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ACC AM 29/03/19
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Third Court Dismisses EPA Science Advisor Policy Suit
Mar 28, 2019 | InsideEPA
A third federal court has dismissed a suit from environmentalists challenging the Trump EPA's policy barring scientists who are receiving agency research grants from serving on its advisory committees, agreeing with an earlier ruling in a similar case that plaintiffs had standing but dismissing the suit because it is nonjusticiable. -
EPA Tackles Worker Safety Charges in 13 New Chemical Rules (1)
Mar 28, 2019 | BNA Daily Environment Report
By Pat Rizzuto
The EPA March 28 tackled head on allegations that it neglected worker safety protections in deciding to allow new chemicals to enter commerce, releasing “significant new use rules” for 13 substances. -
(ACC Mentioned) Country Focus: USMCA Pushes Mexico into Comprehensive Chemical Management Plan
Mar 29, 2019 | Chemical Watch
By Lisa Martine Jenkins
Mexico's pending trade deal with the US and Canada could provide a North American model for the chemical sector. -
(ACC Mentioned) Top Federal Scientist Calls for Handling PFAS as a Class
Mar 28, 2019 | PoliticoPro
By Annie Snider
A top federal scientist today raised alarm about the health effects of PFAS and argued the thousands of chemicals in the group should be handled as a class — an approach the chemicals industry has fiercely opposed. -
Bipartisan Senate Group Readies New Bill To Address PFAS Concerns
Mar 29, 2019 | Inside EPA
By Suzanne Yohannan
A bipartisan group of senators will soon unveil legislation to address per- and polyfluoroalkyl substances (PFAS) in drinking water, with Sen. Shelley Moore Capito (R-WV) suggesting support for both technical assistance and an enforceable drinking water standard that takes into account the costs and challenges of sampling and mitigating the chemicals. -
States Begin to Adopt Enforceable PFAS Standards
Mar 28, 2019 | Inside EPA
States are pushing ahead on setting enforceable standards and bringing enforcement actions to address drinking water and groundwater contamination from per- and polyfluoroalkyl substances (PFAS), responding to communities' urgent calls for controlling contamination and to the sparse action EPA has taken so far. -
Lawmakers Urge Feds to Act Faster on PFAS
Mar 29, 2019 | E&E Daily
By Courtney Columbus
Lawmakers on the Senate Environment and Public Works Committee yesterday urged federal officials to move more quickly to address toxic nonstick chemicals. -
There's More To Cosmetics Regulation Than Meets The Eye
Mar 28, 2019 | Law 360
By Michael Giaquinto
A recent boost in cosmetics litigation, especially related to talcum powder, has reinvigorated a debate about the breadth of the U.S. Food and Drug Administration’s authority over cosmetic products and their ingredients. -
Expectations For Glyphosate Litigation After Monsanto Verdict
Mar 28, 2019 | Law 360
By John Gardella and Michaela Lancer
On March 19, 2019, a California jury unanimously concluded in Hardeman v. Monsanto Co. et al. that scientific literature supports the conclusion that the chemical glyphosate can cause cancer in humans, specifically in the context of the glyphosate-containing Roundup weedkiller. -
Enbridge Oil and Gas Tunnel Deal Illegal, Michigan AG Says
Mar 29, 2019 | BNA Daily Environment Report
By Alex Ebert
Canadian energy giant Enbridge’s deal to construct an oil and gas tunnel under Lake Michigan was approved illegally, Michigan’s attorney general ruled. -
ExxonMobil to Report Plastic Pollution Spills, Shareholders Say
Mar 29, 2019 | Houston Chronicle
By Marissa Luck
Exxon Mobil, under pressure from shareholders, has agreed to report plastic pellet spills from its polymer production plants to prevent ocean pollution, according to a shareholder group that focuses on corporate responsibility. -
Ex-Energy Secretary Abraham Lobbying for LNG Company
Mar 28, 2019 | E&E News PM
By Timothy Cama
Former Energy Secretary Spencer Abraham and a top aide are lobbying for a proposed $30 billion liquefied natural gas (LNG) export terminal. -
CEO: Utilities Will 'Blow Right Past' Clean Power Plan Goals
Mar 29, 2019 | E&E Energywire
By Jeffrey Tomich
The CEO of a major Midwest utility said his industry won't wait to see how the legal skirmish over the Obama administration's landmark climate rule plays out. -
Corporate Giants Vow to Quadruple Renewable Deals
Mar 29, 2019 | E&E Energywire
By David Iaconangelo
Some of the nation's largest and most well-known corporations have launched a formal trade association with the goal of making it easier for large companies to buy clean energy in bulk. -
Ga. Bill Aims to Phase Out Fossil Fuel Plants by 2040
Mar 29, 2019 | E&E Energywire
By Kristi E. Swartz
A Georgia Democrat is taking aim at the state's carbon emissions by moving to require fossil fuel plants to be shut down by 2040. -
N.M. Launches Interactive Emissions Map
Mar 29, 2019 | AP (In E&E Energywire)
New Mexico regulators have launched an online interactive map based on methane emissions from the oil and natural gas industry. -
Big Oil to Boost Petrochemicals Footprint
Mar 29, 2019 | Hydrocarbon Engineering
By Tom Mostyn
While the US cracker wave on the back of the shale gas boom is getting much of the attention, big oil and gas players in the Middle East are lining up mega projects that could shift the landscape of global petrochemicals from 2025 and beyond. -
U.S. Rep. Bill Johnson Says Belmont County Cracker Plant Is on Track During Event at The Highlands
Mar 29, 2019 | Wheeling Intelligencer
By Joselyn King
U.S. Rep. Bill Johnson urged patience as the region awaits official word on a proposed ethane cracker plant in Belmont County, and said the local project is moving faster than a similar one did in Western Pennsylvania. -
How Bad is the Cyberthreat to Energy Systems? It Depends
Mar 29, 2019 | E&E Energywire
By Peter Behr
In a daylong regulatory workshop on cyber and physical threats to U.S. energy systems yesterday, federal officials and some industry leaders appeared to see the threat from opposite ends of the spectrum. -
DOE Yanks Huawei, ZTE Tech
Mar 28, 2019 | PoliticoPro - Whiteboard
By Darius Dixon
An Energy Department official said today that the agency stopped using products from Chinese telecom companies Huawei and ZTE. -
The Trump Administration Is Using Faulty Logic On Oil Trains
Mar 28, 2019 | Sightline Institute
By Aven Frey and Eric de Place
In June 2016, an oil train derailed on the outskirts of Mosier, Oregon causing mass evacuations from the town and nearly dumping more than 40,000 gallons of crude oil into the Columbia River. -
Oregon Panel Poised To Weigh Changes To Landmark GHG Cap-&-Trade Bill
Mar 29, 2019 | Inside EPA
By Curt Barry
Oregon lawmakers are poised to consider recently unveiled amendments that would strengthen requirements for key sectors under a landmark bill to create a greenhouse gas cap-and-trade program that links to the California-Quebec system, though the measure still faces calls from the natural gas industry for more flexibility. -
EPA Science Advisers Urge New PM NAAQS Panel, Possibly Derailing Review
Mar 28, 2019 | Inside EPA
By Stuart Parker
EPA’s Clean Air Scientific Advisory Committee (CASAC), which advises the agency on how to set federal air standards, will urge the agency to reconstitute a specialized panel Trump officials disbanded to help review particulate matter (PM) limits, a move that would throw the administration’s timeline for completing its review into disarray. -
Plastic Bags to Be Banned in New York; Second Statewide Ban, After California
Mar 28, 2019 | The New York Times
By Jesse McKinley
New York State lawmakers have agreed to impose a statewide ban on most types of single-use plastic bags from retail sales, changing a way of life for millions of New Yorkers as legislators seek to curb an unsightly and omnipresent source of litter. -
Army Corps of Engineers Wrongly Withheld Water Permit Records
Mar 28, 2019 | BNA Daily Environment Report
By Brian Flood
The U.S. Army Corps of Engineers wrongly withheld records about its Clean Water Act permits, a federal court ruled March 28.
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Third Court Dismisses EPA Science Advisor Policy Suit
Mar 28, 2019 | InsideEPA
A third federal court has dismissed a suit from environmentalists challenging the Trump EPA's policy barring scientists who are receiving agency research grants from serving on its advisory committees, agreeing with an earlier ruling in a similar case that plaintiffs had standing but dismissing the suit because it is nonjusticiable.
In his March 27 ruling in Union of Concerned Scientists (UCS) et al v. Wheeler, Judge Dennis Saylor IV of the U.S. District Court for the District of Massachusetts largely agreed with a ruling in a federal court in Washington, DC, Physicians for Social Responsibility v. Wheeler, that the plaintiffs -- who included former EPA advisors who had lost their positions -- had standing though he agreed with EPA that the suit was not reviewable because it concerns “a matter committed to agency discretion without any meaningful standard of review.”
A second ruling, from the U.S. District Court for the Southern District of New York, dismissed Natural Resources Defense Council v. EPA after finding the plaintiffs lacked standing to bring the suit. To date, none of the plaintiffs have appealed.
UCS' suit in Boston and the suit before Judge Trevor McFadden in Washington, D.C., both included plaintiffs who were former EPA advisors, separating the cases from NRDC's.
.As such, both McFadden and Saylor concluded the plaintiffs had standing to sue, though they agreed with EPA's arguments that the cases were not reviewable.
Saylor explains that McFadden “held that while the plaintiffs had established standing, alleged claims ripe for review, and alleged injuries within the zone of interests protected by the conflict-of-interest statute and [Office of Government Ethics (OGE)] regulations, the complaint was nonetheless nonjusticiable and failed to state a claim.”
At issue is former Administrator Scott Pruitt's policy directive “Strengthening and Improving Membership on EPA Federal Advisory Committees,” that bars scientists that receive EPA grants from serving on agency advisory committees. Once issued, the directive forced several advisers to choose between receiving agency grants or giving up their advisory slots.
Pruitt and his supporters justified the move, saying it was intended to end conflicts of interest posed by those who receive agency grants, who they charge are biased in favor of regulations.
The directive drew widespread concerns and criticisms from agency staff, congressional Democrats and others, as well as the lawsuits.
Environmentalists, former advisors and others challenged the policy in several courts, arguing, among other things, that the directive is arbitrary and capricious and unlawful under the Administrative Procedure Act (APA) because it violates OGE rules and implementing statutes that impose uniform federal ethics rules on government employees, including agency advisers who are considered special government employees.
They add that Pruitt's directive is procedurally flawed because it was issued without an opportunity for public comment.
And they say it violates the Federal Advisory Committee Act (FACA), as well as environmental statutes governing creation of advisory committees, saying they generally require “fair balance” in panel memberships.
But Saylor points to McFadden's findings, including that the directive does not violate the conflict of interest statute or OGE regulations; OGE’s regulations generally preclude judicial review of the plaintiffs’ claim, FACA provides no meaningful standard for review and EPA has adequately explained its change in policy.
As a result, Saylor concludes that he “finds Judge McFadden’s reasoning in Physicians persuasive, and will follow the same course here.”
The plaintiffs are weighing an appeal to McFadden's ruling.
https://insideepa.com/daily-feed/third-court-dismisses-epa-science-advisor-policy-suit
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EPA Tackles Worker Safety Charges in 13 New Chemical Rules (1)
Mar 28, 2019 | BNA Daily Environment Report
By Pat Rizzuto
The EPA March 28 tackled head on allegations that it neglected worker safety protections in deciding to allow new chemicals to enter commerce, releasing “significant new use rules” for 13 substances.
The final rules (RIN:2070-AB27) include at least four pages in which the Environmental Protection Agency responds to public comments alleging the agency’s new chemicals program systematically fails to protect workers and violates the Toxic Substances Control act in other ways.
The rules provide a “rock solid” legal argument supporting EPA’s position that it is protecting worker health as it decides whether new chemicals may be manufactured or imported into the U.S., Lynn Bergeson, managing partner of Bergeson & Campbell, PC, told Bloomberg Environment.
The agency merely repeats erroneous arguments it already shared in explanations providing its rationale for allowing each chemical to be produced, said Richard Denison, lead senior scientist with the Environmental Defense Fund.
The worker-safety issue is core to EPA’s implementation of the law, he said.
First of Its KindThe rules require chemical manufacturers to notify the agency 90 days before using any of the chemicals in a way the agency designates as new.
For example, manufacturing a new plastic additive without controls limiting workers’ exposure to dust would be a “new use” triggering the notification requirement. The agency would then review a company’s proposed use and decide if it would be alright or needed some type of control.
This is the first batch of this particular type of new use rule the agency has issued since the Toxic Substances Control Act was overhauled in 2016.
In this case, the type of SNUR the agency issued means the new chemicals were allowed to go into commerce without their original manufacturer being required to sign enforceable consent orders to do certain things, like specifically limit a chemical’s release into water.
Concerns the agency had about ways people or the environment might be harmed by the chemicals are being managed through the final rules. The rules will be effective 60 days after they are published in the Federal Register.
Headed to Court?The EPA’s legal rationale—which explains its strategy to manage worker safety, other health, or environmental risks new chemicals might pose—was carefully crafted, said Bergeson, whose law firm manages the TSCA New Chemicals Coalition. Through that coalition, chemical manufacturers to share experiences with and concerns about the agency’s new chemicals program.
The agency likely prepared its responses to previous criticism in case these final rules are challenged in court, she said.
Bergeson referred to perspectives environmental, labor, and other groups have shared in comments on proposed rules and chemical analyses, that they have posted online, and that were made by witnesses including a former Occupational Safety and Health Administration (OSHA) official during a March 13 subcommittee hearing.
She also referred to a lawsuit the Natural Resources Defense Council brought against EPA last year.
The NRDC sued the agency in the U.S. Court of Appeals for the Second Circuit. The council charged that an agency policy that allowed it to approve new chemicals that might pose an undue risk without simultaneously controlling that risk violated TSCA.
The group dropped that lawsuit because, at the time, the agency had not allowed new, potentially risky chemicals into commerce without enforceable consent orders that controlled those risks.
NRDC attorneys could not immediately be reached for comment. Denison also did not comment on a possible lawsuit.
Faulty Reasoning?But Denison says the line of reasoning the EPA lays out as it claims to protect workers is faulty, and the agency’s actions violate TSCA.
The agency takes an inaccurate view of the safety data sheets that accompany a chemical in commerce, he said and argued previously in a blog. The EPA incorrectly maintains that employers must comply with safety suggestions in the sheets, but these are recommendations, not requirements, he said.
The EPA also asserts that OSHA regulations are sufficient to satisfy TSCA, Denison said.
Yet OSHA allows workers to face risk levels that are a 1,000 times higher than the EPA allows under the chemicals and other laws, he said.
TSCA expressly identifies workers as a susceptible population the agency must protect, Denison said.
“EPA is obligated to protect workers under TSCA and under TSCA’s safety standard,” he said.
https://bnanews.bna.com/environment-and-energy/epa-tackles-worker-safety-charges-in-13-new-chemical-rules-1
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(ACC Mentioned) Country Focus: USMCA Pushes Mexico into Comprehensive Chemical Management Plan
Mar 29, 2019 | Chemical Watch
By Lisa Martine Jenkins
Mexico's pending trade deal with the US and Canada could provide a North American model for the chemical sector.
Mexico’s chemical regulation is amorphous, run by a hodge-podge of internal departments — health, environment, agriculture, energy — with no overarching law like TSCA or REACH.
So, when Mexico began renegotiating the North American Free Trade Agreement (Nafta), Mexico’s trade partners in the US were eager to influence the country’s regulation scheme.'This is an opportunity to shape what could be a chemical management regime formation effort in Mexico'
"This is an opportunity to shape what could be a chemical management regime formation effort in Mexico in the future," said Ed Brzytwa, director for international trade at the American Chemistry Council (ACC).
The resulting document – the US-Mexico-Canada Agreement (USMCA) – contains a sectoral annex on chemical substances that was absent in the original Nafta. It promotes a risk-based approach to regulation, directing the three countries to align their risk assessment and management measures within their legal frameworks.
Chemical industry groups in the US (ACC), Mexico (ANIQ) and Canada (CIAC) applauded its inclusion. A starting point
Mr Brzytwa said the annex, and the significant industry discussion that prompted its inclusion, is a starting point for Mexico and for the development of a North American model of chemical regulation.
"These provisions of the USMCA are not creating a chemical management regime in Mexico; they are guideposts," he said in an interview with Chemical Watch. "So if Mexico does move in that direction, they will have a stronger foundation now."
Despite Mexico’s uncertainty over chemical regulation – made all the more so by a self-described "revolutionary" president who took office in December – the signing of USMCA is a major step toward a broader regulatory framework. The ACC describes it as an opportunity to encourage Mexico to build that potential framework in the US's image.
"We were in constant communication with ANIQ," said Mr Brzytwa. "They know that their government could be taking steps to build a chemical management regime and they felt that having these provisions in the USMCA was an important starting point."
Mexico’s chemical exports are valued at $2.36bn per year, according to 2017 figures from Mexico’s National Institute of Statistics and Geography.
Much of Mexico’s chemical regulation is in the hands of the environment ministry (Semarnat) and specifically the climate change institute (Inecc, which is within Semarnat), but the country does not have one agency or regulation that governs the sector.
"Chemicals are managed by many different agencies [with] many different approaches'' but none of these are harmonised, said Nidia Calvo, the Americas chemical regulatory compliance programme manager at Hewlett-Packard.Background to USMCA
The final version of USMCA – which has yet to be ratified – is the result of almost two years of negotiation by industry groups.
In a 2017 joint statement by the ACC, ANIQ and CIAC, the Nafta revision was described as an opportunity for a North American model in contrast to the "hazard-based approaches rising elsewhere".
The ACC’s Greg Skelton told the US trade representative that the revision could be a chance to extend the TSCA and Canadian Chemicals Management Plan (CMP) models to Mexico. And, in the final draft, industry wishes have been largely granted.In addition to promoting a risk-based approach to regulation, other potential areas of cooperation include:implementation of the UN Globally Harmonized System (GHS) of classifying and labelling of chemicals;coordination of safety data sheets and how confidential business information (CBI) is relayed;compatibility of chemical inventories;coordination on chemical risk assessment and risk management methodologies, tools, and models, and on the development of specific chemical assessments; andscientific criteria and data sharing.Changes to the Mexican status quo
USMCA is not the only factor driving change in Mexico’s chemical sector.
Mexico previously had a duel labelling and safety data sheet requirement to meet domestic and international requirements. However, ANIQ, which represents 95% of Mexico’s chemical manufacturers, requested the voluntary option of using the GHS system as an alternative in 2011. The mandatory fifth revision of the GHS standard came into force in October 2018.
Also in autumn, Mexico catalogued its chemical substances with information from producers and importers, which will be updated regularly by Inecc. The effort prioritises using a single nomenclature for identifying substances.
Despite the massive effort of cataloguing chemicals, there has not been a high level of interest in the chemical sector, either in Enrique Peña Nieto’s administration, which oversaw the endeavour, or in the new president’s, Ms Calvo said. There also isn't a lot of information about chemical management available from Semarnat or Inecc, the two main organisms in charge of the sector, she adds.The Obrador variable
Mexico’s leftist president Andres Manuel López Obrador took office on 1 December 2018, promising "revolution" after decades of corruption and deteriorating trust in the government.
USMCA was signed by all parties on 30 November, just one day before Mr Obrador became president. But Rodrigo Favela, a partner at HCX, a consulting firm in Mexico City, said the president was very involved in its negotiation: no changes to the agreement are expected to come from his office.
Some argue his involvement in the negotiations illustrates the new president’s desire to have a hand in every change in Mexico.
Mr Obrador "wants to have control over everything," said Jeremy Martin, vice president for energy and sustainability at the Institute of the Americas.
However, the new president has specifically highlighted environmental sustainability as a priority for his administration, which is compatible with the priorities put forth by USMCA.
'We view having a sound chemical management regime as a way to improve the environment and foster more sustainable practices around chemicals'
"We view having a sound chemical management regime as a way to improve the environment and foster more sustainable practices around chemicals," said Mr Brzytwa.Wildcards
The ACC and others fear that the Canadian and US governments may prove to be even bigger wildcards than Mexico’s new president in the long run, however.
Canadian prime minister Justin Trudeau must hold a federal election by 21 October and government officials have said anger over US steel and aluminum tariffs could prevent Canada from ratifying USMCA.
Ratification in the US is also not guaranteed. Democrats took control of the House of Representatives in November, expressing concerns about insufficient labour and environmental provisions in the trade deal.
Meanwhile, US president Donald Trump has threatened to pull out of Nafta in order to pressure Mexico and Canada into either choosing between the new trade deal or the pre-Nafta conditions.
Mr Brzytwa called a potential early withdrawal "a difficult proposition for many members of Congress, and for industry for that matter".
Industry on both sides of the US-Mexico border accept that ratifying USMCA will take time and effort. But just having the text of the deal – especially one that reflects the regulatory alignment the ACC, ANIQ and CIAC have pushed for – gives them a starting point for discussion.
"We are able as an industry to talk very openly about the contents of that text," said Mr Brzytwa, and that conversation is "another opportunity to acclimate these Mexican officials to the North American, risk-based model."
https://chemicalwatch.com/75287/country-focus-usmca-pushes-mexico-into-comprehensive-chemical-management-plan
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(ACC Mentioned) Top Federal Scientist Calls for Handling PFAS as a Class
Mar 28, 2019 | PoliticoPro
By Annie Snider
A top federal scientist today raised alarm about the health effects of PFAS and argued the thousands of chemicals in the group should be handled as a class — an approach the chemicals industry has fiercely opposed.
National Institutes of Environmental Health Director Linda Birnbaum told the Senate Environment and Public Works Committee the pervasive chemicals affect "almost every [bodily] system that you can think of.” But understanding those effects is difficult because most studies look only at one or a small handful of chemicals, she said, whereas "current human exposures to PFAS involve complex mixtures, not individual chemicals."
“Approaching PFAS as a class, rather than as thousands of individual compounds, is the best approach for assessing exposure and biological impact, and for protecting public health,” Birnbaum said.
Communities and public health advocates have also argued for handling PFAS as a class, saying it would take centuries to develop the science necessary for regulations if the thousands of chemicals are handled individually. EPA's PFAS Action Plan makes no commitment to do so.
The American Chemistry Council has staunchly opposed efforts to regulate the chemicals as a group, a plan that was included in a bill, S. 638 (116), introduced earlier this month by Sens. Tom Carper (D-Del.) and Shelley Moore Capito (R-W.Va.) to designate all PFAS as hazardous for the purposes of Superfund.
"PFAS is a diverse family of chemistries that have differing characteristics, formulations and intended uses. Because of these differences, it is inappropriate to pass one-size-fits-all regulations of PFAS as a class," ACC said in response to that measure.
https://subscriber.politicopro.com/article/2019/03/top-federal-scientist-calls-for-handling-pfas-as-a-class-2969858
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Bipartisan Senate Group Readies New Bill To Address PFAS Concerns
Mar 29, 2019 | Inside EPA
By Suzanne Yohannan
A bipartisan group of senators will soon unveil legislation to address per- and polyfluoroalkyl substances (PFAS) in drinking water, with Sen. Shelley Moore Capito (R-WV) suggesting support for both technical assistance and an enforceable drinking water standard that takes into account the costs and challenges of sampling and mitigating the chemicals.
During a March 28 hearing before the Senate Environment & Public Works (EPW) Committee, Capito and Sen. Kirsten Gillibrand (D-NY) said they are collaborating on the legislation, along with Sen. Tom Carper (D-DE), the committee's ranking Democrat.
Their legislation marks the latest sign of concern from Congress that EPA is not adequately addressing the contamination.
Bipartisan groups of lawmakers in the House and Senate have already introduced measures seeking to require EPA to list two of the most common PFAS as “hazardous substances” under the Superfund law.
For example, a bipartisan group of House lawmakers from Michigan earlier this year introduced H.R. 535, a bill dubbed the “PFAS Action Act” which would designate all PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), an action that would ease regulators' ability to bring enforcement actions against responsible parties.
The bill is more aggressive than previous legislation the lawmakers introduced last fall, H.R. 6835, which would have required EPA to “make a determination” as to whether to designate PFAS as CERCLA hazardous substances, rather than compel the agency to do so, as the new bill would do.
Other lawmakers, such as Sens. Tom Udall (D-NM) and Martin Heinrich (D-NM), have also introduced legislation that would allow the Defense Department (DOD) to address off-site contamination that adversely affects agriculture. Their bill, S. 674, allows DOD to provide uncontaminated water for agricultural purposes and authorizes the Air Force “to acquire real property to extend the contiguous geographic footprint of any Air Force base that has shown signs of contamination,” according to a summary.
And Sens. Debbie Stabenow (D-MI) and Mike Rounds (R-SD), together with Reps. Dan Kildee (D-MI) and Jack Bergman (R-MI) March 28 introduced bipartisan legislation to authorize “the U.S. Geological Survey to test surface and groundwater for PFAS pollution, with a special focus on water near sites already known or suspected to be contaminated,” according to a press release from the Environmental Working Group (EWG), which supports the legislation.
The legislation, known as the PFAS Detection Act of 2019, would allow communities learn the extent of any contamination.
EPA tests have detected PFAS pollution of public water supplies for 16 million Americans in 33 states. But based on unreleased EPA test results, EWG estimates that the water supplies for as many as 110 million Americans may be contaminated, the group said.
Lawmakers' Frustrations
The environment committee hearing, titled “Examining the federal response to the risks associated with [PFAS],” highlighted frustrations Democrats and Republicans have with DOD and EPA responses to the chemicals, which number in the thousands and have contaminated drinking water sources across the country.
Witnesses at the hearing included EPA water chief David Ross, as well as officials from DOD, the Agency for Toxic Substances & Disease Registry and National Institute of Environmental Health Sciences (NIEHS) and National Toxicology Program (NTP).
During his opening remarks, committee Chairman John Barrasso (R-WY) told the panel that DOD needs “to take responsibility for its pollution,” and noted that “Most rural communities can't afford to clean up this contamination.”
Capito said she is “encouraged” that EPA is adopting a holistic approach through its PFAS action plan for the chemicals -- released last month -- but also cited concerns that the agency is “falling slightly short” here.
She particularly questioned DOD's Deputy Assistant Secretary for Environment Maureen Sullivan on emissions from stockpiled PFAS-containing firefighting foam that the department disposed of at EPA-permitted incinerator facilities.
In particular, she questioned whether the stockpiled foam was burned in a controversial incinerator in East Liverpool, OH. She called for the federal government to adopt a comprehensive approach to responding to PFAS. “To be comprehensive, I think we need a three-pronged solution here,” she said, outlining the three prongs of her approach.
The first “is identifying and preventing potential emissions into the environment,” she said.
The second prong “is protecting the drinking water sources through technical assistance and a maximum contaminant level (MCL) adapted to the costs and challenges of sampling and mitigating PFAS, particularly in the small, rural areas,” she said.
The third element is cleaning up any legacy contamination, she added.
Gillibrand said the legislation she is drafting with Capito would address PFAS in drinking water, noting that “access to clean drinking water is a right,” and protecting clean water has to be central to the work the Senate does, she said.
Gillibrand questioned witnesses about the health risks associated with the newer, shorter-chain PFAS, such as GenX, that have replaced long-chain PFAS.
Linda Birnbaum, director of NIEHS and NTP, cited various adverse health effects. For instance, she said, in rat and mice studies, GenX has been linked to tumors.
The senator also pressed Birnbaum on whether it is possible to test for total PFAS or total organic fluorine in drinking water or groundwater.
Birnbaum responded that methods are being developed to consider total organic fluorine, but cautioned that such tests need to distinguish from inorganic fluorides that are added to water for dental benefits.
Carper repeatedly criticized EPA for showing a lack of urgency in acting on PFAS, pressing Ross to set a deadline on its regulatory determination for setting an MCL and questioning Sullivan over DOD's apparent push in interagency discussions for a 400 parts per trillion (ppt) groundwater cleanup level for two PFAS, significantly less stringent than EPA's advocacy for a 70 ppt level.
But Ross and Sullivan declined to provide details on any timeline for the regulatory determination, or on debate over the groundwater cleanup level.
Carper told reporters after the hearing that his office next week plans to “share more broadly what we want done legislatively.” He said he is weighing a couple legislative options, including one his office is interested in asking EPA for support on.
https://insideepa.com/daily-news/bipartisan-senate-group-readies-new-bill-address-pfas-concerns
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States Begin to Adopt Enforceable PFAS Standards
Mar 28, 2019 | Inside EPA
States are pushing ahead on setting enforceable standards and bringing enforcement actions to address drinking water and groundwater contamination from per- and polyfluoroalkyl substances (PFAS), responding to communities' urgent calls for controlling contamination and to the sparse action EPA has taken so far.
Michigan Gov. Gretchen Whitmer (D) announced March 26 that the state -- which has long pushed for EPA to set national drinking water standards for PFAS -- will propose draft enforceable drinking water standards, or maximum contaminant levels (MCLs), by Oct. 1, adopting an accelerated schedule as communities urge action.
“Michigan has long advocated that the federal government establish national standards to protect the nation's water from PFAS contamination, but we can no longer wait for the Trump Administration to act,” Whitmer said in a March 26 press release.
PFAS, which have been linked to adverse health effects, include thousands of chemicals, some of which have been widely used for their non-stick properties.
But despite widespread contamination, EPA has been slow to craft enforceable regulatory standards. The agency has said it is continuing to contemplate drinking water standards for two of the most prevalent PFAS -- which have been found in firefighting foams released during training and fires by the military into the environment in Michigan and other states across the country.
To address this, Whitmer is calling for a state science advisory workgroup to review existing and proposed health-based drinking water standards from around the country, including recommendations from environmentalists and the Agency for Toxic Substances & Disease Registry, to inform the state's rulemaking MCL process, according to a state environment department spokesman.
The workgroup is required to suggest public health goals for PFAS in drinking water by July 1, he says. Following that, the Michigan Department of Environmental Quality will propose draft MCLs with input from stakeholders by Oct. 1, he says.
The state's announcement comes not long after Massachusetts and Vermont unveiled plans to regulate several PFAS.
In late January, the Vermont Agency of Natural Resources proposed adopting the state's drinking water health advisories of 20 parts per trillion -- one of the most stringent levels in the country -- for five PFAS as enforceable MCLs.
Much like Michigan, Vermont officials said they are tired of waiting for EPA. “We had been hoping the federal government would move forward with a maximum contamination level,” Peter Walke, deputy secretary of Vermont Agency of Natural Resources, said earlier this year. “They don’t appear to be moving in that direction, at least not at the speed we’d like them to,” he added.
And Massachusetts recently announced it plans to regulate five PFAS in drinking water -- responding to a petition from the Conservation Law Foundation to New England states urging them to adopt a 1 ppt standards for PFAS.
New Hampshire and New York officials are also moving ahead with developing enforceable standards for drinking water.
In addition, New Jersey, which is viewed as one of the leading states to regulate and research PFAS, earlier this month unveiled a first-time groundwater standard for PFAS.
State officials this week also issued a first-time enforcement directive requiring five major chemical companies to give the state data on uses and releases of PFAS and to cover any past and future monitoring, cleanup and other costs.
In addition, New Jersey Attorney General Gurbir S. Grewal and environment commissioner Catherine R. McCabe announced March 27 that they have filed natural resource damage lawsuits against DuPont, Chemours and 3M for claims related to PFAS contamination.
In a press release on the directive, McCabe said, “Now is the time for action at the state level.” She added, “The current EPA plan leaves millions of Americans exposed to harmful chemicals for too long by choosing a drawn-out process that will delay establishing a federal maximum contaminant level for PFAS.”
https://insideepa.com/daily-feed/states-begin-adopt-enforceable-pfas-standards
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Lawmakers Urge Feds to Act Faster on PFAS
Mar 29, 2019 | E&E Daily
By Courtney Columbus
Lawmakers on the Senate Environment and Public Works Committee yesterday urged federal officials to move more quickly to address toxic nonstick chemicals.
Sen. Tom Carper (D-Del.), the panel's ranking member, repeatedly criticized EPA's response to concerns about per- and polyfluoroalkyl substances, or PFAS, saying the agency didn't seem to be acting with urgency.
The persistent synthetic chemicals used in a wide variety of consumer and industrial products, including firefighting foam, have earned the moniker "forever chemicals," and some have been linked to health problems such as certain cancers and liver disease.
"I hope the witnesses before us today will commit to moving forward with a range of measures to protect Americans with an appropriate amount of urgency to befit a problem that Administrator [Andrew] Wheeler himself says is part of the biggest environmental threat that we face in this country," Carper said.
Panel Chairman John Barrasso (R-Wyo.) had pledged after EPA released its PFAS action plan last month that he would hold a hearing on the plan. He also said the agency needed to "speak clearly" about the risks posed by PFAS (Greenwire, Feb. 14).EPA
Carper asked Linda Birnbaum, director of the National Institute of Environmental Health Sciences and National Toxicology Program at the National Institutes of Health, whether she senses an urgency from EPA that he doesn't.
Birnbaum said NIEHS is working with EPA's Office of Research and Development to study more than 100 PFAS and determine whether they can be grouped into classes. Those results should be available "in months, not years," she said.
After Carper pressed her to answer the urgency question more specifically, she said, "EPA appears to be interested in moving more rapidly than they have in the past on dealing with these PFAS chemicals. And I applaud that effort."
David Ross, EPA's assistant administrator for the Office of Water, said he knows urgency when he sees it.
"I see it every single day with the career employees who are working around the clock and, in fact, have pulled all-nighters on this issue ... and we say that EPA is not doing enough? That's a disservice to those people who are doing something every single day."
In response to questions from Sen. Ed Markey (D-Mass.) about whether new PFAS could be added to the market, Ross said he was aware of one new PFAS that had gone through that process during the current administration.
Last year, The Intercept reported that EPA approved a new PFAS in September 2017, despite acknowledging that it "may be a persistent, bioaccumulative and toxic (PBT) chemical" that could "cause liver toxicity, blood toxicity and male reproductive toxicity."
And since 2002, when concerns were already being raised about PFAS, EPA has allowed more than one hundred new PFAS to be manufactured in large quantities or imported, the news outlet reported.Defense
Maureen Sullivan, deputy assistant secretary of Defense for environment, said the Pentagon is not pushing for weaker cleanup standards for the two best-known and most widely studied types of PFAS, called PFOA and PFOS.
"The Department takes our cleanup responsibilities seriously. We are not seeking a different or weaker standard," Sullivan said.
"Honestly, sir, I've been asking for the groundwater guidance since the [lifetime health advisory] came out, so I'm very interested in it being finalized myself," she said.
In 2016, EPA established a lifetime health advisory level of 70 parts per trillion for the combined concentration of PFOA and PFOS in drinking water.
Sullivan's remarks echoed acting Defense Secretary Patrick Shanahan's comments to the House Armed Services Committee earlier this week. He told lawmakers on the panel that a New York Times story published on the topic earlier this month was "inaccurate" (E&E Daily, March 27).
Sullivan again emphasized that the Department of Defense is one of many users of PFAS-containing firefighting foam and the Pentagon is funding research to develop a fluorine-free foam.
Carper isn't planning to drop the topic of PFAS. "We got largely the answers I expected and not necessarily the ones I wanted," he told reporters after the hearing. "But we'll keep asking. And we'll be persistent."Legislation
Sen. Shelley Moore Capito (R-W.Va.) said at the hearing her state is "all too familiar with this issue." She proposed a three-pronged approach to dealing with PFAS that would involve preventing PFAS from getting into the environment, protecting drinking water sources — including a maximum contaminant level — and cleaning up contamination.
The West Virginia senator said she was working with Carper and Sen. Kirsten Gillibrand (D-N.Y.) on related legislation.
Separately, a group of lawmakers including Michigan Democratic Sen. Debbie Stabenow yesterday revived a bill that would provide $45 million for the U.S. Geological Survey to develop new PFAS detection technology and for carrying out nationwide sampling.
"People across Michigan who have been exposed to PFAS chemicals are living with incredible uncertainty about the impacts on their health," Stabenow said in a statement. "We need to know more about these potentially harmful chemicals so that we can address contamination moving forward."
Numerous lawmakers have introduced PFAS-related bills in this and the previous Congress, prompting an increase in lobbying on the issue (E&E Daily, Feb. 5).
https://www.eenews.net/eedaily/2019/03/29/stories/1060133195
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There's More To Cosmetics Regulation Than Meets The Eye
Mar 28, 2019 | Law 360
By Michael Giaquinto
A recent boost in cosmetics litigation, especially related to talcum powder, has reinvigorated a debate about the breadth of the U.S. Food and Drug Administration’s authority over cosmetic products and their ingredients.
The subject of the FDA and its action or inaction in regulation of cosmetics is being presented to countless courts and jurors in every recent cosmetic product liability action. While the debate is multifaceted, the majority of critiques all tend to be concentrated on one side of the issue.
Some litigants as well as commentators suggest that the FDA exerts no real regulatory authority over cosmetic ingredients. Others suggest that the lack of specific ingredient regulation and premarket approval makes cosmetic products inherently unsafe. A third camp claims that the FDA’s reliance on cosmetic industry self-regulation means that it has, in a sense, abandoned American consumers, who are now responsible for their own public health concerns.
But there is a contrarian view. Just because the FDA does not require premarket approval[1] of cosmetics does not mean the ingredients are completely unregulated. Nor does the lack of federal guidelines for tens of thousands of different cosmetic ingredients mean that the industry is completely sovereign.
Looking under the hood of the current regulatory framework reveals that the rules applicable to cosmetic ingredients may be more robust than some think. Examining what rules are actually in place, rather than focusing on perceived inadequacies, may give us a better understanding of the other side of the debate.
Specific Cosmetic Regulations
First, the FDA’s actual legal authority over cosmetics is different from its authority over other products regulated by the agency, such as drugs, biologics and medical devices. Cosmetic products and their ingredients are not subject to FDA premarket approval authority, with the exception of color additives.[2]
However, cosmetics do come under the purview of the FDA’s regulatory authority through two important laws: (1) the Federal Food, Drug, and Cosmetic Act, or FDCA, and (2) the Fair Packaging and Labeling Act, or FPLA.[3] The FDA may pursue enforcement action against companies which violate these laws.
The FDCA prohibits the adulteration and misbranding of cosmetics, and the introduction, receipt and delivery of adulterated or misbranded cosmetics into interstate commerce.[4] Cosmetics can be considered adulterated if they contain any poisonous substance, are packed under unsanitary conditions or are contaminated in a way that renders the product injurious to health.[5]
Second, the FDA has put together a list of prohibited and restricted ingredients it considers harmful in cosmetic products.[6] The list contains eight prohibited and two restricted ingredients.[7] As recently as 2015, the FDCA was amended to include the Microbead-Free Waters Act, which bans rinse-off cosmetics that contain intentionally-added plastic microbeads, effective Jan. 1, 2018.[8] While these restrictions are less prohibitive than the analogous regulations maintained by the European Union, which contain more than 1,000 banned ingredients, they are restrictions nonetheless.
Third, there are significant regulations relating to the labeling of ingredients in cosmetic and personal care products. Regardless of whether such products are manufactured domestically or imported, they must comply with FPLA labeling requirements.[9] These strict labeling standards are based on the FDA’s established definitions of drugs, cosmetics, shampoos and the like. A cosmetic is considered misbranded if:
Its labeling/container is false or misleading
Its label does not include all required information; or
The required information is not adequately conspicuous.[10]
Cosmetics that fail to comply with the FPLA are considered misbranded under the FDCA.[11] While these laws may not deal with the efficacy of particular substances, they do prevent deceptive packaging and labeling of ingredients that make their way into the households of U.S. consumers.
Fourth, there are targeted regulations and FDA approval requirements for certain ingredients.[12] Color additives, for example, are one of the most widely used types of ingredients in cosmetics. Color additives give consumers a wide range of options, from a rosy hue in blush to a purple shade of eyeliner. Essentially, these are dyes that can impart color when added to a cosmetic.[13] Color additives are subject to stringent regulations, including premarket approval, meeting requirements for identity stated in the Code of Federal Regulations, permissible concentration limits and certification of every individual batch of additives.[14]
Finally, it is important not to focus the entirety of the conversation on the FDA. There are other agencies and regulatory schemes that assist in the regulation of cosmetics. The Toxic Substances Control Act, or TSCA, regulates new and existing substances, many of which are found within personal care products.[15] While the TSCA does not regulate any products, it regulates substances that are used as ingredients in cosmetics.[16]
A perfect example of this regulation at work is dibutyl phthalate, an ingredient in nail polish. Dibutyl phthalate is also a chemical solvent used in other industries; thus, it falls under the purview of the TSCA, and is subject to any testing and registration the act requires.[17] This is just one example of how the TSCA plays an important role in the regulation of personal care products.
Other ways in which cosmetics and their ingredients are regulated include FDA review of edible cosmetics,[18] requirements related to cosmetic shelf life[19] and the U.S. Department of Agriculture’s regulation of organic claims. There are many other similar examples. Critics who paint the cosmetic industry as being completely devoid of any regulation may not have paid attention to the breadth of rules and guidelines within the regulatory system.
Cosmetics Can Be Drugs — So Are There Crossover Regulations?
Those who point to a lack of regulation also might not have considered that a portion of the cosmetic industry falls under drug regulations. A cosmetic product may be subject to drug approval requirements depending on advertising assertions by the manufacturer.
The FDCA defines drugs, in part, as products intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, and intended to affect the structure or function of the body of humans or other animals.[20] Some products meet the definitions of both cosmetics and drugs.
A common example is shampoo. Shampoo can be a cosmetic, because it is used to clean hair. But it can be considered a drug when it contains an ingredient used to treat dandruff. In such instances, the product must generally either receive premarket approval by the FDA through the New Drug Application, or NDA, process, or conform to a “monograph” for a particular drug category.[21]
Other cosmetic/drug combinations include toothpaste with whitening ingredients, deodorants that are also antiperspirants, makeup marketed with sun-protection claims, anti-acne products and anti-wrinkle creams. Under this standard, many cosmetic products sold in the U.S. may require premarket approval, depending on how they are marketed
If Not Regulation, What About Guidance or Consumer Knowledge?
Critics of the current framework often say that the FDA’s reliance on the cosmetic industry to police itself and use safe ingredients puts the burden on consumers to protect their own health and safety. But one could argue that this is less a matter of abandoning consumers than of sharing responsibility.
There are tens of thousands of different cosmetic ingredients on the market, with new ones created every year. This being the case, from a FDA capacity and fiscal perspective, it seems impractical to require specific directives for every ingredient.
While there may not be specific regulations governing every facet of the cosmetic industry (nor could there be), the FDA can and does fill in gaps by issuing guidance, not only on specific cosmetic ingredients, but also on other subjects. These guidance documents have been issued on a variety of subjects, including lipsticks,[22] lead,[23] nanoparticles,[24] alpha hydroxy acids,[25] quality assurance programs[26] and good manufacturing processes.[27] Although they do not create or confer any rights for or on any person, the FDA’s guidance documents can be used by manufacturers to satisfy the requirements of the applicable statutes and regulations.
Further, modern-day consumers can be quite discerning in their consumption of personal care products. Some have a distaste for inorganic ingredients; some are hypersensitive or allergic to certain ingredients. Between the FDA, the Cosmetic Ingredient Review, the Personal Care Products Council and the Environmental Working Group cosmetics database, U.S. consumers have a vast amount of ingredient information at their fingertips. One could argue that the sheer volume of information available empowers consumers to take the initiative in the protection of their own health and safety, by familiarizing themselves with various ingredients, and with their own bodies’ reactions to those ingredients.
Petitions and Enforcement
Sometimes the FDA takes its cues from consumers and trade organizations. Ordinary citizens may submit petitions to the FDA asking the agency to determine that a cosmetic is adulterated, or that it contains a particular deleterious substance.[28] In response to such petitions, the FDA can issue new regulations, change or cancel a regulation, or take other action. The agency receives about 200 petitions annually.
In the cosmetic talc context, for example, the FDA responded to petitions in 1986, 1996 and 2008 which requested that the FDA require cosmetic talc products bear a label warning of a risk of asbestos contamination.[29] The FDA declined to require a warning label on cosmetic talc products or to make a determination that cosmetic talc was a deleterious substance.[30]
Outside of the talc context, the Consumer Federation of America petitioned the FDA to determine urocanic acid (at the time, a common cosmetic ingredient used as a skin-conditioning agent and as a sunscreen) an unsafe substance. The FDA denied such a petition after conducting a review of urocanic acid, and concluding that the scientific evidence did not establish it to be a deleterious substance. The FDA did, however, require that manufacturers of products containing urocanic acid provide notice on their labels that its safety has not been established.[31]
These petitions, and the FDA's responses, allow the agency to potentially address an unmet regulatory need concerning a particular substance, or to make a reactive prohibition of products already on the market. They also provide meaningful dialogue between consumers and regulated parties alike, allowing both groups insight into the FDA's positions on particular substances.
In addition to issuing responsive guidance on cosmetic ingredients pursuant to Section 704 of the FDCA, the FDA is authorized to conduct inspections of cosmetic firms at reasonable times, in a reasonable manner and without prior notice, in order to assure compliance with the applicable laws and regulations, to determine whether cosmetics are safe and properly labeled, and to identify possible health risks and other violations of the law.[32] Although the FDA does not have mandatory recall authority over products based on these inspections, they can request recalls of products from the marketplace.[33]
Conclusion
Not surprisingly, the debate over cosmetics regulation has spilled from the courtroom to Congress, with the introduction of the Personal Care Products Safety Act, the FDA Cosmetic Safety and Modernization Act and the Children's Product Warning Label Act. The passage of any of these bills would not only expand regulatory authority over cosmetics, but potentially affect every facet of the cosmetic industry, from sale, distribution and supply chains to manufacturing and marketing.
No matter the outcome of any of these bills, one thing is clear: At first blush, appearances can be deceiving. A true understanding of the breadth of cosmetic industry regulation requires a careful examination of the interplay between a variety of guidelines and directives, not just the text of the FDCA and FPLA.
https://www.law360.com/retail/articles/1143733/there-s-more-to-cosmetics-regulation-than-meets-the-eye
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Expectations For Glyphosate Litigation After Monsanto Verdict
Mar 28, 2019 | Law 360
By John Gardella and Michaela Lancer
On March 19, 2019, a California jury unanimously concluded in Hardeman v. Monsanto Co. et al. that scientific literature supports the conclusion that the chemical glyphosate can cause cancer in humans, specifically in the context of the glyphosate-containing Roundup weedkiller.[1] The issue was litigated in a bifurcated manner to allow the jury to answer the question of glyphosate’s cancer-causing potential before the jury could address damages.
On Wednesday, the jury returned a verdict of just over $80 million in favor of Edwin Hardeman in the second phase of the trial. The Hardeman case was the second such trial to take place in the glyphosate litigation — the first being the Dewayne Johnson case, which took place in California state court in 2018 and resulted in a $289 million verdict.[2]
While there is little question that the Johnson and Hardeman verdicts will do nothing to stop the flood of thousands of lawsuits against Bayer AG for its Roundup weedkiller product, the bigger question is how the verdicts will affect product liability and toxic torts litigation more broadly moving forward, and what the next waves of litigation may be stemming from the current glyphosate litigation
What Is Glyphosate?
Glyphosate is a man-made chemical, first synthesized by a Swiss chemist in 1950. It was independently discovered by scientists at Monsanto in the United States in 1970, when the company asked its scientists to develop an effective herbicide compound for consumers to use as a weedkiller. The product was brought to market in 1974 under the brand name Roundup.
Agriculture quickly realized that glyphosate was one of the most effective weedkilling agents on the market, as it inhibits photosynthesis in plants, which ensures that plant cells are not able to regenerate, thereby killing the plant to which glyphosate is applied. Roundup soon became one of the most widely used weedkilling agents by consumers for use on residential and commercial properties, by landscaping companies and also by the government (primarily for use by groundskeepers at public schools).
In the agricultural sector, glyphosate’s use was not so readily adapted, as it was so effective that it killed not only weeds, but the crops themselves. It was not until 1996 with the advent of genetically modified crops that were resistant to glyphosate that the product became widely used on farms. Genetically modified crops led to a 15-fold increase in the use of glyphosate in the agricultural sector. According to the U.S. Environmental Protection Agency, in 2007, glyphosate was the most used herbicide in the United States agricultural sector, with 180 to 185 million pounds applied, the second-most used herbicide in homes and gardens with 5 to 8 million pounds used, and the U.S. government applied 13 to 15 million pounds in industry and commerce.
Is Glyphosate Harmful to Human Health?
Glyphosate studies were conducted for years prior to the Johnson verdict in July 2018. The majority of the initial studies were conducted on rats. For example, one study in the United Kingdom, in which rats were fed low levels of glyphosate throughout their lives, found that the chemical contributed to a higher risk of nonalcoholic fatty liver disease, a condition in which fat accumulates in the liver and contributes to inflammation and scarring of the tissue. Studies have also been conducted on other mammals, such as rabbits, aquatic fauna, plants and soil bacteria. Numerous studies were also conducted by Monsanto itself as part of the company’s effort to determine the potential health hazards associated with the glyphosate compound.
In 2013, over 1,000 epidemiological studies, animal studies, and in vitro studies were reviewed by the German Institute for Risk Assessment. It found that “no classification and labelling for carcinogenicity is warranted” and did not recommend a carcinogen classification. The results were given to the European Food and Safety Authority and in November 2015, the EFSA published its own conclusion of the available studies, stating that glyphosate was “unlikely to pose a carcinogenic hazard to humans.”
In the United States, in 1993, the Environmental Protection Agency studied whether glyphosate was hazardous to human health and concluded that the chemical was not carcinogenic. In its review, the EPA considered a “worst case” dietary risk model of an individual eating a lifetime of food derived entirely from glyphosate-sprayed fields with residues at their maximum levels. This model indicated that no adverse health effects would be expected under such conditions. In 2015, the EPA initiated another review of glyphosate’s toxicity and in its December 2017 draft risk assessment, reported that glyphosate is likely not carcinogenic. The EPA’s interim decision as to whether the conclusions from its draft risk assessment will be upheld is expected in the fourth quarter of 2019.
However, in March 2015, the World Health Organization’s International Agency for Research on Cancer concluded its own analysis of the available epidemiological studies and found that glyphosate is “probably carcinogenic to humans.”[3] “The evidence in humans is from studies of exposures, mostly agricultural, in the USA, Canada, and Sweden published since 2001. In addition, there is convincing evidence that glyphosate also can cause cancer in laboratory animals.”
The IARC report was criticized for not considering all of the available literature on glyphosate. However, IARC admitted that it disregarded any studies that had any connection to the agricultural industry (e.g., studies funded by the industry). This was in contrast to prior government agencies, such as the EPA, that considered such studies while adjusting for potential biases. Nevertheless, it was the IARC conclusion regarding glyphosate’s “probable” carcinogenicity in humans that sparked the glyphosate litigation.
Beyond the Roundup Cases — Other Avenues of Litigation to Data
Virtually overnight after the Johnson verdict, personal injury lawsuits regarding glyphosate increased across the country. Many of the cases were personal injury cases against Monsanto, alleging similar harm as Dewayne Johnson and Edwin Hardeman did in their cases. However, what also emerged after the Johnson verdict were several reports and lawsuits against the food industry for glyphosate content in several manufactured food products. It is from these lawsuits that the clearest clues as to where the glyphosate litigation is likely trending emerge.
Perhaps the most notable food-related case following the Johnson verdict was a lawsuit filed in California against Bob’s Red Mill after glyphosate was found in both its organic and nonorganic oats.[4] The plaintiffs alleged that Bob’s Red Mill knew that its oat products contained or likely contained glyphosate, but the company failed to disclose this knowledge on the packaging for the products. The lawsuit was sparked by a report by the Environmental Working Group, released just days after the Johnson verdict, finding traces of glyphosate in numerous cereals and oat-based breakfast foods. Out of 45 products tested, 31 had levels higher than what some scientists consider safe for children.
In Canada, shortly after the Johnson verdict, the Environmental Defence organization, in conjunction with Equiterre, conducted its own study of glyphosate content found in food and found detectable levels of glyphosate in 80 percent of the samples tested. The study looked at a broader range of food types than the EWG study, as it tested oats, cereals, bagels, hummus, donuts, crackers, cookies, spaghetti, breads and macaroni and cheese, among other items.
Following reports such as the ones released by the EWG and Environmental Defence, several lawsuits were filed in the United States against food manufacturers, primarily alleging that the companies failed to warn consumers that “natural” or “organic” products contain glyphosate.
Examples of these lawsuits include suits against General Mills Inc. for its Cheerios and Honey Nut Cheerios cereal products; a lawsuit against Florida’s Natural for its glyphosate-containing orange juice; Maseca-brand white and yellow corn flour; and a lawsuit against restaurant Pret-A-Manger due to the presence of glyphosate in its “natural” breads. The pet food industry has also not escaped litigation over glyphosate, as a lawsuit was filed against Nutrish brand dog food for traces of glyphosate in its pet food.
What’s Ahead in the Glyphosate Litigation?
Although Monsanto held the patent for glyphosate for many years, the patent expired in 2000, which allowed other companies to utilize glyphosate in products sold to consumers. Today, there are over 750 products on the market that contain glyphosate, many of them various types of herbicides. Although Bayer AG is currently the target of the glyphosate litigation for the Roundup product, the vast number of products manufactured and sold by numerous companies means that the easiest avenue for expansion of litigation will come via lawsuits against other companies manufacturing glyphosate-containing products.
The agricultural industry also faces some risk of litigation related to glyphosate, specifically for violations of governmental permissible residue limits for glyphosate on crops. Currently, the EPA sets glyphosate residue limits for crops grown in or imported into the United States. The EPA’s residue limit varies depending on the type of crop and the limits range anywhere from 0.1 parts per million, or ppm, to 400 ppm. The U.S. Food and Drug Administration is tasked with conducting annual tests on crops to determine whether there are any violations of the EPA’s limits, and the FDA published its sampling results on an annual basis. Violations of the exposure limits could lead to litigation against agricultural companies.
In addition, agricultural companies need to be aware that while the United States has certain residue limits for glyphosate, other countries have different exposure limits that must be adhered to for companies exporting crops. Further, with some countries advocating for a complete ban on glyphosate-containing herbicides, many expect these countries to adopt exposure limits far stricter than the ones in existence in the United States.
In addition, the food industry has thus far only faced lawsuits related to glyphosate alleging deceptive business practices for advertising products as “natural” or “organic” even though they contain some amount of glyphosate. However, there are calls from both citizens and politicians to re-examine the EPA’s current permitted “exposure level” for glyphosate. The EPA’s current reference dose, or RfD, is 1.75 mg per kg of body weight,[5] which would require an individual to consume large quantities of glyphosate-containing food on a daily basis in order to exceed the RfD.
Should the RfD change, the food industry could face liability if its products exceed a revised RfD level. Importantly, in the context of today’s global economy, many U.S.-based food companies export food products to the European Union and other countries. The E.U.’s equivalent for the EPA’s RfD is considerably lower (0.3 mg per kg of body weight), so companies that may escape lawsuits in the United States may face litigation in the European Union for glyphosate in food products.
Finally, a number of studies are currently underway to examine whether glyphosate can cause reproductive and developmental effects in both animals and humans. For example, a study released on March 11, 2019, by The Ramazzini Institute concludes that exposure to glyphosate at levels within the EPA’s 1.75 mg per kg of body weight RfD were found to have reproductive and developmental effects in rats.
Although the Ramazzini Institute study is but one such report concluding that glyphosate can have developmental or reproductive effects, other studies have reached the opposite conclusion. Nevertheless, with the burgeoning interest in and litigation concerning hormone disruptors and chemicals causing developmental delays in humans, glyphosate litigation may eventually become one of the many aspects of the hormone disruptor of litigation.
https://www.law360.com/articles/1143741
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Enbridge Oil and Gas Tunnel Deal Illegal, Michigan AG Says
Mar 29, 2019 | BNA Daily Environment Report
By Alex Ebert
Canadian energy giant Enbridge’s deal to construct an oil and gas tunnel under Lake Michigan was approved illegally, Michigan’s attorney general ruled.
Attorney General Dana Nessel (D) issued a March 28 formal opinion arguing a lame-duck statute quickly creating an agency to approve permitting for the tunnel didn’t meet several requirements of Michigan laws. Thus, any approval of the project is invalid, she said.
The opinion sets up a legal battle that Gov. Gretchen Whitmer (D) promised as a cornerstone of her successful 2018 campaign. She repeatedly pledged to close Enbridge’s existing mixed oil-and-gas Line 5 and tunnel project as one of her first priorities, and she sought this formal opinion from Nessel as ammunition in her attack.
“I agree with the conclusion reached by Attorney General Nessel,” Whitmer said in a March 28 statement. “The Great Lakes are our most precious resource in Michigan, and because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of this law.”
Enbridge didn’t immediately respond to a request for comment. The company pledged to spend $350 million to $500 million on the tunnel project over the next decade. It struck the deal with former Gov. Rick Snyder (R).
A report paid for by Michigan said the tunnel project is the most environmentally safe way to replace the 65-year-old Line 5, situated beneath the turbulent waters of the Straits of Mackinac. Other methods, such as rail and truck transport of oil and gas, would likely lead to more spills and pollution, engineers examining the projects claimed.
Environmentalists seek to close the line completely, while GOP leaders and some Democrats have sought to keep the line or build a tunnel in order to aide in transferring natural gas to the Upper Peninsula and oil south from Canada.
https://bnanews.bna.com/environment-and-energy/enbridge-oil-and-gas-tunnel-deal-illegal-michigan-ag-says
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ExxonMobil to Report Plastic Pollution Spills, Shareholders Say
Mar 29, 2019 | Houston Chronicle
By Marissa Luck
Exxon Mobil, under pressure from shareholders, has agreed to report plastic pellet spills from its polymer production plants to prevent ocean pollution, according to a shareholder group that focuses on corporate responsibility.
The shareholder group, As You Sow, filed a proposed shareholder resolution in January with several major petrochemical producers, including Exxon Mobil, Dow Chemical, Phillips 66 and Chevron, asking for annual reporting on spills and measures taken to prevent and clean up spills. Exxon appears to be the first company to succumb to the pressure.Recommended Video
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Under a deal struck with As You Sow, Exxon will begin providing details about whether any spills occurred, specifics about how it is monitoring for spills and how it is managing pellets. It will also describe how the company assesses the effectiveness of pellet loss prevention measures. The company apparently did not have any spills though in 2018, according to As You Sow.
As a result of the agreement, As You Sow withdrew its shareholder proposal, according to SEC documents. An Exxon spokesman declined to comment beyond what was said in the SEC documents acknowledging the withdrawal of the shareholder proposal.
RELATED: Reporter’s Notebook: Can chemistry fix the plastic waste problem?
"We are pleased that Exxon Mobil has agreed to do public reporting on plastic pellet spills and management," said Conrad MacKerron, senior vice president at As You Sow in a statement. "It is important for all industry players to establish similar transparency so stakeholders can get a realistic view of the size and scope of this problem. We hope the other companies we are engaged with will follow its lead.
260 species affected
Exxon's petrochemical division has several plants that produce plastic pellets, called nurdles, which are used to produce thousands of everyday plastic products. These tiny plastic pellets, which can be spilled during handling and transportation and swept into waterways, are estimated to be the second largest direct source of microplastic pollution to the ocean by weight.
The tiny pellets, the size of fish eggs, make their way onto shorelines, beaches and break up into smaller pieces that animals can mistake as food. Plastic pollution affects 260 species, causing fatalities from ingestion, entanglement, suffocation and drowning, according to As You Sow.
Exxon Mobil is the first major petrochemical producer to agree to report information on plastic pellet spills publicly to shareholders, said Jane Patton, coordinator based in New Orleans with the anti-plastic pollution advocacy movement Break Free From Plastic.
"This is significant and huge," Patton said. "I'm glad they're willing to disclose this, but there is a lot more that Exxon needs to be doing to mitigate harm to local communities" that comes as a result of air and waste pollution from petrochemical plants."
Many petrochemical companies are involved in a program called Operation Clean Sweep that aims to promote best practices for pellet management and containment to prevent pellet spills. But As You Sow has criticized the group because it doesn't require companies to publicly report spills or plastic management methods.
TEAMING UP: LyondellBasell, Dow chiefs call on industry to fix plastic waste problem
The other shareholder proposals filed with Chevron, Phillips 66 and Dow Chemical will likely be voted on during shareholder meetings this spring.
Taking responsibility
As You Sow last year was involved in successful efforts to push Starbucks to ditch plastic straws and pressure KraftHeinz, Procter & Gamble, Unilever and others to commit to increase the use of recycled packaging in their products.
Chuck Venezia, senior vice president of petrochemicals at the analyst and research firm Argus Media, said petrochemical companies typically have redundant systems to prevent spills because it's in their best economic interest to avoid losing the product. The issue of plastic pellet spills has not been a major focus area yet for the industry, but he noted that the industry is starting to take more responsibility for reducing plastic waste through better waste management systems, community education and recycling initiatives.
"There are so many benefits to plastics that are not getting reported – but just like everything else they need to be handled and treated properly," Venezia said.
https://www.chron.com/business/energy/article/ExxonMobil-to-report-plastic-pollution-spills-13723319.php?cmpid=ffrefining
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Ex-Energy Secretary Abraham Lobbying for LNG Company
Mar 28, 2019 | E&E News PM
By Timothy Cama
Former Energy Secretary Spencer Abraham and a top aide are lobbying for a proposed $30 billion liquefied natural gas (LNG) export terminal.
Blank Rome Government Relations LLC filed a disclosure with Congress this week saying that Abraham, who was secretary of Energy under former Republican President George W. Bush, is advocating for Tellurian Inc.
He and Joseph McMonigle, who was his chief of staff at the Department of Energy, are helping push for Tellurian's Driftwood LNG project in Louisiana and for LNG exports in general, according to the lobbying disclosure.
David Thompson, a former adviser to then-House Speaker Dennis Hastert (R-Ill.), is also working on the Tellurian account.
McMonigle told E&E News that Tellurian is a longtime client of the Abraham Group LLC, the former secretary's consulting firm, for which McMonigle also works.
Abraham subcontracts to Blank Rome, where both also work, for services that could qualify as lobbying under federal standards.
"It's really just a technical filing, just to make sure that we're covered," McMonigle said, adding that the firm's work likely hasn't exceeded the legal threshold for having to file a disclosure — $3,000 spent on lobbying in a quarter, with more than one contact to a government official.
McMonigle declined to detail the work he and his colleagues are doing for Tellurian. The LNG company didn't respond to a request for comment.
Driftwood is one of more than 10 LNG terminals proposed for the Gulf Coast. The United States currently has just two LNG terminals operational, one of which is on the Gulf Coast.
Tellurian CEO Meg Gentle told Reuters this week that the company would likely make its final investment decision on whether to build Driftwood in the first half of the year.
Tellurian retained another firm, CGCN Group, in January to lobby the federal government to approve Driftwood. The company spent $1.75 million lobbying federal officials last year (E&E News PM, March 7).
LNG exports are a key piece of the "energy dominance" agenda espoused by President Trump and Secretary of Energy Rick Perry. The plan centers mostly around boosting fossil fuel production and exports and using exports as a geopolitical tool.
https://www.eenews.net/eenewspm/2019/03/28/stories/1060132847
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CEO: Utilities Will 'Blow Right Past' Clean Power Plan Goals
Mar 29, 2019 | E&E Energywire
By Jeffrey Tomich
The CEO of a major Midwest utility said his industry won't wait to see how the legal skirmish over the Obama administration's landmark climate rule plays out
"The industry is going to blow right past the Clean Power Plan," DTE Energy CEO Gerry Anderson said in a press briefing yesterday.
The Detroit-based utility, which has 2.2 million customers, will accelerate plans to slash carbon emissions, achieving an 80 percent reduction by 2040 compared with a 2005 baseline, Anderson said. That's a decade earlier than the target established just two years ago following President Trump's election (Energywire, May 16, 2017).
Gerry Anderson. DTE Energy
The announcement came as part of DTE's integrated resource plan (IRP) to be filed tomorrow with the Michigan Public Service Commission. The long-range plan, required under state law, outlines how the utility will meet electricity demand over the next 15 years.
DTE joins a growing list of utilities such as Xcel Energy Inc. that are quickening the pace of plans to retire aging coal plants and replace them with cleaner alternatives (Energywire, Dec. 7, 2018).
The shift is happening despite the Trump administration's efforts to rescue the coal industry by rolling back environmental regulations.
DTE also laid out intermediate carbon-reduction goals, including a 32 percent cut by 2030 and a 50 percent reduction by 2030, compared with a 45 percent goal laid out in 2017.
"We're achieving the CPP goal by 2023 and are far ahead of it by 2030. What's driving it really is the evolution and the economics of energy," he said. "We're simply moving faster."
Still, the company isn't ready to commit to eliminating carbon pollution entirely like Minneapolis-based Xcel, which committed to 100 percent clean energy by 2050.
Anderson said the wind resources in Minnesota and Colorado — two of Xcel's primary markets — allow the utility to ramp up renewable energy at a faster rate. And still, Xcel has been clear that it's counting on technology advances to meet its long-term emissions target.
DTE said it will achieve the cuts by closing its Trenton Channel and St. Clair coal-fired power plants in 2022 instead of 2023. The energy and capacity from retired coal plants, which represent about 15 percent of DTE's energy mix, will be replaced with a combination of natural gas, renewables and energy efficiency.
The Michigan utility plans to double its renewable energy capacity over the next five years with additional investments beyond that. It will also develop more renewables or corporate customers under a "green tariff" and bump its annual energy efficiency savings target from 1.5 percent annually to 1.75 percent — significantly above the 1 percent required by state law.
Anderson said the focus of the IRP is "dominantly on the first five years" while longer-range plans are more likely to be driven by the pace of technological advances.
Longer-term, the company outlined four scenarios, any of which would allow it to achieve its carbon targets. Two include development of another natural gas-fired power plant in addition to the $1 billion Blue Water Energy Center being built just northeast of Detroit.
Anderson said if he had to guess what the company's energy mix will look like at midcentury, he'd say DTE would be 50 percent renewables, 20 percent nuclear and 30 percent natural gas.
The utility's only nuclear plant, Fermi 2, went online in 1985 and is currently licensed through 2025. DTE has a 20-year license extension pending approval by the Nuclear Regulatory Commission.
Anderson acknowledged that new nuclear generation isn't cost-competitive with wind and solar. But the CEO said nuclear is critical to meeting the climate goals laid out in the Paris climate agreement, and he's hopeful that advances in technology, including small modular reactors, can keep nuclear energy an option.
Anderson isn't bullish on the Green New Deal. In Washington, D.C., earlier this month, he met with a group of "core Democrats interested in climate change issues" and said they didn't see the ideals laid out in the plan gaining traction.
"While it's getting a lot of air time, there aren't many that think it's really the practical solution to the problem," he said.
Anderson also didn't view mandates as necessary for the electric industry to achieve emissions reductions. But he suggested federal requirements might be needed to achieve carbon emissions from tailpipes and buildings.
"Do I think a mandate might be necessary for the entire country to get there? Probably so," he said.
https://www.eenews.net/energywire/2019/03/29/stories/1060133209
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Corporate Giants Vow to Quadruple Renewable Deals
Mar 29, 2019 | E&E Energywire
By David Iaconangelo
Some of the nation's largest and most well-known corporations have launched a formal trade association with the goal of making it easier for large companies to buy clean energy in bulk.
The Renewable Energy Buyers Alliance (REBA), originally organized in 2014 as a nonprofit, made the announcement yesterday. The alliance counts more than 300 companies among its members, including corporate giants like Google, Facebook and Walmart.
The association has ambitious goals for the grid.
Some companies have pledged to buy the renewable equivalent of their total power needs. REBA says that in order to supply it all, about 42 gigawatts of renewables would need to come online by 2025.
But the alliance's members want to account for even more: 60 GW by that date. That's nearly quadruple the 15.46 GW of renewable deals corporations have inked during the past five years, according to REBA.
The alliance's new status as a lobby will give members a new way to flex their muscle as renewable energy boosters, at a time when wind and solar costs are plunging.
In early 2018, some of the original 13 members suggested the group had reached the "critical mass" necessary to form a trade association, said REBA CEO Miranda Ballentine.
"They're aligning around a single vision of a zero-carbon future," she said.
The change comes during a time of mounting corporate commitments to decarbonization, with midsize companies beginning to join forces with tech giants in long-term contracts for renewable power. Last year, the sector accounted for almost a quarter of all new wind and solar power purchase agreements (Energywire, Feb. 4).
In addition to reaching the 60-GW goal, said Ballentine, the group also wants to "dramatically increase the number of companies" entering into deals.
Those deals often don't send electrons straight from a wind or solar farm into the local grid, because companies seek out cheaper power from faraway sources. The alliance plans to press state regulators, utilities and officials to implement policies that would give companies more contracting options.
"We find in many states that companies just want more choice from their regulated utility," said Ballentine.
Google, for instance, already offsets all of its power use with renewable procurements. It has since begun to look into getting renewable electrons delivered directly to its data centers.
General Motors, also a member of the alliance, has announced "green tariff" agreements with utilities designed to expand wind generation on the local grid used by the company in Michigan.
Rob Threlkeld, GM's global manager for renewable energy, said the company was in talks with utilities ranging from investor-owned to municipal and rural co-ops to pursue more deals of that sort.
"We've had conversations with any type of those electricity providers, in looking at green tariffs as an option," he said.
Aside from lobbying, REBA says it will also serve as an educational resource for members on topics like overcoming corporate inertia on energy options and take the lead on resolving technological challenges posed by the transition to more intermittent renewables.
Most of its members, said Ballentine, "have done nothing more, for most of their history, than pay their electricity bill." They want to use their buying power to tell utilities to shift away from dirtier sources.
"They just want the utility to give them the opportunity to buy the zero-carbon power they want," she said.
https://www.eenews.net/energywire/2019/03/29/stories/1060133219
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Ga. Bill Aims to Phase Out Fossil Fuel Plants by 2040
Mar 29, 2019 | E&E Energywire
By Kristi E. Swartz
A Georgia Democrat is taking aim at the state's carbon emissions by moving to require fossil fuel plants to be shut down by 2040.
Rep. David Dreyer unveiled a bill, H.B. 711, yesterday that would direct state utility regulators to decertify all coal-fired plants by the end of 2030 and any remaining fossil fuel plants — largely natural gas — by 2040.
While the language has no chance of passing this legislative session — or probably ever in its current form — it represents a bold proposal for a lawmaker in the Republican-dominated Southeast where tightly regulated electric utilities carry heavy political sway.
Large energy companies in the region, including Duke Energy Corp., NextEra Energy Inc. and Atlanta-based Southern Co., all have announced goals either to reduce carbon emissions or cut coal from their fleet over the next several decades, and there's a chance that market forces could accelerate those goals.
"Georgia Power is committed to a diverse energy mix including nuclear, natural gas, hydro, renewables, coal and energy efficiency resources while ensuring our customers continue to have clean, safe, reliable and affordable energy for generations to come," company spokesman Jeff Wilson said in a statement in response to E&E News' inquiry about the bill.
The Georgia Public Service Commission oversees Southern's Georgia Power Co. but not the public power companies, which include municipalities and electric cooperatives.
Georgia Power's proposed long-term energy plan calls for removing 1 gigawatt of coal from its fleet, and it has put other units under review.
Some regulators already have said they are hesitant to remove more coal from the grid in favor of having one that is more diverse.
The bill likely would accelerate the depreciation schedules for the remaining coal-fired plants as well as natural gas plants and the transmission lines associated with both, unless they are being used for other purposes.
The measure is modeled after a high-profile piece of legislation in Washington state (Climatewire, March 5). That bill, which passed the state Senate, aims to make Washington run on 100 percent clean energy by 2045.
The legislation coincides with Washington Gov. Jay Inslee's big clean energy goals. Inslee also is a Democrat who has made climate change the focus of his campaign for president.
Georgia's Gov. Brian Kemp could not be more opposite. He is a Republican who was endorsed by President Trump and recently appeared with Energy Secretary Rick Perry, among others, at Georgia Power's Plant Vogtle nuclear expansion project.
Kemp talked up the project's jobs and short- and long-term economic development impacts. For Georgia Power's part, the nuclear reactors will put emission-free baseload generation on the grid once they are finished and powered up.
Those aren't the only hurdles for H.B. 711, filed two legislative days before lawmakers go home for the session. Dreyer is a relatively new lawmaker who is also a Democrat representing Atlanta.
Even with some seats flipping in the most recent election, the Georgia Legislature remains majority Republican. Being from Atlanta also can harm even a statewide bill's chances in a Legislature where the rural caucus is strong, and the city becomes a whipping post because of its traffic, among other things.
If the bill is assigned to a committee, which can happen today, the deadline for bills to pass their original chamber to be viable for the rest of the session has expired.
That leaves plenty of time for Georgia Power's army of lobbyists to make sure the measure never sees the light of day next year.
https://www.eenews.net/energywire/2019/03/29/stories/1060133261
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N.M. Launches Interactive Emissions Map
Mar 29, 2019 | AP (In E&E Energywire)
New Mexico regulators have launched an online interactive map based on methane emissions from the oil and natural gas industry.
Environment Secretary James Kenney says the map will help in understanding the effects of oil and gas development on air quality. He also says it will show which producers are going above and beyond to reduce emissions and which are falling behind.
The map depicts thousands of oil and gas facilities regulated by the Environment Department's Air Quality Bureau.
According to the federal EPA, about one-third of methane emissions can be linked to oil and gas, while other sources include livestock, landfills, wastewater treatment plants and natural wetlands.
The oil and gas industry says technological advancements are helping to curb emissions, even while production in the Permian and San Juan basins reaches record levels.
https://www.eenews.net/energywire/2019/03/29/stories/1060132783
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Big Oil to Boost Petrochemicals Footprint
Mar 29, 2019 | Hydrocarbon Engineering
By Tom Mostyn
While the US cracker wave on the back of the shale gas boom is getting much of the attention, big oil and gas players in the Middle East are lining up mega projects that could shift the landscape of global petrochemicals from 2025 and beyond.
Driving this push from oil companies is the growing realisation that oil demand for transportation fuel will plateau with the electrification of vehicles and improving fuel efficiency.
Thus, the future for hydrocarbons is not in gasoline and diesel, but in chemicals, where demand should continue to climb alongside GDP growth.
And it’s clear that ‘big oil’ is no longer satisfied simply providing feedstock for the downstream chemical sector.
ADNOC’s US$45 billion investment plan
Abu Dhabi National Oil Co. (ADNOC) wants to “stretch the dollar” from the barrel of oil to the maximum through producing chemicals, said CEO Sultan Ahmed Al Jaber.ADNOC is embarking on a US$45 billion investment plan with a goal to more than triple petrochemicals capacity at its Ruwais site from a 2016 base of 4.5 million tpy to 14.4 million tpy by 2025, and adding new downstream product chains in construction chemicals, oilfield chemicals, surfactants and detergents.
In February 2019, its 50/50 joint venture (JV) company Borouge awarded front-end engineering and design (FEED) contracts for the fourth phase of its expansion in Ruwais which will include a 1.8 million tpy mixed feed cracker and add a total of 3.3 million tpy of olefins and aromatics capacity.
The cracker will be the first in the country to use mixed feeds. The feedstock slate will be ethane, butane and naphtha.
“The Middle East is running out of cheap natural gas. All new projects are mixed feed, with a typical mix of about 35% ethane, and 65% propane, butane and naphtha which is not as advantaged as ethane,” said Hassan Ahmed, analyst at US-based investment research firm Alembic Global Advisors.
While ADNOC and JV partner Borealis plan to finalise the downstream configuration within three months of the FEED contract awards, it should include polyethylene (PE) and polypropylene (PP).
Saudi Aramco’s plan
Saudi Aramco’s planned crude oil to chemicals (COTC) complex with SABIC in Yanbu, Saudi Arabia is perhaps the most watched project on the planet as it could have stunning implications for the petrochemicals sector.Featuring a budget of around US$30 billion and a process to convert 400 000 bpd of crude oil to 9 million t of chemicals and base oils, the mega complex is expected to start operations in 2025.
The initial plan was to convert 45% of each oil barrel to petrochemicals. However, Aramco aims to boost that figure significantly by advancing its proprietary process technology.
Aramco believes it can convert between 60 – 70% of the oil barrel into petrochemicals using this technology.
Petrochemicals are averaging about 10 – 15% of global refinery output, with wide differences between integrated complexes.
“In recent years, refiners have increasingly raised their share of petrochemical output at the expense of traditional fuels. Some of the new refineries in China can convert up to 40%,” according to Stefano Zehnder, Vice President of Consulting at ICIS.
“In Saudi Arabia the original base concept is rapidly evolving. It’s clear Aramco is looking to scale up to commercial size its crude-to-chemicals technologies,” said Zehnder.
“With the potential for further increase from the base 45% yield, this points to even higher petrochemicals and base oils capacities than the 9 million tpy base. The final configuration will be function of the desired balance between petrochemicals, base oil and fuel products,” he added.
Ahmed from Alembic Global Advisors notes that crude oil-to-chemicals is all about “integration and trying to be more efficient both upstream and downstream”.
That’s because “every new facility in the Middle East puts them higher on the cost curve”, a function of the mixed feedstock slate.
Aramco plans to invest an eye popping US$100 billion in petrochemicals over the next 10 years, CEO Amin Nasser said at the Gulf Petrochemicals Association (GPCA) annual meeting in Dubai in November 2018.
In October 2018, Aramco and France-based Total signed a joint development agreement for the front-end engineering and design (FEED) of their planned joint venture petrochemicals complex in Jubail, Saudi Arabia.
The US$5 billion project, slated for start-up in 2024, will comprise a mixed-feed (50% ethane, 50% refinery off-gases) cracker with 1.5 million tpy of ethylene capacity and downstream units.
The petrochemical complex will be downstream of Aramco and Total’s joint venture SATORP refinery and the companies expect an additional US$4 billion in investments in petrochemicals and speciality chemicals capacity from third-party investors.
Aramco is also in the process of merging with Saudi Arabia-based petrochemicals and polymers giant SABIC.
Mega projects worldwide
Aramco and Abu Dhabi’s ADNOC are not only ploughing investment dollars in their backyards but setting up mega complexes around the world.The most ambitious among these is the memorandum of understanding (MoU) signed in June 2018 between Aramco, ADNOC, and a consortium of Indian oil companies (Indian Oil, Hindustan Petroleum, Bharat Petroleum) to build a US$44 billion refining and petrochemicals complex in India with 18 million tpy of petrochemicals capacity.
Aramco and ADNOC would jointly own 50% of the project, with the Indian consortium owning the other half.
The Indian government expects construction to start in 2020 in Raigad, India with completion of the project by 2025.
Alembic Global Advisors’ Ahmed cautions on raising expectations from MoUs.
“The Crown Prince of Saudi Arabia went on a tour across Asia and many MoUs were signed. But MoUs sometimes don’t materialise. Until we see steel in the ground, we typically don’t take them too seriously,” said Ahmed.
China is another target for Middle East oil companies. In February 2019, Aramco signed an agreement with China’s NORINCO Group and Panjin Sincen to develop a US$10 billion+ fully integrated refining and petrochemical complex in Liaoning, China with start-up expected in 2024.
The partners will create a new company, Huajin Aramco Petrochemical (Aramco 35%, NORINCO 36%, Panjin Sincen 29%), as part of a project that will include a 300 000 bpd refinery with a 1.5 million tpy cracker and a 1.3 million tpy paraxylene (PX) unit. Aramco will supply up to 70% of the crude oil feedstock for the complex.
SABIC merger to bring projects
Aramco would also inherit two additional mega projects if its planned merger with SABIC goes through.SABIC and China’s Fuhaichuang Petrochemical are planning to jointly build a petrochemical complex in Fujian, China, a source from Fuhaichuang said in late February.
The project to be located at Gulei in Zhangzhou would include a 1.8m tpy cracker, a 600 000 tpy propane dehydrogenation (PDH) unit and derivatives units, according to the Fuhaichuang source. An official deal has yet to be finalised.
However, one SABIC mega project is already underway. On the US Gulf Coast, SABIC and ExxonMobil are building a 1.8 million tpy ethane cracker in San Patricio County, Texas, with a monoethylene glycol (MEG) plant and two PE units downstream.
Project completion is expected by the 4Q21 and start-up in 1H22.
Beyond the potential merger between Aramco and SABIC, Middle East oil companies could seek to acquire Western petrochemical assets.
Aramco acquired Germany-based LANXESS’ synthetic rubber business by buying out the latter’s 50% stake in their ARLANXEO joint venture in December 2018, while SABIC took a nearly 25% stake in Switzerland-based specialty chemicals and catalysts company Clariant in September 2018.
Earlier major deals included SABIC’s acquisition of US-based GE Plastics in 2007 and Abu Dhabi’s IPIC (now Mubadala) buying Canada’s NOVA Chemicals in 2009.
“They would be still be interested but we would not expect them to go too far from their comfort zone in olefins and polyolefins, and possibly in polyurethanes. We think they would look to the US rather than Europe,” said Ahmed from Alembic Global Advisors.
It’s clear Middle East oil companies have giant ambitions in petrochemicals with plans to bring on massive amounts of capacity in 2025. However, it remains to be seen what projects actually start up and in what timeframe.
“The devil’s in the details in terms of what gets built, delayed and cancelled. We all know the game of companies throwing down big numbers to prevent competitors from overbuilding,” said Ahmed.
https://www.hydrocarbonengineering.com/petrochemicals/29032019/big-oil-to-boost-petrochemicals-footprint/
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U.S. Rep. Bill Johnson Says Belmont County Cracker Plant Is on Track During Event at The Highlands
Mar 29, 2019 | Wheeling Intelligencer
By Joselyn King
U.S. Rep. Bill Johnson urged patience as the region awaits official word on a proposed ethane cracker plant in Belmont County, and said the local project is moving faster than a similar one did in Western Pennsylvania.
Johnson, R-Ohio, gave the keynote address at the Project BEST “Excellence in Construction” Awards Thursday at The Highlands Event Center in Triadelphia.
He reminded those attending the project represents a $9 billion investment by PTT Global Chemical that would take six years and 10,000 construction workers to build. After this, there would be 1,000 permanent jobs at the plant, and many more expected in ancillary industries.
The Shell Oil Corp. already is constructing a similar plant in Western Pennsylvania across the river from East Liverpool.
“I am still very optimistic about this (Belmont County) project,” Johnson said. “Do I wish we already had a decision on it? You bet. But let me remind you. … The time frame of this project — the PTT Chemical Project — is faster and at a point in time quicker than Shell’s was.
“When you’re talking about a $9 billion project, with this many moving parts, you’re taking about dotting every ‘i’ and crossing every ‘t’ that you get it right. It has been a long project, but it will be worth the wait when we get the good news.”
The PTT Global project would represent the largest construction project ever in the state of Ohio, according to Johnson.
“For the biggest project ever in our history to happen right here in Belmont County — and not in Cleveland or Columbus or Cincinnati — is a really big deal. … It would be a game changer for our region. Everybody knows that.”
The Project BEST “Excellence in Construction” Awards brought together representatives of construction labor and management, as well as members of the community, associated with developing local construction projects.
Project BEST is an organization comprised of over 500 contractors and 6,000 building trades craftsmen and apprentices serving the Upper Ohio Valley Region. Its goal is to promote jobs for its membership by providing trained craftsmen doing safe and quality work.
Awards were presented Thursday night to those singled out for being the best at what they do based on the nominations of Project BEST membership.
Among the winners were Grae-Con, general contractor of the year; Karras Painting, sub-contractor of the year; Wheelhouse Creative, supporting business of the year; and The Health Plan, project of the year.
Individual awards went to Mark Paul of Quality Steel, person of the year; Chuck King, craftsman of the year ; Patrick J. Rymer, McKinley Architecture and Engineering, architect of the year; and John Kalkreuth of East Coast Metal Systems, for distinguished service.
Kim Carfagna of Jarvis, Downing & Emch was honored with the lifetime achievement award from Project BEST.
http://www.theintelligencer.net/news/community/2019/03/u-s-rep-bill-johnson-says-belmont-county-cracker-plant-is-on-track-during-event-at-the-highlands/
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How Bad is the Cyberthreat to Energy Systems? It Depends
Mar 29, 2019 | E&E Energywire
By Peter Behr
In a daylong regulatory workshop on cyber and physical threats to U.S. energy systems yesterday, federal officials and some industry leaders appeared to see the threat from opposite ends of the spectrum.
The arrival of the fifth-generation (5G) wireless network in the United States, with vast and vital data flows dependent on a handful of equipment suppliers, "will provide vulnerabilities we're not prepared for," William Evanina, director of the National Counterintelligence and Security Center, told conference attendees at the Federal Energy Regulatory Commission headquarters in Washington, D.C.
Another dire prospect came from Bruce Walker, the assistant secretary heading the Energy Department's Office of Electricity. "Today, we're keenly aware of high-impact, technically validated threats to our national security" from cyberattacks, he said. "Consequences of a successful attack could be devastating." He urged bold action "to prepare for the inevitable cyber and physical battle that is brewing."
Robert Kolasky, director of the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency, said, "The threat is here, and how, and the threat is growing very sophisticated, and the likelihood we're going to face is not a question of, 'Is this going to happen?' It's going to happen, and the question is, what are we doing to mitigate and what are we doing to deter our adversaries?"
Evanina, chief counterintelligence adviser to Director of National Intelligence Dan Coats, said there was a reason for the sharp warnings about the threats of Russia and China to energy infrastructure that Coats included in the current Worldwide Threat Assessment in January.
"We cannot minimize the words in that statement," Evanina said. "They are in there because there's a lot of intelligence behind every sentence in that report."
From the other direction came Jim Robb, CEO of the North American Electric Reliability Corp., which oversees the high-voltage power grid. Robb has said the network is not at risk of a cascading outage from a cyberattack. Yesterday he reminded the session that despite constant pressure from thousands of attacks and probes daily, no U.S. customers have lost power because of a cyberattack.
"We will never rest on our laurels," Robb said, but he told the meeting, "A very robust system is in place."
Sonya Proctor, an assistant administrator of DHS's Transportation Security Administration, said, "We believe TSA has both the tools and authority to address any threats within the pipeline industry."
TSA Administrator David Pekoske added, "We are making some structural changes [that] will definitely impact pipeline security," including an expanded pipeline security staff. Proctor noted that Pekoske has authority to mandate security actions by pipelines in emergencies.
Donald Santa, CEO of the Interstate Natural Gas Association of America, representing the gas pipeline industry, told the meeting that "pipeline operators have means to limit the effect of an incident that are not available to operators of other energy infrastructure."
Power moves at close to the speed of light, while gas proceeds through pipelines at 10 to 20 mph, Santa said. "There is time to respond should there be a disruption."
FERC Chairman Neil Chatterjee asked Proctor, "Do you feel that industry is stepping up to the challenge and engaging voluntarily?"
"I do believe they are," she replied.
Procter and Santa stood their ground when FERC Commissioner Richard Glick repeated his conviction that the mandatory cybersecurity regulation of the interstate grid must have a parallel in the gas industry on which power generators depend.
"The point I will underscore," Glick said, "is that the gas system and electric system are so intertwined right now [that] the gas system has to have at least equal reliability."
Procter noted that TSA conducted 23 "corporate security reviews" in fiscal 2018 and found an 80 percent adherence rate to TSA-recommended cybersecurity practices. TSA does not have a schedule detailing how many of the top 100 gas pipelines it will inspect this year, she said.
"The goal is to get to 100 percent?" Glick asked.
"It certainly is," Santa replied.Count near misses
FERC Commissioner Cheryl LaFleur noted her agency's action to require companies it regulates to report near-miss cyberattacks, not just those that succeed in affecting operations. "Is there anything like that on the gas side?" she asked. "What are the types of things that are almost happening?"
Proctor said, "We request voluntary notification to TSA of attempts to penetrate" pipeline cyber systems. "There is no mandatory requirement. We have had a number of companies that voluntarily share that information."
Santa said he was not aware of any tabulation kept on the number of attacks.
"I think we need to get a better handle" on TSA's capability, Glick said, but he observed that any increase in regulatory oversight of the agency would be up to Congress.
Several industry panels agreed that the mandatory cyber standards drafted by NERC and approved by FERC were an important baseline for security but are not enough to meet fast-moving threats.
Nick Brown, CEO of the Southwest Power Pool, said that "the vast majority of new flagship products from many of our vendors are cloud-based" and have proved to be significant cybersecurity resources. But in his view, the FERC standards don't permit the use of cloud-based technologies.
Other speakers noted a gap between the cyber readiness of large electric and gas systems, and smaller ones, particularly those serving rural areas that have limited budgets and staff expertise to combat increasingly sophisticated cyberattacks.
Nicholas Atkins, CEO of American Electric Power Co. Inc., said AEP is building a fiber optic communications network in key parts of its transmission network, a more secure option than wireless signals. "The focus is to put in as much fiber optics as we can," he said, "and that will continue throughout, I believe, the industry." But he said of the smaller operators, "They don't have the wherewithal to invest in these activities."
Chris Crane, CEO of Exelon Corp., said his company is using investments in new power transmission facilities to eliminate or reduce the strategic importance and vulnerability of its power substations.
Alan Armstrong, CEO of Williams Cos. Inc., which delivers 30 percent of the nation's natural gas supplies, described an extensive cyber defense program based on the TSA guidelines and the voluntary cybersecurity framework of the National Institute of Standards and Technology. The company has physical redundancy in its control systems and can keep gas flowing even if central control systems are not available. It has backup controls in dispersed locations thousands of miles apart to enable quick recovery following a successful cyberattack, he said. "We are very prepared," he said.
But Jay Scott Emler, commissioner of the Kansas Corporation Commission, described frustrating conversations with the operator of a small telecommunications company whose network is vital to the power grid in its area but is poorly protected and not engaged. "They are a small company," he said. "They really don't know what they don't know."
"He doesn't seem to get the bigger picture of how integral he is to the entire network. I can't force him to do anything," Emler added, "but we're trying to educate them on what they need to be doing.
"They are the open door."
https://www.eenews.net/energywire/2019/03/29/stories/1060133171
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Mar 28, 2019 | PoliticoPro - Whiteboard
By Darius Dixon
An Energy Department official said today that the agency stopped using products from Chinese telecom companies Huawei and ZTE.
Bruce Walker, the agency’s top electricity official, said DOE disconnected "any communications technology by those two companies" to address cybersecurity concerns.
DOE's use of the companies' products was "very limited, but nonetheless [we were] making the decision based on risk and it’s obviously DOE prerogative to do that,” he told reporters after a joint FERC-DOE technical conference on power sector cybersecurity today.
Policymakers have been concerned about the close ties the two companies have to the Chinese government and fear they could be leveraged to spy on Americans. Last year, Congress banned federal agencies and contractors from using Huawei and ZTE technology.
“At DOE, we ceased the utilization of those pieces of equipment just last week, very affirmatively across all our national labs, all our [power marketing administrations] and every other facility within DOE,” Walker said during the conference.
North American Electric Reliability Corp. chief Jim Robb said that his group issued a “bulletin” to utilities on Wednesday concerned with the use of Huawei and ZTE technology. NERC later said the bulletin was nonpublic.
Huawei is under increased scrutiny in Europe as well and the company sued the U.S. government earlier this month over the ban on its technology.
https://subscriber.politicopro.com/energy/whiteboard
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The Trump Administration Is Using Faulty Logic On Oil Trains
Mar 28, 2019 | Sightline Institute
By Aven Frey and Eric de Place
In June 2016, an oil train derailed on the outskirts of Mosier, Oregon causing mass evacuations from the town and nearly dumping more than 40,000 gallons of crude oil into the Columbia River. By sheer luck no one was harmed—a derailment just a few hundred feet in either direction could have wreaked devastation. As the plume of smoke rose, Mosier’s residents were well-aware of Lac-Mégantic, Quebec, where just three years earlier a derailment incinerated half of the downtown, killing 47 people.
A June 3, 2016, wreck in Mosier, Oregon overturned 96-car train carrying Bakken crude oil. Sixteen cars derailed and four caught fire. Mosier, Oregon train derailment by Coast Guard PFC Levi Read/Wikimedia Commons (license)
These oil train explosions were not isolated incidents. After a string of high-profile catastrophes, federal regulators under President Barack Obama’s Administration belatedly began writing rules to reduce the risk of oil-by-rail transport. The US Pipeline and Hazardous Materials Safety Administration (PHSMA) and the Federal Railroad Administration (FRA) worked together to propose new safety rules for oil trains. But soon after the rules were finalized, President Donald Trump’s Administration threw a monkey wrench into the plan by using dodgy accounting to benefit the oil industry at the expense of public safety.
It’s a change that could put rail-side communities at substantial risk across the Northwest particularly because we can expect to see oil train shipping to significantly increase again, bound for destinations along the lower Columbia River from Portland to Clatskanie, Oregon.Stopping Derailments
To protect communities from the risks of exploding oil trains federal agencies in 2015 assembled a package of changes to railroad operations. One of the key rules they agreed on was that so that so-called “high-hazard flammable unit trains” (HHFUTs)—trains hauling 70 or more tanker cars loaded with flammable liquids—should be required to have electronically controlled pneumatic (ECP) braking systems if they intend to travel faster than 30 mph. ECP brakes are more effective than conventional braking systems because they provide an electronic signal simultaneously to every car on the train. Conventional air brakes signal each car individually and sequentially. Because ECP systems apply the brakes to all cars at once, they slow down trains more evenly and can drastically reduce stopping distance. It’s indisputable that brakes help prevent derailments and, when derailments do occur, ECP brakes reduce the number of cars that end up falling off the tracks, thereby reducing the likelihood that an oil-laden tanker will puncture or explode.
Yet in December 2015, about six months after the new rules were adopted, Congress passed a new law compelling the Federal Railroad Administration to re-study the efficacy and costs of ECP brake systems—and to repeal the brand-new rule if it no longer passed a cost-benefit analysis. The law might not have resulted in any changes had FRA still been operating in the Obama Administration. But working under the Trump Administration, FRA officials significantly lowered their appraisal of the public benefits of the new brake rule and rescinded it in September 2018 concluding that increased public safety no longer superseded the costs for the railroad industry to upgrade its cars with better brakes.
FRA’s “updated” analysis appears to be riddled with errors, though. In a review of federal documents, reporters for the AP found that government economists omitted the most common type of train derailment from their calculations, excluding from the final tally benefits worth something to the tune of $48 million to $117 million.
Plus, PHMSA and the FRA low-balled their predictions for oil train numbers, an assumption that tilted the analysis in favor of the industry. The volume of oil shipped by rail in the US had skyrocketed from just over 20 million barrels in 2010 to more than 373 million barrels in 2014. Nationwide oil-by-rail volumes dropped in subsequent years, but trains loaded with crude continued to roll through the Northwest in numbers near the 2014 peak. The Trump-era agencies concluded that the dip in oil-by-rail shipments in 2016 was indicative of the future, so they lowered their forecast for the volume of oil that would be shipped by trains over the next 20 years. Yet domestic oil-by-rail shipping is up. Late 2018 figures show a year-over-year increase by almost 40 percent.
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Even more troubling, the new analysis appears to ignore oil trains coming into the US from Canada. It so happens that Canadian oil train numbers have increased substantially over the past few years, in part owing to delays in building the big new export pipelines that the oil industry wants.
Analysts expect the number of Canadian oil trains operating in the US to double again by the end of 2019 and, in fact, the government of Alberta is planning to buy its own railcars and locomotives in order to ship an additional 120,000 barrels of oil by rail per day to American refineries and port terminals.
Whether the public ever gets a chance to weigh in depends on an administrative appeal filed by Earthjustice, an environmental law firm. They are arguing that the US Department of Transportation failed to conduct the Congressionally-mandated safety tests; lowered its estimates of crude-by-rail accidents and risks based on faulty assumptions; and allowed only limited public comment before the required tests and information was made public.
Because the Northwest is a prime a destination for crude from both North Dakota and Canada, the Trump-era rollback in protections means greater risk for communities all along the rail lines from Spokane to Portland to Tacoma and beyond. Not even seven years old, the region’s oil-by-rail industry has proven itself to be an extreme threat to communities and wildlands along the rail line—a hazard that could be mitigated with rules requiring explosion-prone trains to use the most effective brakes available.
https://www.sightline.org/2019/03/28/oil-trains-trump-administration-faulty-logic-ecp-brakes/
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Oregon Panel Poised To Weigh Changes To Landmark GHG Cap-&-Trade Bill
Mar 29, 2019 | Inside EPA
By Curt Barry
Oregon lawmakers are poised to consider recently unveiled amendments that would strengthen requirements for key sectors under a landmark bill to create a greenhouse gas cap-and-trade program that links to the California-Quebec system, though the measure still faces calls from the natural gas industry for more flexibility.
Lawmakers are poised to consider the revised measure in March 29 and April 1 non-voting hearings in the legislature’s Joint Committee On Carbon Reduction. The sessions will discuss recent amendments to the bill, HB 2020, which environmentalists say address several of their priorities.
For example, these groups praise the amendments for directing more program revenue toward low-income communities, while also bringing major electronics manufacturing and waste-incineration plants under the cap and imposing somewhat tougher standards on energy-intensive, trade-exposed (EITE) industries.
“These amendments address many concerns our coalition had and, taken as a whole, this represents the kind of major action needed to transform Oregon to a clean energy economy,” said Tera Hurst, executive director of Renew Oregon, a state environmental group closely involved with the legislation, in a March 25 statement. “Lawmakers must now hold the line on these amendments and move swiftly to enact the Clean Energy Jobs bill, we simply can’t afford to wait.”
Supportive lawmakers hope to pass the measure, HB 2020, prior to the June 30 end of the state's legislative session and send it to Gov. Kate Brown (D), who is a champion of the proposal.
Backers have previously said that expected utility support for the legislation could significantly ease passage, compared with last year when utilities opposed a similar measure that ultimately failed.
HB 2020 includes goals for Oregon's GHG emissions to be 45 percent below 1990 levels by 2035, and 80 percent below 1990 levels by 2050. The cap-and-trade program would take effect in 2021 under the proposal.
The legislation is modeled on California's economy-wide program and would establish a system in which certain facilities must obtain GHG allowances that match their annual emissions. Some of the credits would be auctioned by the state, potentially generating hundreds of millions of dollars annually. The program aims to link to the existing California-Quebec quarterly joint GHG allowance auctions.
Facilities that emit 25,000 metric tons or more of carbon dioxide-equivalent would be subject to the new program. State regulators would be required to set a cap on the total combined GHG emissions allowed from covered entities during 2021, and a schedule for the cap to decrease by a predetermined amount each year until 2050.
In a significant change from last year's measure, electric utilities would receive 100 percent free GHG allowances through 2030. Democrats justify this provision because the state’s utilities already face stringent statutory mandates to reduce coal-fired generation and take other steps to cut emissions.
Environmentalist Priorities
Renew Oregon says in its press release that the amendments unveiled March 25 bolster their priorities, such as ensuring the majority of the revenue generated by the program would be spent in “communities most impacted by climate change,” meaning “rural, low-income, tribes and communities of color.”
The relevant amendment specifically “adds a guarantee of at least 50% of proceeds to benefit these communities,” the release says.
Another amendment ensures that trash incineration and fluorinated gases created during semiconductor manufacturing and other processes are subject to the program, the group says. “We’ve advocated to have all major emitters included under the cap and treated equally.”
According to a March 25 Oregon Public Broadcasting (OPB) article, this amendment now brings an Intel Corp. manufacturing plant into the system, as well as a large waste-incineration plant -- whereas the original bill would have excluded those facilities.
Renew Oregon also says that the treatment of EITE industries has been reorganized through the proposed amendments, “clearly reflecting feedback from many sides of the issue. Our campaign has maintained some protection is needed for these industries and we’re encouraged to see the amendment requires all industries to have skin in the game from day one, limiting free allowances to 95% in the first year.”
However, the measure’s effect on fuel prices remains highly contentious. The OPB story says lawmakers are proposing returning up to $100 million a year in state revenue from the program to ease burdens on low-income residents. And they plan to propose a separate bill offering refunds to households below Oregon’s median income, the article states.
Another lingering dispute comes from arguments by Northwest Natural gas company that its customers could see big rate increases if HB 2020 is enacted, according to the OPB article, and the utility is seeking amendments so that it is treated more like electric utilities.
Legislative leaders said they are still trying to address those concerns, according to the article.
The Salem Area Chamber of Commerce says in a March 27 email comment that “mandated increases in natural gas rates as proposed under HB 2020 will not be helpful for our small businesses to thrive, compete, and succeed. We hope the cap-and-trade amendments that are being worked on will include minimizing natural gas rate impacts for our business members. Businesses need that assurance so they can stay competitive and profitable, which is especially critical for small businesses who make up the bulk of Oregon’s business community.”
The OPB story adds that many additional potential amendments are being discussed behind closed doors, leaving a significant amount of uncertainty about the final version of HB 2020.
https://insideepa.com/daily-news/oregon-panel-poised-weigh-changes-landmark-ghg-cap-trade-bill
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EPA Science Advisers Urge New PM NAAQS Panel, Possibly Derailing Review
Mar 28, 2019 | Inside EPA
By Stuart Parker
EPA’s Clean Air Scientific Advisory Committee (CASAC), which advises the agency on how to set federal air standards, will urge the agency to reconstitute a specialized panel Trump officials disbanded to help review particulate matter (PM) limits, a move that would throw the administration’s timeline for completing its review into disarray.
On a March 28 teleconference, the seven-member chartered CASAC agreed to ask EPA to either reconstitute the dismissed panel, or to form a similar panel of experts in diverse scientific fields. The advisers argued that they need additional expertise to complete their already-overdue review.
The new specialized panel, if agreed to by EPA, would participate in a public meeting to review CASAC’s requested second draft of EPA’s integrated science assessment (ISA) that will inform the agency’s review of its national ambient air quality standards (NAAQS) for PM.
The ISA synthetizes the latest policy-relevant science on the health and environmental effects of PM.
The development threatens to derail EPA’s tight timetable for completing its NAAQS review by December 2020, just before the end of President Donald Trump’s current four-year term. EPA in the final review rule will either alter the 2012 standards, including the key annual standard for “fine” PM (PM2.5) set at 12 micrograms per cubic meter, or leave them unchanged.
Public health advocates point to evidence of harm to health at PM levels well below the existing NAAQS, arguing for tougher standards. But Trump EPA officials have expressed skepticism that a tougher NAAQS would be technically possible to attain. Also, the Trump-appointed CASAC is now headed by Tony Cox, an industry consultant pressing for a much narrower view of which health effects PM exposure causes, an approach that could undermine arguments for tougher standards.
EPA air policy chief Bill Wehrum dismissed the specialized PM review panel assembled by the Obama administration, and decided not to recruit a similar, previously planned ozone panel. Wehrum is following an accelerated NAAQS review process intended to ensure EPA completes reviews faster. The agency routinely misses its Clean Air Act-mandated five-year deadline to conduct such reviews, and the process was intended to remedy that, by producing fewer key review documents such as the ISA, requiring fewer drafts of such documents and less consultation of CASAC.
The PM NAAQS review is already two years overdue, while EPA is striving to meet its statutory deadline for the ozone review of Oct. 1, 2020. Should EPA grant the request for a second draft and specialized PM review panel, the review, already operating on a historically tight schedule given its late start, will be delayed by several months. Should the specialized panel find fault with the second draft, CASAC could request a third draft, further delaying the review.
CASAC could follow a similar path for the ozone review, suggesting further delay to that NAAQS review as well.
The committee will finalize its request for additional expertise in a letter to EPA Administrator Andrew Wheeler in the near future.
EPA Critics
The committee’s admission that it lacks the expertise to thoroughly review the ISA vindicates critics of EPA’s revised NAAQS process, including many former CASAC members and public health groups. These critics in comments to the March 28 teleconference again reiterated their view that the NAAQS review lacks credibility and should not proceed without additional experts.
Various public speakers again alleged that CASAC’s lack of capacity undermines the strength of EPA’s review, which could prove a legal weakness in near-inevitable litigation over EPA’s eventual NAAQS rule, because the agency will not be relying on the “best available science.”
Some critics also labeled EPA’s decision to drop specialized panels -- which are not required by law, but are customary -- as “arbitrary and capricious,” the legal standard that courts use to decide whether to vacate EPA air rules.
If EPA were to ignore CASAC’s recommendations for a new PM panel, critics say its future NAAQS rule could still be legally vulnerable because the agency is not considering the views of its own scientific advisers.
Cox initially resisted asking EPA explicitly for a new subpanel for the PM review, but eventually relented.
CASAC’s letter to EPA will be harshly critical of the agency’s long-established methods for establishing causation of health effects from exposure to health pollution, and is based on a draft version written largely by Cox. Although the final letter will drop a significant amount of the draft version’s specific observations, the final version will still fault EPA’s “causality framework.”
If the letter accurately reflects the March 28 meeting, it should reflect dissenting views, committee members agreed.
Cox used his draft letter to attack the causality framework and instead push for a narrower view of causation, requiring empirical proof of cause and effect, transparent data, and “reproducible” science. But many critics, including the committee’s sole research scientist, Mark Frampton, argue this is not possible in all circumstances and would result in EPA disregarding much good evidence, especially from epidemiological studies.
Frampton and former CASAC members on the call argued that a review of an ISA is not the appropriate venue to press a fundamental shift in EPA’s approach. H. Christopher Frey, a former CASAC chairman and PM panelist, said the CASAC should respect the Integrated Review Plan agreed by the Obama CASAC for this PM review. The review plan relies on EPA’s traditional “weight-of-evidence” approach.
Stung by public criticism of his attempt to shift EPA’s approach, Cox said “we strive to strengthen science, and deepen the evidence.” He said some observers, such as Frey and many other former CASAC members, are suggesting Cox’s stance is “a retreat from, or even a betrayal of, good science. Nothing could be further from the truth.”
Cox said his ideas are not “fringe,” but are rather “mainstream,” and said the current CASAC should act independently “of what others think, or like, or have stated in the past.”
But Cox’s shift in approach is “simply wrong,” said Frey, accusing the current CASAC of “motivational biases” as well of lacking expertise.
Much of Cox’s preferred approach depends on the emerging field of accountability studies, which are designed to determine whether air pollution controls produced not just their expected emissions reductions, but also the projected health improvements. The Health Effects Institute (HEI), a joint EPA-industry funded body, is pioneering such studies at EPA’s own request, noted HEI President Dan Greenbaum.
But Greenbaum on the call warned that while accountability research is helpful, it cannot substitute for EPA looking at the “broadest set of evidence.” John Bachmann, a former long-serving EPA air official, said that Cox’s demand for tougher causality analysis “blindsided EPA staff,” and is unreasonable “at this point in the process.” Several public commenters remarked that Cox’s draft letter pressed for an inappropriate mandate.
Julie Goodman, a consultant with the Gradient consulting firm, funded by the American Petroleum Institute, was the sole industry voice on the call backing Cox’s assertions. She said that EPA’s traditional approach is “biased toward causation,” and does not pay enough attention to uncertainties in the evidence.
Much of the meeting was dominated by Cox and Frampton’s differences over “philosophy of science,” and so serious differences of opinion remain on the panel, with other panelists such as Steve Packham, a Utah air regulator, trying to broker compromises between the two.
Other panelists spoke little, and EPA is trying to fill a vacancy on the seven-member panel for an expert ecologist, to fill the spot that will be vacated by Timothy Lewis, a former ecologist with the U.S. Army Corps of Engineers.
https://insideepa.com/daily-news/epa-science-advisers-urge-new-pm-naaqs-panel-possibly-derailing-review
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Plastic Bags to Be Banned in New York; Second Statewide Ban, After California
Mar 28, 2019 | The New York Times
By Jesse McKinley
New York State lawmakers have agreed to impose a statewide ban on most types of single-use plastic bags from retail sales, changing a way of life for millions of New Yorkers as legislators seek to curb an unsightly and omnipresent source of litter.
The plan, proposed a year ago by Gov. Andrew M. Cuomo, would be the second statewide ban, after California, which banned bags in 2016. Hawaii also effectively has a ban in place, since all the state’s counties bar such single-use bags.
New York’s ban, which would begin next March, would forbid stores to provide customers with single-use plastic bags, which are nonbiodegradable and have been blamed for everything from causing gruesome wildlife deaths to thwarting recycling efforts.
The ban, which is expected to be part of the state’s budget bills that are slated to be passed by Monday, would have a number of carveouts, including food takeout bags used by restaurants, bags used to wrap deli or meat counter products and bags for bulk items. Newspaper bags would also be exempted, as would garment bags and bags sold in bulk, such as trash or recycling bags.
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The plan would have an additional element allowing counties to opt in to a 5-cent fee on paper bags, revenue that would go to the state’s Environmental Protection Fund as well as a separate fund to buy reusable bags for consumers.
In a statement released late Thursday afternoon, Mr. Cuomo said that “these bags have blighted our environment and clogged our waterways,” adding that the plan agreed to in Albany would be a way to “protect our natural resources for future generations of New Yorkers.”
Supporters said that such a two-pronged approach — paper and plastic — was necessary not only to limit the flow of litter into the state’s streets, streams and oceanfront, but also to minimize the greenhouse emissions caused by their production.
“There was a real understanding that there should be a ban on plastic,” said Todd Kaminsky, a Democratic state senator from Nassau County, who is the chairman of the environmental conservation committee. “And that if people go to paper rather than reusables, we are not that better off.”
The news of the agreement between Mr. Cuomo and his legislative counterparts comes less than a year after a similar effort stalled as a result of opposition from Republicans, who led the Senate, and from a rogue Democratic senator, Simcha Felder of Brooklyn, who collaborated with the Republicans. That political dynamic changed in November, when Democrats won eight seats in the Senate, sweeping themselves back into the majority and rendering Mr. Felder’s opinion moot.Editors’ PicksA Handyman Asks: After Servicing a Home, Can I Get Paid to Service My Clients’ Other Needs?People Don’t Bribe College Officials to Help Their Kids. They Do It to Help Themselves.A Beloved Restaurant Where Fried Chicken Achieves Its Highest Form
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The ban also marks an evolution for Mr. Cuomo, a third-term Democrat, who in 2017 signed a bill that effectively killed a New York City law that would have imposed a 5-cent fee on plastic bags. The New York City fee had also been opposed by some in the State Assembly, which has been dominated by Democrats, who worried that the fee would act as a regressive tax on poor consumers.
As outlined, however, the plan to allow counties to avoid fees on paper bags would seemingly address those concerns. But that provision also left some environmental advocates disappointed; they argue that by not mandating a paper-bag fee, many people will simply use paper bags instead of reusable bags.
Peter Iwanowicz, the executive director of Environmental Advocates of New York, said the provision to make paper-bag fees optional made the proposed plan “a weak response to the scourge of disposable bags.”
“New York had a chance to show real leadership and came up short,” he said.
The agreement was also being criticized by business and trade groups, including the Food Industry Alliance of New York State, which represents grocery stores, a major target of such bans and fees.
Mike Durant, the group’s president, said the proposed law would “have a drastic impact on retailers,” and predicted confusion because of the opt-in provision. Mr. Durant also criticized the allocation of paper-bag fee revenue to the environmental and bag funds.
“The failure to give even a portion of the 5-cent fee back to the stores, makes this an untenable mandate for many of our members who operate within finite profit margins,” said Mr. Durant. He added, “We are disappointed that the Legislature did not consider this alternative and failed to hear the concerns of the business community.”
Small business groups also expressed concern. “Every mandated cost increase adds up,” said Greg Biryla, the New York director of National Federation of Independent Business. “Independent businesses are simply not able to absorb and adjust to new mandated costs the same as their big-box competitors.”Sign up for the New York Today Newsletter
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Though such laws have been the subject of lawsuits in the past, several cities and other localities have imposed fees on single-use carryout bags, including Suffolk County, where such a plan led to a sharp reduction in their use.
Such a disincentive is also the goal of the state plan, said Mr. Kaminsky, whose hometown, Long Beach, N.Y., has such a program.
“I think we’ll look back in a few years,” he said. “And people will wonder why we didn’t do this sooner.”
https://www.nytimes.com/2019/03/28/nyregion/plastic-bag-ban-.html
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Army Corps of Engineers Wrongly Withheld Water Permit Records
Mar 28, 2019 | BNA Daily Environment Report
By Brian Flood
The U.S. Army Corps of Engineers wrongly withheld records about its Clean Water Act permits, a federal court ruled March 28.
The Corps’s failure to turn over those records to the conservation group Missouri Coalition for the Environment violated the Freedom of Information Act, the U.S. District Court for the District of Columbia said.
Under Section 404 of the Clean Water Act, the corps issues permits for the discharge of dredged or fill material into waters of the U.S. When it receives a permit application, the corps releases certain information about the proposed project, and solicits comments from the public before making a final decision.
MCE advocates for the preservation of Missouri’s wetlands and bodies of water. To better prepare comments on pending applications, it often submits FOIA requests for documents in the permit application files. But the corps withheld some of those records, claiming they fell under a FOIA exception for “pre-decisional” records that are part of an agency’s “deliberative process.”
MCE challenged those responses, arguing that this exemption only applies to records produced by a government agency itself. The Corps admitted that the withholdings were unlawful, and eventually turned over the records. But it blamed them on the isolated mistakes of individual employees, not any longstanding policy or practice.
But the Corps did have a policy or practice of unlawfully withholding non-agency documents, the court held. It unlawfully withheld the same types of documents, under the same FOIA exemption, on five separate occasions, across two districts, often involving multiple employees.
“The Court cannot reasonably conclude that those decisions were isolated mistakes,” it said.
But the court denied MCE’s request for an injunction ordering the Corps against continuing this practice, finding it won’t be necessary. Counsel for the Corps assured the court it won’t use this exemption any more to block the release of non-agency records in Section 404 permit application files.
The case is Mo. Coal. for the Env’t v. U.S. Army Corps of Eng’rs, D.D.C., No. 18-663, 3/28/19.
https://bnanews.bna.com/environment-and-energy/army-corps-of-engineers-wrongly-withheld-water-permit-records
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