposes, but only for a three-year period with one three-year extension allowed.
·         Require within 120 days of enactment any person or entity that has manufactured, processed, or distributed in commerce asbestos or any mixture containing asbestos in the last three years to submit to the EPA a detailed report regarding the description of the activity; the quantity, quality, and concentration of asbestos; and reasonable estimates of the number of individuals that have been or will be exposed to asbestos due to the activity.
·         Require EPA to consult with the Department of Health and Human Services and the Department of Labor to submit to Congress within 18 months a report assessing the legacy presence of asbestos in residential, commercial, industrial, public, and school buildings, and the extent of exposure and risk to human health associated with the asbestos present in those buildings.
In the Senate, the bill is cosponsored by Senators Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), Jon Tester (D-MT), Cory Booker (D-NJ), Kamala Harris (D-CA), Bernie Sanders (I-VT), Dick Durbin (D-IL), Dianne Feinstein (D-CA), Edward J. Markey (D-MA), and Amy Klobuchar (D-MN). In the House, it is cosponsored by Reps. Nanette Barragan (D-CA), Earl Blumenauer (D-OR), Yvette Clarke (D-NY), Steve Cohen (D-TN), Peter DeFazio (D-OR), Debbie Dingell (D-MI), Anna Eshoo (D-CA), Jared Huffman (D-CA), Joseph P. Kennedy III (D-MA), Ted Lieu (D-CA), Betty McCollum (D-MN), James McGovern (D-MA), Jerry McNerney (D-CA), Eleanor Holmes Norton (D-DC), Mark Pocan (D-WI), Jamie Raskin (D-MD), Lisa Blunt Rochester (D-DE), Linda T. Sánchez (D-CA), Jan Schakowsky (D-IL), Darren Soto (D-FL), Paul Tonko (D-NY), and Nydia Velázquez (D-NY). The bill is endorsed by the AFL-CIO, the American Public Health Association (APHA), the Environmental Working Group (EWG), and Less Cancer.

https://www.ktvz.com/news/merkley-colleagues-intro-bill-to-ban-asbestos-in-us/1053333424

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Chemical Management News

US Government Investigating Food Supply for PFAS Contamination

Mar 7, 2019 | Chemical & Engineering News

By Cheryl Hogue

The US government is broadening its focus on toxic fluorocarbon contamination beyond industrial sites and military bases to include the nation’s food supply.
The move comes in the wake of reports last month that a New Mexico dairy is dumping tens of thousands of liters of milk and will euthanize thousands of cows because they are contaminated with nonpolymer per- and polyfluoroalkyl substances (PFAS). The dairy has several wells tainted with the substances—which are ingredients in some firefighting foams and have infiltrated groundwater at nearby Cannon Air Force Base.
Now, the Department of Agriculture and the Food and Drug Administration are joining the Environmental Protection Agency and the Department of Defense in investigating PFAS contamination, Dave Ross, the EPA’s assistant administrator for water, said at a March 6 congressional hearing. EPA administrator Andrew Wheeler recently directed the agency’s Office of Research and Development to study agricultural uses of groundwater contaminated with PFAS, Ross said. His comments were in response to a question about the impacts of PFAS-polluted water on croplands from Rep. Kelly Armstrong (R-ND) during the hearing.
Concern about PFAS in food is fairly new in the US. But in parts of Australia near PFAS-contaminated military bases, the government has warned residents not to eat eggs, milk, or meat from animals that drink PFAS-tainted water and not to eat leafy green vegetables from their gardens.
https://cen.acs.org/environment/persistent-pollutants/US-government-investigating-food-supply/97/i10

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Wheeler Prioritizes EPA Research on PFAS Impacts on Agriculture

Mar 7, 2019 | Inside EPA

By Suzanne Yohannan

EPA Administrator Andrew Wheeler is tasking the agency's Office of Research & Development (ORD) to lead efforts with other offices to steer existing funds toward projects that will aid in managing the impact of per- and polyfluoroalkyl substances (PFAS) on agriculture and rural economies, filling a gap in the agency's recent action plan.
The move appears to respond to concerns from some officials that PFAS waste is transferring into surrounding farmland or cropland, where it may contaminate groundwater, though it is unclear what other research the funding shift will draw from.
“EPA career staff, as well as state and local officials, have indicated to me the present strong need for quality scientific research specifically on best practices for managing PFAS-contaminated well/irrigation water and soil systems common in rural America,” he says in a Feb. 27 memo to Jennifer Orme-Zavaleta, ORD's career deputy and also EPA's science adviser.
“Everyday farmers, ranchers, farm workers and food industry managers and employees work daily to protect and enhance U.S. food security, and therefore urgently need access to scientifically-driven information regarding PFAS chemicals and potential impacts on agriculture and rural communities,” he writes.
ORD “should lead the coordination” with EPA's water and waste offices, as well as EPA regions “to identify and activate other Agency resources as needed, including the full EPA Laboratory enterprise,” Wheeler added.
PFAS are a class of over 4,000 chemicals that are widely used for their nonstick properties. But they have been linked to adverse health effects including certain cancers, ulcerative colitis and other conditions -- a concern that has mounted as their presence in community drinking water supplies has grown.
EPA last month issued a multi-faceted action plan for addressing the chemicals that highlights a host of research the agency is conducting although critics say it continues mainly to contemplate regulatory actions, rather than move aggressively toward them.
The action plan includes measures to focus research activities on filling gaps in the agency's ability “to conduct sound risk assessment and risk management activities” on PFAS. It includes a number of near-term and long-term research activities in areas such as determining the human health and ecological effects of exposure to PFAS, and identifying the significant fate and transport pathways to humans and ecosystems, among other areas, though it is largely silent on agriculture-related issues.
Consistent with the plan, Wheeler says he is telling ORD to build on PFAS research and “find ways to direct existing funds immediately towards research projects that will generate practical and actionable science to help manage PFAS chemical issues impacting agriculture and rural economies."
Further, he calls for ORD to work with the U.S. Department of Agriculture (USDA) and other federal agencies “on PFAS-related research projects and, subsequent to their findings, work on risk-based communications plans specifically for agricultural and rural communities."
New Mexico Contamination
During a March 6 House Oversight and Reform environment subcommittee hearing focused on PFAS, EPA water chief David Ross faced questioning from Rep. Kelly Armstrong (R-ND), who asked how EPA is working with USDA to “make sure that we're not mitigating into surrounding farmland or cropland.”
In response, Ross touted Wheeler's memo, saying it directed ORD to “take a look at the cross section between groundwater contamination and agricultural use."
He said the agency is setting up meetings with USDA and the Food and Drug Administration, adding that he had already spoken to USDA about “a dairy situation out in New Mexico."
While Ross did not specify which dairy issue he was referring to in New Mexico, it may relate to an ongoing dispute between the state of New Mexico and the Air Force over PFAS contamination stemming from years of using firefighting foam -- which contains the substances.
The New Mexico Environment Department (NMED) in December called on the Air Force --through an enforcement action -- to mitigate the impact of PFAS contamination on nearby dairies stemming from firefighting foams used at Cannon Air Force Base, but the Air Force has resisted.
And in a March 5 lawsuit filed against the service alleging violations of the state's hazardous-waste law, New Mexico says sampling has found PFAS in off-base wells that provide livestock and irrigation water to local dairies.
The sampling has included one showing a total combined level of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) -- two common PFAS -- at 14,320 parts per trillion (ppt) in an irrigation well. The level is 204 times EPA's health advisory level of 70 ppt for the two chemicals combined, the suit says.
https://insideepa.com/daily-news/wheeler-prioritizes-epa-research-pfas-impacts-agriculture

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N.M. Lawmakers Target PFAS Contamination

Mar 8, 2019 | E&E Daily

By Cecelia Smith-Schoenwalder

A toxic class of chemicals continues to get attention on Capitol Hill this week, with lawmakers from New Mexico introducing bicameral bills to help contaminated communities.
Democratic Sens. Tom Udall and Martin Heinrich along with Rep. Ben Ray Luján introduced companion legislation to authorize the Defense Department to use funds to provide clean water for agricultural purposes to areas affected by per- and polyfluoroalkyl substances, or PFAS.
"Families, business owners, farmers, servicemembers and communities who have suffered from exposure to these hazardous chemicals in New Mexico deserve immediate relief, and the Air Force must take precautionary steps to prevent any further dangers to public health," Udall said in a statement.
In New Mexico, a dairy farmer recently spoke out about PFAS contamination, saying that all 4,000 of his cows would need to be killed after they were exposed to the chemicals through a nearby Air Force base, the Santa Fe New Mexican reported.
The chemicals are an ingredient in firefighting foam that was used during training exercises on military bases. They have been linked to several health problems, including cancer and thyroid disease.
"The Department of Defense says they lack authority to fully address this dire situation, so our bill ensures they are able to provide clean water and assistance, including to agricultural operations that face contamination," Udall said.
S. 675 and H.R. 1567 would authorize the Air Force secretary to obtain property to extend any base that has shown signs of contamination. They would also require the DOD secretary to submit a remediation plan to Congress to clean up two of the best-known PFAS
https://www.eenews.net/eedaily/2019/03/08/stories/1060123503

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Kids Face Phthalate Risk Despite Toy Ban, Danish Council Says

Mar 7, 2019 | BNA Daily Environment Report

By Marcus Hoy

Existing and planned rules that ban hormone-disrupting chemicals in children’s toys may not be enough to prevent harmful exposures, according to Denmark’s state-funded Ecological Council.
A March 5 report from the council detailed inspections of childcare facilities where it said potentially dangerous levels of phthalates were present.
While the report did not specify where the traces originated, it said plastic objects like tablecloths, raincoats, and foam mattresses were found in areas used by children, implying products other than toys could threaten children’s health, the report said.
Phthalates are plasticizers, or chemicals added to plastics to boost their flexibility and lifespan. Scientific bodies including the European Chemicals Agency (ECHA) agree they can disrupt children’s endocrine systems, which produce hormones that regulate various bodily functions. The effect of these endocrine disrupters on adults is less clear.
The European Commission (EC) bans six phthalates in toys marketed to children under the age of 14, while Denmark bans all of these compounds in toys for children under three.

Phthalates in Childcare Areas
Danish inspectors found traces of phthalates and chlorinated flame retardants in all of the kindergartens and daycare centers they visited. Diisobutyl phthalate (DIBP), described in the report as the “most harmful” phthalate they found, was also present in the highest concentrations, the report said.
The report proposed that childcare institutions adopt new procurement policies, and also urged consideration of more stringent rules on the use of phthalates.
“Endocrine-disrupting chemicals are potentially harmful to everyone, including adults,” Lone Mikkelsen, chemicals policy officer at the Ecological Council, told Bloomberg Environment March 7. “For this reason we are urging politicians to ban these chemicals in all consumer products.”
As of June 7, 2020, the European Commission will ban four phthalates—di(2-ethylhexyl) phthalate (DEHP), benzylbutylphthalate (BBP), diisodecyl phthalate (DIDP), and DIBP—in concentrations more than 0.1 percent. DIBP is currently one of the phthalates banned by the EC in toys for children under 14.

Exceptions
A number of exceptions will apply to the new restrictions, which will entail amending the bloc’s REACH (Registration, Evaluation, Authorization and Restriction of Chemicals) regulation. Mikkelsen said she expects tighter restrictions to be introduced at the European Union level, rather than just in Denmark.
The samples tested had been taken from dust in rooms where children gather, Mikkelsen said, making it difficult to discern where the traces originated. The products identified in the report were examples of items found in the inspected spaces that often contain phthalates, she said.
“Of course it’s not acceptable that children are exposed to hormone disrupting chemicals,” Ole Grondahl Hansen, of the industry-funded Danish PVC Information Council, told Bloomberg Environment March 7. But he said the chemicals are going to be replaced soon in the EU with safer alternatives.
“We are talking about products like mattresses and raincoats where the unwanted substances will be replaced with safer and economically-acceptable alternatives,” he said. “There’s now no excuse for not using alternative plasticizers.”
https://news.bloombergenvironment.com/environment-and-energy/kids-face-phthalate-risk-despite-toy-ban-danish-council-says

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Energy News

Senators Unveil New Plan to Counter Vladimir Putin’s Energy Influence in Eastern Europe

Mar 7, 2019 | Roll Call

By Niels Lesniewski

Bipartisan lawmakers are unveiling Thursday the latest Capitol Hill effort to counter Vladimir Putin’s energy activities in Eastern Europe.
This time, a contingent of senators led by Democratic Sen. Christopher S. Murphy of Connecticut and Republican Sen. Ron Johnson of Wisconsin is introducing a bill that would authorize as much as $1 billion in financing for the next few years for energy sector projects in Europe.
That includes natural gas and electricity infrastructure. It is in an effort to counter Russia’s role as a dominant provider of energy in Eastern Europe.
“The Kremlin uses bribery, corruption and scare tactics to coerce countries in Eastern Europe into remaining dependent on Russian energy and oil. America has done a lot to help diversify Europe’s energy supply, but we can do a lot more,” Murphy said in a statement. “Our bill helps spur public and private sector investment to help our allies secure new sources of energy, and contributes to strategically important projects to help break Putin’s grip on Eastern Europe while creating good jobs here in the United States.”
A summary of the latest draft legislation was shared first with Roll Call.
“Russia has shown that it can — and will — coerce nations that are dependent upon its energy. Countering the destabilizing influence that Russia’s energy dominance has in the region is important for Europe and U.S. national security interests,” said Johnson.
The bill also seeks to encourage the State Department to increase its role as a diplomatic facilitator to foster negotiations for energy projects like pipelines that may need to cross international borders.
Republican Rep. Adam Kinzinger of Illinois and Massachusetts Democratic Rep. Bill Keating are taking the lead on the House version of the legislation, which, like the Senate bill, would include authorization for the financing through fiscal 2023.
Murphy and Johnson are joined in the Senate effort by several colleagues on the Foreign Relations Committee. Democratic Sens. Benjamin L. Cardin of Maryland and Jeanne Shaheen of New Hampshire are co-sponsors, as are GOP Sens. Marco Rubio of Florida and Cory Gardner of Colorado.
“This bipartisan bill in support of U.S. private sector investment in energy projects in Central and Eastern Europe will not only protect the national and economic security of the United States and our European allies, but will also strengthen our economies and create American and European jobs,” Rubio said in a statement.
http://www.rollcall.com/news/congress/senator-counter-vladimir-putin-energy-influence-eastern-europe

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Permitting Delay Raises Old Questions for New Project

Mar 8, 2019 | E&E Energywirre

By Jenny Mandel

State-level regulators in Oregon yesterday announced a six-month delay in the permit schedule for a pipeline that would feed a new liquefied natural gas export plant, calling into question whether the project could be derailed — again — by pipeline problems.
The Jordan Cove Energy project is being developed by the Canadian pipeline and gas processing company Pembina Pipeline Corp. for construction on the Oregon coast near the border with Washington state.
The project is designed to ship just over 1 billion cubic feet per day of natural gas and includes a proposed pipeline that would run 230 miles from a grid connection point near Malin, Ore., to an LNG terminal to be built on a shipping channel in Coos Bay.
Jordan Cove must secure a removal-fill permit from the Oregon Department of State Lands for dredging and filling operations associated with both the pipeline's transit of rivers, streams and wetlands, and the LNG export terminal itself.
Yesterday, the DSL announced a six-month delay in the timeline for deciding on that permit. A decision is now due Sept. 20.
"Due to robust participation in the review and comment period for the Jordan Cove removal-fill permit application, additional time is needed" for state officials to review the public comments, seek responses from the project backers and reach a decision, the agency said.
Ali Ryan Hansen, a DSL spokeswoman, said the agency had received about 50,000 comments over 60 days. "The number of comments indicates that many people had info they wanted us to consider, but the number of comments does not factor into the department's decisionmaking," she said.
Hansen said the department does not tally or consider the number of comments that support or oppose the project, but focuses on identifying "substantive and relevant" concerns to follow up on.
Paul Vogel, a spokesman for Pembina, said the delay is not unusual for projects of such size and complexity.
"We didn't hesitate to agree when the Department of State Lands made their request," Vogel said. The agency "has an enormous responsibility to review all comments and determine which opinions count with regard to the core issues of the permit," he added. "Jordan Cove Project feels very confident that the key questions can and will be answered in the affirmative, and looks forward to receiving our DSL permit in September."
The current version of the project was proposed to regulators in 2017 after a previous incarnation was first presented more than a decade ago. The initial pitch was scuttled in 2016 in response to fierce local opposition.
The project collapse in 2016 came after the Federal Energy Regulatory Commission said it was rejecting a key permit because the pipeline had failed to secure sufficient contracts to justify the harms that would come with pipeline construction (Energywire, Jan. 12, 2018).
That rejection was the first time FERC turned a project down, though others have been withdrawn or lapsed at earlier phases of project development. FERC's decision noted that the developers had failed to secure voluntary agreements with many of the landowners along the pipeline route.
The Jordan Cove project was relaunched after President Trump took office with a change in ownership, and developers are hoping for a friendlier regulatory reception.
FERC is currently in the final stages of completing a draft environmental impact statement on the project. That review was due in February, but at the end of the month, the commission gave itself until the end of January to finish the document.
The project is due to receive its final environmental review by Oct. 11 and a final decision by Jan. 9, 2020.
https://www.eenews.net/energywire/2019/03/08/stories/1060123519

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Dems Spar With Fisheries Chief Over Seismic Surveys

Mar 8, 2019 | E&E Daily

By Rob Hotakainen

House Democrats grilled NOAA Fisheries chief Chris Oliver yesterday over the agency's plan to allow new energy searches in the Atlantic Ocean, charging him with ignoring science and doing the bidding of the oil and gas industry.
Testifying before a House Natural Resources panel, Oliver defended his agency's November decision to let seismic testing proceed and countered Democrats' assertions that the loud air gun blasts used in exploration pose a significant threat to endangered North Atlantic right whales.
"They will have a negligible impact," Oliver told the Subcommittee on Water, Oceans and Wildlife.
Democrats on the panel were quick to pounce on Oliver, President Trump's fisheries chief since 2017.
"These air gun blasts happen every 10 seconds, for hours on end, for weeks on end, to a species that calls the ocean home," Rep. Joe Neguse (D-Colo.) told Oliver. "There are literally bombs going off for those animals every 10 seconds. ... I don't think that's a negligible impact, and I think the science makes clear that's not the case."
Noting that fewer than 420 North Atlantic right whales exist, Rep. Jared Huffman (D-Calif.), the chairman of the subcommittee, said NOAA's decision will not only harm the right whale population but marks "yet another handout to the oil and gas industry" from the Trump administration.
He also suggested that Oliver would have lost his job if he had tried to block the five companies from conducting seismic surveys, which are used to help locate untapped energy deposits.
"You think you'd be sitting here today if you had said no to the oil and gas industry?" Huffman asked Oliver.
"I do not know, sir," replied Oliver.
When Rep. Joe Cunningham (D-S.C.) got an opportunity to grill Oliver, he pulled out an air gun and set it off —- at a sound of 120 decibels —- after receiving permission to do so from Huffman.
"Was that disruptive, Mr. Oliver?" Cunningham asked.
"Sir, that was irritating, but I didn't find it particularly disruptive," Oliver replied.
When Cunningham told Oliver that seismic surveying was overwhelmingly opposed by South Carolinians, Oliver said that NOAA's role was to decide the issue "based on a number of findings that do not include a popular vote." And he said some of the agency's top scientists helped make the decision.
"There's absolutely no evidence that these sounds and activities have ever killed or seriously injured a marine mammal or a right whale," Oliver told Cunningham.
Huffman later entered an additional "note for the record" to help finalize his case: "My pregnant committee consultant to my left noted that after Mr. Cunningham did his seismic air gun demonstration, her baby began kicking," Huffman said. "So perhaps a data point for you to consider, Mr. Oliver, as we go forward."
But some Republicans said the fears of the demise of the right whale were exaggerated.
Rep. Tom McClintock (R-Calif.), the panel's ranking member, recalled how environmentalists worried in the 1980s that polar bears would face extinction because of climate change.
"You may have noticed that we don't hear much about polar bear extinction these days because it turns out their populations are doing very well, thank you. ... So today we adopt a new mascot, the right whale," McClintock said.
NOAA Fisheries signed off on the plan last fall by giving the energy companies permission to "incidentally, but not intentionally, harass marine mammals" as part of their work in a large blast zone extending from New Jersey to Florida.
The agency used the 1972 Marine Mammal Protection Act to approve "incidental harassment authorization" permits for the companies. In exchange, they agreed to a number of protections, including the use of onboard observers, acoustic monitoring, and shutting down operations if and when workers spot "sensitive species."
The agency's approval sent the plan on to the Bureau of Ocean Energy Management, where a final decision is still pending.
Huffman had vowed to make opposition to seismic surveying and the protection of the right whale top issues in the new Congress before he took over as chairman of the subcommittee in January.
Yesterday he signed on as a co-sponsor of a new bill, H.R. 1568, introduced by Rep. Seth Moulton (D-Mass.), that would provide more funding for conservation programs aimed at saving the right whale.
https://www.eenews.net/eedaily/2019/03/08/stories/1060123471

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Exxonmobil Mulls Cracker Projects Beyond 2025: Executive

Mar 7, 2019 | Platts

By Kristen Hays

ExxonMobil is mulling two more cracker projects beyond 2025, a top executive said this week.
We're starting to look more and more beyond 2025," Jack Williams, senior vice president, said at the company's annual analyst meeting Wednesday. "We've got a couple more steam crackers in mind, but they'd be out in time a bit."
Williams did not specify where those projects might be -- in the US, Asia or elsewhere -- and a company spokeswoman on Thursday did not respond to an inquiry about potential locations.
However, the company reaffirmed its plans to help meet expected global growth in chemical demand through 2025, with multiple projects expected to come online.
CEO Darren Woods said chemical demand was expected to outpace GDP by about 1% through 2025, driven by population growth and improved living standards. The company expected demand for polyethylene, which makes the most sought-after plastics in the world, to rise by roughly 35% in that span as a growing global middle class increases demand for packaging and consumer goods. PE is used to make a wide array of plastics, from grocery bags and milk jugs to food packaging and detergent bottles.
Also through 2025, the company expected demand for polypropylene, a staple for automotive and appliance industries, to grow by about 40%, while demand for paraxylene, a feedstock for polyester fibers, increase by 35%.
ExxonMobil is among US producers building more than $200 billion in new petrochemical infrastructure along the US Gulf Coast to take advantage of cheap feedstocks unearthed by the domestic natural gas shale boom, with much of the new output targeted for export.
The company started up two new PE plants in Mont Belvieu, Texas, with a cumulative capacity of 1.3 million mt/year in 2017, followed by a new 1.5 million mt/year cracker last year at its Baytown, Texas, refining and chemical complex. In mid-2019, the company is slated to start a 650,000 mt/year PE plant at its Beaumont, Texas, complex.
ExxonMobil is also planning a new petrochemical complex with Sabic near Corpus Christi, Texas, to start up in 2022. That complex, with a 1.8 million mt/year cracker and two more PE plants with a combined capacity of 1.3 million mt/year, is awaiting a final investment decision when permits are secured, according to the company.
The company has also announced plans for a new 450,000 mt/year PP plant at its Baton Rouge, Louisiana, complex to start in 2021.
Elsewhere, ExxonMobil is planning a new chemical complex with a 1.2 million mt/year mixed-feed cracker in China's Guangdong province to start up in 2023. That cracker would be able to crack crude oil, like a 1 million mt/year cracker at ExxonMobil's Singapore chemical complex, Williams said.
The new cracker projects potentially on tap would come after these projects reach fruition before 2025, Williams said.
"So 2025 is what we're talking about, but we're continuing to look long term," he said.
https://www.spglobal.com/platts/en/market-insights/podcasts/spotlight/030719-ceraweek-natural-gas

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Keystone XL Inching Ahead Has One State Bracing for Protests

Mar 7, 2019 | BNA Daily Environment Report

By Rachel Adams-Heard

As TransCanada Corp.’s contentious Keystone XL crude oil pipeline inches along, South Dakota is bracing for a fight.
The state’s Senate on March 7 passed Gov. Kristi Noem’s bills aimed at preparing for potential protests over the decade-old project, which still awaits a court-ordered environmental review from the U.S. State Department. The South Dakota House is set to vote later March 7.
The legislation, which doesn’t name Keystone XL or TransCanada, would allow South Dakota to seek money from pipeline companies to help cover expenses related to protests over their projects and would establish a way for the state to pursue compensation from groups associated with “riot boosting.”
TransCanada understands “the impacts destructive behaviors and activities during the construction of infrastructure projects can have on local law enforcement,” spokesman Terry Cunha said in an email. “Any legislation that deters unlawful activities and encourages the advancement of critical infrastructure projects is a positive step in the right direction.”
Pipeline projects are increasingly drawing protests as environmental groups and landowners seek to block construction. Opponents of Energy Transfer LP’s Dakota Access crude pipeline in North Dakota camped out at the project site for months. EQM Midstream Partners LP saw protesters stage “tree sit-ins” in an effort to stop work on the Mountain Valley natural gas pipeline in Virginia.
Calgary-based TransCanada has yet to officially declare that it’s building the 1,200-mile (1,900-kilometer) Keystone XL, which would help carry 830,000 barrels of crude a day from Alberta’s oil sands to U.S. Gulf Coast refiners.
The State Department is preparing a new supplemental environmental impact statement after a federal court in Montana said the original was inadequate—a ruling that’s being appealed by the Trump administration. Keystone XL also faces a lawsuit in the Nebraska Supreme Court.
https://news.bloombergenvironment.com/environment-and-energy/keystone-xl-inching-ahead-has-one-state-bracing-for-protests

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Utilities, Unions Say Energy Sector Needs Better Skills Training

Mar 7, 2019 | BNA Daily Environment Report

By Tyrone Richardson

Academia and industry should join forces to provide skills training needed to help reverse workplace shortages in the U.S. energy market, advocates for the utility sector and organized labor told a House appropriations panel.
Energy-sector jobs “can be made exciting, we are just not making it exciting,” said Morgan Smith, CEO of Consolidated Nuclear Security. “We have to engage in a greater way in industry, as labor, with the classrooms and make it real.”
Smith was among witnesses testifying before the House Appropriations Subcommittee on Energy and Water Development, and Related Agencies. The hearing, “Energy Workforce Opportunities and Challenges,” comes days after an industry reportconcluded hiring difficulties in several energy sectors, which employ an estimated 6.7 million people.
“As the energy sector evolves to include more sustainable forms of energy, as our nuclear energy needs also grow, and as more Americans retire, it is paramount that today’s energy workforce transitions to meet new opportunities and that we build the workforce of tomorrow,” said subcommittee Chairwoman Rep. Marcy Kaptur (D-Ohio).
Energy is just one sector forced to retool its workforce with new technologies for greener and more efficient output—which also impacts other industries such as manufacturing and cybersecurity. All of these industries have called for a skilled workforce and retraining of current employees.
Donnie Colston, director of the International Brotherhood of Electrical Workers’ energy department, also had suggestions for the subcommittee.
Colston highlighted several hands-on training initiatives used to help grow employment opportunities for skilled workers, including the work at a training center in Varnons, Ala.
“The motto inscribed on the wall at the Varnons Training Center is: ‘With hands-on practice, knowledge becomes a skill.’ With time and dedication, skill becomes a craft, and a laborer becomes a craftsman,” he said.
The IBEW represents some 775,000 workers in North America.
Others suggested growing more pipelines for future energy industry workers, such as tapping veterans and starting earlier with schools to help nurture the future workforce.
https://news.bloombergenvironment.com/environment-and-energy/utilities-unions-say-energy-sector-needs-better-skills-training

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Chemical Security News

EPA Says Ethylene Oxide Emissions Spike at Sterigenics Facility (1)

Mar 7, 2019 | BNA Daily Environment Report

By Stephen Joyce

Ethylene oxide emissions at nearly every monitoring site near a Sterigenics U.S. LLC facility in Willowbrook, Ill. spiked in February to their highest levels in nearly a year.
And perhaps for the first time, Environmental Protection Agency officials March 7 directly linked emissions at the facility to the increased levels of ethylene oxide emissions in the Willowbrook community, a conclusion the company has consistently questioned.
Air monitoring data EPA released March 7 showed emissions of the flammable and colorless gas in the eight days between Jan. 22 and Feb. 11 more than doubled from previous high levels at one monitoring site.
Seven of the 10 monitoring sites posted their highest emissions levels during the latest reporting period.
EPA has concluded emissions of ethylene oxide, used to sterilize medical equipment and make products such as antifreeze, can elevate risks of cancer.
Data Ammunition for Critics
Sterigenics has said that ethylene oxide is emitted by everyday activities, its facility emits less than 0.1 percent of the ethylene oxide used during the sterilization process, and the facility complies with all state and federal regulations for air emissions limits.
But the new EPA data give critics of the facility, including state and federal legislators and Willowbrook residents, more ammunition in their fight to see that the facility remain closed.
The Illinois Environmental Protection Agency ordered the Sterigenics facility shut down Feb. 15, but the company challenged the order Feb. 18 in the U.S. District Court for the Northern District of Illinois.
EPA continued its air monitoring activity in Willowbrook after the Sterigenics facility shut down. Results of that monitoring, which could be released by March 31, could be critical in determining the precise origins of the elevated levels of ethylene oxide in the community.
Emissions Spike
Testing at one of the EPA’s monitoring sites in Willowbrook showed emissions hit 26.4 micrograms per cubic meter on Feb. 5, and 14.2 µg/m³ on Jan. 15, up from 11.7 µg/m³ in December. All of those levels exceed earlier testing in May.
Sterigenics has argued its facility should not be singled out as a source of the Willowbrook ethylene oxide emissions.
But two EPA officials March 7 said emissions at the facility were tied to the increased levels of ethylene oxide in the surrounding town, a suburb of Chicago.
The latest data showed the highest consistent emissions occurred at the two monitoring sites closest to the Sterigenics facility, and that emissions concentrations decreased materially as monitoring sites became further away from the Sterigenics facility.
Where the Wind Blows
"We continue to believe that the facility is responsible for a significant amount of ethylene oxide in the area,” Mike Koerber, deputy director in the EPA Office of Air Quality Planning and Standards, said during a presentation discussing the data March 7.
The correlation between wind patterns and increased ethylene oxide emissions is quite clear, said Lew Weinstock, the ambient air monitoring group leader in that office.
“Where the wind blows is where the ethylene oxide goes,” Weinstock said during the presentation.
But Koerber said EPA also detected “low but measurable” ethylene oxide emissions at upwind locations as well.
“The fact we are getting low yet measurable concentrations suggest to us that there are other sources of ethylene oxide in the area,” Koerber said. "[W]e do not have answers to what those other sources might be,” he said.
(Updates with additional reporting throughout. )
https://news.bloombergenvironment.com/environment-and-energy/epa-says-ethylene-oxide-emissions-spike-at-sterigenics-facility-1-1

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N.J. Sues Exxon Mobil in Renewed Drive to Recoup Pollution Costs

Mar 7, 2019 | BNA Daily Environment Report

By John Herzfeld

New Jersey sued Exxon Mobil Corp. March 7 in a bid to recover damages from hazardous chemicals seeping into groundwater and other natural resources at a 12-acre industrial site.
The lawsuit, filed in the Superior Court of New Jersey for Gloucester County, is the latest in a series of environmental cases pursued by the state since Phil Murphy (D) replaced Chris Christie (R) as governor in 2018.
Actions in August and December by Murphy’s attorney general, Gurbir S. Grewal, were the first in a decade to seek natural-resources damages.
Pollution from industrial dumping of polychlorinated biphenyls and other hazardous chemicals, continues to damage groundwater, wetlands, and waterways at the Exxon Mobil’s Lail site, which is located in a tidal area of the Delaware River estuary, the state said.
Recent inspections and tests show PCB contamination, despite remedial work since a 2005 cleanup agreement between the company and the state Department of Environmental Protection.
The state hasn’t yet set an estimate for the damages it will seek, a spokesman for the attorney general’s office, Lee Moore, told Bloomberg Environment.
The Lail property was specifically excluded from a $225 million settlement reached with the company in 2015 over pollution at its Bayway and Bayonne refineries, and other New Jersey facilities. That deal constituted the second-largest natural resources settlement in U.S. history, but came under fire for falling far short of the $8.9 billion that the state initially sought.
The new lawsuit marks a drive at “revitalizing New Jersey’s longstanding efforts to take ExxonMobil to task for contamination across the state,” Grewal said in a statement. “While the last Administration settled many claims with Exxon, they did not settle them all, and our action today continues the environmental efforts that New Jersey began over a decade ago.”
Company ‘Surprised’
An Exxon Mobil spokeswoman, Sarah Nordin, said the company “is surprised by the filing of this lawsuit,” after having worked with the state and the U.S. Environmental Protection Agency on the site for years and spending more than $47 million to clean it up and restore it.

“ExxonMobil takes its environmental responsibilities seriously and complies with all environmental laws,” she said. The company continues post-restoration monitoring and sampling under DEP and EPA supervision, she said.
New Jersey law allows the state to sue to compensate the public for damages to natural resources, said Jeff Tittel, director of the New Jersey Sierra Club.
“It’s a good thing the state is starting to file these natural resources damages suits again,” he told Bloomberg Environment in a phone interview. “If polluters know they’ll be held liable for damage to the environment, it acts as a deterrent.”
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
The case is New Jersey Dep’t of Envtl. Prot. v. Exxon Mobil Corp., N.J. Super. Ct., No. GLO-L-000297-19, complaint 3/7/19.
https://news.bloombergenvironment.com/environment-and-energy/n-j-sues-exxon-mobil-in-renewed-drive-to-recoup-pollution-costs

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Environment News

Senate Dems Float Bill to Halt White House Science Review

Mar 6, 2019 | E&E News PM

By Nick Sobczyk

Senate Democrats today introduced a bill to shoot down the White House's proposed "adversarial" review of climate science, joining a growing chorus opposing the effort.
The bill, led by Minority Leader Chuck Schumer (D-N.Y.), Armed Services ranking member Jack Reed (D-R.I.) and Environment and Public Works ranking member Tom Carper (D-Del.), would bar funding for the Trump administration's proposed science review panel.
The group, headed up by prominent climate skeptic William Happer, would be tasked with reviewing the National Climate Assessment to question whether climate change poses a threat to national security.
Happer is a Princeton University physicist not trained in climate science who once likened the "demonization" of carbon dioxide to persecution of Jews in the Holocaust.
"President Trump's record on climate change is one of abject failure: denying the science, systematically rolling back environmental protections that reduce carbon emissions, and announcing withdrawal from the Paris Climate Accords," Schumer said in a statement.
"Now he is on a mission to contradict the National Climate Assessment released by his own administration last year, which outlined the severe and immediate impacts of climate change, by organizing this fake climate panel."
The bill follows an unusual bipartisan rebuke from nearly 60 former intelligence, military and national security officials (E&E News PM, March 5).
Other co-sponsors on the measure are Sens. Chris Van Hollen of Maryland, Sheldon Whitehouse of Rhode Island, Ed Markey of Massachusetts, Brian Schatz of Hawaii, Tina Smith of Minnesota, Richard Blumenthal of Connecticut, Jeanne Shaheen of New Hampshire, Cory Booker of New Jersey, Debbie Stabenow of Michigan, Amy Klobuchar of Minnesota, Maggie Hassan of New Hampshire, Jeff Merkley of Oregon and Dianne Feinstein of California.
"This administration has a penchant for appointing climate skeptics and a pervasive pattern of attacking science, and this panel is no exception," Carper said in a statement. "But the president creating a panel specifically to dispute the facts and diminish the findings drawn by hundreds of scientists in his own administration — that's a new low."
https://www.eenews.net/eenewspm/2019/03/07/stories/1060123449

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How Trump's Climate Review Could Backfire

Mar 8, 2019 | E&E Climatewire

By Scott Waldman

A White House effort to challenge climate science could end up strengthening the case against the Trump administration's environmental rollbacks and potentially weaken future attempts to ignore research showing that humans are warming the planet.
The political exercise to question whether climate change threatens national security could backfire, according to experts. It would confront reams of scientific studies suggesting that rising temperatures stand to stress military missions like responding to humanitarian crises, achieving Arctic security and maintaining coastal bases.
Attempts to erode those findings could flounder, potentially weakening efforts by the administration to roll back rules limiting greenhouse gases at power plants and in cars, said George David Banks, a former climate and international energy adviser to President Trump.
In the early days of the administration, Banks participated in talks at the White House about reviewing climate science. Political officials decided it was a losing situation, he said. The newest effort to perform an "adversarial" review of climate science and its application to national security appears to be in the early stages, Banks said.
"One of the reasons we dismissed this idea is because it was a no-win situation for the administration at that time, and I would argue at this time, as well," he said. "It has the potential to undermine either the regulatory reform agenda or put the president in a box and reduce his flexibility."
That assessment follows revelations that William Happer, an adviser on the White House National Security Council, proposed an executive order to create a group that would question the way that climate science is used in national security documents. Happer, an emeritus physics professor with Princeton University, promotes the benefits of rising carbon dioxide levels in the atmosphere. He has described advocates of climate action as a "cult."
There is a White House recruitment effort underway to form the group, whether or not Trump signs the executive order. Those leading it have reached out to the handful of researchers who question climate science.
Meanwhile, the evidence that climate change threatens national security continues to grow. This week, a military leader said Russia has moved into the thawing Arctic and is bringing in weaponry (Climatewire, March 6).
That's in addition to the damages already being experienced by Americans from more extreme precipitation events, drought, heat waves and wildfires.
The White House effort may be more precarious than Trump assumes, Banks said. There is little chance that Happer and others who reject the science will "win" a hostile review of mainstream research, he said. In the last two years, the administration has targeted many of the rules prioritized by the Obama administration to reduce emissions. Most of those rollbacks are being challenged in court.
"Either the mainstream science wins totally or in part, and if they win even in part, then that is a challenge for the administration," Banks said. "And if there is an acknowledgment that climate change is a national security risk, which any objective analysis would bring you to that conclusion, then the question is what is the response? How does this relate to the president's announcement that we're dropping the Paris Agreement, how does this relate to other domestic policies or the regulatory rollback agenda?"
Others see significant reason for public concern in the White House review because it has been set up to provide political cover for the president's energy agenda.
Such a review could have lasting effects on national security, said Andrew Holland, chief operating officer of the American Security Project. The president could stop public planning for climate change, he said. The review, even if it's scientifically dubious, provides a series of talking points that the president could use to dismiss climate policy.
"It's all for an audience of one, and the president still retains real power and can do real things if he gets the justification to do so," Holland said. "It could be discredited in public and before everybody, but in a lot of things the president is the commander in chief, and when he gives an order, the chain of command has to follow that."
In theory, an adversarial review could strengthen the field of climate science, said Joseph Majkut, head of climate policy at the Niskanen Center, a conservative think tank that advocates for a carbon tax. Majkut said he supported the administration's earlier efforts to conduct a "red team" review of the science, as long as it was conducted properly. It had the potential to strengthen the public's perception of what is known about climate change and shift the opinions of some Republicans who are skeptical of scientists, he said.
But an adversarial review could be detrimental if it's designed to be a partisan exercise.
"It's plausible for adversarial reviews as a tool to help improve the scientific process, to help understand weak points in arguments," Majkut said. "But adversarial reviews are also by their nature quite sensitive and have to be done very well, and they have to be done with buy-in of the community that is being assessed. It has to be done with enough experts that it's meaningful, and they have to be willing to come to conclusions that are not predetermined."
The new effort doesn't reflect that, he said. Happer is not known for having an open mind about climate research.
"This is the last gasp of institutional climate skepticism," Majkut said. "Maybe there is a plan, maybe there is a legitimate critique, but I haven't seen any evidence of that."
To be successful, the White House effort should have a diverse composition of participants who aren't in agreement, said Micah Zenko, author of the book "Red Team: How to Succeed by Thinking Like the Enemy." The exercise should have the necessary resources, personnel and access to achieve its objective, he said. The administration must also be willing to "fully digest, accept and act upon the results," otherwise it's not a genuine effort to improve understanding, he said.
"Participants should not have a vested interest in that outcome, nor be unduly anchored in preconceived notions regarding the topic," Zenko wrote in response to questions. "If they do, then it's merely a check-the-box activity to validate or invalidate a generally accepted proposition or thesis."
There are areas of climate science where a closer look would be warranted, because the research is still so uncertain, said Robert Kopp, director of the Rutgers University Institute of Earth, Ocean and Atmospheric Sciences and co-author of the National Climate Assessment. He said there are plenty of areas of rigorous debate in climate science that could use scrutiny. That could improve scientists' understanding of how the Earth is changing, including the extent of sea-level rise, detection and attribution of climate change in extreme weather events, and the economic effects of rising temperatures.
Instead, the White House review will examine science that has been tested and upheld for years, he said.
"These people just want to go around and re-examine things that have been examined for decades as opposed to examining new areas where there are lots of scientists willing to chip in and be critical, because that's where the interesting science is," Kopp said. "Nothing will be put to rest. There have been lots of opportunities and lots of critiques through the decades, but none of them matter to these people."
https://www.eenews.net/climatewire/2019/03/08/stories/1060123507

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Heated Climate Debate Might Help Both Parties

Mar 8, 2019 | E&E Daily

By George Cahlink and Nick Sobczyk

Texas Republican Sen. John Cornyn could hardly hide his frustration on the Senate floor this week, as his criticism of the "radical, socialist" Green New Deal drew frequent interruptions from Democrats.
Senate Minority Leader Chuck Schumer (D-N.Y.) seemed angry, too, as he tried to get GOP senators to outline their positions on climate change rather than bash the progressive proposal.
"I would ask my colleague, once again, not what he is against. We know what he is against. What is he for?" Schumer asked the Texan.
Cornyn, who came close to shouting, fired backed at the Democratic leader, saying, "If he will be quiet for a minute, I will tell him what I am for, if he will quit interrupting."
The partisan exchange came during a more than one-hour floor debate that involved several senators from both parties weighing in on the Green New Deal. It was the culmination of nearly four weeks of daily floor speeches from leaders in both parties about the progressive plan for fighting climate change.
But the angry rhetoric masks a less obvious reality: Both sides are benefiting from the chamber's most prolonged debate on climate change since it killed the Waxman-Markey cap-and-trade bill a decade ago.
Lawmakers, environmentalists and energy advocates say the rollout and subsequent debate over the Green New Deal is allowing each party a chance to draw attention to its climate priorities.
They largely concur that the progressive plan won't become law anytime soon but believe the fight over it could help their party politically — and force the first notable congressional action on climate change in years.
Scoring political points
Both parties have used the debate to shore up their bases.
"I've been reading, with some amusement, that our friends on the other side seem to be reluctant to vote on the Green New Deal," Senate Majority Leader Mitch McConnell (R-Ky.) said recently. "The only question I would ask is, if this is such a popular thing to do and so necessary, why would one want to dodge the vote?"
The Senate could vote on a resolution backing the proposal in the coming weeks.
McConnell, who has repeatedly taken to the floor to lambast the Green New Deal as a dangerous socialist program, sees a vote as a way to put Democratic senators running for president or up for re-election in 2020 on record. He's betting that a vote could hurt Democrats with moderate voters who see the plan as overreach from the left, and shore up energy industry allies worried about expanded regulation.
Schumer may not be as eager to see a vote — which could be tough for some Democratic senators — but sees the debate as a way to play offense by highlighting GOP inaction on the issue. He has repeatedly countered McConnell's criticism by asking him if he believes in man-made climate change and whether Congress should combat it.
The Sunrise Movement, the environmental advocacy group most associated with pushing the Green New Deal, has begun fundraising off GOP opposition to the plan.
Despite the partisan optics, several senators said the heightened exposure could force compromises on energy and climate legislation that's long been on the political back burner.
"Wasn't it great?" Sen. Sheldon Whitehouse (D-R.I.) said after participating in Wednesday's floor skirmish.
"It's a start," added Whitehouse, who for years has been giving weekly floor speeches on climate change, often a lonely endeavor in the Republican-controlled Senate (E&E Daily, Oct. 11, 2017).
"We have had deathly silence forced on Congress by the fossil fuel industry, in my opinion, and today, although it was sputtery and smoked to bits and banged to bits, we actually saw a conversation begin to emerge."
Sen. Kevin Cramer (R-N.D.), a close White House ally on energy issues who was on the floor opposing the Green New Deal, agreed the debate was "purely enjoyable" political theater. But he said it might help both sides move toward common ground.
"I think today was helpful if it exposes some of the extremes, and maybe it helps people feel a little bit more cordial after it is all said and done," he said. He later added when away from the microphones that both sides were signaling some interest in bipartisan climate policies.
Innovation?
No bipartisan deal is imminent, but both parties offered some modest policies they might pursue in a divided Capitol Hill, where only bipartisan bills will advance.
Democrats believe there's an opening to advance substantive smaller measures to combat climate change, especially on the House side where the party is the majority and has far greater power than in the Senate. Options could include more spending on the Advanced Research Projects Agency-Energy and other Department of Energy research offices and expanding programs on weatherization, energy efficiency and renewables.
Many Republicans have changed their tune in recent weeks, often eschewing outright denial in favor of a focus on energy "innovation."
It's a buzzword that sometimes means beefing up research-and-development programs for renewables, nuclear and carbon capture. But other times it's less defined and is an easy way to counter calls for new regulation or government intervention to combat climate change.
Cramer said there could be bipartisan work on permitting, citing reforms for building gathering lines, as well as renewable projects.
Cornyn said he would be open to more funding for energy industry research, as well as potentially expanding R&D tax credits. The White House might not back congressional efforts to provide research dollars directly to federal agencies, he added.
"I think we're happy to engage on it," Cornyn told E&E News. "And really it's about means to the end, and obviously they favor basically a government takeover as opposed to innovation, and that's a debate worth having."
Sen. Joni Ernst (R-Iowa), a member of Senate leadership, echoed the need for a private-sector focus. But she also cast doubt on climate science that says greenhouse gas emissions are warming the planet, citing volcanic eruptions in Hawaii, and tamped down talk that Republicans need their own broad strategy to address it.
"What I've proposed, of course, is let industry do its business," she said. "Let it do its job, let's innovate. We can encourage innovation. I think that's a really good thing to do, but beyond that, it's all, like I said, unicorns and rainbows."
Carbon capture and storage is another area of bipartisan cooperation. Senate Environment and Public Works Chairman John Barrasso (R-Wyo.), Sen. Brian Schatz (D-Hawaii) and Whitehouse are all co-sponsors on the "Utilizing Significant Emissions With Innovative Technologies Act," a measure to ease carbon capture permitting and promote emerging technologies.
The hope for Democrats is that those more narrow measures would yield agreement on bigger transformations to the energy and transportation sectors, and even, eventually, a price on carbon.
"If someone is going to hang their hat on one of those solutions, you misunderstand the problem," Schatz said. "We literally have to do all of those things."
But advocates on both sides of the issue say the focus on climate is a positive, even if the policies are still taking shape.
"It's encouraging to see a lot more Republicans talking more directly about climate change," said Darren Goode, a spokesman for ClearPath, a group advocating for more clean energy investments that opposes the Green New Deal as "reckless."
Bill Snape, senior counsel at the Center for Biological Diversity, which has backed the progressive proposal, also said he believes it's a step forward that the Senate is having its first debate in many years on climate, even if there's little hope for large-scale climate policy.
"I can't remember on the Senate floor having this much discussion on it, but of course I can't remember this much discussion on any issue for which there is no legislation," Snape added.
https://www.eenews.net/eedaily/2019/03/08/stories/1060123511

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Legal Pact Ensures 2020 Election Will Decide Fate of EPA Air Toxics Rules

Mar 7, 2019 | Inside EPA

By Stuart Parker

EPA and environmentalists have agreed to a draft legal settlement imposing deadlines in 2021 and later to review agency air toxics rules, ensuring the 2020 presidential election will decide whether a re-elected Trump administration will continue leaving such rules unchanged or a potential Democratic administration might tighten them.
The Clean Air Act mandates EPA to review its existing air toxics rules eight years after their implementation to assess whether health risks from a sector’s emissions remain, or whether new technology exists to cut emissions, and if so, the agency can tighten the regulations. But EPA is years behind schedule for reviewing many sectors’ air toxics rules, prompting environmentalists to file a series of lawsuits to secure binding deadlines for the reviews.
Under President Donald Trump, EPA has either proposed or concluded the Clean Air Act-mandated risk and technology reviews (RTRs) by largely leaving the rules in place or offering more flexibilities.
The latest draft consent decree between environmentalists and EPA sets deadlines from 2020 through 2023 for EPA to propose or finalize RTRs for several sectors, with just one final rule due during Trump’s current term. That means the outcome of the presidential election will be key to the fate of the rules at issue in the consent decree, because a second Trump term would likely continue the pattern of leaving the rules in place.
In contrast, a Democratic victory in 2020 might spur the next EPA to tighten the rules given Democrats’ criticism of the Trump EPA’s deregulatory agenda and growing concerns by community groups that the agency is not adequately considering the risks posed by emissions of substances such as ethylene oxide.
One environmentalist acknowledges concern that the Trump EPA is not tightening standards under air toxics rules, but says groups will continue to push RTR deadline suits regardless of their timing.
The source says that “waiting to see if the political winds shift” with a new administration before filing such deadline suits “is just not a good strategy.” Some of the rules at issue have not been reviewed in decades, and emissions control technology has moved on since then -- something EPA must acknowledge in its reviews, the source says.
It “might be all right if there is a changing of the guard at the agency” with a new administration conducting the reviews in the latest decree, the source says. But a Democratic victory in 2020 is not something environmentalists can count on, and the priority is securing legally binding deadlines for EPA to conduct the RTRs, the source adds.
A second environmentalist, who worked at the agency for 15 years helping to write regulations, says, “I worked at EPA under four administrations. All of us at EPA saw the pendulum swing back and forth over the years between political support for and opposition to strengthening environmental regulation. EPA's reviews of existing regulations and adoptions of new regulations take years. It is impossible to know how the pendulum will swing over the many years that EPA is reviewing and potentially revising regulations.”
The source notes that by the time all the deadlines in the latest consent decree are met, “the political environment may well be substantially different from what it is today.”
But the source adds, “One thing however is a constant at EPA that is not correlated with whoever is president and whoever controls Congress: EPA's penchant for inertia,” arguing that most of the agency’s Clean Air Act and Clean Water Act rules are the result of court orders following deadline suits.
“It would be a fool's errand for the environmental community to not continue to press EPA in court to act while waiting ‘for the right political time’ to so press,” the source says.
“Additionally, as those who have worked on writing EPA regulations well know, EPA's internal dynamic to the substance of regulations, over the long term, is quite consistent. The EPA culture is to evaluate existing regulations and not-yet-regulated issues with an eye to ‘what incremental improvements in environmental protection can we enact without excessively angering the powerful interests we'll effect?’
“This mindset does not change based on who is in the White House. While this leads to frustratingly slow improvements in environmental protection, it is certainly better than no advances at all. It is important that in all seasons that the environmental community continue to press EPA to act -- regardless of who is president.”
Consent Decree
In the latest proposed consent decree to be filed with the U.S. District Court for the Northern District of California, Our Children’s Earth Foundation (OCE) aims to settle litigation it brought against EPA for its failure to conduct reviews of air rules for industries including iron foundries and pipeline facilities.
OCE filed suit claiming EPA missed Clean Air Act deadlines for reviewing national emissions standards for hazardous air pollutants (NESHAP) air toxics rules and related new source performance standards (NSPS).
The group claimed EPA missed applicable deadlines to review the NSPS rules for Bulk Gasoline Terminals and Electric Arc Furnaces and Argon-Oxygen Decarburation Vessels in Steel Plants, and the NESHAPs for Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations); Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities; Iron and Steel Foundries Area Sources; and Wood Preserving Area Sources.
Major sources of air toxics are those emitting 10 tons per year (tpy) of one HAP, or 25 tpy of a combination of HAPs. Area sources emit HAPs below these thresholds, and are often subject to less-stringent regulation.
EPA commits to propose to either modify its NSPS rule for electric arc furnaces or leave it unchanged by Nov. 1, 2021-- after a potential transition to a new presidential administration. Or EPA could determine that a review is “not appropriate in light of readily available information on the efficacy” of the existing standard. Should EPA propose changes to the NSPS rule, or propose to leave it unchanged, it must finalize those decisions by Nov. 1, 2022.
The consent decree commits the agency to similar deadlines for the bulk gasoline terminals NSPS of Dec. 1, 2021, for a proposed decision and Dec. 1, 2022 for a final decision.
For the NESHAP rules, EPA would have to issue final rules either revising the rules or leaving them unchanged for the various sectors ranging from June 2021 to March 1, 2023, with the exception of the Iron and Steel Foundries Area Sources rule, for which EPA must finalize a decision by August 31, 2020.
EPA published the proposed consent decree in the March 5 Federal Register and it is subject to a 30-day comment period, after which the agency will review input before finalizing the pact.
Just one of the rules at issue in the latest decree -- the RTR for the iron and steel foundries NESHAP -- is due for final action in Trump’s first term. And the administration’s decisions on several air toxics rules reviews suggest a pattern through which EPA is deciding to leave the rules in place, or make minor changes.
Completed Reviews
Two recently-issued EPA RTR rules, for the wood coatings and fiberglass production sectors, reflect this trend. For example, EPA published in the March 4 Register its final RTR for its Surface Coating of Wood Building Products NESHAP. The rule leaves emissions limits unchanged, eases some reporting and compliance requirements, but eliminates a regulatory exemption for air pollution spikes during periods of startup, shutdown and malfunction (SSM) to comply with federal court rulings that have found such waivers unlawful.
EPA is moving to electronic reporting and allowing use of an “alternative compliance equation” that would to add an alternative equation within the requirements for facilities meeting the “emission rate without add-on controls” compliance option under the current standards. The new equation would “more adequately represent the HAP amounts emitted by this type of surface coating or any similar coating,” EPA says.
Facilities using this alternative option would have “to conduct an initial performance test to demonstrate compliance. Those same facilities are also required to conduct repeat performance testing every 5 years to update/verify the process-specific emission factor.”
Similarly, EPA on Feb. 28 finalized its RTR rule for the Wet-Formed Fiberglass Mat Production NESHAP, leaving emissions limits unchanged, easing some reporting requirements and ending SSM exemptions.
For fiberglass production, EPA provides a reduced compliance reporting obligation “when deviations from applicable standards occur,” changing from “from a quarterly (four times a year) to a semiannual (twice a year) basis."
Further, “parametric monitoring,” which does not monitor HAPs directly, but rather monitors the performance of control equipment, “would no longer be required during periods when a non-HAP binder is being used. These provisions are being finalized as proposed, with minor corrections and clarifications.”
https://insideepa.com/weekly-focus/legal-pact-ensures-2020-election-will-decide-fate-epa-air-toxics-rules

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Final EPA Rule Easing Air Monitoring Mandates Rejects Critics’ Concerns

Mar 7, 2019 | Inside EPA

By Stuart Parker

EPA has finalized a rule easing emissions monitoring mandates for industrial sources of pollution to eliminate what it says are obsolete requirements, a move that is a win for several states and industry groups that sought the revision and that rejects concerns from environmentalists who claim the regulatory change will boost pollution.
Slated for publication in the March 8 Federal Register, the final rule ends long-standing strict air monitoring provisions required for EPA’s largely defunct NOx SIP Call, a Clinton-era rule that drove reductions of ozone-forming nitrogen oxides (NOx) from power plants and other large air pollution sources by requiring changes to state implementation plans (SIPs) detailing measures for compliance with federal air quality standards.
Publication of the rule will open a 60-day window for environmentalists or others to sue EPA, after they warned in comments on the proposed version that it could lead to violations of Clean Air Act “anti-backsliding” provisions designed to prevent loosening of emissions control mandates, and violations of other air law requirements.
The NOx SIP Call established an emissions trading program that EPA discontinued in 2008. For power plants in the eastern half of the country, the program was largely superseded by subsequent emissions trading programs such as the Cross-State Air Pollution Rule (CSAPR), which require tough air monitoring for compliance.
But many non-power plant sources retained strict monitoring requirements from the NOx SIP Call program, even though NOx levels are far below those sought by the defunct program. As a result, EPA proposed and then finalized its rule to give states flexibility in removing the monitoring terms and implementing alternatives.
Environmental groups Sierra Club and Environmental Defense Fund in their comments on the proposed version of the rule released in September said this could result in the removal of continuous emissions monitoring (CEMS), the best monitoring technique available, and that in turn could result in excess air emissions going undetected. This could amount to unlawful backsliding, environmental critics say.
But EPA in the final rule strongly disputes that any additional pollution will result from the additional flexibility, outlining arguments that the agency could make in any litigation over the regulation.
The agency says environmentalists’ claim “effectively equates allowing alternate monitoring methods with relaxing emissions requirements, providing no rationale or evidence to support the contention that in the absence of any change in either emissions requirements or the general requirement to monitor emissions, possible changes in just the allowed methods for emissions monitoring under the NOx SIP Call will lead to increased emissions.”
EPA notes that NOx emissions today are dramatically lower than they were when the NOx SIP Call was introduced, and that most of the larger NOx sources -- chiefly power plants -- and in any case covered by other federal programs requiring tough air monitoring. Hence no violation of national ambient air quality standards may reasonably be anticipated from removing monitoring provisions associated with the obsolete NOx SIP Call, EPA reasons.
‘Sufficient Reliability’
“EPA continues to believe it is reasonable to assume that under current circumstances where sources are already complying with the NOx SIP Call’s emissions requirements by substantial margins, substitution of one monitoring method for another monitoring method, in the absence of any change in the Rule’s emissions requirements, will not cause sources to change their behavior in a way that would affect emissions levels,” EPA says.
The Clean Air Act “explicitly indicates the potential acceptability of non-CEMS monitoring approaches that provide sufficient reliability and timeliness of information for determining compliance,” EPA says.
Also, other air law provisions requiring that SIP emissions limits be “permanent and enforceable” are not impacted by the rule, and SIPs, reviewed by EPA and published for public comment, must still meet this mandate, the agency says.
Wisconsin and New Jersey in their comments to the agency on its earlier proposal pushed for EPA to retain the requirement for CEMS. New Jersey said it is necessary to retain CEMS to characterize air quality at oil refineries in the state, while Wisconsin called for CEMS to provide detailed information on ozone precursor emissions that impact interstate air pollution in order to comply with air law provisions on curbing such pollution.
EPA says there is nothing in the rule to prevent states from requiring CEMS in their SIPs. And the “suggestion that CEMS emissions data provided pursuant to NOx SIP Call requirements is necessary to provide emissions information to identify violations of and enforce other emissions standards is outside the scope of the proposal.”
Meanwhile, other states are likely to welcome the final rule. Ohio, North Carolina and West Virginia, for example, submitted comments supportive of EPA’s proposal, arguing that it would remove redundant requirements and ease the regulatory burden on states and industry.
Industry groups such as the Ohio Manufacturers Association and the Council of Industrial Boiler Owners also filed comments supportive of the rule and calling for EPA to give states maximum flexibility in choosing which monitoring requirements to include in SIPs.
https://insideepa.com/daily-news/final-epa-rule-easing-air-monitoring-mandates-rejects-critics%E2%80%99-concerns

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House Democrats Demand EPA, SAB Answers on Harvey Air Monitoring

Mar 8, 2019 | Inside EPA

House Democrats are pressing EPA and the head of the agency’s Science Advisory Board (SAB) on why the agency and Texas declined an air pollution monitoring mission planned by NASA to measure the air quality impacts of Hurricane Harvey on the Houston area, despite widespread damage and additional pollution risks produced by the storm.
In letters sent this week to EPA Administrator Andrew Wheeler, SAB Chairman Michael Honeycutt and NASA Administrator Jim Bridenstine, House Science Committee Chairwoman Eddie Bernice Johnson (D-TX), along with environment subcommittee Chair Lizzie Fletcher (D-TX) and oversight panel Chairwoman Mikie Sherrill (D-NJ) call for answers on why EPA and Texas turned down help from NASA in monitoring pollution.
The letters respond to a March 5 Los Angeles Times article, which revealed that in the wake of Hurricane Harvey in 2017, EPA and Texas officials told NASA not to fly an airplane full of air pollution sensors over Houston.
NASA was preparing for such a mission and had flown similar missions following major environmental disasters such as the BP Deepwater Horizon oil spill, the Times reports.
“EPA and state officials argued that NASA’s data would cause ‘confusion’ and might ‘overlap’ with their own analysis -- which was showing only a few, isolated spots of concern,” the article says.
The newspaper specifically cites an intervention by Honeycutt, who is the chief toxicologist for the Texas Commission on Environmental Quality (TCEQ) and also serves as SAB chairman. “At this time, we don’t think your data would be useful,” Honeycutt reportedly told NASA officials.
The House lawmakers in their letters say they are “deeply concerned” by the report. “Hurricane Harvey was one of the largest disasters the State of Texas has ever faced. Massive flooding and wind damage caused intense suffering for the people of the Houston area. That suffering was apparently compounded by the release of toxic chemicals from the Houston area's many industrial areas and Superfund sites,” they write.
“Concern about air quality was almost immediately raised following the storm. Those concerns appear to have been mostly dismissed by officials” at EPA and TCEQ, the lawmakers write.
“Instead of gathering the most accurate air quality data possible, State and Federal officials apparently decided they would rather not know about potential toxic chemical releases that could have been impacting our communities and first responders,” they write, calling this apparent failure “unacceptable.”
They ask for EPA, TCEQ and NASA to turn over by March 20 an extensive range of documents related to the decision not to allow the NASA mission.
https://insideepa.com/daily-feed/house-democrats-demand-epa-sab-answers-harvey-air-monitoring

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D.C. Circuit Poised To Hear Rival Refrigerant Makers’ Fight Over HFC Rule

Mar 7, 2019 | Inside EPA

By Stuart Parker

A federal appeals court is poised to hear oral argument March 8 in a lawsuit where rival manufacturers of climate-warming hydrofluorocarbon (HFC) refrigerants are battling over the merits of EPA’s policy on replacing the substances, with some companies seeking to partially vacate the Obama-era rule while others are defending it.
Litigants filed final briefs last month in the U.S. Court of Appeals for the District of Columbia Circuit case, Mexichem Fluor, et al. v. EPA. The briefs reprise arguments for and against EPA’s policy on replacement refrigerants, with chemical companies Mexichem and Arkema challenging the 2016 rule that changed the status of some HFCs in different end-uses to “unacceptable.”
Rival chemical firms Chemours and Honeywell, and environmental group Natural Resources Defense Council (NRDC), are defending the Obama HFC replacement policy.
In the case, the Trump administration is siding with Mexichem and Arkema in calling for partial vacatur of the rule, arguing some provisions conflict with a prior D.C. Circuit ruling.
Mexichem and Arkema argue that the court’s 2-1 2017 ruling in a case known as Mexichem I compels the court to remand and partially vacate the 2016 rule, which they say is inconsistent with the earlier ruling. The court in that ruling held that EPA may not require substitution of refrigerants that have already replaced ozone-depleting chemicals under the agency’s significant new alternatives program.
EPA in its Feb. 6 final reply brief says that the court must follow its own precedent set in Mexichem I and revise the 2016 rule to make it consistent with the prior ruling. The court in the earlier suit found that the 2015 Obama EPA rule at issue in Mexichem I changed EPA policy and re-opened the policy to judicial review.
“Because Mexichem I said, unambiguously and repeatedly, that the 2015 Rule represented a change in EPA’s approach from the 1994 Framework Rule, the Court is bound by this decision and Respondent-Intervenors are estopped from advocating that the Court reach a different, inconsistent conclusion,” EPA says. Chemours, Honeywell and NRDC therefore “are foreclosed from re-litigating whether the Court in Mexichem I had jurisdiction.”
Mexichem and Arkema in their Feb. 6 reply brief agree with EPA, saying, “the 2016 Rule is invalid insofar as it requires HFCs to be replaced.” The court in Mexichem I unambiguously determined that it had jurisdiction, the firms argue, and their commercial rivals may not re-open the issue.
Chemours, Honeywell and NRDC counter that the present suit, Mexichem II, is untimely because it challenges an underlying EPA policy on refrigerant replacement adopted in a 1994 regulation. Because the challenge is years too late, the court lacks jurisdiction to hear the present case, they argue.
Chemours, Honeywell and NRDC in their joint Feb. 6 final brief say, “[w]hile Petitioners claim to be challenging the 2016 Rule, the substance of their challenge is to the 1994 Rule, which was promulgated almost a quarter-century ago. Because their challenge to the 1994 Rule is almost 25 years late, this Court lacks the authority to review it.”
Further, “Mexichem I did not address, or state any holding on, the Court’s jurisdiction to invalidate the regulatory prohibition on any person’s use of a substitute in a use listed as ‘unacceptable,’ which was promulgated in the 1994 Rule, not in the 2015 Rule.”
https://insideepa.com/daily-news/dc-circuit-poised-hear-rival-refrigerant-makers%E2%80%99-fight-over-hfc-rule

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