Preview Newsletter
ACC AM 02/04/19
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(ACC Mentioned) New York Bans Plastic Bags Starting March 2020
Apr 1, 2019 | UPI
By Clyde Hughes
A new budget from New York lawmakers includes a statewide law against single-use plastic bags that are often used by grocery stores and retail businesses -- becoming just the second state in the nation to implement such a ban. -
(ACC Mentioned) Fire Suppression Market is Projected to Reach US$ 16 Billion by 2024 According to New Research Report
Apr 2, 2019 | Whatech
By Pradip Varpe
Germany Fire Suppression Market is set to experience substantial growth on account of enhancement and improvisation of safety standards. -
A Different Dow Emerges Following Merger With DuPont
Apr 1, 2019 | The Wall Street Journal
By Christopher M. Matthews
First there was Dow. -
Final SNURs Will Break New Ground under Amended TSCA
Apr 1, 2019 | National Law Review
On March 27, 2019, the U.S. Environmental Protection Agency (EPA) posted a signed final rule that will establish final significant new use rules (SNUR) under the Toxic Substances Control Act (TSCA) for 13 chemical substances that are the subject of premanufacture notices (PMN). -
(ACC Mentioned) Country Focus: Industry Sees USMCA as Chance to Prod Mexican Chemical Management
Apr 2, 2019 | Chemical Watch
By Lisa Martine Jenkins
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. -
New Jersey PFAS Directive Sets State Precedent But Risks Industry Fight
Apr 1, 2019 | Inside EPA
By Suzanne Yohannan
New Jersey's issuance of a first-time, wide-ranging directive requiring five major chemical companies to fund past and future cleanup costs and provide large amounts of data related to per- and polyfluoroalkyl substances (PFAS) contamination likely sets a precedent for other states but will almost certainly draw industry challenges, sources say. -
Monsanto's Roundup Is Losing Ground, But It's Temporary
Apr 1, 2019 | Forbes
By Yiannis Mouratidis
Edwin Hardeman suffers from non-Hodgkin lymphoma and his prognosis according to the five-year relative survival rate is 71%. -
How to Minimize Exposures to Hormone Disrupters
Apr 1, 2019 | The New York Times
By Perri Klass
“We tend to think hormone disrupters are a mom and baby issue,” said Dr. Leonardo Trasande, the chief of the division of environmental pediatrics at N.Y.U. School of Medicine. -
UK Passes FCM Statutory Instrument for No-Deal Brexit
Apr 1, 2019 | Chemical Watch
By Clelia Oziel
The UK Parliament has passed a statutory instrument to mirror the European Union legislation on food contact materials in the event of a no-deal Brexit. -
Most of the 11 Billion Receipts We use Every Year Can’t Be Recycled but It’s a Forgotten Environmental Problem
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(ACC Mentioned) New Plastics-to-Fuel Plants Tighten Squeeze on Oil Demand Outlook
Apr 2, 2019 | Platts
By Robert Perkins
A new breed of plastic recycling plants capable of recovering crude and fuels from plastic waste is piling more pressure on global oil demand forecasts. -
(ACC Mentioned) Shell to End AFPM's Membership over Climate Policy, Stays within Cefic, ACC
Apr 2, 2019 | ICIS
Shell has decided not to renew its membership of the American Fuel & Petrochemical Manufacturers (AFPM) association next year over differing stances on the Paris Agreement and other climate policies, the Anglo-Dutch energy and petrochemicals major said on Tuesday. -
Energy CEOs Send Most Campaign Cash to Republicans — Study
Apr 2, 2019 | E&E Energywire
By Kelsey Brugger
Eighty-nine percent of CEOs of the largest public energy companies favored Republican candidates in their campaign contributions, according to a new study. -
Shell to Scrap Membership of U.S. Refining Group Over Climate Policy
Apr 2, 2019 | Reuters (In The New York Times)
By Ron Bousso
Royal Dutch Shell said on Tuesday it would not renew its membership of a leading U.S. oil refining and petrochemical trade group in 2020 due to misalignment over climate policy. -
ExxonMobil, Citgo Trim New Hampshire Residents’ MTBE Claims
Apr 1, 2019 | BNA Daily Environment Report
By Peter Hayes
ExxonMobil Corp. and Citgo Petroleum Corp. shook off claims by all but one of 14 New Hampshire residents who allege injuries from exposure to the companies’ gas additive MTBE. -
Sempra Energy Passes Two Regulatory Hurdles for LNG Export Project in Mexico
Apr 1, 2019 | Houston Chronicle
By Sergio Chapa
San Diego utility company Sempra Energy has passed two regulatory hurdles t0 developed a liquefied natural gas export project in Mexico. -
Lacking Fixes, Oil & Gas Sector Unlikely To Use EPA Penalty Relief Policy
Apr 1, 2019 | Inside EPA
By Dawn Reeves
EPA did not address a series of industry concerns when it finalized its audit policy for the oil and gas sector, raising doubts that companies will take advantage of the penalty relief the policy provides for facilities that disclose and address violations, industry sources say. -
Md., Del. Accuse EPA of Abdicating Responsibility on Ozone
Apr 2, 2019 | E&E News PM
By Sean Reilly
Two states are accusing EPA of sidestepping key concerns in rejecting their pleas for a federal crackdown on ozone-forming power plant emissions from beyond their borders, according to newly filed court documents. -
California Jury Orders Chevron to Pay $21M for Cancer Claims
Apr 1, 2019 | AP (In The Washington Post)
A Northern California jury ordered Chevron Corp. to pay the families of two brothers who died of cancer a combined $21.4 million after concluding the company failed to properly warn the men about the dangers of a toxic solvent they worked with at a company-owned tire factory. -
The World’s Energy Systems are Transforming. Here’s How.
Apr 2, 2019 | The Washington Post
By David G. Victor
Where do you get your energy — and where will you get it in the future? -
Will Trump's Pipeline Permit Hold Up in Court?
Apr 2, 2019 | E&E Energywire
By Pamela King
President Trump last week attempted to take the fate of the Keystone XL pipeline into his own hands. -
Tesla Settles with EPA Over Hazardous Waste Violations at Plant
Apr 1, 2019 | BNA Daily Environment Report
By Chiara Vasarri
The U.S. Environmental Protection Agency has settled with Tesla over federal hazardous waste violations at their automobile manufacturing plant in Fremont, Calif., according to a statement. -
EPA Proposing to Revise RCRA Definition of 'Ignitable' Waste
Apr 1, 2019 | Inside EPA
EPA is proposing to update its method for identifying “ignitable” hazardous waste liquids under its Resource Conservation & Recovery Act (RCRA) hazardous waste regulations, a step that one industry source says could prompt some concerns among regulated parties as it could expand the universe of wastes subject to regulation. -
U.S. Investigators to Begin Hunt for Cause of Texas Petrochemical Disaster
Apr 1, 2019 | Reuters (In The New York Times)
U.S. investigators hope this week for the first time to enter the site of a massive fuel fire and chemical spill outside Houston to begin the hunt for a cause and to determine whether the operator followed safety regulations. -
FERC to Utilities: Beef Up Your Encryption
Apr 2, 2019 | E&E Energywire
By Blake Sobczak
Security specialists at the Federal Energy Regulatory Commission are urging power utilities to use tougher encryption on their grid networks, according to a series of recent cyberdefense audits. -
EPA, Environmentalists Grapple Over Air Toxics Policy in Court
Apr 1, 2019 | BNA Daily Environment Report
By Amena H. Saiyid
Federal judges appeared skeptical of April 1 arguments by environmentalists and California that a recently revised EPA air toxics policy is legally binding on power plants, refineries, and other industrial sources. -
State Lawmakers Press CARB To Address GHG Credit Oversupply Concerns
Apr 1, 2019 | Inside EPA
By Curt Barry
Democratic leaders in the California Legislature are pressing state air board officials to quickly address ongoing concerns that there is an “overallocation” of credits in the state’s greenhouse gas cap-and-trade program that may jeopardize achievement of the Golden State’s ambitious 2030 GHG target. -
Court Expedites Air Act Suit Despite EPA, Industry Opposition
Apr 1, 2019 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit will expedite states’ and environmentalists’ suit against EPA that seeks to force agency action to limit interstate air pollution, despite opposition by EPA and industry groups intervening in the litigation to support the agency. -
Energy and Commerce to Vote on Leadership's Paris Bill
| E&E Daily
By Nick Sobczyk
The House Energy and Commerce Committee tomorrow will vote on H.R. 9, Democratic leadership's bill to keep the United States in the Paris climate agreement. -
Trump Suffers Setbacks in Environmental Rulings in Alaska
Apr 1, 2019 | AP (In The Washington Post)
By Dan Joling
President Donald Trump’s plan to reverse environmental initiatives in Alaska put in place by his predecessor, Barack Obama, took a hit with two rulings in federal court. -
Bernhardt Committee Vote Slated for Thursday
Apr 2, 2019 | E&E Daily
By Kellie Lunney
The Senate Energy and Natural Resources Committee plans to vote Thursday morning on acting Interior Secretary David Bernhardt's nomination to lead the department.
Industry and Association News
TSCA News
Chemical Management News
Energy News
Chemical Security News
Transportation and Infrastructure News - There are no clips to report at this time.
Environment News
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(ACC Mentioned) New York Bans Plastic Bags Starting March 2020
Apr 1, 2019 | UPI
By Clyde Hughes
A new budget from New York lawmakers includes a statewide law against single-use plastic bags that are often used by grocery stores and retail businesses -- becoming just the second state in the nation to implement such a ban.
The provision was included in a $175 billion state budget passed by lawmakers Monday.
New York joins California as the only states to ban the plastic bags. Hawaii essentially has a similar ban, since all of its counties passed their own plastic bag bans. New York's ban will take effect next March.
"Plastic bag ban, which I am very excited about, this is long overdue," Gov. Andrew Cuomo said Sunday in a news conference about the budget. "You drive through urban areas in this state and you see plastic bags hanging from trees like some bizarre Christmas ornaments.RELATED Chinese media slams South Koreans for pollution 'blame game'
"You see in waterways all across this state, plastic bags. I've been fishing 40 miles out in the ocean and you see a parade of these plastic bags just floating by. There was no need, we've been trying to get this done, we've gotten it done."
The plan, though, still allows the use of paper bags for a fee, and environmentalists worry it will drive down the popularity of reusable bags. The Citizens Budget Commission said New York City alone uses 71,000 tons of plastic bags annually.
"Single-use plastics are a first-class and growing environmental nuisance in and of themselves," Eric Goldstein, senior attorney and New York City environment director for the Natural Resources Defense Council, told Bloomberg. "This issue is also symbolic of local efforts that can be undertaken to combat larger problems."RELATED California Gov. Brown signs partial ban on plastic straws in restaurants
The American Chemistry Council, which has supported the plastics industry, has fought bans on plastic in favor of recycling before, and recently asked Maryland Gov. Larry Hogan to veto legislation that would ban polystyrene foam products in his state.
https://www.upi.com/Top_News/US/2019/04/01/New-York-bans-plastic-bags-starting-March-2020/7301554139033/
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Apr 2, 2019 | Whatech
By Pradip Varpe
Germany Fire Suppression Market is set to experience substantial growth on account of enhancement and improvisation of safety standards. As per European Commission, in Germany, any office or residential building with height of over 60 m must be provided with two stair cases as a safety exit and a sprinkler system must be installed to meet the safety standards.
Global Fire Suppression Market size will exceed USD 16 billion by 2024. Stringent government regulations towards public safety along with growing consumer awareness will drive the fire suppression market size.
Growing commercial floorspace along with introduction of safety codes and standards will stimulate the product penetration. As per American Chemistry Council, the fire codes set by NFPA and IFC states that all areas with upholstered furniture including healthcare facilities and educational institutes must have sprinkler system installed.
Report:
www.gminsights.com/request-sample/detail/2059U.S. is projected to reach over annual installation of 150 million units by 2024. Upsurge in construction industry along with technological advancement in the product design and development will embellish the U.S.
market share. Increasing demand for environment friendly, less toxic, automatic and new generation systems will propel the product growth. In 2016, the country construction industry continued its rebound with 5.3% with another 2% expected increase by the end of 2017.
Growing awareness toward the adoption of fire protection systems to mitigate the hazards and accidents will foster the fire suppression market share. Introduction of green buildings in Europe coupled with stringent safety regulations will fuel the business growth.
As per European Commission, 70,000 people are hospitalized due to severe injuries caused by fire with an estimated damage of USD 148.6 billion every year.
Rapid industrialization across developing economies along with increasing demand for safety equipment will drive the global fire suppression market. Ongoing investments across Asia-Pacific and Africa towards the expansion of industrial, commercial and residential establishments will boost the product demand.
As per Central Banks and Governments’ statistics bureau, investments across Asia Pacific for the development of Industrial sector was USD 10.6 billion in 2016.
China fire suppression market is set to witness growth over 3% by 2024. Expansion of industrial and commercial sector along with growing measures to reduce the fire accidents will positively influence the business landscape.
In 2015, China surpassed the U.S. as the world’s major safety and security products market with an annual rise of 10.8%.
Report:
https://www.gminsights.com/industry-analysis/fire-suppression-marketSaudi Arabia fire suppression market in 2016 was valued over 150 million. Ongoing O&G projects along with expansion and establishment of other available industries will boost the demand for suppression systems.
In 2015, number of operating industrial units have reached up to 7,007 with the investment of USD 290 billion.
Notable players in global fire suppression market include TYCO, United Technologies Corporation, Minimax, Lubrizol, Bristol Fire Engineering, Halma PLC, SFFECO, Firetronics, NAFFCO, Master Fire Preventions Ltd., National Fire Equipment Ltd. and Amerex Corporation.
https://www.whatech.com/market-research/construction/585023-fire-suppression-market-is-projected-to-reach-us-16-billion-by-2024
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A Different Dow Emerges Following Merger With DuPont
Apr 1, 2019 | The Wall Street Journal
By Christopher M. Matthews
First there was Dow. Then there was Dow DuPont . DWDP 2.08% Now, there is Dow again, though the latest version of the chemical company isn’t quite the same.
On Tuesday, Dow Inc. will begin trading on the New York Stock Exchange, after completing its spinoff from conglomerate DowDuPont Inc. on Monday.Chemical ReactionDowDuPont begins its unraveling with the spinoff of Dow Inc. on Monday. In June, Corteva Agriscience will break off, leaving a new DuPont.
Here’s how the three companies will look based on 2018 segment revenue
Dow
Performance
materials
& coatings
Packaging
& specialty
plastics
$48.8B
Industrial
Intermediates
& infrastructure
DuPont
Electronics
& imaging
Nutrition
& biosciences
$22.6B
Transportation
& advanced
polymers
Safety
& construction
Corteva
Agriscience
Crop
protection
Seeds
$14.3B
Source: DowDuPont
Less than two years afterDow Chemical Co. and DuPont Co. shook up the chemical industry with a blockbuster merger valued at more than $120 billion, the combined company is in the process of breaking into three.
Corteva Agriscience is expected to become a separate company in June and will focus on pesticides and other agricultural products. DuPont will also spin out in June as a specialty chemicals company.
The new Dow, as it is being branded, is a more focused version of its predecessor. It will be entirely focused on material sciences, like plastics and silicones, and is expected to generate more than $9 billion in earnings this year, before interest, taxes, depreciation and amortization.
“The story is a focused portfolio that will create value for shareholders,” Jim Fitterling, who is now Dow’s chief executive, said in a February interview.
From the outset at the time of their 2015 merger announcement, DowDuPont executives pitched the union as a way to bring together respective strengths ranging from farm pesticides to silicone and bulletproof fibers.
But the combined company’s shares have lost around 20% of their value since the deal closed in 2017. Some activist investors contested the breakup strategy, arguing that the split of businesses as originally proposed wouldn’t create the most competitive spinoffs. DowDuPont revised the plan in 2017.
https://www.wsj.com/articles/a-different-dow-emerges-following-merger-with-dupont-11554150629?mod=searchresults&page=1&pos=2
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Final SNURs Will Break New Ground under Amended TSCA
Apr 1, 2019 | National Law Review
On March 27, 2019, the U.S. Environmental Protection Agency (EPA) posted a signed final rule that will establish final significant new use rules (SNUR) under the Toxic Substances Control Act (TSCA) for 13 chemical substances that are the subject of premanufacture notices (PMN). The final rule is significant because the 13 chemical substances are not also subject to consent orders. During the review, EPA identified certain reasonably foreseen conditions of use that it designated as significant new uses in the final SNURs. The final SNURs effectively prohibit the designated new use unless a person submits a notice to EPA, EPA makes a determination, and it takes any necessary action to mitigate any identified potential risk. The final rule will be effective 60 days after publication in the Federal Register.
Under TSCA Section 5(a)(2), EPA’s determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:The projected volume of manufacturing and processing of a chemical substance;
The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance;
The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance; and
The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
EPA notes that in addition to these factors, TSCA authorizes EPA to consider any other relevant factors, including information it has on analogous substances. EPA states that to determine what would constitute a significant new use for the chemical substances that are the subject of these SNURs, it also considered relevant information about the toxicity of the chemical substances, likely human exposures, and environmental releases associated with possible uses.Public Comments on the Proposed Rule and EPA Responses
As reported in our October 17, 2018, memorandum, “EPA Proposes SNURs that Break New Ground under Amended TSCA,” EPA issued on October 16, 2018, a proposed rulethat would establish SNURs for 13 chemical substances that are the subject of PMNs. 83 Fed. Reg. 52179. EPA states that it received public comments from 15 entities on the proposed rule. EPA’s responses are described below.Challenges to Underlying TSCA Section 5(a)(3) Determinations
EPA states that it received multiple comments regarding the manner in which these proposed SNURs operate. One comment requested that, in light of alleged legal and factual deficiencies, EPA withdraw both the proposed SNURs and the underlying “not likely” determinations and instead issue determinations, TSCA Section 5(e) orders, and post-order Section 5(f)(4) SNURs based on a finding that the chemical substances “may present an unreasonable risk to health or the environment” under Section 5(a)(3)(B). Another comment stated that EPA may not rely on “non-5(e) SNURs” to make a “not likely” finding under Section 5(a)(3)(C) and has failed to provide a legal and factual basis for its determination as required by Section 5(g), “but nevertheless supports the need to promulgate these SNURs at this time because otherwise there will be no protections at all in place for these chemical substances.” According to the commenter, EPA found risks to workers for several of the chemical substances subject to these proposed SNURs, absent protective measures that EPA expects will be implemented and will provide sufficient protection, and that EPA’s risk determination for these chemicals should not assume there will be full compliance with all of the controls recommended in an associated safety data sheet (SDS) and that such compliance would be adequate to protect workers.
EPA responded that these comments constitute challenges to certain TSCA Section 5(a)(3) determinations rather than to the basis for or the content of the SNURs, which EPA has promulgated using its discretion to issue SNURs under TSCA Section 5(a)(2). Because these comments are not germane to the rulemaking, EPA is not responding to these comments in the notice and declines to withdraw the SNURs on the basis of these comments. Regardless, EPA notes that it has already defended the legal and factual basis for the TSCA Section 5(a)(3) determinations that these comments reference in a prior legal challenge. See Brief of EPA in NRDC v. EPA, 2d Cir. Docket No. 18-25.Regulation of Workplace Risks
Several commenters argued that where EPA finds unreasonable risks to workers in the absence of certain protective measures (e.g., personal protective equipment (PPE), engineering controls), EPA must identify as a significant new use any use of the chemical that occurs without those protections. Specifically, according to the commenters, EPA must issue an order to address workplace risks -- as well as consider promulgating a SNUR -- because in these circumstances “the manufacture, processing, distribution in commerce, use, or disposal of such substance, or any combination of such activities, may present an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed subpopulation.” The commenters state that EPA “shall issue an order . . . to prohibit or limit the manufacture, processing, distribution in commerce, use, or disposal of such substance or to prohibit or limit any combination of such activities to the extent necessary to protect against an unreasonable risk of injury to health or the environment.” After issuing such an order, EPA must consider whether to promulgate a SNUR “that identifies as a significant new use any manufacturing, processing, use, distribution in commerce, or disposal of the chemical substance that does not conform to the restrictions imposed by the . . . order” or publish a statement justifying its decision not to promulgate a SNUR. According to the commenters, Congress required EPA to regulate unreasonable risks that a chemical substance “may present” under TSCA. The commenters contend that allowing EPA to assume that sufficient protective measures will be implemented to eliminate potential unreasonable risks would essentially negate TSCA Section 5(e), which could not be Congress’s intention. And, the commenters claim, EPA cannot find that a chemical is not likely to present an unreasonable risk based solely on its unjustified “expectation” that sufficient protective measures will be implemented. EPA effectively found risks to workers for several chemical substances subject to the proposed SNURs, absent protective measures that EPA “expects” will be implemented and will provide sufficient protection. Commenters assert that EPA’s risk determination for these chemicals should not assume there will be full compliance with all of the controls recommended in an associated SDS and that such compliance would be adequate to protect workers. Because EPA relied on these protective measures in its analysis of risk, commenters state that EPA should identify any condition of use without these protective measures to be a significant new use, meriting advance notification to EPA.
EPA responds that to the extent these comments argue that it should have issued orders under TSCA Section 5(e) or 5(f), EPA believes they are beyond the scope of the SNUR for which EPA is specifically soliciting comments and are properly directed to the Section 5(a)(3) determinations that pertain to the underlying PMNs for the SNUR. EPA is therefore not responding to these comments here. EPA notes that it is responding to comments that pertain specifically to the SNUR, i.e., those regarding the uses that should be subject to the SNUR, as well as the assertion that EPA must include certain worker protection provisions in the SNURs on the basis of TSCA Section 5(f)(4).
EPA disagrees with the comment that, with respect to scenarios where it expects that worker protection requirements under other federal/state authorities would mitigate risks to workers, it must designate all uses without those protections as “significant new uses.” According to EPA, it has discretion as to which new uses to designate as significant. As mentioned in the “not likely” determination documents for the subject PMNs in this batch of SNURs, in exercising its discretion regarding which new uses should be designated as significant under Section 5(a)(2), EPA expects compliance with federal and state laws, such as worker protection standards or disposal restrictions, unless case-specific facts indicate otherwise. Further, EPA states that any workplace risks will be mitigated if exposures are appropriately controlled, and EPA expects that employers will require and workers will use the appropriate controls (e.g., PPE such as impervious gloves and/or respirators), consistent with the SDS prepared by the PMN submitter, in a manner adequate to protect them.
With respect to comments regarding TSCA Section 5(f)(4), EPA notes that because no applicable TSCA Section 5(e) or 5(f) orders have been issued, the requirements of TSCA Section 5(f)(4) are not triggered. Therefore, EPA need not make changes in the proposed SNUR to correspond to Section 5(e) and 5(f) orders that have not been issued.SNURs Lack Provisions to Notify Downstream Processors and Users of EPA Concerns
One commenter suggested that the proposed SNURs lack notification requirements for worker protection and hazard communication programs to ensure that risks to workers and the public from downstream activities are identified and addressed and fail to provide notice to downstream processors and users of the PMN substance’s environmental effects and EPA’s required limits on release to water. EPA responded that 40 C.F.R. Section 721.5 requires manufacturers and processors to either file a significant new use notice (SNUN) before distributing the chemical substance in commerce or notify downstream customers of the existence of a SNUR on a particular chemical substance (or determine that such users have notice). Thus, according to EPA, one of two possibilities will occur: (1) downstream customers do receive notice of the SNUR; or (2) notification of downstream uses becomes unnecessary because the manufacturer or processors submit a SNUN to EPA, and EPA either determines that such manufacture and processing is not likely to present unreasonable risk, or takes appropriate regulatory action to address the risks.Impact on Downstream Users
According to EPA, one commenter similarly identified impacts of SNURs on downstream users who “often must struggle to figure out when a product they use is covered by a SNUR,” particularly when the proposed SNUR provides only the generic name of a confidential chemical substance, or when the proposed SNUR covers the use of a chemical substance in an article. The commenter also noted that the burden and compliance risks are greatest when the proposed SNUR contains reporting requirements. The commenter indicated that downstream users may depend on voluntary disclosure by the supplier or a downstream formulator/distributor, in contrast to the mandatory reporting requirements in place under a Section 5(e) order. The comment concludes that EPA should take steps to close the gap between proposed and final SNURs by issuing the final expeditiously, by notifying submitters of EPA’s likelihood of promulgating a SNUR, and by requesting companies alert downstream users of impending SNURs. EPA states that it is aware of the impacts of the issuance of a SNUR, including and beyond those specific to the actual TSCA notification requirement. EPA’s focus is to take appropriate action under TSCA to control potential risks to human health or the environment from exposure or release of a new chemical, including requiring notification of potential significant new uses.Confidential Business Information (CBI) and Disclosure of Health and Safety Information
EPA states that it received multiple comments critical of its process in promulgating the proposed SNURs. One commenter requested that EPA extend the comment period and make CBI available for review with appropriate safeguards to avoid depriving the public of a meaningful opportunity to participate. The commenter stated that TSCA does not extend CBI protection to any health and safety study submitted under TSCA, including underlying information and occupational exposure studies. In addition to the scientific analyses developed by EPA (e.g., engineering reports, Structure Activity Team (SAT) reports), which fall under this definition, other information that is generally required to be submitted with PMNs, such as toxicity studies, information on worker exposure, and the majority of information in SDSs, also falls under this definition. EPA must disclose this information to the public. Despite these mandates, the commenter argues that EPA has failed to disclose this health and safety information. The comment states that EPA’s SAT reports, engineering reports, and exposure reports all constitute or contain health and safety information that EPA must disclose, yet for P-16-575, for example, EPA has largely redacted these documents.
EPA states that it recognizes that TSCA Section 14 does not protect from disclosure certain confidential information, including health and safety information. Section 14 does not require that EPA make a final confidentiality determination for all information submitted under TSCA and claimed as CBI as part of a PMN review, however, and EPA has not made a determination regarding the eligibility for confidential treatment of the information referenced in the comment. Here, EPA states that it balanced the need for sufficient information in the public record to explain fully the bases for its decisions with the protections for CBI in Section 14. With regard to EPA technical support reports underlying the Section 5 determination, they are not covered by Section 14(b)(2), which specifically refers to health and safety studies submitted to EPA. According to EPA, it provided sufficient information in the public record to explain fully the bases for its decisions while preserving the submitter’s confidentiality claims through generally accepted means, including the aggregation of certain data in the public docket, presentation of ranges of values, or masking of manufacturing site locations to prevent CBI disclosure.Identifying “Significant New Uses” for SNURs
The commenter considers the approach taken for these proposed SNURs that found “not likely to present an unreasonable risk” under the conditions of use described in the PMNs to be generally consistent with the requirements of the 2016 amendments to TSCA. To the extent that this approach also represents potential improvements in EPA’s ability to provide more timely review of PMNs, the commenter supports the approach. The commenter encourages EPA to take a risk-based approach -- with particular focus on changes occurring in the conditions of use of a substance that can affect exposure (i.e., human exposure and environmental releases) -- in identifying what changes in the conditions of use that will constitute significant new uses, and to consider the potential burden on downstream users when designating potential new uses to be significant. The commenter further encouraged EPA to use its discretion to consider “all relevant factors,” including the cost of submitting SNUNs, the burden of compliance with SNUR reporting requirements such as Chemical Data Reporting (CDR) and TSCA Section 12(b) export notification reporting, and the compliance risk caused by vague regulations, in promulgating TSCA Section 5(a)(2) SNURs to minimize regulatory burdens on downstream users.
EPA agrees that it should -- and does --- identify significant new uses only after consideration of the “relevant factors” identified in TSCA Section 5(a)(2): (1) the “projected manufacturing or processing volume of a chemical substance”; (2) the “type or form of exposure of human beings or the environment” to the chemical substance; (3) the “magnitude and duration of exposure of human beings or the environment” to the environment; and (4) the “reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal” of the chemical substance. EPA typically does not have all of the data specific enough for each of the aforementioned factors to support risk assessment(s) for anticipated changes that are not part of the PMN, however. Hence, such information would be provided if and when a SNUN is submitted that would provide such information for the significant new use. EPA notes that another commenter supported this approach, explaining that future risks not contemplated in the PMN will be addressed by analysis of a SNUN that streamlines the current system, which typically runs much longer than the 90 days proscribed in TSCA. As to other regulatory requirements such as CDR or export notification, EPA understands the impact and coordinates with those programs to eliminate inefficiencies. Furthermore, EPA flags chemical substances on the TSCA Inventory that are regulated with a SNUR. For interpretation of SNUR notification requirements, EPA encourages the regulated community to contact EPA by using the options outlined in the “Addresses” and “For Further Information Contact” sections of the SNUR preamble.Catch-All Significant New “Use”
One commenter suggested that EPA should generally designate as a significant new use any use of a chemical substance other than the uses EPA evaluated in its PMN review and determined are not likely to present an unreasonable risk. In particular, the commenter identified P-16-192, P-16-380-385, and 16-575 as SNURs for which other types of triggers for notification (e.g., manufacture in a certain physical form, or manufacture, processing, or use to result in inhalation exposure) were used. Although the commenter supports inclusion of these triggers, it comments that EPA must also require notification for use other than that which it has reviewed.
EPA responded that this suggested approach is overly broad. TSCA requires that EPA evaluate new chemicals under their conditions of use, including the intended, known, and reasonably foreseen circumstances of manufacture, processing, distribution in commerce, use, and disposal. Based upon EPA’s review of the relevant PMNs, EPA identified uses that are appropriate for designation as “significant new uses” to ensure that EPA has an opportunity to review those uses in a SNUN submission at a later date and address any unreasonable risks at that time. TSCA Section 5(a)(2) does not require EPA to take the catch-all approach advocated by commenters, and EPA states that it “believes a more tailored approach is warranted to avoid unduly burdensome regulations.”Being More Specific in 40 C.F.R. Section 721.80
One commenter suggested that EPA must clearly specify the cross references to its general regulations in the SNURs. A number of proposed SNURs state that the significant new uses are “requirements as specified in 721.80.” Since 40 C.F.R. Section 721.80 contains 25 possible significant new use designations, this is misleading.
EPA states that it “understands the confusion.” Where one of the 25 specific significant new use designations in Section 721.80 is not being used, in the interest of transparency and clarity, EPA generally lists “Industrial, commercial, and consumer activities. Requirements as specified in § 721.80” and follows with a complete sentence describing the actual activity. According to the final rule, EPA will modify its approach so that where it is not citing a specific designation in Section 721.80, it will drop the phrase “Requirements as specified in § 721.80.” For example, the SNUR at 40 C.F.R. Section 721.11182 will be issued in final as:
(i) Industrial, commercial, and consumer activities. It is a significant new use to manufacture the substance other than in an amorphous form.
In response to this comment, EPA is making a similar change to these Section 721.80 designations in all the final SNURs in this batch rule, except the SNURs at Sections 721.11190 and 721.11191. Those two SNURs specifically cite Section 721.80(j), which is the confidential use identified in the associated PMN submission for those SNURs.Regulatory Burden of SNURs for Safer Chemicals
One comment was regarding an enzyme used in the polymerization of glucose that would be subject to a proposed SNUR due to concerns with respiratory sensitization. The commenter stated that enzymes are recognized to have a positive and sustainable environmental profile and inherently low toxicity compared to other chemicals, and that this SNUR is a signal that it will be significantly more challenging to bring new enzymes to market and may decrease innovation that can address global challenges as highlighted by the United Nations (UN) Sustainable Development Goals. The commenter additionally voiced concern for the lengthy review time for PMN submissions.
To the extent the commenter is disputing the outcome of a PMN review, EPA states that these comments are more properly directed to the specific PMN determination and not this SNUR rulemaking. This comment constitutes challenges to the corresponding TSCA Section 5(a)(3) determinations rather than to the basis for or the content of the SNURs that EPA has promulgated using its discretion to issue SNURs under TSCA Section 5(a)(2). EPA states that nonetheless, it is aware of, and working to remedy, the increased length of time it has been taking to review and reach decision on Section 5 notices as it implements the amendments to TSCA.Non-Animal Testing
One commenter supports this approach of addressing potential risks that the subject chemicals may present under reasonably foreseen conditions of use, while finding that under the intended conditions of use, they are not likely to present unreasonable risks. In contrast, the commenter states, in its early implementation of the amended TSCA, EPA addressed such potential risks in consent agreements with PMN submitters. In these cases, the commenter notes, EPA frequently required health and ecotoxicity testing. The commenter therefore supports EPA’s new approach, which is consistent with TSCA’s requirements to reduce and replace the use of vertebrate animals in the testing of chemical substances and promote the development and timely incorporation of new test methods and strategies that are not based on vertebrate animals. In addition, it protects human health and the environment by addressing potential risks when the conditions of use under which they arise are intended, either as identified in PMNs or in SNUNs, while reducing the burden on PMN submitters and streamlining the review process.
As mentioned in the preamble to the final rule, EPA states that any recommendation for information it identified was made based on its consideration of available screening-level data, if any, as well as other available information on appropriate testing for the chemical substance. Further, any such testing identified by EPA that includes testing on vertebrates was made after consideration of available toxicity information, computational toxicology and bioinformatics, and high-throughput screening methods and their prediction models. EPA states that it also recognizes that whether testing/further information is needed will depend on the specific exposure and use scenario in the SNUN. EPA encourages all SNUN submitters to contact it to discuss any potential future testing. Furthermore, pursuant to TSCA Section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation on the use of alternative test methods and strategies (also called New Approach Methodologies (NAM)), if available, to generate the recommended test data. EPA states that it encourages dialog to help determine how best the submitter can meet both the data needs and the objective of TSCA Section 4(h).Do Not Use SNURs as Information Gathering Tool, Tracking Tool
One commenter urged EPA to not rely on SNURs as tools for tracking use and production of chemicals or for otherwise gathering potentially useful information, but instead suggested that EPA rely on provisions like TSCA Section 8 that specifically authorize such acts. EPA states that it is not issuing a requirement to develop any data or information as a result of these SNURs. It is the responsibility of a SNUN submitter to provide any such information as required by TSCA Section 5 and the SNUN regulations at 40 C.F.R. Part 721. Regarding potentially useful information, EPA encourages all SNUN submitters to contact it to discuss any potential future testing.Commentary
In issuing this batch of SNURs in final, EPA is taking a significant step in its implementation of new TSCA. In cases where EPA does not identify a need for specific testing, SNURs have several advantages over consent orders without compromising protection to health or the environment, as a violation of either would be a violation of TSCA Section 5(a). Most notably, SNURs are immediately protective across the supply chain, whereas consent orders apply only to the PMN submitter until the corresponding SNUR is promulgated.
Stakeholders have objected to EPA using SNURs without consent orders stating that such actions are not permitted by new TSCA. The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg) is silent on non-order SNURs. Lautenberg requires that EPA issue a consent order to protect against risks that may arise from conditions of use that are “reasonably foreseen.” Issuing a SNUR to prohibit certain conditions of use absent submission and review of a SNUN is fully consistent with Lautenberg and fully protective of human health and the environment and strikes us as a creative way to optimize EPA’s SNUR authority while limiting the need for consent orders when intended conditions of use are not likely to present unreasonable risk. For example, with respect to the consolidated set of new chemicals identified as P-16-380 through P-16-385, EPA identified concerns for “lung effects and toxicity to aquatic organisms at concentrations that exceed 16 ppb if the chemical substances” are used without the restrictions specified in the SNUR. The SNUR prohibits uses that may result in inhalation exposure and prohibits releases from any manufacturing, processing, or use stream that would lead to a surface water concentration (SWC) exceeding 16 ppb. By issuing a SNUR to prohibit these specific, potentially problematic conditions of use, such conditions of use are no longer “reasonably foreseen.” With the SNUR in place, EPA can make a “not likely to present” finding under Section 5(a)(3)(C), thereby allowing the submitter to proceed with commercializing under the intended conditions of use for which EPA did not identify unreasonable risk. In our view, the non-order SNUR approach reflects a creative and efficient way for EPA to meet its obligations under Section 5(a). Under this approach, EPA reviews the intended, known, and reasonably foreseen conditions of use. If EPA only identifies potential risks for reasonably foreseen conditions of use and determines there is no need for testing to inform its assessment, EPA can use the non-order SNUR process to authorize commercialization under conditions that are not likely to present unreasonable risk, while explicitly prohibiting potential conditions of use that might present unreasonable risk. Our careful review of comments and EPA’s response to them leaves us unpersuaded by arguments that consent orders are more protective than SNURs. To the contrary, consent orders may be less protective because only the signatory of a consent order is bound by the restrictions of that order and a second manufacturer is authorized to commence any commercial activities once a substance that was commenced under a consent order appears on the TSCA Inventory. Arguments that a SNUR is not protective because a SNUR merely requires “notification” to EPA prior to commencing commercial activity fundamentally misconstrues the effect of a SNUR. A SNUN has the same statutory effect as a PMN. EPA’s review, determination, and needed actions must be completed for all Section 5(a) notices, including PMNs and SNUNs.
Non-order SNURs also help reduce the need for vertebrate testing. In using non-order SNURs, EPA is authorized to prohibit potentially problematic conditions of use absent additional information, whether additional information on hazard or exposure. In the example cited above in which EPA set a SWC limit of 16 ppb, if a person were contemplating a condition of use that might lead to an exceedance of 16 ppb, the person could discuss what aquatic toxicity tests may be undertaken to address EPA’s concerns for aquatic organisms. The testing might confirm the SWC limit, or the testing might justify a higher SWC limit (given EPA’s justifiably conservative assumptions, we find it unlikely that testing would lead to EPA seeking to lower the SWC limit). On the other hand, if the submitter and EPA agree that the substance is probably highly toxic to aquatic species even in the absence of test results on the substance itself, provided releases are well-controlled, there would be no need to undertake testing.
One commenter suggested that EPA issue SNURs to limit conditions of use to those specified in a PMN, effectively making all other conditions of use foreseeable. We concur with EPA’s view that such an approach is overly broad and well beyond what Lautenberg requires. Such an approach is, in our view, impermissible because it assumes that any condition of use other than what is specified in the PMN can be reasonably foreseen, a view that is fundamentally inconsistent with the meaning of “reasonably foreseen conditions of use as determined by EPA.” Lautenberg requires that EPA identify and evaluate “reasonably foreseeable” conditions of use, not “all possible” conditions of use, however speculative, unlikely, or even whimsical they may be. Were EPA to view all possible conditions of use as “reasonably foreseeable,” EPA would fail to meet its obligation to determine “reasonably foreseen” conditions of use, which EPA is explicitly required to do under Lautenberg. This would also put EPA effectively in the position of making hazard-based determinations rather than the risk-based determinations that are supported by the plain language of Lautenberg.Regulatory Burden of SNURs
We generally agree with the commenter that EPA must consider the effect of a SNUR on the new chemical substance. SNURs present burden to the entire supply chain and there is no doubt the issuance of a SNUR can lead to market deselection decisions. This is the essence of the “new chemical bias” in which new chemicals are regulated more stringently than existing chemicals that pose similar, if not greater, hazards, exposures, and risks. EPA can, and, in our view, should factor opportunities for reduced risk in its decision about risk management. Pollution prevention opportunities that arise from new chemicals relative to the hazards, exposures, and risks of the competing existing chemicals should be considered in EPA’s review and decisions. For example, petroleum distillates, as a class of substances, have well-understood hazards (e.g., flammability and aquatic toxicity) that are well-controlled. A very similar substance that is derived from biomass would not meet the definition of that substance as defined for purposes of TSCA because it is not derived from petroleum. If EPA reviews the biobased petroleum-equivalent and finds no difference in the expected hazards, releases, or exposures, EPA’s promulgation of a SNUR for that substance could significantly limit market acceptance of a more sustainable substance that does not present the global warming and hazard concerns associated with the extraction and production of distillates from petroleum. This way, EPA would not inadvertently forego market-based risk reduction opportunities presented by new chemicals with pollution prevention benefits while the similar “grandfathered” substances await prioritization. If and when EPA seeks to conduct risk evaluations on the incumbent existing chemicals (the petroleum-based substance) under Section 6, EPA can and should include the biobased equivalent in any risk evaluation and in considering risk management.Worker Protection
Commenters state that in promulgating non-order SNURs without requiring protection in the workplace, EPA is failing to protect workers. We disagree. We agree with EPA that such cases cannot be considered “reasonably foreseeable” because worker protection is already required under standards and worker protection requirements imposed under the Occupational Safety and Health Act. Although violations of these standards are imaginable, according to an analysis of 40 years of violations issued by the Occupational Safety and Health Administration (OSHA), such violations of the basic PPE requirements are statistically uncommon. According to OSHA records, although there have been millions of violations asserted by OSHA, PPE violations such as glove and goggle non-use comprise less than one percent of recorded violations.
https://www.natlawreview.com/article/final-snurs-will-break-new-ground-under-amended-tsca
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(ACC Mentioned) Country Focus: Industry Sees USMCA as Chance to Prod Mexican Chemical Management
Apr 2, 2019 | Chemical Watch
By Lisa Martine Jenkins
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 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
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) all coordinated in writing the annex and applauded its inclusion.
However, the enthusiasm of ACC and CIAC about a Mexican "regime" on the horizon might be premature. Guillermo Miller Suárez, vice president of information and international trade for ANIQ, said that the chemical annex is simply a regulatory cooperation document, not an indication of something more.
"That doesn’t mean that we will in the near future – or even eventually – adopt any North American[-style] regulations. I don’t see that happening anytime soon."A starting point?
But Mr Brzytwa said the annex, and the significant industry discussion that prompted its inclusion, could be 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 ACC describes the USMCA as an opportunity to encourage Mexico to build a broader regulatory 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".
And, in the final draft, industry wishes have been largely granted. It has essentially formalized aligning the risk-based approach to regulation that all three countries already used – while Mexico does not have a TSCA or a CMP, existing laws in Mexico already regulate individual chemicals based on risk rather than hazard.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.
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. However, the industry’s Mexican counterpart does not necessarily agree.
"As far as I know, there are no whispers of this [within the government]," said ANIQ’s Mr Miller.Changes to the Mexican status quo
USMCA is not the only factor driving change in Mexico’s chemical sector.
Mexico previously had duel labelling and safety data sheet requirements 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. Speaking at the ACC’s recent GlobalChem conference, Scott Thurlow, an independent lobbyist who formerly worked for CIAC, said it is not even clear if the USMCA will be introduced in this Parliament.
In fact, he continued, "there is a convention in Canada that we will not introduce a trade measure before it has been ratified by its partners."
But 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/75837/country-focus-industry-sees-usmca-as-chance-to-prod-mexican-chemical-management
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New Jersey PFAS Directive Sets State Precedent But Risks Industry Fight
Apr 1, 2019 | Inside EPA
By Suzanne Yohannan
New Jersey's issuance of a first-time, wide-ranging directive requiring five major chemical companies to fund past and future cleanup costs and provide large amounts of data related to per- and polyfluoroalkyl substances (PFAS) contamination likely sets a precedent for other states but will almost certainly draw industry challenges, sources say.
The state may lack the full legal authority it needs to secure such a far-reaching remedy, and the move may prompt challenges from industry, one industry attorney says. Further, the action -- while novel -- is “overly aggressive” and could backfire and slow down the process for addressing PFAS, the attorney adds.
“There may be ways to accelerate the data gathering and risk assessment, but the [New Jersey] Directive seems to be several bridges too far and counterproductive,” the attorney says.
Seth Jaffe, an attorney with the law firm Foley Hoag, in a March 27 posting on his law firm's website also questions what he says “may be the most wide-ranging order I've ever seen issued by an environmental agency.” He notes that 3M, one of the companies named under the directive, does not appear to have any operations in the state, questioning whether this is more akin to a lead paint products liability type of case, rather than an environmental statutory claim.
But one environmentalist attorney says in cases where a state pursues large companies, its authority is often questioned and if industry finds it lacking, they will often sue, making it a “big risk” for directives like New Jersey's.
Nevertheless, the attorney, Heather Govern with the Conservation Law Foundation (CLF), says if other states have similar contaminated sites, New Jersey's actions would provide an “excellent” roadmap for other states to follow suit and issue similar directives. She predicts that other states will likely issue such directives over the next year, an action that appears increasingly likely given many states' criticisms of EPA's slow response to the issue.
Govern says she knows that attorneys general's offices throughout New England have seen the directive and plan to stay on top of what comes out of it, expressing interest in following any responses from industry. She predicts the companies are “not going to take this lying down.
“It's basically going against the Goliaths."
She calls New Jersey's action “bold,” and hopes to see New England states inspired by it, but notes that, unlike a lot of other states, New Jersey has done widespread sampling for PFAS. In addition, she notes that other states may not have as extensive a presence of PFAS manufacturing as New Jersey has.
The industry source says Michigan may also be pondering an action similar to New Jersey's, and does not doubt some other states will attempt to follow this. Michigan state offices did not respond by press time.
At issue is New Jersey's March 25 directive requiring five manufacturers and/or users of PFAS -- Solvay, DuPont, Dow DuPont, Chemours and 3M -- to provide a “complete accounting” of data on their “development, manufacture, transport, use, storage, release, discharge and disposal of PFAS in New Jersey.” It also requires them to establish a fund to remediate the impacts.
New Jersey also says in the directive that it is not a final agency action, formal enforcement order or final legal determination, and cannot be appealed or contested.
'PFAS Tsunami Underway'
The directive was the first in a series of steps the state announced that address the contamination. Attorney General Gurbir S. Grewal and environment commissioner Catherine R. McCabe also announced March 27 that they have filed natural resource damage lawsuits against DuPont, Chemours and 3M for PFAS contamination.
And McCabe April 1 announced that the state was formally publishing strict draft rules to set enforceable maximum contaminant levels for drinking water for the two most common PFAS. The proposal calls for levels of 14 parts per trillion (ppt) for perfluorooctanoic acid (PFOA) and 13 ppt for perfluorooctane sulfonic acid (PFOS).
Those levels are significantly stricter than the advisory levels of 70 ppt that EPA set in 2016, a point McCabe effectively noted when she touted the state's first-time action.
Jaffee says the state's actions show “the PFAS tsunami is fully underway.”
While all of the state's actions appear to be significant, the directive appears to be unusual in its comprehensiveness, which includes obtaining data from the companies on their use of so-called replacement chemicals -- those PFAS or other substances used in place of the initial, long-chain PFAS -- asking for information on their manufacturing, transport, use, treatment, disposal, discharges and emissions, and the company's ability to pay for cleanup and removal of replacement chemicals released into the environment.
The state says it wants a complete accounting of the replacement chemicals' use in New Jersey, explaining, “While these replacement chemicals have been touted as short-chain and having shorter half-lives, some may have similar toxicity and, like their predecessors, they do not break down in the environment and have also been detected in drinking water, groundwater and surface waters in New Jersey.”
But the industry attorney sees New Jersey's actions as more akin to a regulation, rather than an administrative action, and that the state appears to be trying to create a Toxic Substances Control Act (TSCA) regulation at the state level. The source questions that any states' statutes grant the authority New Jersey is asserting “to obtain such [a] far reaching remedy,” although the source concedes not having researched the issue.
Nonetheless, the source says the directive clearly is “very general” as to the future specific sites it applies to; and lacks specificity as to remedies it is seeking, how it will be implemented, over what time period and which specific chemicals are covered; and allows for open-ended costs as to the companies.
Further, the source questions whether the state has the authority for a number of items it is seeking -- noting it is “unheard of” for a state to seek the information it is on the replacement chemicals. “This assumes that replacements present an unreasonable risk and the levels in the environment are causing harm,” the source says in a written response. “None of this is known. As written, this would apply to [non-PFAS] replacements. This is likely inconsistent with EPA's TSCA authority,” the source adds.
But Govern, the environmentalist, does not see anything wrong with EPA pursuing the data on replacement chemicals such as GenX, but notes industry likely will argue this is confidential business information that cannot be released.
In addition, the industry attorney doubts the state has the legal authority to obtain: funding for New Jersey studies and research on PFAS; future costs to investigate, treat and clean up each site; all damages incurred by parties other than the state, with the source saying the Parens Patria theory has not been adopted by courts. Further, the source doubts New Jersey has the authority to obtain all damages and economic impacts incurred by the state.
The source says it looks like the state is moving ahead very strongly but when a regulator takes an overly aggressive action, that sometimes slows the process down. The source believes it is ”very possible” the directive will be challenged, or at the least, it will be renegotiated to be narrower. The source expects opposition and lawsuits, saying the liabilities the state is seeking to impose “are likely to be astronomical."
The source also questions the turnaround time for the data being sought -- 21 days -- and says the state would likely go into “paralysis” if it were to receive all that it is seeking from the industry parties.
https://insideepa.com/daily-news/new-jersey-pfas-directive-sets-state-precedent-risks-industry-fight
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Monsanto's Roundup Is Losing Ground, But It's Temporary
Apr 1, 2019 | Forbes
By Yiannis Mouratidis
Edwin Hardeman suffers from non-Hodgkin lymphoma and his prognosis according to the five-year relative survival rate is 71%. Given that he was diagnosed with cancer in 2015 reaching 2020 he is going to worry more about the next stages of his condition as it may cause further implications or even spread to other organs. In 2015 in the U.S. about 4.3 million people developed this type of cancer and 231.400 died as a result of it.
Statistically, Edwin Hardeman could be any of the 10 million people in the U.S. that could be diagnosed with this type of cancer sometime in their life. What makes his case worth mentioning in the news is the cause of his cancer. According to a San Francisco federal jury verdict, Monsanto was held accountable for Edwin’s cancer as Roundup was determined as 'substantial factor' to Edwin’s cancer. This is the second case brought in the court where Roundup was found guilty. Last August the jury awarded Dewayne Johnson $289 million, which was slashed to 78$ million on October 22 as the company failed to provide adequate warning over the health risks to regular users of Roundup. Dewayne was diagnosed with terminal cancer because of the exposure to the product that he used as part of his job. In Edwin's case, Monsanto was also ordered to pay the plaintiff $80 million compensatory and punitive damages. Both outcomes could have an impact on the course of future litigations as they set important legal precedents that will be exploited in future lawsuits.
In a statement on the Bayer website, which acquired Monsanto last year, the Pharma giant expressed its ‘disappointment’ at the decision as it still believes that Roundup is not carcinogenic, and claimed the outcome of the case would have ‘no impact on future cases and trials, as each one has its own factual and legal circumstances.’ It also reported that it would appeal the verdict.
Four years ago, in 2015, The World Health Organization’s International Agency for Research on Cancer (IARC) deemed Roundup as a probable carcinogen. One year later, Monsanto presented an independent review, published in Critical Reviews in Toxicology, challenging the IARC conclusions. (The Environmental Protection Agency claims that glyphosate-based herbicides are safe when used according to label directions.)
The whole case will be open to scrutiny and long debates for quite much time because of the gravity of the situation. If Roundup is proved carcinogenic, the problem of the agricultural sector is that there is not a visible safe alternative, with the properties of glyphosate, the main ingredient of Roundup, that would be equally successful at weed killing.YOU MAY ALSO LIKEGrads of Life BRANDVOICETechnology Executives Model Best Practices For Attracting, Developing And Retaining Diverse TalentUNICEF USA BRANDVOICEInside Migrant Shelters At The U.S.-Mexico BorderCivic Nation BRANDVOICEThese Midshipmen Are Catalyzing A Culture Change On College Campuses
It sounds scary and it actually is. The human domestication of edible plants thousands of years ago has made them more vulnerable to their wild relatives. This means that chemical protection is vital, otherwise, we will have to face the high risk of reduced crops and further food shortage. Instead, farmers could use organic agriculture techniques, which would translate to several man-hours and higher market price, unless robotic systems are able soon to lower the cost.
It seems that we have reached a dead-end as we are fully dependent on glyphosate and other equally dangerous similar substances used globally in farming to increase agricultural productivity. An alternative solution to the problem is precision agriculture which provides a fertile ground to promote sustainable agriculture. A key component of this new approach is the use of methodologies and technologies with the main aim to restrict the use of harmful chemicals and address the farming problems more accurately and more efficiently, the same way smart bombs replaced napalms.
Hundreds of startups funded by governments and venture capitals offer solutions that leverage sensors (IoT), satellite images and AI algorithms to collect and analyze datasets and apply precision agriculture. However we need to accept the fact that even solutions like precision farming do not exclude the high risk of chemicals, but they restrict it. As a result, it is possible that in the future we may witness more life threat cases similar to Roundup.
https://www.forbes.com/sites/yiannismouratidis/2019/04/01/monsantos-roundup-is-losing-ground-but-its-temporary/#14103bf345bc
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How to Minimize Exposures to Hormone Disrupters
Apr 1, 2019 | The New York Times
By Perri Klass
“We tend to think hormone disrupters are a mom and baby issue,” said Dr. Leonardo Trasande, the chief of the division of environmental pediatrics at N.Y.U. School of Medicine. “But it literally can be a life and death matter for folks who are not even trying to have a family.”
Dr. Trasande is one of the doctors I work with in the pediatric clinic at Bellevue Hospital, and the author of “Sicker, Fatter, Poorer: the Urgent Threat of Hormone-Disrupting Chemicals to Our Health and Future … and What We Can Do About It.”
There is significant evidence that several types of chemicals can in different ways interfere with the hormones that our bodies use as messengers for everything from sexual maturity and fertility to how we handle appetite and fat storage.
Evidence has accumulated that these substances can change the ways that children’s bodies develop, starting very early. “We are also looking more and more at not just exposures in pregnancy, but exposures before conception, which is very interesting,” Dr. Trasande said. “It may be early exposures are shaping how gametes develop.”
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But what can we actually do to shield ourselves (and our gametes) and our children? The subtitle of Dr. Trasande’s book suggests that there are ways to protect ourselves and our families from substances that he and other environmental medicine specialists believe we will come to see as more and more dangerous, even at comparatively low levels.
[Read more about reducing children’s chemical exposure.]
The four categories of particularly concerning chemicals include pesticides, which can contaminate our produce; phthalates, which are used in cosmetics and personal care products and also in many kinds of food packaging; bisphenols, which are in the lining of aluminum cans; and flame retardants used in electronics, furniture and mattresses.
“There are straightforward, simple steps to reduce exposures that don’t have to break the budget,” Dr. Trasande said. He suggested avoiding canned food consumption, along with foods that are highly packaged or processed, and in particular avoiding plastic bottles or containers marked on the bottom with 3, 6 or 7.
Plastics marked with a 3, he said, are worrisome for phthalates, which inhibit male sex hormones and disrupt metabolism. A number 6 denotes styrene, which is a known carcinogen. And plastics marked with 7 contain bisphenol, which in the lab has been shown to be related to obesity.
He pointed to a recent study in JAMA Internal Medicine. In a group of more than 44,000 French adults 45 and older, a 10 percent increase in what is called “ultraprocessed food” was associated with a 14 percent higher risk of death from all causes. (Ultraprocessed foods are industrial products with many additives.)Editors’ PicksThe Startlingly Flavorful Dressing That Will Boost More Than Just Your SaladsFrench Raise a Glass to a Health Warning About Too Much WinePeople Don’t Bribe College Officials to Help Their Kids. They Do It to Help Themselves.
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These are very difficult links to draw, and it’s also possible that people who tend to eat ultraprocessed foods are making many other lifestyle choices that affect their health. One possible link might be, “phthalates and other food contaminants in those processed foods may inhibit testosterone function, which is known to be a major risk factor for adult cardiovascular disease and stroke,” Dr. Trasande said. But this kind of study can show only an association, it doesn’t establish cause and effect, and Dr. Trasande pointed out that the conclusions have been disputed by other experts.
Even so, environmental health experts worry about both the food and the packaging. “Eat less processed food,” said Manish Arora, professor of environmental medicine and public health at Icahn School of Medicine at Mt. Sinai. It’s good for your body, he said, and “it’s also good for the environment, less processing, less carbon footprint, less chemicals into the environment, less chemicals back into us.”
“Buy fresh food not wrapped in plastic,” Dr. Trasande said, since the contact of the food with the packaging is what you want to avoid.
“How to help our children improve their health?” Dr. Arora asked. “There’s nothing like physical activity, fruits and vegetables.”
But beyond protecting yourself and your own family as far as you can, Dr. Trasande said, “there’s so much we can do with the broader public action and social action.”
Dr. Arora said, “It’s almost as if the products are released and then there’s a slow and cumbersome process to see if they’re harmful.” Decades can go by before that process is complete, he said, and during those decades, “an entire generation has been exposed during the formative years.”
This was the story with lead, and more recently, he said, it was almost the story for many plastics. Lead was present in so many places in children’s environments, from paint to auto emissions, and was gradually understood to be more and more dangerous, even at levels of exposure which had been thought to be safe.Sign Up for Parenting
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Dr. Arora also pointed to the importance of keeping household cleaning products which can contain “really nasty chemicals” away from children, and choosing products that contain fewer chemicals (the Environmental Working Group guide to healthy cleaning products can help). In an email, he wrote, “personally, like many folks these days I use homemade products for regular cleaning in areas that are not too dirty, such as lemon, baking soda, white vinegar.”
It’s important to try to influence product manufacturers to move in the right direction, Dr. Arora said, and to take the trouble to look for products made in ways that minimize the impact on the consumer and more broadly on the environment, for example, by using biodegradable dyes. He buys jackets made from 100 percent recycled material, he said, and has switched to secondhand clothes.
https://www.nytimes.com/2019/04/01/well/family/how-to-minimize-exposures-to-hormone-disrupters.html
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UK Passes FCM Statutory Instrument for No-Deal Brexit
Apr 1, 2019 | Chemical Watch
By Clelia Oziel
The UK Parliament has passed a statutory instrument to mirror the European Union legislation on food contact materials in the event of a no-deal Brexit.
The Materials and Articles in Contact with Food SI was approved by both chambers of Parliament – the House of Commons and the House of Lords – on 21 March and published on 26 March. It will come into force on exit day if the UK fails to agree a Brexit deal.
The SI is a copy of the existing EU law with some modifications to remove any references to EU institutions, such as the European Food Safety Authority, which has been replaced by the UK Food Safety Authority.
The overarching piece of FCM legislation is the 2004 EU framework Regulation, but only a few types of FCMs are harmonised, such as plastic and ceramics. After Brexit, this will become part of UK law via the EU withdrawal bill.
Most FCMs such as printing inks, adhesives, rubbers, paper and cardboard, silicones, varnishes and coatings, are not harmonised, meaning member states can introduce national measures alongside EU rules.
The SI does not provide any detailed regulation on non-harmonised FCMs and once the UK leaves a legal vacuum may emerge for these materials, because they will cease to be covered by the non-recognition principle.
This principle means that FCMs consisting of non-harmonised materials can move freely in the EU if they comply with the national laws of the member state where they were first placed on the market.
It is unlikely the UK would seek stricter regulation of non-harmonised FCMs, Michael Warhurst of the UK NGO CHEM Trust said.
In February the European Commission started a public consultation on the evaluation of the EU’s FCM legislation. It runs until 6 May.National action
Other members states have already brought in specific regulations, such as Germany on paper and Belgiumand the Netherlands on coatings, but the UK has not taken action.
"FCM is a good example where the UK could have gone ahead of EU laws, as the Germans, Dutch, Belgians have done," Mr Warhurst said.
In future, UK laws may gradually diverge from those in the EU, he added, "which could mean that chemicals are restricted in EU plastic FCM but allowed in the UK".
The Foodservice Packaging Association has lobbied the UK Food Standards Agency to ensure that national laws continue to align with EU regulations. Many of the association’s members sell their products in the single market.
The UK has been passing other legislation on chemicals in the event of a no-deal Brexit, including the draft REACH SI.
Parliament will vote on different Brexit options on Monday, with Prime Minister Theresa May under growing pressure to succumb to a softer alternative with a customs union deal, to offer a second referendum or a general election.
If nothing is agreed and the EU fails to grant another extension, the UK would leave the bloc on 12 April without a deal.
https://chemicalwatch.com/75796/uk-passes-fcm-statutory-instrument-for-no-deal-brexit
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(ACC Mentioned) New Plastics-to-Fuel Plants Tighten Squeeze on Oil Demand Outlook
Apr 2, 2019 | Platts
By Robert Perkins
A new breed of plastic recycling plants capable of recovering crude and fuels from plastic waste is piling more pressure on global oil demand forecasts.
While mechanical recycling of plastics has been around for years, advanced or chemical processing relies on combinations of pyrolysis, catalytic cracking and gasification to create synthetic fuels or feedstocks which can be fed into a conventional refinery.
The growing backlash against single-use plastics, in particular, has seen a number of companies looking to launch these new plants at commercial scale.
Austrian company OMV's ReOil process dissolves and then cracks waste plastics into a short-chain "premium" light crude. The synthetic crude is then channeled into its Schwechat refinery to become fuel or feedstock for the plastics industry.
"It is the sweetest crude oil that I have ever seen in my life," OMV's CEO Rainer Seele said in a November strategy presentation. "That means that if you introduce it into the process, you would have no SOx and no NOX emissions."
OMV's pilot ReOil plant at it Schwechat refinery can produce up to 100 liters of synthetic crude per hour from 100 kilograms of waste plastic. Plans for a commercial plant will scale up the process to 2,000 kg/hour of used plastic.
Finland's Neste, the world's biggest producer of renewable diesel from waste, is also developing ways to turn liquefied plastic waste into a raw material, with plans to proceed to an industrial-scale trial this year. Neste hopes to process more than 1 million mt/year of plastic waste by 2030.
In the US, BP has agreed to buy up to 16 million gallons/year of ultra-low sulfur diesel fuel and naphtha blendstocks from Ohio-based plastics-to-fuel maker RES Polyflow. The company's first commercial production plant, due on stream this year, is designed to tackle low-value, mixed plastic waste which typically ends up in landfills or fouling the environment.
PETCHEM DEMAND BOOM
Although starting from a very low base, chemical recycling technology is gaining traction and, given further policy support, has the potential to eat into future oil demand, already under siege from the boom in electric vehicles and a shift to gas.
Led by plastics demand, the petrochemical industry is set to be the single biggest driver of oil consumption by sector over the coming decades, adding 5 million b/d of new demand by 2040, according to the International Energy Agency.
But the growing slew of policy initiatives to boost plastics recycling rates means more waste should be available as the chemical technology matures.
"These could reduce or cause peak petrochemical demand growth in the future, especially considering a significant amount of aromatics and olefins are used within the plastics industry," consultancy Wood Mackenzie's senior vice president for chemicals Steve Zinger told a petrochemical industry conference in San Antonio last week.
Given the expected volume growth in plastic recycling, S&P Global Platts Analytics forecasts that more than 12% of total global virgin polymer demand will be made up of recycled plastics in 2030, up from 7% in 2015.
WAR ON PLASTICS
There is certainly no shortage of raw plastic waste to process. Currently, only 15% of commodity plastics are recycled globally with the majority ending up in landfills, furnaces or in the environment.
Europe has the highest recycling rates with about a third of the 27 million mt/year of plastic waste generated currently collected for recycling.
But Brussels wants to move even faster, targeting an increase in the amount of plastic recycling to 50% by 2030.
In the US, the American Chemistry Council estimates that just a quarter of recoverable plastics destined for landfill could support the production of 59,000 b/d of clean diesel and 29,000 b/d of naphtha from advanced recycling.
Higher average collection rates for recycling would mean a step change in recycled fuels from plastics, reducing refiners demand for crude oil.
The IEA estimates that a doubling of recycling rates to 34% globally would lead to a reduction in oil demand of 1.5 million b/d by 2040 compared to its base case scenario.
Coupled with tighter expected regulations on plastics, a doubling of recycling rates will reduce global oil demand by about 3 million b/d in 2040, BP recently forecast.
Some believe the impact of potential bans on plastics and greater recycling on oil demand is still being underestimated.
BP's former chief economist Christof Ruhl has warned that lower use of single-use plastics, in addition to a rise in the penetration of recycled plastic to 25% by 2040, would shrink oil demand from petrochemicals in 2040 by more than 20%.
"[This] could bring projected peak oil demand forward by a decade," Ruhl said in a February article. "If companies push ahead with investment based on standard forecasts to expand petrochemical operations, stranded assets may lie ahead."
Widespread bans on single-use plastics and packaging are complicated by the carbon footprint of their alternatives such as glass and metals. That means chemical recycling will likely have a much bigger role to play. Either way, oil demand forecasts come out losing.
https://www.spglobal.com/platts/en/market-insights/latest-news/oil/040219-feature-new-plastics-to-fuel-plants-tighten-squeeze-on-oil-demand-outlook
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(ACC Mentioned) Shell to End AFPM's Membership over Climate Policy, Stays within Cefic, ACC
Apr 2, 2019 | ICIS
Shell has decided not to renew its membership of the American Fuel & Petrochemical Manufacturers (AFPM) association next year over differing stances on the Paris Agreement and other climate policies, the Anglo-Dutch energy and petrochemicals major said on Tuesday.
The company has conducted a review of its industry association memberships in light of climate policies, with AFPM the only group where disparities on climate policy issues were pronounced enough for the company to discontinue its membership.
Shell also identified some policy misalignments with the US' chemicals trade group the American Chemistry Council (ACC) and Europe’s trade group Cefic over climate-related positions, but none pronounced enough to necessitate breaking away from those groups.
“We found that we were aligned with nine of the 19 industry associations; that there was some misalignment with nine; and that there was material misalignment with one industry association, AFPM,” Shell said in a report on its association memberships published on Tuesday.
“We have decided not to renew our membership of AFPM in 2020 as a result."
Shell evaluated its memberships in light of association positions on the Paris climate change mitigation programme, carbon pricing, low-carbon technologies, methane emissions and the use of natural gas in in transitioning to cleaner energy systems.
AFPM management has not stated support for the Paris Agreement, opposes carbon pricing and supports the US Environmental Protection Agency (EPA)’s proposed rollback of fuel economy standards in the country.
Last week, the association criticised a vote in the US Senate on the Green New Deal, a proposed stimulus package intended to drive the development of clean energy.
“US fuel and petrochemical manufacturers strongly disagree with the premise that our products won’t be needed in the future,” AFPM said on 26 March.
“The Green New Deal is out of touch with the immense value that fuel and petrochemicals add to the world each day.”
The association also presented US Senator Ted Cruz, a critic of climate change abatement legislation and supporter of the US withdrawal from the Paris Agreement, with a leadership award during the AFPM summit in San Antonio in mid-March.
Large oil and gas firms have come under increasing pressure in recent years to increase the level of transparency on the efforts they are taking to meet the goals of the Paris Accord.
The shift has come amid wider scrutiny on large state investment and pension funds, which has prompted many to divest their holdings in the fossil power industries.
In March, Shell called on the US government to tighten methane emissions regulations from the oil and gas industry.
Earlier this year, BP announced that it is backing an investor group call to disclose how its strategy is consistent with the Paris climate change abatement goals, and would support a resolution on the matter to be brought forward at its annual general meeting (AGM) in May.
AFPM had not responded to requests for comment at the time of publication.
https://www.icis.com/explore/resources/news/2019/04/02/10343051/shell-to-end-afpm-s-membership-over-climate-policy-stays-within-cefic-acc
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Energy CEOs Send Most Campaign Cash to Republicans — Study
Apr 2, 2019 | E&E Energywire
By Kelsey Brugger
Eighty-nine percent of CEOs of the largest public energy companies favored Republican candidates in their campaign contributions, according to a new study.
The report, from researchers at Harvard University Law School and Tel Aviv University, examined records of thousands of chief executives' political donations over an 18-year period. The researchers studied CEOs from a dozen different industries, from energy and utilities to money and health.
In all, they found their money overwhelmingly went to Republican candidates. While about nine out of 10 energy CEOs favored Republicans, just 5% backed Democrats.
"CEOs might view Republican policies as being more favorable to high-wealth individuals or to business organizations," the authors wrote. But there were variations by industry, gender and geographic location.
"The industry with the strongest pro-Republican tilt is energy," the researchers wrote.
The researchers examined Federal Election Commission records of 3,500 CEOs of S&P 1500 companies from 2000 to 2017. They noted that these CEOs control the political spending of their companies and therefore influence policy — a practice that has garnered considerable attention since the 2010 Citizens United ruling.
Their core finding — that CEOs back Republicans — was not met with much disbelief.
"On one hand, not surprising that CEOs lean/lurch toward GOP," Barry Rabe, a University of Michigan public policy professor, wrote in an email. "But this can help fuel the narrative that fossil fuel companies may have an ideological tilt at the helm and support a party (and candidates) inclined to move slowly if at all on climate."
Researchers found manufacturing CEOs also embraced Republican candidates, with 72% of chief executives supporting Republicans compared with 11% backing Democrats. After that, 64% of CEOs leading chemical companies backed Republicans compared with 12% to Democrats. Telecom and business equipment companies were the least likely to lean Republican.
As for gender, male CEOs from all industries more clearly supported Republicans than female CEOs did. Female CEOs, however, made up just 2.8% of all CEOs in the study during the time period.
In terms of geographical regions, the researchers reported the pro-Republican preferences were the strongest for CEOs in firms in the Midwest and the South. That leaning was the least strong for chief executives of companies in the Northeast and the West, they said.
In addition, the authors found Republican CEOs were generally less transparent with their investors about their political donations. However, there were some exceptions. Companies in the energy, health and utility sectors are "associated with greater transparency."
"These are heavily regulated areas, and the pressure for transparency might thus be especially strong for such companies," the researchers wrote.
Oil and mining companies have pushed to unseat Democratic politicians in many races. In 2018, Joe Craft, CEO of Alliance Resource Partners LP, spent generously on then-Rep. Kevin Cramer (R-N.D.) in his successful bid to oust Sen. Heidi Heitkamp (D) (E&E Daily, Nov. 16, 2018).
In Montana, Ariel Corp. CEO Karen Wright, Bois d'Arc Energy Inc. CEO Wayne Laufer and former Occidental Petroleum Corp. CEO Stephen Chazen all donated to Republican Matt Rosendale in his failed attempt to challenge Sen. Jon Tester (D) (Greenwire, Oct. 29, 2018). In Texas, Kelcy Warren, CEO of Energy Transfer Partners LP, generously supported Rick Perry's 2016 White House bid (Energywire, Aug. 13, 2018).
https://www.eenews.net/energywire/2019/04/02/stories/1060139283
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Shell to Scrap Membership of U.S. Refining Group Over Climate Policy
Apr 2, 2019 | Reuters (In The New York Times)
By Ron Bousso
Royal Dutch Shell said on Tuesday it would not renew its membership of a leading U.S. oil refining and petrochemical trade group in 2020 due to misalignment over climate policy.
In its first review of its association with 19 key industry groups, the Anglo-Dutch company said that it had found "material misalignment" over climate policy with the American Fuel & Petrochemical Manufacturers.
Shell found "some" misalignment with 9 other trade associations, including the American Petroleum Institute.
The review is part of Shell's drive to increase transparency and show investors its operations are in line with achieving the 2015 Paris climate agreement goals to reduce carbon emissions.
https://www.nytimes.com/reuters/2019/04/02/business/02reuters-shell-afpm.html
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ExxonMobil, Citgo Trim New Hampshire Residents’ MTBE Claims
Apr 1, 2019 | BNA Daily Environment Report
By Peter Hayes
ExxonMobil Corp. and Citgo Petroleum Corp. shook off claims by all but one of 14 New Hampshire residents who allege injuries from exposure to the companies’ gas additive MTBE.
Only one of the residents, Teresa Chandler, has shown she suffered an injury-in-fact and filed a claim within the three-year time limit, the U.S. District Court for the District of New Hampshire said March 29, ruling on summary judgment.
Chandler alleges that her exposure to MTBE manufactured or supplied by the companies caused her to develop cancer.
She presented enough evidence that the gas additive is known to cause cancer and that it was detected in the water in her home, the court said in letting the claim proceed.
While many of the plaintiffs were on notice in 2011 that their water was contaminated with MTBE, Chandler’s claims are timely because her water only tested positive in 2014, less than three years before filing suit, the court said.
Chandler may also proceed with property damage claims, which the companies didn’t challenge on summary judgment.
In May 1990, a leak of gasoline containing MTBE from underground storage tanks was discovered at a gas station in Swanzey, N.H.
A group of Swanzey residents filed suit on May 20, 2016, alleging the MTBE contaminated their water supply, causing personal injuries and diminution in property values.
The complaint asserts product liability and negligence claims for personal injury, and nuisance and trespass claims for diminished property value.
New Hampshire banned the use of MTBE in 2007.
Judge Joseph N. Laplante issued the opinion.
McGrath Law Firm PA represents the residents. Eimer Stahl Klevorn & Solberg LLP represents Citgo. Holland & Knight LLP represents Exxon.
The case is Short v. Amerada Hess Corp., 2019 BL 112298, D.N.H., No. 16-cv-204, 3/29/19.
https://bnanews.bna.com/environment-and-energy/exxonmobil-citgo-trim-new-hampshire-residents-mtbe-claims
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Sempra Energy Passes Two Regulatory Hurdles for LNG Export Project in Mexico
Apr 1, 2019 | Houston Chronicle
By Sergio Chapa
San Diego utility company Sempra Energy has passed two regulatory hurdles t0 developed a liquefied natural gas export project in Mexico.
U.S. Department of Energy officials have given Sempra subsidiary Energy Costa Azul LNG permission to export natural gas from the United States to Mexico, Sempra reported on Sunday.Recommended Video
In a second decision, Department of Energy officials also gave the Energia Costa Azul project permission to re-export that natural gas as LNG to non-free trade agreement nations.
Permission to export to non-free trade agreement nations such as China, Japan and South Korea is desirable status to LNG exporters because due to higher natural gas prices in East Asia.
The regulatory hurdles come at a time when LNG producers and buyers are meeting at a high-level conference in Shanghai, China.
"Energia Costa Azul LNG's location on the West Coast of North America is truly a differentiator and it has the potential to be a game changer," Sempra Energy Chief Operating Officer Joseph Householder said in a statement.
Exports: Sempra Energy taking two-coast approach to LNG business
Sempra plans to pipeline cheap and abundant natural gas from the Permian Basin to a site that the company owns in Baja California, Mexico.
Originally developed as an LNG import terminal, Sempra plans to build a liquefaction plant that will liquefy the natural gas and ship it to customers around the globe.
"The authorizations are another step forward in the development of this project that could bring many benefits for Mexico, U.S. natural gas producers and our customers and partners in greater Asia," Sempra North American Infrastructure CEO Carlos Ruiz Sacristán said in a statement.
Fuel Fix: Get daily energy news headlines in your inbox
Headquartered in San Diego, Sempra reported $11.6 billion of revenues in 2018. The company employs more than 20,000 people and serves more than 40 million customers around the world.
https://www.chron.com/business/energy/article/Sempra-Energy-passes-two-regulatory-hurdles-for-13731943.php?cmpid=ffpipe
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Lacking Fixes, Oil & Gas Sector Unlikely To Use EPA Penalty Relief Policy
Apr 1, 2019 | Inside EPA
By Dawn Reeves
EPA did not address a series of industry concerns when it finalized its audit policy for the oil and gas sector, raising doubts that companies will take advantage of the penalty relief the policy provides for facilities that disclose and address violations, industry sources say.
The sources say EPA’s unwillingness to address their concerns, including a requirement that they go beyond current regulatory requirements to win penalty relief, as well as the potential for “double regulation” in states that have delegated enforcement authority, means it is unlikely that the policy will be widely used.
If the audit policy requires companies “to do more than to come into compliance with regulations, not many people will be embracing it,” one industry source says.
In response, EPA defends its approach, with a spokesman telling Inside EPA in a statement that the agency “took all stakeholder comments carefully into account."
The spokesman adds that the final policy included a provision to allow a company to propose “equivalent methods” of compliance apart from what the policy requires by March 28, 2020 if it “believes that is has a better way of addressing non-compliance.”
He adds that EPA and some states have already begun to use the protocol in the policy to inform audits, and that participation is voluntary, “so if a company believes the program doesn’t suit its compliance strategy, it need not participate. Of course, if the EPA or a state discovers non-compliance at that company’s facilities, it would be subject to traditional enforcement.”
EPA’s final audit policy is intended to provide penalty relief for new owners of upstream oil and gas facilities that voluntarily disclose and address certain Clean Air Act violations.
The policy says after EPA verifies the violations and corrective actions, it will provide penalty relief to owners. The program is specifically tailored to oil and gas production and is intended to reduce emissions of the potent greenhouse gas methane as well as ozone-forming volatile organic compounds.
But the final policy fails to address several industry concerns -- most egregiously, industry sources say, it requires owners to curb emissions from storage tanks beyond complying with the regulation.
This part of the policy is modeled after an enforcement settlement the Obama administration negotiated with operators in North Dakota that industry groups opposed because of its beyond-compliance terms.
Industry expressed concerns with the settlement at the time, as well as in comments on a draft version of the audit policy last year.
One industry source says the new audit policy requirements differ sharply from other EPA audit policies, which generally ask no more of industry than to comply with rules.
“Here, they are asking for you to make specific commitments on dealing with storage tanks that go beyond, in our view, the requirements of the regulations. This has been a fairly intense difference of opinion between industry and” EPA’s enforcement office, the source explains.
‘Bootstraps’ Relief
The source adds that EPA would likely agree that the requirements do go beyond what the rules say, but would defend it by noting it is voluntary, rather than being forced onto the industry.
Specifically, industry says the audit policy framework “bootstraps on the types of injunctive relief measures that were imposed on companies in the prior administration in settlements,” a second source says.
But the final policy “still is a strings-attached framework,” the source adds, meaning that a new owner would “have to agree to these conditions,” in order to participate.
That means it is possible that new owners will not take advantage of the enforcement relief, even if they discover violations, the source says.
The concern is compounded by the fact that the policy is already limited by design at its threshold, because it only covers new acquisitions and certain air law violations.
“And then, if you add these other concerns folks have with it, I think it may see limited use,” the second source says, while acknowledging that “these things are tweaked based on real-time feedback” and suggests EPA could still make further changes to address the concerns and boost participation.
The source also clarifies that the policy grants relief from “gravity” penalties, which are determined by the seriousness of the violation, how long it occurred and how involved the owner was in resolving it.
The policy does not grant complete relief from “economic benefit” penalties, which is the amount EPA determines a company benefitted financially from the violation. New owners would only have to pay the economic benefit penalty for the portion of time they owned the facilities, but the source says those numbers are not de minimis.
The policy also establishes a definition of a new owner and a deadline for how long one can to take advantage of the policy. It sets other, shorter deadlines for new owners to report violations once they are discovered.
The first source says another concern with the policy is that it does not address “double regulation,” a situation that may arise when a new owner participates in the EPA audit policy but then has to take additional steps demanded by states with delegated enforcement authority.
If a state has such authority, “it should be the state that is the primary enforcer, and this would be creating a double path, if you will, if you did what the state asked you to do in their policy and EPA wanted more.
“Then, you are getting hit with two different mandates. The coordination there doesn’t seem to be as expansive and deferential to states as I think we would have expected it to be,” the source says.
If a state has full delegated enforcement authority and a company enters into an agreement with the state, “There should not be a separate arrangement with EPA” because that looks like EPA is “stepping over states to pursue enforcement . . . where a state is the primary” enforcer.
The source says industry repeatedly raised these concerns with EPA in written comments as well as in briefings with the agency, but that they remain unaddressed.
“We have said that if this is something that is a voluntary program and you are trying to encourage people to really address these issues when they acquire new properties, if you are making it something more extensive than other audit policies, there is not an incentive to participate.”
If the source is correct and participation is limited, “I’m not sure that the outcome of creating this was a meaningful effort.”
Additional Incentives
The first source, however, notes that EPA has said it is placing a renewed emphasis on its audit policy in general and has also said it will offer additional measures to create more incentives for companies to use it. “What those are remain to be seen,” including whether they “are strong enough to get people to use the audit policy.”
The source notes there are always questions about what companies actually disclose to EPA under audit policies, with longstanding concern that they often draw paperwork noncompliance disclosures rather than more significant ones, such as air law violations the agency is seeking to address here.
“I do get that EPA is trying to make a stronger play for these types of disclosures with this tailored initiative, and that is worth acknowledging, but the question still remains is the incentive structured enough that new owners of oil and gas facilities will come forward. Time will tell and we will see how the final version plays out.”
But environmentalists are concerned over EPA’s continued push for voluntary enforcement means that pollution -- in particular methane due to its contribution to climate change -- is not being reduced from one of the largest sources.
One source likens the move to “making an arsonist into the fire inspector.” Another says EPA will have to carefully track the “new owner” given broad crossover of parent companies and subsidiaries throughout the sector.
https://insideepa.com/daily-news/lacking-fixes-oil-gas-sector-unlikely-use-epa-penalty-relief-policy
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Md., Del. Accuse EPA of Abdicating Responsibility on Ozone
Apr 2, 2019 | E&E News PM
By Sean Reilly
Two states are accusing EPA of sidestepping key concerns in rejecting their pleas for a federal crackdown on ozone-forming power plant emissions from beyond their borders, according to newly filed court documents.
That denial "is just one more example of how EPA has abdicated its responsibility" under the Clean Air Act to confront interstate ozone transport, lawyers for Delaware wrote in a briefsubmitted Friday with the U.S. Court of Appeals for the District of Columbia Circuit.
Together with Maryland, Delaware is challenging the federal agency's decision last year to reject their requests that coal-fired power plants in as many as five other states be required to do more to reduce emissions of nitrogen oxides (NOx), a prime ingredient in ozone creation.
As the basis for their determination, EPA officials pointed to the Obama-era Cross-State Air Pollution Rule (CSAPR) update, adopted in 2016 with the goal of curbing power industry releases of NOx emissions in more than 20 states, including those covered by Maryland and Delaware petitions.
The two states say upwind NOx emissions are undercutting their ability to meet the 2008 ground-level ozone standard of 75 parts per billion. EPA predicts that the update's requirements will bring both states into attainment by 2023.
That's questionable, lawyers for Delaware and Maryland wrote. In arriving at that conclusion, for example, EPA relied on 2017 emissions data that show many of the upwind power plants "continue to emit NOx at rates well above the CSAPR update's fleetwide rate," according to Maryland's brief, also filed Friday.
Large chunks of the two states are currently listed in nonattainment for the 2008 standard. Both argue that they are being unfairly hurt by other states' failure to take more aggressive steps to limit power plant emissions.
Under the Clean Air Act's "good neighbor" provision, states are not supposed to allow pollution that significantly impedes another state's ability to meet the National Ambient Air Quality Standards for ozone and other common pollutants.
While Delaware is legally supposed to come into attainment with the 75 ppb standard by 2021, EPA arbitrarily ignored that deadline "in favor of its overly optimistic future modeling," according to its brief.
Both states petitioned EPA for help in 2016. Delaware targeted four plants in Pennsylvania and West Virginia; Maryland highlighted a total of 19 in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia.
While EPA is supposed to act on such petitions within 60 days, it took the agency some two years to reach a decision on the petitions.
Maryland and Delaware, allied with a coalition of environmental groups, then filed suit with the D.C. Circuit late last year. Under a court-ordered schedule, EPA's response to their arguments is due by June 26.
https://www.eenews.net/eenewspm/2019/04/01/stories/1060138979
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California Jury Orders Chevron to Pay $21M for Cancer Claims
Apr 1, 2019 | AP (In The Washington Post)
A Northern California jury ordered Chevron Corp. to pay the families of two brothers who died of cancer a combined $21.4 million after concluding the company failed to properly warn the men about the dangers of a toxic solvent they worked with at a company-owned tire factory.
The San Francisco Chronicle reported that the Contra Costa County jury’s verdict Friday came after three days of deliberations and four weeks of trial.
The jury concluded that the solvent benzene caused the cancers that killed brothers Gary Eaves and Randy Eaves. The brothers worked at a tire manufacturer in Arkansas owned by Unocal for decades. San Ramon, California-based Chevron purchased Unocal in 2005. Both brothers at times worked as a “spray booth operator” responsible for spraying the solvent on tires. Gary also hauled tires coated in benzene.
Gary died of non-Hodgkin’s lymphoma in 2015 at age 61. Randy died of leukemia in 2018, also at age 61.
The families’ lawyer Mary Alexander argued that none of the plant workers wore respirators or protective clothing while working with the solvent. Alexander also argued that workers were never advised to handle benzene inside of a ventilation booth.
The families of the men filed their wrongful death lawsuit in the San Francisco suburb of Contra Costa County where Chevron is based.
Chevron said it is mulling its next legal step.
“We do not believe that Unocal had any role in the claimed injuries and we are evaluating the jury’s decision and the court’s rulings in this matter,” the company said in a statement.
https://www.washingtonpost.com/business/california-jury-orders-chevron-to-pay-21m-for-cancer-claims/2019/04/01/fb334476-54ae-11e9-aa83-504f086bf5d6_story.html?utm_term=.7ff57c5245bb
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The World’s Energy Systems are Transforming. Here’s How.
Apr 2, 2019 | The Washington Post
By David G. Victor
Where do you get your energy — and where will you get it in the future? This week, the World Economic Forum (WEF) helped answer those strategically urgent questions when it released a study on major transformations in the world’s energy systems. Electric grids are decentralizing; people worldwide are consuming energy differently than in the past; and governments are trying to slow climate change. Which countries are doing the most to deliver an “energy transition,” as this messy revolution is known?
Here’s what the report does, along with its major insights.The WEF is trying to measure the transition
Since 2013, the WEF has been issuing these reports and measuring, in different ways, the “energy transition index.” The goal is to provide data that people who track energy issues, including social scientists, can understand and combine in useful ways.
By the WEF’s reckoning, the best way to measure the performance of a country’s energy system is to look at three policy areas in combination: economic development and growth, environmental sustainability and access to secure, modern energy. Unsurprisingly, rich countries that also have relatively clean energy systems — thanks mainly to hydropower and nuclear power — do best, as you can see in the figure below, taken from the report with permission.
Top 10 energy system performers for 2019, based on data and estimates collected in 2018. Source: WEF ETI 2019 report. (David G. Victor/David G. Victor)The best are best at being greenIt is hard to create high-performing energy systems because we expect them to be able to do a lot of diverse things. They contribute to economic growth, which means that all major forms of energy must be affordable while imposing few extra costs on society. They must be clean — something that the WEF team measures mainly by looking at emissions of carbon dioxide, the leading human cause of global warming, and other pollutants. And they must be secure, which is a woolly concept that includes ensuring that people have access to modern electricity and that energy supplies and imports are highly diverse. All else equal, more diversity means more security in case one source is cut off or falters.
The report reveals that the countries with the best energy systems are good enough at everything, but not uniformly great. All those that rank in the top 10 manage to be in the top 30 — if not the top 10 — for producing clean energy.
But their performance in other areas varies much more. For example, Switzerland doesn't do as well at keeping its energy supplies diverse and therefore secure, instead relying heavily on imports that come from relatively few places.
These patterns don’t usually change much over time because most of what matters for energy performance depends on infrastructure and institutions — forces that are usually slow to change.
The biggest changes in performance since the WEF started measuring in 2014 have come from countries that are improving energy access and security but already had clean energy systems. On the WEF index, it looks as though all these countries are heavy hitters — they bat triples, at least. In reality, they are starting at second base -- they are already rich and clean and have strong institutions that make it easier to invest in infrastructure.There’s a big gap in readiness to shift to climate-friendly energy
For the past two years, the index has been measuring countries’ readiness for the transition to green energy sources. The readiness indicators are complicated — perhaps too complicated — but they try to capture factors such as quality of regulation, openness of investment rules (because energy transition is capital-intensive), human capital and quality of infrastructure. Openness to investment means a country can shop the world for firms that are willing to deploy capital. The quality of regulation depends, in part, on whether countries recognize the need to cut emissions — and can offer policies stable enough so that private firms will invest. Human capital includes factors such as the percentage of the workforce in low-carbon industries and the quality of education.
This measure, however imperfect, suggests that there is a big gap between the parts of the world where institutions could facilitate radical transformation of their energy systems, on the one hand, and on the other, the places in the world where energy systems actually emit the most carbon.
[How to enact policies that are effective in slowing climate change]Political scientists and diplomats may need to think about climate change in different ways
Political scientists generally assume that the problem of climate change is a problem of global collective action. That mindset forces attention to strategies for setting and enforcing rules about how to allocate the burden of cutting emissions. The reality is somewhat different. Climate is a leadership and followership game — the leaders are ready for energy transitions, but by themselves they don’t matter unless followers also come along.
[Here's what happened at the latest global climate negotiations]
This challenges both diplomacy and analysis. For diplomats, the game is no longer about leaders showing how green they are willing to be. Such leaders represent a shrinking proportion of the total share of emissions. For analysts, attention needs to focus less on what leaders do and more on what I call followership — whether other firms and countries follow the leaders. Climate cooperation is a followership game in which leaders should pay closer attention to which factors will determine whether their own green steps inspire action by others.
The WEF report suggests that followership isn’t straightforward. It isn’t so much about attitudes — does a country want to be green — but rather about having the institutions and conditions that make transition to a greener energy system feasible.
[Pacific Gas & Electric was bankrupted by climate change. It won't be the last company to go under.]
David G. Victor is a political science professor at the University of California at San Diego’s School of Global Policy and Strategy, where he co-leads the Deep Decarbonization Initiative and the Laboratory on International Law and Regulation. He is co-chair of the Cross-Brookings Initiative on Energy and Climate at the Brookings Institution and an unpaid adviser for the WEF ETI team, where he reads and comments on drafts and offers advice on strategy.
https://www.washingtonpost.com/politics/2019/04/01/worlds-energy-systems-are-transforming-heres-how/?utm_term=.338915e81f22
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Will Trump's Pipeline Permit Hold Up in Court?
Apr 2, 2019 | E&E Energywire
By Pamela King
President Trump last week attempted to take the fate of the Keystone XL pipeline into his own hands.
His Friday executive order swapped out a key March 2017 State Department permit — currently under review in federal appellate court — with a fresh presidential approval (E&E News PM, March 29).
It's unclear whether Trump's efforts to override the State Department's delegated authority will survive judicial scrutiny.
"It has been convention that agencies [with delegated presidential powers] have to follow the National Environmental Policy Act and all the federal laws that apply to agency action," said Alexandra Klass, an energy law professor at the University of Minnesota.
"When the president acts, those rules don't apply."
Following orders from newly inaugurated Trump, the State Department in 2017 issued a permit allowing the pipeline, which would connect Albertan oil fields to the Gulf of Mexico, to cross the border between the United States and Canada.
The agency had considered the border crossing under the previous administration, but President Obama blocked the project in 2015.
Keystone XL developer TransCanada Corp. sued in 2016, arguing that President Obama overstepped the limits of executive authority. The company dropped its challenge in April 2017.
This time around, the company could be in the position of defending presidential power over cross-border projects.
Trump's revocation of the 2017 permit appears to derail proceedings initiated in the U.S. District Court for the District of Montana disputing the State Department's authorization.
As part of that lawsuit, Judge Brian Morris last year issued a preliminary injunction blocking TransCanada from working on the pipeline until the agency revisits its review of climate, market and other impacts (Energywire, Nov. 9, 2018).
After a month of legal wrangling, Morris, an Obama appointee, said he would not accommodate TransCanada's request to conduct certain preconstruction field activities, such as preparing work camps and off-site storage.
The case is now before the 9th U.S. Circuit Court of Appeals, which declined to thaw the construction freeze.
If the lawsuit and injunction are moot, TransCanada could begin work in August, ClearView Energy Partners LLC wrote Friday.
"It is not yet clear, however, whether today's action changes TransCanada's projection of a one-year delay for the KXL in-service date if the pre-construction injunction remained in force beyond March 15," ClearView analysts wrote.
Environmental challengers say they are still reviewing the permit and plotting next steps.
"The courts have ruled that this pipeline requires further analysis of oil spills and climate impacts," said Doug Hayes, senior attorney for the Sierra Club's environmental law program and counsel in the Montana lawsuit. "This appears to be an attempt to ignore those requirements."
The State Department's permit is just one of the federal approvals TransCanada must secure. Meanwhile, the agency has already issued its notice of intent to prepare the supplemental environmental impact statement Morris ordered.
"It's unclear how this permit would change those processes," Hayes said. "There are a lot of unanswered questions at this point."
TransCanada did not respond to a request for comment on its next steps in the courtroom. The company or the Trump administration could cite the president's permit in a request to lift the Morris injunction.
While Trump's order attempts to circumvent questions about Keystone XL's legality, the president instead may have introduced a new legal tangle for the project, said Center for Biological Diversity attorney Amy Atwood, a lawyer for environmentalists in the Montana lawsuit.
The permit is likely to be subject to a new round of litigation, although a formal challenge has not yet been filed.
"We're in uncharted territory here," Atwood said.Powers of the president
If Keystone XL opponents sue in Morris' court, Trump's approval could meet the same outcome as the State Department authorization.
"Presumably, this may not change anything," said James Coleman, an energy law professor at Southern Methodist University.
The legal precedent for questions of presidential power over border-crossing projects is murky, he said.
In a pair of George W. Bush-era lawsuits over the original Keystone pipeline, two district courts concluded presidential actions are not subject to NEPA or to the Administrative Procedure Act. The rulings never faced appellate review.
"Simply stated, an act need not be carried out by the President personally to constitute presidential action exempt from judicial review under the APA," Judge Richard Leon found in his 2009 dismissal of a challenge by the Natural Resources Defense Council and groups affected by the Keystone project.
Leon, a Bush pick, sits on the U.S. District Court for the District of Columbia.
"Now we're seeing some pushback to that," said Coleman, who worked on those issues in his former role as an attorney at Sidley Austin LLP.
Early in the Montana litigation, Morris tossed arguments by the Trump administration that the court could not review presidential permits.
In a November 2017 order, the judge rejected the government's motion to dismiss the case, noting that the State Department had previously referred to the issuance of a presidential permit as a "major Federal action."
"The logical conclusion to be drawn is that the State Department intended for the publication of the [record of decision/national interest determination] and the issuance of the accompanying Presidential Permit to be reviewable as final agency action," Morris wrote.
"Federal Defendants now attempt to recast the State Department's original decision to comply with NEPA, as required for a major Federal action, into a policy choice, or 'act of grace,' to avoid judicial review."
Reporter Timothy Cama contributed.
https://www.eenews.net/energywire/2019/04/02/stories/1060139193
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Tesla Settles with EPA Over Hazardous Waste Violations at Plant
Apr 1, 2019 | BNA Daily Environment Report
By Chiara Vasarri
The U.S. Environmental Protection Agency has settled with Tesla over federal hazardous waste violations at their automobile manufacturing plant in Fremont, Calif., according to a statement.
Under the agreement, Tesla will take specific steps to properly manage hazardous wastes at its car factory.
Tesla also will purchase $55,000 in emergency response equipment for the City of Fremont Fire Department and pay a $31,000 penalty.
EPA determined that Tesla failed to comply with air emissions standards for equipment leaks and management requirements for generators of hazardous wastes.
It also failed to make an adequate hazardous waste determination for certain solid waste generated at the facility.
https://bnanews.bna.com/environment-and-energy/tesla-settles-with-epa-over-hazardous-waste-violations-at-plant
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EPA Proposing to Revise RCRA Definition of 'Ignitable' Waste
Apr 1, 2019 | Inside EPA
EPA is proposing to update its method for identifying “ignitable” hazardous waste liquids under its Resource Conservation & Recovery Act (RCRA) hazardous waste regulations, a step that one industry source says could prompt some concerns among regulated parties as it could expand the universe of wastes subject to regulation.
“I think that the new procedures for determining if multi-phase wastes are ignitable may be problematic and capture wastes that have not been managed as ignitable,” the source says.
In a pre-publication version of the proposed rule, which is expected to be published in the Federal Register April 2, EPA says it is updating its regulations for identifying ignitable hazardous waste under RCRA and modernizing RCRA test methods that have been requiring the use of mercury thermometers.
“These proposed revisions would provide greater clarity to hazardous waste identification, provide flexibility in testing requirements, improve environmental compliance, and, thereby, enhance protection of human health and the environment,” the proposed rule says.
The revisions would update test methods for evaluating whether a liquid waste is ignitable under the RCRA definition of hazardous waste. Solid wastes are considered hazardous waste if they exhibit any of four characteristics of ignitability, corrosivity, reactivity or toxicity, or if they are a listed waste, according to the draft rule.
The draft rule would make several updates to EPA's hazardous waste regulations. Specifically, EPA suggests updating its flash point test methods that are currently required for deciding if a liquid waste is an ignitable hazardous waste, and proposes to codify current guidance on the regulatory exclusion in the ignitable characteristic for aqueous liquids that have alcohols.
“Third, EPA is proposing to codify existing sampling guidance regarding waste mixtures having multiple phases when determining whether a waste exhibits the ignitability characteristic,” the rule says.
Under this change, EPA proposes clarifying “that multiphase wastes should be separated out into its different liquid and/or solid phases, to the extent possible, before then testing each individual phase for ignitability . . .,” the rule says.
On the mercury issue, EPA proposes “to provide alternatives to the use of mercury thermometers in the air sampling and stack emissions methods in Test Methods for Evaluating Solid Waste: Physical/Chemical Methods (SW-846)."
On a posting about the rule on its website, EPA says the revisions will lower potential mercury exposures to both humans and the environment by decreasing the overall use of mercury-containing products.
EPA is also proposing to revise its cross-references with Department of Transportation regulations.
The agency estimates that 264 commercial, federal or state laboratories could potentially be affected by the rule.
https://insideepa.com/daily-feed/epa-proposing-revise-rcra-definition-ignitable-waste
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U.S. Investigators to Begin Hunt for Cause of Texas Petrochemical Disaster
Apr 1, 2019 | Reuters (In The New York Times)
U.S. investigators hope this week for the first time to enter the site of a massive fuel fire and chemical spill outside Houston to begin the hunt for a cause and to determine whether the operator followed safety regulations.
The blaze, at Mitsui & Co's Intercontinental Terminals Co (ITC) storage facility in Deer Park, Texas, began March 17 and released toxic chemicals into the air and nearby waterways. Shipping along the largest oil port in the United States remained disrupted on Monday, as did operations at two nearby refineries.
Fumes from benzene-containing fuel and fear of another fire have prevented investigators from going into the tank farm's "hot zone," officials said Monday. Three tanks holding oils remain to be emptied this week, and responders continue to sop up fuels on the tank farm grounds.
Investigators from the U.S. Chemical Safety Board (CSB) and Environmental Protection Agency, as well as state and local authorities, plan to enter the site once it is safe.
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Access to the site, along the Houston Ship Channel, will help determine what happened and how a fire at one tank holding tens of thousands of barrels of naphtha spread quickly to 10 other giant tanks.
"The escalation of the event, looking at how the fire spread from a single tank to others in the tank battery, is certainly something we're interested in," said CSB lead investigator Mark Wingard, who arrived in Houston last week.
Before CSB investigators enter the site, possibly later this week, they will focus on interviewing ITC personnel and witnesses of the fire, and collecting documentation on the facility and its tanks. The CSB's investigation will also examine the "outside impacts" of the fires, Wingard said.
"There's huge public interest in this case," he said. "People in this community want to know what happened and what they were exposed to."
Access also could provide officials with information critical to state and local lawsuits accusing the company of improperly releasing tons of volatile organic compounds into the surrounding air and water.Editors’ PicksThe Startlingly Flavorful Dressing That Will Boost More Than Just Your SaladsPeople Don’t Bribe College Officials to Help Their Kids. They Do It to Help Themselves.French Raise a Glass to a Health Warning About Too Much Wine
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"We need to get to what was the root cause of this event and then begin to understand any aspect of negligence or obstruction that led to the event," Harris County Commissioner Adrián García said in an interview.
The county last week filed a lawsuit against ITC seeking to recoup the costs of emergency responders and healthcare clinics set up in response to pollution from the fire. The county has not yet estimated the cost, which Garcia said is "going to be very significant."
An ITC spokeswoman declined to comment, citing pending litigation. In the past, a company official said ITC responded immediately to the fire and had no lack of resources to put out the fire.
Asked how long it would take for investigators to get onto the grounds, ITC Senior Vice President Brent Weber said he hoped it would be days not weeks. "They have been on the site," Weber said on Monday. "They're staying out of the hot zone right now."
Fumes and clean-up efforts continued to affect shipping for a third week. Twenty-two cargo vessels were able to transit the area near the ITC tank farm on Sunday, the Coast Guard said, between 40 percent and 50 percent of normal.
Another 64 were in a queue waiting to pass on Monday. In total, 118 ships were anchored outside the port, said U.S. Coast Guard Chief Petty Officer Derby Flory.
In addition to the state and county lawsuits, seven members of a Houston family have filed suit, claiming injuries from air pollution caused by the fire. Their lawsuit, which seeks $1 million in damages, alleges ITC failed to prevent the fire and did not adequately warn residents of the dangers once it began.Sign Up for the Crossing the Border Newsletter
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The seven were exposed to toluene, xylene, naphtha and benzene "causing them severe injuries and damages," according to the lawsuit.
"The warnings were too little, too late," said Benny Agosto Jr., who represents the family and whose firm is among at least four working to bring cases against the company.
https://www.nytimes.com/reuters/2019/04/01/us/01reuters-texas-energy-itc-probe.html
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FERC to Utilities: Beef Up Your Encryption
Apr 2, 2019 | E&E Energywire
By Blake Sobczak
Security specialists at the Federal Energy Regulatory Commission are urging power utilities to use tougher encryption on their grid networks, according to a series of recent cyberdefense audits.
FERC's Office of Electric Reliability drew its latest "lessons learned" findings from on-site reviews at large U.S. power utilities last year.
The report urges utilities to use encryption "that is sufficiently strong enough" to protect data in transit between remote computers and networks linked to the bulk power grid.
FERC staff found that several utilities had been hewing to the default "lower" encryption strength for such communications.
All big utilities in the United States face mandatory cyber and physical security standards set through FERC and the North American Electric Reliability Corp., which also participated in FERC's audits.
But FERC's voluntary list of recommendations focused on areas that existing federal critical infrastructure protection standards tend to overlook, such as encryption.
The report shows FERC is pushing utilities to think beyond baseline threat scenarios, according to Adam Crain, who owns the control system security research consultancy Automatak.
FERC cites three different key lengths for the popular advanced encryption standard (AES) "128, 192, and 256 bits, from weakest to strongest."
But even at the "weakest" level, "there is no threat against AES-128 currently known with a conventional computer," said Crain. It would take a modern supercomputer a billion billion years to reliably crack AES-128.
Cracking AES-256 would take exponentially more time to break, though both time frames are incomprehensibly long. Even so, "if anyone is designing a new system, there's just not that much more computation needed to do AES-256, so the recommendation is always 'do 256,'" Crain pointed out.
The recommendation speaks to how federal energy regulators don't want to take chances when it comes to emerging cyberthreats to U.S. infrastructure systems. Last week, FERC hosted a technical conference on cybersecurity, where experts and cybersecurity officials testified about the range and severity of new threats to U.S. grid, oil and gas pipeline networks (Energywire, March 29).
In its latest report, FERC also called on utilities to validate security certificates within their own operational networks.
That points to the common scenario of browsing to a website, only to receive a warning that "your connection is not private," without an option to go back. This sort of warning stems from a security certificate error, and according to FERC, it's a common sight in grid networks.
Certificate errors on internal networks aren't necessarily a problem — utility companies often sign their own security certificates that browsers don't always know to trust. Employees get used to clicking through any warnings to move on with their work.
FERC's concern is that employees who encounter a bona fide certificate error on the public internet "may out of habit accept the external connection with the error."
In those cases, "there might be attackers on the other end of the connection, and now you're giving the attacker your log-in credentials," noted Crain.
Other FERC recommendations included using cryptographic "hashing" to verify software updates on vital grid systems, replacing "end of life" software like Windows XP computers that no longer get security updates and conducting a "thorough review" of all documentation related to security compliance.
https://www.eenews.net/energywire/2019/04/02/stories/1060139229
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EPA, Environmentalists Grapple Over Air Toxics Policy in Court
Apr 1, 2019 | BNA Daily Environment Report
By Amena H. Saiyid
Federal judges appeared skeptical of April 1 arguments by environmentalists and California that a recently revised EPA air toxics policy is legally binding on power plants, refineries, and other industrial sources.
Challenges to the Environmental Protection Agency’s revised air toxics policy can only be brought when the policy is applied in permits, Senior Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit said April 1. Until then, Silberman said, a revised document reflecting agency’s changed policy isn’t subject to judicial review.
Silberman, along with Judges Judith W. Rogers and Robert L. Wilkins, grilled the attorneys representing California and the environmental groups about the legal impact of the changes EPA made in 2018 to its 24-year-old policy.
EPA air chief Bill Wehrum decided in January 2018 to end the “once in, always in” air toxics policy. That policy had said power plants, refineries, and other industrial sources of toxic air pollution subject to strict “major” source air toxics controls must always meet those limits, even if they cut emissions to below major source thresholds.
Clean Air Act emissions-control requirements for toxic air pollution kick in for large industrial facilities that emit at least 10 tons per year of a single hazardous pollutant or 25 tons of two or more air toxics. Facilities emitting below that limit don’t have to meet the most stringent pollution control requirements.
Justice Department: Memo Not BindingThe 2018 memo isn’t binding, as it didn’t represent a consummation of final agency action, said Eric Grant, deputy assistant attorney general for the Justice Department’s Environment and Natural Division.
“This case isn’t ripe” for a challenge, said Grant,
He added that the the EPA plans to propose a rule (RIN:2060-AM75) by June that builds on that memo. The proposal is undergoing interagency review at the White House Office of Management and Budget.
Backing the EPA’s stance in court was Shannon S. Broome, a Hunton Andrews Kurth LLP attorney representing the industry groups Air Permitting Forum and the Auto Industry Forum. She maintained the policy was non-binding despite the grilling she received from the judges.
California Deputy Attorney General Kavita Lesser and Sanjay Narayan, managing attorney for the Sierra Club’s Environmental Law Program who was representing a coalition of environmental groups, tried to get the judges to decide whether the policy was in line with the Clean Air Act. “On its face, it is legal and effective,” he said.
Silberman, however, remained skeptical about vacating the 2018 memo, noting that the preceding Clinton-era guidance also didn’t go through a formal rulemaking.Several chemical and coating manufacturers already are taking advantage of the 2018 memo, Narayan told reporters.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
The case is Calif. Cmties. Against Toxics v. EPA, D.C. Cir., No. 18-1085, oral arguments 4/1/19.
https://bnanews.bna.com/environment-and-energy/epa-environmentalists-grapple-over-air-toxics-policy-in-court
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State Lawmakers Press CARB To Address GHG Credit Oversupply Concerns
Apr 1, 2019 | Inside EPA
By Curt Barry
Democratic leaders in the California Legislature are pressing state air board officials to quickly address ongoing concerns that there is an “overallocation” of credits in the state’s greenhouse gas cap-and-trade program that may jeopardize achievement of the Golden State’s ambitious 2030 GHG target.
“Developing a shared factual basis for program design and evaluation will offer policymakers in both the administration and the Legislature the opportunity to make careful program design choices should the need for reforms become apparent,” states a March 1 letter from the lawmakers to Cal/EPA Secretary Jared Blumenfeld, California Air Resources Board (CARB) Chairwoman Mary Nichols, and Dallas Burtraw, a fellow with the think tank Resources for the Future who sits on the state’s Independent Emissions Market Advisory Committee (IEMAC).
The letter details concerns about potential overallocation of GHG allowances, which some experts fear will allow regulated entities to bank a substantial number of credits and avoid making meaningful pollution cuts in the latter years of the program -- resulting in the state falling short of its 2030 emissions target of 40 percent below 1990 levels.
The lawmakers ask CARB to carry out a number of tasks, such as providing additional information about the timing and agenda for a workshop later this year on credit supply and allocation, and adopting several recommendations in an IEMAC report issued last September, including better tracking of allowances.
The letter also asks the IEMAC to assess CARB’s responses to legislative requirements to analyze the overallocation issue, and an analysis of potential policy changes to address the matter.
Lawmakers signing the letter are Sen. Bob Wieckowski (D-Fremont), chairman of the Senate budget subcommittee with oversight of resources programs; Sen. Ben Allen (D-Santa Monica), chairman of the Senate Environmental Quality Committee; Sen. William Monning (D-Carmel), an ex-officio CARB member; Assemblywoman Laura Friedman (D-Glendale), chairwoman of the Assembly Natural Resources Committee; Assemblyman Eduardo Garcia (D-Coachella), an ex-officio CARB member; and Assemblywoman Cristina Garcia (D-Bell Gardens), chairwoman of the Joint Legislative Committee on Climate Change Policies.
Edie Chang, a CARB deputy executive officer, told a March 28 Senate budget subcommittee hearing -- in response to a query from Wieckowski -- that board officials would respond to the lawmakers’ letter “very, very soon.”
Numerous stakeholders are closely watching the developments in the Legislature and at CARB over their management of the post-2020 cap-and-trade program, which will include a number of regulatory changes to how the system works.
Some sources have indicated that Gov. Gavin Newsom (D) could take a more aggressive approach in addressing concerns about credit overallocation and the potential resulting pollution impacts to disadvantaged communities, compared with the relatively reserved stance of former Gov. Jerry Brown (D).
Newsom remarked during a budget presentation in January that GHG credits in the program were "oversubscribed," sparking speculation and uncertainty about whether his administration may take action to restrict allowances allocated to industry sectors in the years to come.
Lawmakers’ Concerns
In their March 1 letter, the Democratic lawmakers note that determining whether there is a potential oversupply of GHG allowances in the system -- and taking actions to correct the problem -- is critical because cap-and-trade is supposed to deliver 38 percent of cumulative GHG reductions needed from 2021 through 2030, and 47 percent of the annual reductions needed in 2030.
They also point out that the IEMAC, the Legislative Analyst’s Office and other policy experts have raised concerns multiple times that the system could have too many GHG allowances and that CARB should more quickly and thoroughly address the matter.
However, CARB has maintained that there is no oversupply of credits, and that the ability of regulated entities to purchase and bank future-year allowances is one of the program’s key cost-containment features.
Some experts have concluded that private parties may acquire several hundred million excess allowances by the end of 2020 that can be banked for later compliance use, the lawmakers say, while CARB is assuming that no more than 150 million allowances would be banked by the end of 2020.
However, an IEMAC member testified recently to a legislative committee that CARB’s data “now shows that more than 150 million excess allowances were already in private accounts by the end of 2018,” the lawmakers say. “This suggests the overallocation problem may be more significant than what CARB has so far acknowledged and indicates the need for further analysis.”
IEMAC’s 2018 report “reviewed the underlying controversy and made several specific recommendations to improve data reporting in order to create a shared factual basis for evaluating programmatic outcomes,” the lawmakers say in the letter. “Our understanding is that CARB has not yet adopted these recommendations.”
CARB should also adopt an annual banking metric that reports the number of excess allowances and offsets held in private accounts each year, and provide detailed data about the extent and type of allowance banking at the end of every multi-year compliance period, the IEMAC recommended.
When CARB adopted its post-2020 cap-and-trade regulatory changes last year, its resolution included a requirement that the board’s executive officer quantify and report by Dec. 31, 2021, the volume of unused allowances from 2013 through 2020, including volumes held in private accounts, as well as the potential for unused allowances to hinder the program’s ability to help achieve the 2030 GHG target. The resolution also required the executive officer to hold a public workshop sometime in 2019 to discuss potential methodologies to evaluate the credit oversupply question.
But the lawmakers say they need answers to the outstanding questions on a faster timeline. In addition to seeking more information about this year’s workshop and urging CARB to adopt IEMAC’s recommendations, the lawmakers also press the IEMAC to address a number of issues in its 2019 report.
These issues include an assessment of CARB’s response to a 2017 law’s instruction to “evaluate and address concerns related to overallocation”; an independent calculation of the annual and multi-year compliance period banking metrics; and an analysis of key issues raised in CARB’s 2019 workshop, including potential policy reforms to address overallocation.
https://insideepa.com/daily-news/state-lawmakers-press-carb-address-ghg-credit-oversupply-concerns
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Court Expedites Air Act Suit Despite EPA, Industry Opposition
Apr 1, 2019 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit will expedite states’ and environmentalists’ suit against EPA that seeks to force agency action to limit interstate air pollution, despite opposition by EPA and industry groups intervening in the litigation to support the agency.
In an April 1 order, the court agrees to petitioners’ motion to expedite review of the suit, State of New York, et al. v. EPA, et al., setting a briefing schedule requiring final briefs to be submitted by July 31, with “oral argument on the first appropriate date following the completion of briefing."
But EPA says the move is unnecessary and “moot,” given that all parties already agreed a speedy briefing schedule included in the order to expedite, while electric utility industry intervenors have strongly opposed the move to expedite, saying petitioners fail to meet a high bar to demonstrate expedited hearing is necessary.
In the suit, petitioners seek to vacate EPA’s Dec. 21 rule finding that states need take no further action beyond existing regulatory obligations in order to mitigate interstate ozone pollution under the Clean Air Act’s “good neighbor” requirement. EPA finds that the existing nitrogen oxides reduction mandates in the Cross-State Air Pollution Rule emissions trading program for power plants are sufficient for Eastern states to take no further action to meet the agency’s 2008 ozone national ambient air quality standard (NAAQS).
The George W. Bush EPA set the NAAQS at 75 parts per billion (ppb), and the Obama EPA subsequently tightened the standard again to 70 ppb in 2015. EPA projects that almost all areas outside of California will meet both NAAQS by 2023. But East Coast states and others with high ozone problems argue that these projections are flawed, that ozone levels will be higher than EPA thinks, and that the 2023 “analytical year” is itself unlawful and irrelevant because states must meet NAAQS attainment deadlines before 2023.
“Given the parties’ negotiation of a mutually-acceptable briefing schedule -- which all Petitioners support -- the Court need not consider whether this case would otherwise meet the exceedingly high bar for expedited consideration,” EPA says in a March 14 filing with the court.
“As the Court’s Handbook of Practice and Internal Procedures establishes, requests for expedition are ‘very rarely’ granted and must be supported by ‘strongly compelling’ demonstrations that delay will cause ‘irreparable injury’ and that the action agency under review is subject to ‘substantial challenge,’” EPA says. The court need not decide whether these standards are met, EPA says.
Meanwhile, the Utility Air Regulatory Group (UARG), intervening on EPA’s behalf, in a March 19 filing refers to the same “high bar,” adding that, “Petitioners do not demonstrate that the Court’s consideration of these cases pursuant to regular order will cause them irreparable injury.”
UARG says, “Of critical importance is that Petitioners’ submission is devoid of any estimate of - and even of any assertion regarding -- any magnitude or range of reduction in ambient-air ozone concentrations that would be produced by any given amount of additional upwind-state emission reductions that might be required. Consequently, Petitioners offer no reason to conclude that they suffer injury -- let alone irreparable injury -- by having consideration of these cases proceed pursuant to this Court’s normal practice.”
Opening briefs in the suit are now due April 19, with EPA’s response due June 14.
https://insideepa.com/daily-feed/court-expedites-air-act-suit-despite-epa-industry-opposition
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Energy and Commerce to Vote on Leadership's Paris Bill
| E&E Daily
By Nick Sobczyk
The House Energy and Commerce Committee tomorrow will vote on H.R. 9, Democratic leadership's bill to keep the United States in the Paris climate agreement.
The bill, which would effectively prevent the Trump administration from pulling out of the Paris accords and require a plan to meet emissions targets, will be marked up tomorrow morning alongside a slew of other measures related to health care and net neutrality.
The goal is to move H.R. 9 to the floor quickly, likely when Congress returns from recess at the end of April.
The bill is a largely symbolic effort to express congressional support for the agreement after the Trump administration announced two years ago that the United States would withdraw from it. But it's a message all Democrats can get on board with, as opposed to broader but more divisive measures to combat climate change, such as a price on carbon.
To that point, the leadership bill has nearly as many sponsors — 82 — as the Green New Deal, the progressive climate proposal that has taken Capitol Hill by storm this year.
"It's a way to let folks know we hear them, we're going to stay in, we're going to keep our commitments," said lead sponsor Kathy Castor (D-Fla.), who sits on E&C and also chairs the Select Committee on the Climate Crisis.
"And we need the businesses and communities, states, individuals across the country to be doing everything they can to address the climate crisis while Trump and the Republicans block progress."
Like other Democratic messaging bills considered this year, the measure will inevitably pass the House, where a handful of Republicans could join in voting yes, and flounder in the Republican Senate.
But the big-name environmental groups that spent millions to help Democrats take back the House say H.R. 9 sends an important message, even if it's not the kind of sweeping legislation that would be needed to reduce emissions and avert the worst effects of climate change.
It could help Democrats and their supporters send a campaign on an issue that's getting increasing traction on the presidential trail, allowing them to show they care about an issue the GOP has ignored for years.
Tiernan Sittenfeld, senior vice president of government affairs at the League of Conservation Voters, said the bill is high on her group's priority list.
"That's a first step, sort of a down payment on Democrats showing that they are now in control and that they are serious about acting on climate change," Sittenfeld said yesterday at a NewDem Action Fund policy conference. "So we'd like to see early, swift action on that."
Sittenfeld said she wants to let "1,000 flowers bloom" as Democrats all pitch their own ideas to reduce emissions, but environmental groups are biding their time on bigger legislation and hoping for Democratic leadership in the Senate and White House after the 2020 elections.
"Take the time that we have now so that we're ready to go on day one of 2021," Sittenfeld told reporters.
In the meantime, Energy and Commerce members are exploring smaller efforts to address climate change that may have a real chance of passing on an infrastructure bill or a spending measure.
"Personally, I hope that Democrats sweep all the elections, but I'm not betting the planet on it, so we have to figure out what to do now," Rep. Scott Peters (D-Calif.), who sits on E&C, told reporters at the NewDem policy conference.
Environment and Climate Change Subcommittee Chairman Paul Tonko (D-N.Y.) is leading that near-term effort, and he has said he wants to focus on the "low-hanging fruit" of energy efficiency and research (E&E Daily, Feb. 7).
Tonko's goal is for his subcommittee's work to eventually culminate in a carbon-pricing bill in the next two years, though there are a variety of fee, tax, and cap-and-trade measures from both parties already on the table.
Peters added that the long-promised infrastructure bill could be a good place to start on climate. Bipartisan infrastructure legislation, which Democrats are attempting to put together during the coming months, could be an easy place to invest in grid and building efficiency improvements, lower-carbon public transit, and climate adaptation.
Those are a few of the climate proposals that Peters said are "already in the can." While big ideas and grassroots energy are helpful, Peters said, the effort has already begun.
"My hope is this is what I'm going to be working on, that we treat the Green New Deal as a request for proposals," Peters said. "The big change is not so much that there are these new people coming in, which is helpful, but that Democrats are in the majority and now we get to pass stuff."
https://www.eenews.net/eedaily/2019/04/02/stories/1060139389
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Trump Suffers Setbacks in Environmental Rulings in Alaska
Apr 1, 2019 | AP (In The Washington Post)
By Dan Joling
President Donald Trump’s plan to reverse environmental initiatives in Alaska put in place by his predecessor, Barack Obama, took a hit with two rulings in federal court.
U.S. District Court Judge Sharon Gleason on Friday ruled that the administration violated federal law with a proposed road that would split a wilderness area in a national wildlife refuge.
Hours later, Gleason ruled that Trump exceeded his authority when he reversed bans on offshore drilling in vast parts of the Arctic Ocean and dozens of canyons in the Atlantic Ocean.
Environmental groups celebrated the rulings as a judicial check on presidential authority.
“The broader context is that President Trump’s lawlessness is catching up with him,” said Earthjustice attorney Erik Grafe, who worked on the offshore drilling case. “He and his Interior Department have been treating public lands as if they’re gas stations — everything opening up as much as possible as quickly as possible for development, specifically oil and gas development.”
U.S. Sen. Lisa Murkowski, an Alaska Republican, said she strongly disagreed with the ruling on Arctic offshore drilling, which asserts that presidents have the power under a federal law to remove certain lands from development but cannot revoke those removals. Only Congress has that authority, the ruling said.
Murkowski said the ruling could have catastrophic impacts for offshore development, which creates jobs, generates revenues and strengthens national security.
“I expect this decision to be appealed and ultimately overturned — if not by the Ninth Circuit, then by the Supreme Court,” she said.
Trump is pushing two other oil initiatives in the region — the proposed opening of the coastal plain of the Arctic National Wildlife Refuge to petroleum drilling, and expanding drilling into previously protected parts of the National Petroleum Reserve-Alaska.
Trump has made it clear since taking office that he intended to dismantle the environmental legacy of Barack Obama, the first president to visit the Arctic while in office.
Obama used his authority under the Outer Continental Shelf Lands Act to ban oil drilling in the Chukchi and Beaufort seas off Alaska’s north coast with the intent of protecting polar bears, walrus, ice seals and the Native villages that depend on the animals from industrialization and oil spills.
Trump reversed the ban through an executive order as part of a promise to unleash the nation’s energy reserves, reduce reliance on foreign oil and spur jobs.
Environmental law and policy experts immediately questioned whether Trump had that authority.
Gleason ruled that he did not.
“The wording of President Obama’s 2015 and 2016 withdrawals indicates that he intended them to extend indefinitely, and therefore be revocable only by an act of Congress,” Gleason wrote.
In her decision on the Izembek National Wildlife Refuge near the tip of the Alaska Peninsula, Gleason said the proposed road would reverse previous Interior Department policy without providing an explanation.
Murkowski and other Alaska officials have pushed for the road to give residents of the village of King Cove a land route to an all-weather airport for emergency flights. Critics contend other measures are available.
Izembek is internationally recognized habitat for migrating waterfowl. U.S. Fish and Wildlife officials had previously concluded that a road would cause irrevocable damage to the watershed and a land exchange could not compensate for the special qualities of the refuge.
David Raskin, president of Friends of Alaska National Wildlife Refuges, said Monday it would have been the first time that wilderness protections put in place by Congress had been removed so a road could be built.
“This would set a dangerous precedent for all kinds of developments in congressionally designated wilderness,” Raskin said.
Gleason is a veteran judge. She was appointed to the Alaska state Superior Court in 2001 and was retained by voters twice before In 2011, Obama made her the first woman appointed to the federal bench in Alaska.
Gleason has overseen other high-profile environmental cases. In 2015, she granted a request by Royal Dutch Shell that activists protesting the company’s Arctic offshore drilling plans be ordered to stay away from company vessels.
Two months later, she ruled that Greenpeace USA would be fined $2,500 for each hour its activists blocked a Shell icebreaking ship from leaving Portland, Oregon, by dangling from the St. Johns Bridge over the Willamette River.
https://www.washingtonpost.com/business/trump-suffers-setbacks-in-environmental-rulings-in-alaska/2019/04/01/cb6b1554-54e3-11e9-aa83-504f086bf5d6_story.html?utm_term=.ecac83188746
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Bernhardt Committee Vote Slated for Thursday
Apr 2, 2019 | E&E Daily
By Kellie Lunney
The Senate Energy and Natural Resources Committee plans to vote Thursday morning on acting Interior Secretary David Bernhardt's nomination to lead the department.
After gliding through his confirmation hearing last week, the former lobbyist is expected to easily clear the committee vote along party lines.
The panel has 11 Republicans, seven Democrats and two independents who caucus with the Democrats. Current ranking member Joe Manchin (D-W.Va.) and independent Angus King of Maine in 2017 both voted to confirm Bernhardt as deputy secretary.
It's not clear, however, how the two will vote this time around. But Manchin called the nominee, with whom he twice met in private, "well-qualified" and the possessor of a "great deal of experience." And Bernhardt recently traveled to Maine to visit Acadia National Park and met with King (Greenwire, March 18).
Critics of Bernhardt, who once represented the oil and gas industry, have charged that the Colorado native has too many conflicts of interest and ethical land mines to be an effective and impartial secretary.
Supporters cite his experience at Interior — including serving as solicitor during the George W. Bush administration — and his command of the department's policy and culture as advantages to carrying out DOI's wide-ranging and complicated mission.
Bernhardt told the committee last week that he has "a very clear understanding of the often-conflicting legal and policy issues that I will face."
He also said he's implemented "an incredibly robust screening process" at the department to ensure conflicts of interest are avoided.
The Energy and Natural Resources Committee on Thursday also will consider the nominations of Susan Combs to be Interior's assistant secretary of policy, management and budget, as well as Aimee Kathryn Jorjani as chair of the Advisory Council on Historic Preservation.
Combs has been waiting nearly two years for Senate confirmation to the assistant secretary job. First nominated in July 2017, the Texas native was renominated in January 2018 after the Senate failed to act. Then another year passed without action. The White House nominated her for a third time this past January (Greenwire, Jan. 17).
Schedule: The markup is Thursday, April 4, at 10 a.m. in 366 Dirksen.
https://www.eenews.net/eedaily/2019/04/02/stories/1060139395
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