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(ACC Mentioned) P&G Joins Film Recycling Group
Apr 8, 2015 | Plastics News
By Jim Johnson
Procter & Gamble Co. is joining the American Chemistry Council’s Flexible Film Recycling Group, a self-funded effort to help increase the recovery of flexible polyethylene film, wraps and bags. -
(ACC Mentioned) Narrow House TSCA Reform Bill Circulates; April 14 Hearing to Include EPA Testimony
Apr 9, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A Toxic Substances Control Act requirement that environmental health groups say prevented the Environmental Protection Agency from banning asbestos would be repealed under a narrow draft TSCA reform bill released by Rep. John Shimkus (R-Ill.) April 7. -
(ACC Mentioned) House TSCA Draft Gets Cautious Welcome
Apr 8, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Both public health and chemical industry advocates welcomed a draft plan in the House as a good starting point for talks to update the Toxic Substances Control Act, a contrast to the fight triggered in the Senate by a bill from Sens. Tom Udall and David Vitter. -
(ACC Mentioned) Foam Food Containers Are About to Become a ‘Thing of the Past’ in Portland
Apr 9, 2015 | Bangor Daily News
By Seth Koenig
While shoppers in Portland can still acquire single-use plastic and paper bags if they want to pay for them after the city’s new litter-reduction ordinances take effect on April 15, the same can’t be said about polystyrene containers. -
House to Hold Hearing on TSCA Reform Proposals
Apr 9, 2015 | Chemical Watch
A House of Representatives subcommittee is to hold a hearing on chemicals legislation reform on 14 April. -
Restrictions on 24 Chemicals Formally Lifted Under Proposed EPA Update of Older Rules
Apr 9, 2015 | BNA Daily Environment Report
By Restrictions on 24 Chemicals Formally Lifted Under Proposed EPA Update of Older Rules
Restrictions the Environmental Protection Agency previously imposed on 24 chemicals would be updated to reflect uses the agency already has deemed acceptable under a proposed rule the agency is scheduled to publish April 9. -
(ACC Mentioned) EPA Criticized for Carrying Over Chemicals From Previous Contaminant Candidate List
Apr 9, 2015 | BNA Daily Environment Report
By Matthew Berger
Groups with diverse interests were united in criticizing the Environmental Protection Agency for carrying over so many substances from a previous iteration of a list of possible drinking water contaminants to a proposed new list. -
(ACC Mentioned) States, Environmental Groups Object to EPA Proposal on Brick Manufacturing Emissions
Apr 9, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental groups and state air regulators objected to what they classified as a legally deficient proposal by the Environmental Protection Agency to set risk-based standards for emissions of hydrogen chloride and other acid gases from facilities that manufacture bricks and structural clay products. -
(ACC Mentioned) States, Advocates Attack 'Far-Reaching' EPA Plan For Risk-Based Air Rule
Apr 8, 2015 | InsideEPA
By Suart Parker
States and environmentalists are fighting what they see as EPA's unlawful and "far-reaching" plan to use a brick sector air toxics rule as a vehicle to expand the use of risk-based Clean Air Act air toxics rules that critics say lead to weaker regulations than technology-based maximum achievable control technology (MACT) standards. -
Total Advances Plans For Gulf Coast Cracker
Apr 8, 2015 | Chemical and Engineering News
By Alexander H. Tullo
Another new project has emerged on the U.S. Gulf Coast to take advantage of shale-gas-based petrochemical feedstocks. Total Petrochemicals & Refining says it is “seriously progressing” on its project to build a new ethylene cracker there. -
Novel Suit Claims BLM Fracking Rule Infringes On EPA's Prohibited Power
Apr 8, 2015 | InsideEPA
By Bridget DiCosmo
Wyoming is suing over the Bureau of Land Management's (BLM) rule for hydraulic fracturing on public lands with the novel argument that Congress intended EPA under the Safe Drinking Water Act (SDWA) to have sole federal oversight over underground injections -- although a 2005 energy law bars EPA from regulating fracking. -
Coal Sector Secures Standing In Suit Seeking EPA 'Jobs' Review Of Air Rules
Apr 8, 2015 | InsideEPA
By David LaRoss
Coal companies have secured legal standing for their suit claiming EPA has a Clean Air Act mandate to review the impact of its air rules on employment, opening the door for a federal district judge to rule on the merits of the sector's claim that the agency unlawfully delayed the review and that it must assess combined impacts from all rules. -
Questions Likely to Remain for States Even After Clean Power Plan Is Finalized
Apr 9, 2015 | BNA Daily Environment Report
By Andrew Childers
Driven by White House deadlines and a desire to provide states with sufficient flexibility, the Environmental Protection Agency may leave many outstanding questions unresolved in its final Clean Power Plan, participants said during an April 8 Environmental and Energy Study Institute forum. -
Honorable Says FERC to Give Carbon Rule Advice to EPA
Apr 8, 2015 | PoliticoPro
By Alex Guillen
FERC’s newest member said on Wednesday that her agency will send EPA its recommendations for the administration’s power plant carbon regulations in time for them to be considered before the final rule comes out this summer. -
Michael Bloomberg’s War on Coal
Apr 8, 2015 | PoliticoPro
By Andrew Restuccia
Before Michael Bloomberg would commit tens of millions of dollars to the Sierra Club’s campaign to shut down coal plants all over the United States, he wanted something: more data specifying where his money would go. -
EPA Overdue on Air Toxics Reviews, Complaint Says in Seeking Court Deadlines
Apr 9, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Environmental groups filed a lawsuit seeking court-ordered deadlines for the Environmental Protection Agency to review air toxics standards for various industries, including semiconductor manufacturing and municipal solid waste landfills, which allegedly are overdue for a potential update. -
Los Angeles Mayor Proposes Suite of Green Initiatives
Apr 8, 2015 | The Hill - E2 Wire
By Timothy Cama
The mayor of Los Angeles released a sweeping set of sustainability initiatives Wednesday to summarize his environmental positions. -
Bill Would Set Stabilization Requirement for Crude-by-Rail
Apr 9, 2015 | BNA Daily Environment Report
A bill introduced by Rep. John Garamendi (D-Calif.) would implement a national stabilization requirement for oil transported by rail.
Industry and Association News
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Energy and Environment News
Transportation News
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(ACC Mentioned) P&G Joins Film Recycling Group
Apr 8, 2015 | Plastics News
By Jim Johnson
Procter & Gamble Co. is joining the American Chemistry Council’s Flexible Film Recycling Group, a self-funded effort to help increase the recovery of flexible polyethylene film, wraps and bags.
“Our aim is to reduce our environmental footprint as a company and that of the consumers who chose our products,” said Steve Sikra, P&G research and development manager, in a statement.
“Working with the FFGR and our value chain partners to expand film collection and recycling is a focused priority as we work toward that goal,” he said.
Post-consumer plastic film recycling totaled 1.14 billion pounds in 2013, an 11-percent increase from the previous year, said a recent report from the American Chemistry Council, which created FFRG.
“National efforts to educate consumers about the recyclability of bags and wraps are already paying off, and having P&G on board will help extend our reach even further,” said FFRG Director Shari Jackson in a statement.
ACC is based in Washington, P&G is headquartered in Cincinnati.
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(ACC Mentioned) Narrow House TSCA Reform Bill Circulates; April 14 Hearing to Include EPA Testimony
Apr 9, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A Toxic Substances Control Act requirement that environmental health groups say prevented the Environmental Protection Agency from banning asbestos would be repealed under a narrow draft TSCA reform bill released by Rep. John Shimkus (R-Ill.) April 7.
The draft TSCA Modernization Act of 2015 would repeal TSCA's requirement that the EPA select the least burdensome option as it decides which regulations it will use to manage a chemical's unreasonable health or environmental risks. Environmental organizations point to the “least burdensome” criterion as a key reason the U.S. Court of Appeals for the Fifth Circuit overturned a 1989 agency ban on asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).
The draft bill, however, would require the EPA to consider many additional issues not mentioned in TSCA before it could restrict or ban a chemical.
The bill is somewhat similar to current law in that in would preempt state chemical regulations if the EPA issued a final rule managing the compound.
The draft bill would allow states to enforce their own chemical standards if they are identical to EPA regulations—an issue of concern in a proposed Senate TSCA reform bill (S. 697).
April 14 Hearing
The House Energy and Commerce Subcommittee on Environment and the Economy, which Shimkus chairs, will hold a hearing on the draft April 14.
Jim Jones, the EPA's assistant administrator for chemical safety and pollution prevention, is expected to testify at the hearing, the subcommittee said in its hearing announcement.
The American Chemistry Council ; Safer Chemicals, Healthy Families—a coalition of more than 450 environmental health, labor and other organizations; and Democratic members of the House subcommittee welcomed the draft, saying it added momentum to the ongoing legislative discussion about modernizing TSCA.
Enacted in 1976, TSCA became law before at least 11 members of the House were born.
Narrower Reform Bill Addresses Preemption
The TSCA Modernization Act would amend fewer sections of the statute than do two TSCA reform bills introduced in the Senate in March (52 DEN A-22, 3/18/15)
The draft bill, for example, would not alter the section of TSCA that applies to new chemical regulations. Both Senate TSCA reform bills, S. 697 and S. 725, would amend that part of the current law.
The TSCA Modernization Act would take a different approach toward preempting state laws than do either of the Senate bills.
States could not restrict a chemical under the draft House bill if the EPA had assessed the compound and determined it did not pose an unreasonable risk.
State laws also would be preempted under the draft bill after the EPA issued a final regulation.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), which Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced March 10, would preempt some state chemical regulations.
Under S. 697, for example, once the EPA decides a chemical is a high priority for assessment and issues a risk assessment plan, states largely would be prohibited from regulating that chemical while the agency's assessment proceeds.
If, after its assessment concludes, the EPA issues a final rule regulating that chemical, then S. 697 would bar states from regulating the compound or enforcing the federal standard addressing it.
S. 725, the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, which Sens. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.) introduced March 12, would not preempt state laws.
Risk Evaluations
Shimkus's draft bill would not require the EPA to assess the safety of all chemicals in commerce, as the Senate bills do.
Since it would not require the agency to assess chemicals in commerce, the draft House bill also would not establish a prioritization system for the EPA to select the chemicals it would assess first. Both Senate bills have prioritization requirements.
Although not required to conduct risk assessments, the agency could do so under the draft bill when it has evidence that a compound poses an unreasonable risk to human health or the environment.
The agency could select the chemicals to assess, or chemical manufacturers could request an agency risk evaluation, provided the company pays the EPA's costs for conducting the assessment.
Under the draft bill, the EPA would be directed to not consider costs as it assesses a chemical's risks. The agency's decision as to whether a chemical poses an unreasonable risk is to depend solely on its toxicity, exposure and related factors, including the chemicals' intended conditions of use.
The draft would allow the EPA to conclude that a chemical poses an unreasonable risk if one or more groups within the general population potentially would be harmed by the compound.
Risk Management
The bill then would direct the agency to consider many specific issues in decisions on whether and how to regulate a chemical deemed to pose an unreasonable risk. These issues include the:
• benefits of the chemical or mixture;
• reasonably ascertainable consequences of the rule on the national economy, small business, technological innovation, the environment and public health;
• EPA's determination that the rule would be cost-effective; and
• agency's determination that alternatives to the chemical of concern exist that are technically and economically feasible.
Articles
Under the draft bill, the EPA could regulate manufactured goods, known as articles, “only to the extent necessary to mitigate the identified risk.”
The agency also would be required to exempt replacement parts for manufactured goods, provided the parts were made prior to a rule's effective data and the parts do not contribute significantly to the risks posed by the article.
Initial Reaction
Some Democrats on the House environment and economy subcommittee welcomed Shimkus's draft.
In a press release announcing the draft and April 14 hearing, Frank Pallone Jr. (D-N.J.), ranking member of the full Energy and Commerce Committee, said: “Updating TSCA to ensure that the American people and our environment are protected from dangerous chemicals is critical. I commend Chairman Shimkus for working with committee Democrats in an open and bipartisan manner.
“This draft bill is a good starting point and I look forward to hearing from and working with stakeholders as we move forward,” he continued.
The American Chemistry Council issued a statement saying the draft demonstrates growing momentum in Congress to finally modernize TSCA.
“The committee has addressed aspects of EPA's current TSCA program that are widely viewed to be in need of reform. This targeted approach is an effective way to begin discussions about how to best complement the comprehensive proposal introduced by Sens. Vitter and Udall earlier this year and will allow the House to move expeditiously once the details are settled by the Committee and legislation is introduced,” the ACC said.
Safer Chemicals, Healthy Families welcomed what it described as a stripped-down framework for TSCA reform.
“It compares favorably to the Senate bill on the timing of preemption and its lack of rollbacks to the federal program,” Andy Igrejas, director of Safer Chemicals, Healthy Families, said in a statement. He referred to the Udall-Vitter bill, which would preempt state regulations once the agency has begun to assess a chemical's risks, but years before it decides whether to regulate the compound.
“At the same time, the fundamentals of reform, like the standard for EPA to act, have to be there and it's not clear if they are. We're looking at it closely,” Igrejas said.
The Environmental Working Group quickly denounced the draft.
“This proposal falls far short of what is needed to ensure that chemicals used in everyday products are safe,” Ken Cook, EWG's president, said in a statement.
“This draft will not require that chemicals are safe before they're used, won't give EPA authority to quickly review and regulate the most dangerous chemicals, will not provide tough deadlines for regulating dangerous chemicals, and will not provide EPA with the necessary resources to get the job done. Consumers rightly expect chemicals to be safe and expect EPA to move quickly to restrict or remove dangerous chemicals from commerce. This bill falls far short of what's needed to protect us,” Cook said.
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(ACC Mentioned) House TSCA Draft Gets Cautious Welcome
Apr 8, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Both public health and chemical industry advocates welcomed a draft plan in the House as a good starting point for talks to update the Toxic Substances Control Act, a contrast to the fight triggered in the Senate by a bill from Sens. Tom Udall and David Vitter.
This targeted approach was an “effective way to begin discussions” on how to complement the Vitter-Udall proposal, the American Chemistry Council said in a statement.
“Their strategy to put out a discussion draft rather than a bill was clearly a good one because there’s a lot of discussion that needs to continue to make both sides more comfortable with what the House would proceed with,” one industry source said. “We very much look at this as a starting point and not necessarily indicative of where we end up with the House.”
A key issue is how the House bill treats the preemption of state toxics laws. Unlike the Senate bill, it would only preempt state actions after an EPA rule becomes final. But it also doesn’t have the Senate language grandfathering in existing state controls.
A sharp critic of the Senate proposal gave a more optimistic response to the draft issued Tuesday by House Environment and the Economy Subcommittee John Shimkus.
“The stripped-down framework of the House approach has some promise, said Andy Igrejas, director of Safer Chemicals, Healthy Families. “At the same time, the fundamentals of reform, like the standard for EPA to act, have to be there and it’s not clear if they are. We're looking at it closely.” -
(ACC Mentioned) Foam Food Containers Are About to Become a ‘Thing of the Past’ in Portland
Apr 9, 2015 | Bangor Daily News
By Seth Koenig
While shoppers in Portland can still acquire single-use plastic and paper bags if they want to pay for them after the city’s new litter-reduction ordinances take effect on April 15, the same can’t be said about polystyrene containers.
“The traditional foam coffee cups are going to be a thing of the past in Portland come April 15,” said Troy Moon, Portland’s environmental programs manager. “No more foam coffee cups, no more foam take-home trays, no more foam clamshell [containers].”
Moon said the city informally polled restaurateurs to determine what effect the polystyrene ban would have.
“As far as we could tell, more than half of Portland restaurants had already done away with foam containers,” he said.
“There’s a slightly different outlook on it depending on whether you’re talking to a local mom-and-pop operation or to a chain,” said Christopher O’Neil, government liaison for the Portland Community Chamber of Commerce, which opposed the ban. “In many respects, the chains have found this to be more systemically traumatic than the gentleman who has one pizza store. Reason being, the national chain has 500 stores that all use the same cups, and now they have a store in Portland that has to use a different cup.
“Is it the end of the world for them? No. But those people build their business model on replication and cost efficiency,” he said. “Do they view that kind of inconsistency as a mere nuisance? Or a severe pain in the neck? You’d have to ask them.”
According to a study commissioned by the American Chemistry Council, which has lobbied against polystyrene bans and plastic bag fees elsewhere, alternatives to polystyrene containers are on average 94 percent more costly to the businesses distributing them.
So a coffee shop currently spending $1 for each polystyrene cup it gives away will soon have to spend an average of $1.94 per disposable cup it gives away, according to that analysis.
But like grocers taking on the bag fees, local franchise owners are mostly concerned about how the measure will affect customers, said Jim Coen, a board member and former executive director of the Portland-based Maine Franchise Owners Association.
Coen said many coffee shops, fast food chains and restaurants use polystyrene because they’ve found customers prefer it, regardless of the cost implications.
“The best takeout containers — that consumers like the best — are Styrofoam, because they insulate the food, and they’re not hot to the touch,” he said. “So they provide the best customer experience — the problem is, they’re not easy to recycle.”
Coen also said the ban may not be as effective as city leaders hope from an environmental perspective. He said any paper alternatives to polystyrene must have a special plastic lining to prevent hot foods or liquids from penetrating through the material.
That plastic lining renders the paper products nonbiodegradable as well, he said. The major difference is that customers often use two or three of them to get the insulating qualities of just one polystyrene cup or container — and avoid burning their hands.
“Whether it’s Styrofoam or paper, it has to be plastic lined, or the hot beverage is going to go through the paper,” Coen said.
Coen and Shelley Doak, executive director of the Maine Grocers & Food Producers Association, both said the city’s concerns about litter may have been better handled with stricter enforcement of litter laws than new regulations on particular items or materials, as shoppers prone to throwing trash onto the street corners will now just be throwing different kinds of trash — but trash just the same.
Unlike with the bag fees, one doesn’t have to look far to see another example of a municipal polystyrene ban. The town of Freeport, a shopping destination just 20 minutes up the highway from Portland, implemented such a ban 25 years ago.
“It works in Freeport — why wouldn’t it work anywhere else?” posed Glen Brand, director of the Sierra Club Maine.
Anna Brown was among the proponents of the ban as a young girl about age 10 when Freeport took up the issue. Now working for the Rockefeller Foundation on climate change initiatives in Bangkok, Brown recalled that she and her classmates found an abundance of polystyrene litter along the coastline at the time.
“One argument [against the ban at the time] focused on the idea that while paper packaging is supposedly biodegradable, when [it’s] in a landfill, it does not decompose — and can weigh more than polystyrene,” Brown said. “This is true — that in a landfill where there is no oxygen, even biodegradable materials do not necessarily break down. However, one of the problems with polystyrene foam, particularly in a coastal town like Freeport, is that the waste doesn’t necessarily find its way to the landfill in the first place.”
Brown said that even if people still litter their coffee cups or food containers, that litter is now less harmful to fish and other coastal creatures because of the ban.
“When polystyrene foam ends up in the ocean, marine life sometimes mistake it for food, which can have devastating consequences,” she said. “While I’m not sure if the total volume of waste dropped — which would have required an intervention to shift the behavior of consumers to ensure that trash ends up in the waste bins — the type of waste would have presented lower levels of complications in terms of falsely filling up the stomachs of marine species.”
According to research cited in a San Jose State University report, San Francisco found a 41 percent reduction in polystyrene litter over the three years after it implemented a ban on the material in 2007.
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House to Hold Hearing on TSCA Reform Proposals
Apr 9, 2015 | Chemical Watch
A House of Representatives subcommittee is to hold a hearing on chemicals legislation reform on 14 April.
The hearing, to be held by the House Energy and Commerce Subcommittee on Environment and the Economy, will hear testimony on a new discussion draft of proposals for reforming the Toxic Substances control Act (TSCA). Entitled the TSCA Modernization Act, the discussion draft is being put forward by the subcommittee’s chair, John Shimkus (R-Illinois).
The head of the EPA’s chemicals safety office, Jim Jones, is expected to be among the experts that will testify.
The bill includes a statement of support from the ranking member of the full committee, Frank Pallone (D-New Jersey). “I commend chairman Shimkus for working with committee Democrats in an open and bipartisan manner," said Mr Pallone. "This draft bill is a good starting point, and I look forward to hearing from and working with stakeholders as we move forward.”
The Energy and Commerce Committee describes the bill as bipartisan, but it is not yet clear how many Democrats support it.
Activist organisation the Environmental Working Group said the discussion draft was "a slight improvement over the Udall-Vitter plan introduced in the Senate, but still falls far short of what is needed. It will not require that chemicals are safe before they’re used, won’t give EPA authority to quickly review and regulate the most dangerous chemicals, will not provide tough deadlines for regulating dangerous chemicals, and will not provide EPA with the necessary resources to get the job done."
Fellow Democrat and subcommittee member Gene Green (D-Texas) has already voiced support for Mr Shimkus’s initiative (CW 24 February 2015).
A Senate committee hearing was held last month on the bipartisan TSCA reform bill introduced by senators David Vitter (R-Louisiana) and Tom Udall (D-New Mexico). Mr Jones was among the experts who testified (CW 19 March 2015).
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Restrictions on 24 Chemicals Formally Lifted Under Proposed EPA Update of Older Rules
Apr 9, 2015 | BNA Daily Environment Report
By Restrictions on 24 Chemicals Formally Lifted Under Proposed EPA Update of Older Rules
Restrictions the Environmental Protection Agency previously imposed on 24 chemicals would be updated to reflect uses the agency already has deemed acceptable under a proposed rule the agency is scheduled to publish April 9.
Chemicals identified in the proposed rule have various uses, including for oil recovery, degreasing and refrigerants in motor vehicle air conditioning systems.
The proposed rule would amend significant new use rules (SNURs) the agency has issued as far back as 1991.
Comments on the proposal will be accepted through May 11.
The proposed changes would update the SNURS so they would allow any chemical manufacturer or importer to make or use the 24 chemicals in ways the agency already has reviewed and allowed.
The agency has been reviewing new uses since 1991 as chemical manufacturers or processors submitted significant new use notifications (SNUNs). Those notices ask the agency to review an intended new use to determine whether it would pose an unreasonable risk.
If the agency's 90-day review period for a SNUN expires without the agency raising questions, seeking more toxicity data or taking other actions, then the chemical manufacturer or processor that submitted the SNUN can proceed with the new use.
Restrictions Loosened in Some Cases
In some cases the EPA's proposed update would reduce the burden chemical manufacturers or processors face.
For example, one of the 24 chemicals covered by the proposed rule is 2-propen-1-one, 1-(4-morpholinyl)-, CAS No. 5117-12-4.
Fritz Industries Inc. and Mitsubishi Corp. reported making the compound in 2011, according to Chemical Data Reporting (CDR) rule information they provided the EPA.
The chemical is used to dilute certain resins, inks and curable adhesives. It also is a monomer in ultraviolet ink jet applications, the agency said.
Originally the agency required workers using 2-propen-1-one, 1-(4-morpholinyl)- to wear respiratory protection.
The agency also previously prohibited domestic manufacture of the chemical and established waste disposal requirements.
Such restrictions were codified in a SNUR published Jan. 5, 2000, the agency said (65 Fed. Reg. 354).
Oral toxicity, reproductive toxicity and other data the agency has since received from the original manufacturer has prompted the agency to remove the requirement for respiratory protection, allow domestic manufacture and remove waste disposal restrictions, the EPA said.
Impervious gloves are, however, required, the agency said in its proposed rule. To also protect workers, the chemical may not be used in an application that would generate a vapor, mist or aerosol, the EPA said.
Refining Requirements
In other cases, the proposed rule would refine previously issued requirements.
For example, the EPA originally allowed a chemical called d-glucuronic acid, polymer with 6-deoxy-L-mannose and d-glucose, acetate, calcium magnesium potassium sodium salt, CAS No. 125005-87-0, to enter commerce as an oilfield drilling fluid, oilfield spacer fluid, for concrete applications and for other purposes. But the agency identified concerns about inhalation exposures.
The uses proposed by the original manufacturer did not warrant an unreasonable risk finding, the agency said.
Therefore, the original SNUR for the chemical, issued Dec. 17, 2003 (68 Fed. Reg. 70,155), didn't impose worker protection requirements. Instead the SNUR required chemical manufacturers to notify the agency if they planned to use the chemical in any way other than originally authorized.
Since then the EPA has received four new use notifications for the chemical and allowed its use for other purposes, including in pipelines and as a sealant.
Under the proposed rule, the EPA would no longer require notification of specific new uses other than those already approved.
The agency would, however, require notification when more than 5 percent of the chemical consists of particles less than 10 microns.
The proposed rule encouraged manufacturers to conduct inhalation toxicity tests for the chemical d-glucuronic acid, polymer with 6-deoxy-L-mannose and d-glucose, acetate, calcium magnesium potassium sodium salt to determine whether it causes lung inflammation, fibrosis or other lung problems.
No production information was available for the chemical in 2011, the most recent year for which chemical manufacturers were required to submit CDR data.
Comments, due May 11, should be marked Docket ID No. EPA-HQ-OPPT-2014-0649 and submitted viahttp://www.regulations.gov.
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(ACC Mentioned) EPA Criticized for Carrying Over Chemicals From Previous Contaminant Candidate List
Apr 9, 2015 | BNA Daily Environment Report
By Matthew Berger
Groups with diverse interests were united in criticizing the Environmental Protection Agency for carrying over so many substances from a previous iteration of a list of possible drinking water contaminants to a proposed new list.
The comments came in response to the EPA's draft of the Fourth Contaminant Candidate List, published Feb. 4 (80 Fed. Reg. 6,076; 25 DEN A-10, 2/6/15).
The CCL (RIN 2040-A537), which is issued every five years, lists compounds that are known or anticipated to occur in public water systems but which are not currently regulated. The health risks and prevalence of the listed compounds are studied to determine whether regulatory action is needed. The comment deadline for the draft known as CCL4 was April 6.
Comments also focused on the inclusion of manganese on that draft list and the listing of most cyanotoxins as a single group of compounds.
‘Wholesale Carry Forward Approach.'
In its comments, the advocacy group Clean Water Action asked for clarification on the rationale behind the EPA's use of what the group called an “abbreviated process” for filling in the CCL4. Among the several potentially problematic issues they saw with this process was that all the CCL3 compounds that had not received regulatory determinations were automatically pulled into the draft CCL4.
“Re-analysis of those contaminants might have revealed new data that would reinforce their presence on the list or perhaps even rule it out,” Lynn Thorp, CWA's national campaigns director, wrote in the comments to the EPA.
This echoes some of the concerns of the American Water Works Association, which in its comments also criticized automatically carrying over compounds from the previous list (66 DEN A-8, 4/7/15).
AWWA argued that those compounds do not necessarily deserve to be prioritized, and that it would be preferable to make the CCL “a more manageable size and help focus efforts on the compounds of greatest concern.”
The American Chemistry Council , an industry group, also took issue with this “wholesale carry forward approach.” It said many compounds have been listed on multiple CCLs and have been candidates for regulation for more than a decade.
The ACC said this approach leaves those compounds in regulatory limbo. “ACC believes it is incumbent on EPA to expeditiously make a determination on all of the CCL substances (e.g., Yes, No, Need More Data),” it wrote in its comments.
One major group supported the EPA approach, however. The Association of State Drinking Water Administrators said it supports carrying forward potential contaminants for which regulatory determinations have yet to be made. “Available data on the CCL3 contaminants have already shown that there could be some potential public health impact in drinking water from these contaminants and it makes sense to continue to evaluate them until a final decision can be made,” it said.
But the group added that the CCL “should not be a permanent home” for the compounds and that once there is “adequate data” to make a decision, they should be removed so efforts can be focused on compounds for which further research is needed.
Manganese
Manganese and nonylphenol were the two new additions to the draft CCL4 not included on the final CCL3. Manganese had been on the original CCL, published in 1998, but the EPA decided to not regulate it in 2003, and it was left off the second and third CCLs (138 DEN A-2, 7/18/03).
In the past several years, however, new research has suggested excessive manganese in drinking water might cause neurological damage over time.
The Manganese Interest Group, a coalition of trade associations and companies, questioned the scientific validity of some of those studies in its comments on the CCL4. The group also cited other studies suggesting manganese in drinking water is no more dangerous than manganese in food. Manganese is an essential nutrient in trace quantities.
The inclusion of manganese was supported by the Association of State Drinking Water Administrators. It provided in its comments separate, extensive statements of support from the Massachusetts and Minnesota state drinking water offices, which both cited statistics showing the chemical is present at concentrations exceeding recommended limits in large percentages of their groundwater.
Clean Water Action and AWWA also supported the inclusion of manganese, but added that they look forward to the additional research into public health risks that would result from inclusion on the final CCL.
Cyanotoxins
The EPA also kept on the draft list cyanotoxins, a group of toxins produced by cyanobacteria, also known as blue-green algae, when they are concentrated in harmful algal blooms. There are many known cyanotoxins, several of which have been commonly found in surveys of U.S. waters. On the draft CCL4, the EPA grouped all of them together under “cyanotoxins.”
AWWA said in its comments that it believes naming specific priority cyanotoxins separately in the list would better “provide focus for the necessary research on health effects, analytical methods, occurrence, and treatment.” It recommended including microcystin-LR, four other microcystins, anatoxin-A and cylindrospermopsin.
CWA agreed and suggested the same list.
Ohio and Washington state both urged inclusion of the cyanotoxin saxitoxin.
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(ACC Mentioned) States, Environmental Groups Object to EPA Proposal on Brick Manufacturing Emissions
Apr 9, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental groups and state air regulators objected to what they classified as a legally deficient proposal by the Environmental Protection Agency to set risk-based standards for emissions of hydrogen chloride and other acid gases from facilities that manufacture bricks and structural clay products.
The Natural Resources Defense Council and the Sierra Club, in joint comments filed by Earthjustice, argued that the EPA's proposal to set risk-based, rather than technology-based, emissions standards for brick and clay ceramic manufacturing facilities would be a violation of the Clean Air Act. Instead, the EPA should propose and adopt maximum achievable control technology standards for emissions of hydrogen chloride, hydrogen fluoride and chlorine, the environmental groups said.
The National Association of Clean Air Agencies also submitted comments objecting to the proposed acid gas emissions limits, which the association of state air regulators said would represent a “precedent-setting change” to how the EPA promulgates air toxics regulations under Section 112 of the Clean Air Act.
The proposed acid gas limits are part of a proposed rule (RIN 2060-AP6) signed in November and published in December. The EPA estimates the proposal would reduce emissions of hazardous air pollutants by about 440 tons per year (79 Fed. Reg. 75,622; 226 DEN A-10, 11/24/14).
The deadline for submitting comments on the EPA proposal was March 19, but comments were still being posted in the online docket as of April 7. The EPA, under a consent decree with the Sierra Club, must finalize the rule by Sept. 24.
The rulemaking is the EPA's second attempt to set national emissions standards for brick, structural clay and clay ceramics manufacturers. The U.S. Court of Appeals for the District of Columbia Circuit in 2007 vacated the EPA's 2003 standards after finding that the EPA's approach for setting MACT floors violated the Clean Air Act and resulted in standards that were not stringent enough (Sierra Club v. EPA, 479 F.3d 875, 64 ERC 1097 (D.C. Cir. 2007); 49 DEN A-1, 3/14/07).
Industry Defends EPA Authority
The EPA's authority to set risk-based emissions standards under Section 112(d)(4) of the Clean Air Act was defended by the Brick Industry Association, which generally supports the proposal but would like to see the agency move away from a “one-size-fits-all standard for acid gases.”
The association, in comments filed on their behalf by Hunton & Williams LLP, said the EPA has “clear legal authority” to set health-based emissions limits and has ample justification to do so for the brick and clay industry. Congress provided the EPA with discretionary authority to consider the evidence for a health-based threshold that is higher than the MACT floor, which is typically the minimum standard that must be set for an industry, the association said.
The EPA “conclusively demonstrated” that the proposed rule would provide an ample margin of safety for acid gas emissions from affected facilities, the association said.
The Residual Risk Coalition, a collection of associations that represent industries regulated under Section 112 of the Clean Air Act, also filed comments in support of the EPA's authority to set health-based standards for acid gases. The coalition, which includes the American Chemistry Council , the American Petroleum Institute and the American Wood Council , said the EPA has “ample data” to justify the proposed health-based limit.
“Here, rote application of the MACT standard setting provisions would result in emission standards that are far more stringent than are needed to protect health and the environment,” the coalition said.
‘Far-Reaching' Proposal
NACAA, which represents 41 state air agencies and many metropolitan air agencies, said it was inappropriate for the EPA to propose a “far-reaching and significant change” in how air toxics standards are set. Typically, the EPA calculates the minimum required standards, commonly known as the MACT floor, by averaging emissions of the top-performing 12 percent of facilities in a source category.
Congress established this technology-based approach to regulating air toxics in the 1990 amendments to the Clean Air Act to replace the unsuccessful risk-based methods that had previously been used, NACAA said. While Congress did allow the use of risk in calculating air toxics standards under limited and very specific circumstances, the EPA has not satisfied the conditions for using that authority in this case, NACAA said.
The Sierra Club and NRDC agreed that EPA's proposal does not meet the conditions for using the risk-based approach under Section 112(d)(4) of the Clean Air Act, which allows for the EPA to consider threshold levels for emissions standards covering pollutants for which a health threshold has been established.
There are no existing health thresholds for the acid gases covered in the EPA's proposal, the environmental groups said.
The environmental groups identified several other issues with the EPA proposal, including a failure to set an emissions standard for hydrogen cyanide; an unlawful and arbitrary process for identifying the best performing sources in the brick and clay ceramics categories; and work practice standards for startup and shutdown operations that the groups claim would allow for facilities to emit unlimited amounts of hazardous pollution without the use of any pollution-control devices.
Push for Multiple Standards
Although industry organizations offered general support for the EPA's decision to set a health-based emissions limit for acid gases, the Brick Industry Association said the limit proposed by the EPA would be more stringent than necessary to provide an ample margin of safety.
The proposed acid gas limit is based on the emissions and other characteristics of the “worst-case” facility in the brick and structural clay source category, which the association said would result in a limit more stringent than necessary for most facilities.
“This is an unreasonable and arbitrary outcome that can and should be rectified by setting multiple HBEL emission standards, with each designed to accommodate a set of facilities with specified emissions and site characteristics,” the association said.
The EPA has both the legal authority and the site-specific data needed to take such an approach, according to the association.
Small Business Concerns Raised
The EPA's cost-benefit analysis also may have significantly underestimated the disruption the proposal could have on small brick manufacturing facilities, the U.S. Small Business Administration's Office of Advocacy said.
The SBA's advocacy office said in its comments that the EPA made several assumptions in its economic analysis that led to an inaccurate assessment of the regulation's potential effect on small business, including an assumption that financing would be available to fund necessary compliance efforts. If such financing were not available, small businesses would need to finance initial capital costs of at least $1 million out of cash-on-hand and profits, the advocacy office said.
“Most small businesses would have difficulty complying without financing,” the SBA advocacy office said.
The EPA estimated that only one or two facilities would be at “significant risk of closure” due to the cost of complying with the proposed standards.
The advocacy office also raised concerns that the EPA underestimated the number of small businesses that would be able to avoid compliance with the MACT standard and that the agency's estimated cost for reducing mercury emissions may not capture all the costs that would be imposed on small businesses. The EPA should consult with small businesses to gather additional data and consider whether it would be appropriate to delay setting a mercury standard for brick manufacturers until the agency has a better understanding of the sources and possible pollution controls that would be used to comply with such a standard, the advocacy office said.
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(ACC Mentioned) States, Advocates Attack 'Far-Reaching' EPA Plan For Risk-Based Air Rule
Apr 8, 2015 | InsideEPA
By Suart Parker
States and environmentalists are fighting what they see as EPA's unlawful and "far-reaching" plan to use a brick sector air toxics rule as a vehicle to expand the use of risk-based Clean Air Act air toxics rules that critics say lead to weaker regulations than technology-based maximum achievable control technology (MACT) standards.
"We believe it is not appropriate to propose such a far-reaching and significant change in the manner in which MACT standards are established under section 112(d) of the Clean Air Act," says the National Association of Clean Air Agencies (NACAA) -- representing many state and local air agencies -- in recent comments on the agency's proposed brick MACT. Relevant documents are available on InsideEPA.com. (Doc. ID: 180341)
Environmental groups Sierra Club and the Natural Resources Defense Council (NRDC), meanwhile, say that EPA can only set risk-based standards for pollutants for which EPA has established a level of safe exposure, and that the brick sector's emissions do not qualify. They warn that as a result the proposed rule is "arbitrary and capricious," the standard required under the air law for courts to overturn the rule if the groups sue over the final version.
Industry groups including the Brick Industry Association (BIA) and a "Residual Risk Coalition" including BIA, the American Petroleum Institute, American Chemistry Council and others, however, back the proposed brick MACT and suggest the agency should offer further flexibilities to the sector in setting risk-based rules.
The competing comments on the Dec. 18 proposed brick MACT show that the rule has broader significance beyond the sector that EPA is attempting to regulate, because it revives a long-running fight over risk-based air toxics rules -- sometimes also known as health-based standards -- that advocates say lead to weak rules.
Section 112(d) of the air law generally requires EPA to set MACTs using a "floor," or minimum emissions standard, that is set based on the average emissions of the 12 percent least-polluting sources in a given source category. But section 112(d)(4) allows the less-stringent risk-based approach in some circumstances for a pollutant where a safe threshold for the substance has been established, and where the pollutant presents no risk of cancer.
EPA in its proposed brick MACT avoids strict standards for several of the industry's acid gas emissions and instead uses the risk-based method. While the agency and industry say this is appropriate for the industry -- which is composed mainly of small businesses that would struggle to afford tougher emissions controls -- a group of states and also two environmental groups say it is not permissible, and sets a dangerous precedent.
NACAA says it appears "that this would be the first time that EPA will use the health-based option under Section 112(d)(4)" for hydrogen fluoride (HF) and chlorine (CL2) "and in this magnitude" for hydrogen chloride (HCl) even though the air law's conditions for using that option do not appear to have been met.
"While we support focusing our efforts on the greatest risks, we are concerned that EPA has not adequately established that the approaches in its proposal are the appropriate vehicles to accomplish that goal. Furthermore, a precedent-setting change of the magnitude that EPA has proposed should be discussed openly and carefully with all affected parties, rather than being buried in an individual MACT proposal," NACAA says.
The brick industry has for years been pushing for risk-based standards in EPA's long-delayed air toxics limits for the sector, arguing that setting numeric MACT limits according to the normal procedure prescribed by the air law is unnecessary. The U.S. Court of Appeals for the District of Columbia Circuit in 2007 vacated EPA's last effort at an air toxics rule for the sector, after environmentalists sued, saying the rule's MACT limits were too weak. The court faulted EPA for ignoring the best performing sources in its MACT floor calculation, and for setting "no control" standards for some pollutants, among other failings. The new proposal therefore aims to fill a regulatory void.
But NACAA says it is "not satisfied that EPA has substantiated adequately that there is a safe threshold for these substances" in the new proposal. "We have multiple concerns about EPA's analysis and do not believe it justifies the establishment of a health-based standard under Section 112(d)(4)," NACAA says. Nor is the group satisfied that EPA has enough proof that the substances are not carcinogens, the group says.
NACAA also faults EPA's risk assessment methodology for the rule, disagreeing with its use of the "centroid" of a census tract to determine risk to local inhabitants. Using this technique ignores higher exposures and greater risks for those living in parts of the census tract closer to the pollution source, making it difficult for EPA to argue it has met its air law requirement to ensure public health is protected "with an ample margin of safety," NACAA says.
In March 19 comments, Sierra Club and NRDC make similar points about the lack of established safe thresholds for the pollutants at issue, and the lack of strong evidence to show they are not carcinogens.
These failings, the groups say, render the proposed rule "arbitrary and capricious," the standard required under the air law for courts to overturn EPA rules in the event of a seemingly likely legal challenge if EPA maintains its risk-based approach in the final brick air toxics rule. "HCl, HF, and chlorine do not have already established safe health thresholds, and, in any case, EPA's proposed standards would not provide 'an ample margin of safety'," they write.
The environmental groups point to other EPA MACT rules where EPA has rejected the risk-based approach for the same pollutants at issue in the brick rule as evidence that the agency cannot now justify the weaker standards.
Former Bush EPA acting air chief William Wehrum, now with the law firm Hunton and Williams, in March 19 comments on BIA's behalf broadly welcomes EPA's proposal to set health-based standards.
As "EPA demonstrates in the proposed rule, the available health data indicate that hydrogen chloride, hydrogen fluoride, and chlorine are all threshold pollutants. The data show that each of these pollutants has a discernible exposure threshold below which adverse human health effects are not expected to occur. In addition, none of the available data suggest that these pollutants reasonably should be expected to act as a carcinogen or mutagen, or exhibit a mode of action that would result in non-threshold effects," Wehrum writes for the sector.
EPA's risk assessment found "based on site-specific data from every affected source in the source category, that an ample margin of safety will be provided for the 'worst case' facility in the industry and more than an ample margin will be provided for all other affected facilities. . . . Here, rote application of the MACT standard setting provisions would result in emission standards that are far more stringent than are needed to protect health and the environment. Thus, these circumstances are exactly what Congress had in mind when it enacted§ 112(d)(4)."
BIA has objections to some aspects of the proposal, however. For example, it wants EPA to apply a risk-based approach to mercury from brick kilns in the final rule, claiming a safe threshold exists for the neurotoxin.
The U.S. Small Business Administration Office of Advocacy in March 17 comments makes a similar point, saying it "recommends further consultation with small businesses to gather the data necessary to justify greater flexibilities, including, if necessary, a delay in promulgating a mercury emission standard to better understand the sources and possible controls for mercury in this industry." Echoing BIA, the comments say that no controls have been shown to be effective in stopping mercury emissions from brick and clay facilities.
Also, BIA says EPA cannot use "synthetic" area sources -- sources that have intentionally limited their emissions to a level below the threshold above which sources are considered "major" -- in order to calculate MACT floors. The MACT floor calculation can only include "major" sources, which are those emitting 10 tons per year (tpy) of one hazardous air pollutant (HAP) or 25 tpy of a combination of HAPs, BIA says.
In March 19 comments, the Residual Risk Coalition of various major industrial organizations also welcomes EPA's proposal of risk-based emissions limits for acid gases in the brick rule.
However, the groups "urge EPA not to set a 'one size fits all' risk-based limit for this category. This approach would require all affected facilities to meet a single standard that generally would be unreasonably over-conservative because it is based on the characteristics of the worst case facility in the source category. Because EPA has facility-specific data from virtually all potentially affected sources, EPA instead should establish multiple [risk-based limits] that more closely match the characteristics of smaller subsets of the source category."
Another broad industry coalition, the Startup, Shutdown and Malfunction (SSM) coalition, which includes BIA, says in March 19 comments that EPA has in general failed to account for SSM periods in setting its brick rule emissions limits. EPA in the proposal does allow certain pieces of equipment to use "work practice standards" instead of numeric emissions limits during SSM periods, but the coalition says this does not go far enough.
Industry has made similar demands in other rules, after EPA removed regulatory exemptions from various regulations following court rulings against such exemptions.
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Total Advances Plans For Gulf Coast Cracker
Apr 8, 2015 | Chemical and Engineering News
By Alexander H. Tullo
Another new project has emerged on the U.S. Gulf Coast to take advantage of shale-gas-based petrochemical feedstocks. Total Petrochemicals & Refining says it is “seriously progressing” on its project to build a new ethylene cracker there.
The company, part of the French oil giant Total, has filed permits with the Texas Commission on Environmental Quality and the U.S. Army Corp of Engineers for a cracker capable of producing 1 million metric tons per year of ethylene at its site in Port Arthur, Texas.
Total cautions that although Port Arthur is named in the permits, it hasn’t settled on a location for the plant and is still considering another possible location.
Moreover, the company does not yet have an estimate for the cost of the new facility, the timing, or what possible downstream derivative plants it might include. The company is a large U.S. producer of polyethylene and polystyrene.
Total first mentioned it was studying a new cracker in May 2013 when completion of upgrades to its Port Arthur joint venture with BASF was announced. The company said that, at Port Arthur, it could take advantage of existing infrastructure.
The cracker is one of 12 planned for the U.S. Six of them are already under construction. However, two other firms with projects still in the planning stage, Odebrecht and Axiall, have cast doubt about staying on schedule.
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Novel Suit Claims BLM Fracking Rule Infringes On EPA's Prohibited Power
Apr 8, 2015 | InsideEPA
By Bridget DiCosmo
Wyoming is suing over the Bureau of Land Management's (BLM) rule for hydraulic fracturing on public lands with the novel argument that Congress intended EPA under the Safe Drinking Water Act (SDWA) to have sole federal oversight over underground injections -- although a 2005 energy law bars EPA from regulating fracking.
In a March 26 petition for review filed in federal district court in Wyoming, the state says that Congress created SDWA's underground injection control (UIC) permitting regime, which governs a variety of industry activities, including waste disposal, uranium mining, carbon capture and sequestration and others. “The UIC program commits exclusive authority to regulate underground injections to the states and the U.S. Environmental Protection Agency,” the state argues.
Michael McGrady, senior assistant attorney general for Wyoming's Attorney General's Office, in the filing cites a 1997 ruling by the U.S. Court of Appeals for the 11th Circuit in Legal Environmental Assistance Foundation v. EPAthat found that fracking injections used in coalbed methane production “fit squarely” within Class II rules under the UIC program, which were originally intended for wastewater disposal and enhanced oil recovery operations.
Conversely, McGrady writes, the Federal Land Policy and Management Act (FLPMA), “does not authorize the BLM to create a separate program to regulate underground injections outside the Safe Drinking Water Act.”
FLPMA and the Mineral Leasing Act (MLA) are the statutes BLM cites as its authority for its March 20 fracking rule. The rule is the first federal rulemaking to specifically address fracking injections.
The rule would update nearly 30-year-old existing standards for regulating fracking on public lands, setting requirements for disclosure of chemicals used in fracking, relying on the state-run database FracFocus as a vehicle for chemical disclosure. The rule, which BLM first proposed in May 2012 and then later revised in a supplemental proposal, also sets requirements to ensure integrity for how fracking wells are constructed and for drilling wastewater storage.
But Wyoming says Congress made it clear that FLPMA does not affect other laws governing use of water on public lands, and cannot be used to modify or supersede existing federal laws for developing water resources.
“In light of Congress's specific intent that the UIC program provide the exclusive means for regulating underground injections, the general authorities granted to the BLM and the Interior Department in the FLPMA and the MLA cannot be read to authorize regulation of underground injections outside the UIC program.”
Pending Lawsuit
The suit, State of Wyoming v. United States Department of Interior, et al. claims that the rule exceeds BLM's statutory jurisdiction, conflicts with SDWA and unlawfully interferes with Wyoming's fracking regulations.
Wyoming's novel argument appears to suggest that EPA should have sole authority under SDWA for regulating fracking. However, the 2005 energy law barred EPA from regulating fracking injections, except where diesel fuel is used, under the UIC program, amending SDWA to exclude fracking the definition of “underground injection.”
Referencing the 2005 law, the state's petition says, the “BLM's hydraulic fracturing rule purports to regulate precisely the activity that Congress prohibited from federal regulation under the UIC program.”
BLM in its upcoming briefing is likely to argue that FLPMA and the MLA authorize BLM to manage leasing on federal lands, and “an incident of leasing is regulation,” and that regulation of fracking is crucial to being able to govern oil and gas drilling given in ubiquitous use, one industry source says.
“This is the first step in a very long dance,” that source says, adding that it is likely more lawsuit could be filed over the rule before the requisite 90 day statute of limitations to file challenges expires on June 18.
A second industry source notes that Wyoming's argument could set up a legal dispute over which court should hear the challenge to the rule. The Department of Interior, which includes BLM, is likely to try to move the case to the jurisdiction of the D.C. Circuit because it is seeking review of a federal rule on grounds that are national in scope and fall under the Administrative Procedure Act, with “national implications,” the source says.
One environmentalist criticizes the suit and says, “BLM is acting well within its authority in regulating fracking on public lands - and the rules should go much farther since they still fall woefully short of what's necessary to protect public health and the environment.” The argument Wyoming makes is a “real stretch” and “conveniently ignores” the 2005 energy law that prohibited regulation of fracking unless diesel fuel is used.
Critics' Concerns
In addition to the legal challenge from Wyoming, BLM's fracking regulation has faced criticism from Republican lawmakers, industry and environmental groups for various reasons.
Oil and gas officials claim the rule unnecessarily duplicates state regulations and will slow energy development, and at least two major energy groups have already filed suit in federal district court to try and block the rule.
The industry lawsuit, filed March 20 by the Independent Petroleum Association of America and the Western Energy Alliance in the U.S. District Court for the District of Wyoming, claim that the BLM rule is a "reaction to unsubstantiated concerns" and will slow down development on public lands.
Senate Republicans have also tried to introduce legislation to try and block implementation of the rule. Sen. James Inhofe (R-OK), chair of the environment panel, on March 19 introduced S. 828, a bill intended to restrict authority for regulating fracking on federal land to the relevant state government, with 26 Republican co-sponsors.
Environmentalists, who have long urged EPA, BLM and other agencies to impose strict fracking rules, said that while more regulation of fracking is welcome, the BLM policies fall short of what they want.
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Coal Sector Secures Standing In Suit Seeking EPA 'Jobs' Review Of Air Rules
Apr 8, 2015 | InsideEPA
By David LaRoss
Coal companies have secured legal standing for their suit claiming EPA has a Clean Air Act mandate to review the impact of its air rules on employment, opening the door for a federal district judge to rule on the merits of the sector's claim that the agency unlawfully delayed the review and that it must assess combined impacts from all rules.
In a recent order in the suit Murray Energy, et al. v. EPA, U.S. District Court for the Northern District of West Virginia Judge John Preston Bailey rejects the agency's argument that Murray and other coal companies have not been harmed by the absence of a jobs analysis. The judge found in part that if EPA were to conduct such an evaluation, it could compel changes to air rules that impose costs on the coal sector, thereby potentially affecting jobs impacts.
“Congress’ purpose in enacting the requirement for the evaluations was to provide information which could lead the EPA or Congress to amend the prior EPA actions. . . . the results of the inquiry may have the effect of convincing the EPA, Congress, and/or the American public to relax or alter EPA’s prior decisions,” writes Bailey of language in section 321(a) of the Clean Air Act that says the agency “shall” conduct a jobs review of its air rules.
The law says that the EPA administrator “shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.”
The coal companies want to force the review because, they say, the costs of EPA's air rules including its utility air toxics regulation are imposing massive costs that are causing job losses in the coal and energy sectors. Bailey's order is a boost for the sector because it gives them legal standing to continue with the suit.
If the companies win a ruling on the merits, EPA could be forced to conduct a review that would likely bolster opponents of many of its air and climate rules governing coal-fired power plants, providing them with new ammunition to highlight employment impacts from current and pending regulations -- including the proposed greenhouse gas rules for the power sector that Murray and other groups are separately suing to try and block.
Bailey's order says that although the jobs review would focus on entire sectors rather than specific companies, “The fact that the failure to perform employment evaluations may affect a large number of persons or entities is not fatal to the plaintiffs’ standing,” because Murray and its allies still have a “personal stake in the outcome of the controversy,” meaning they can show potential harm that justifies standing for the suit.
Procedural Standing
Bailey separately notes that the companies have also shown standing to sue as a procedural matter, on the grounds that EPA has bypassed what the plaintiffs argue is a necessary step of the rulemaking process. The agency had argued that only procedures that are “prerequisites” to final agency actions such as rulemaking can trigger standing to sue -- as opposed to post-regulatory actions like retrospective reviews -- but Bailey rejected that claim as well.
“While many, if not all, of the cases cited by plaintiffs involve procedures which preceded an agency action, this Court has not found a case which so limits the doctrine. Indeed, had the plaintiffs been denied a right to appeal a final agency action, could the EPA seriously deny that there was a procedural violation?” he says.
The coal companies are also seeking an order that would enjoin EPA “from approving further regulations impacting employment in the coal industry” and from continuing enforcement against coal-fired power plants under the Clean Air Act new source review permit program until the agency has finished its jobs reviews.
EPA had argued in its motion to dismiss the case that the plaintiffs have not shown an “injury” that would give them standing to sue over the employment reviews because the regulatory costs and associated job losses Murray hopes to avoid would be caused by substantive air rules rather than the lack of a section 321(a) evaluation.
But Bailey in his order counters that, “The claimed injuries, while in part traceable to the prior actions of the EPA, may also be fairly traceable to the failure of the EPA to conduct the evaluations. . . . One purpose of [section 321(a)] is to protect industries, employers and employees from the untoward effects of prior EPA actions.”
The ruling comes after Bailey in a 2014 order already found that EPA is required to conduct the study because section 321(a) says the administrator "shall" conduct such a review, rejecting the agency's argument that the reviews constitute a discretionary duty that courts cannot order EPA to perform.
However, he has left open the question of whether the air law requires a sweeping assessment of all impacts from the agency's rules, as industry is seeking, or whether EPA can instead satisfy the mandate through narrower case-by-case investigations of threatened plant closures as agency attorneys have suggested in prior briefs.
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Questions Likely to Remain for States Even After Clean Power Plan Is Finalized
Apr 9, 2015 | BNA Daily Environment Report
By Andrew Childers
Driven by White House deadlines and a desire to provide states with sufficient flexibility, the Environmental Protection Agency may leave many outstanding questions unresolved in its final Clean Power Plan, participants said during an April 8 Environmental and Energy Study Institute forum.
Significant details about how states are to implement the proposed carbon dioxide emissions rates for existing power plants such as converting rate-based targets into mass figures for emissions trading or how to determine emissions reductions that can be credited to energy efficiency programs may not be spelled out in the kind of detail state regulators may prefer, panelists said.
“There will be plenty of questions after EPA issues the final rule,” Kenneth Colburn, senior associate at the Regulatory Assistance Project, said.
The proposed Clean Power Plan (RIN 2060-AR33), expected to be finalized this summer, would establish unique carbon dioxide emissions rates for the power sector in each state.
The EPA rule would be implemented by states, which would determine how best to achieve the emissions targets using four “building blocks” to achieve reductions: heat rate improvements at power plants, shifting dispatch from coal to natural gas, investment in renewable or nuclear generation and energy efficiency programs.
Energy Efficiency, Renewable Energy Blocks
The energy efficiency and renewable energy blocks, in particular, could be problematic for states.
States have asked the EPA how to clarify which state receives credit for those emissions reductions from new renewable generation—the generating state or the state where that electricity is consumed.
Additionally, the EPA hasn't yet offered a framework for how states can quantify carbon dioxide emissions reductions from energy efficiency programs, though modeling used to calculate vehicle emissions reductions for air quality standards could provide a model, Colburn said.
Those uncertainties could drive states to more familiar solutions, Colburn said.
“ ‘I know how to solve this problem. I'll just permit another gas plant.' And that's the dash to gas,” he said.
States Lack Details
The proposed Clean Power Plan may actually give states too much flexibility, Colburn said, leaving regulators unsure which emissions reductions strategies would be most effective and most defensible.
“It may be EPA has given too much flexibility because the states are saying, ‘What do you want us to do?' and EPA is saying, ‘Whatever you think is best,' ” Colburn said.
However, that lack of detail also could give states the opportunity to explore cost-effective emissions reductions outside of the four outlined by the EPA, he said.
Several Options Available to States
Colburn said states could achieve significant carbon dioxide emissions reductions through a host of measures such as reducing resistance along transmission lines, optimizing grid operations, improving the efficiency of water treatment or distributed generation programs. States also could consider carbon taxes, he suggested.
“There isn't just rate-based approaches and mass-based approaches; there's also price-based approaches,” Colburn said.
Both Colburn and Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, said that states that choose not to develop their own compliance plans could be placing themselves at a competitive disadvantage.
A plan developed by the EPA would likely be more restrictive and more expensive than one developed by the state, they said.
McConnell Urged Boycott
Senate Majority Leader Mitch McConnell (R-Ky.) in a March 19 letter to the National Governors Association urged states to boycott complying with the rule, a strategy dubbed “just say no.” That would force the EPA to develop its own compliance plans for states (54 DEN A-16, 3/20/15).
Colburn said power markets are already preparing for the Clean Power Plan and building carbon dioxide regulation into their long-term planning.
He also cautioned that industry concerns that the EPA rules will jeopardize grid reliability, also raised in the agency's mercury and air toxics standards for power plants, have rarely been borne out by experience. However, the EPA could include a regulatory safety valve in the final rule allowing states to opt out of compliance if it would jeopardize grid reliability.
“I would suggest the history of reliability concerns at this stage of the game being ultimately manifest in reality is pretty thin. MATS was the end of life as we know it too and then it turned out to be a nothing-burger,” Colburn said.
States Seeking to Overturn Rule
Some states have already joined lawsuits seeking to overturn the proposed rule before it is finalized. The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument April 16 in a coal company's lawsuit challenging the EPA's authority to even propose the Clean Power Plan (54 DEN A-2, 3/20/15).
Even if states manage to derail the proposed Clean Power Plan through boycotts or lawsuits, the EPA will return with another rule in the future, Burger said.
“Climate change s not going away,” he said. “The Supreme Court has said the EPA has the authority to regulate under the Clean Air Act.”
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Honorable Says FERC to Give Carbon Rule Advice to EPA
Apr 8, 2015 | PoliticoPro
By Alex Guillen
FERC’s newest member said on Wednesday that her agency will send EPA its recommendations for the administration’s power plant carbon regulations in time for them to be considered before the final rule comes out this summer.
Though it’s not clear what FERC will recommend, whether the advice will be made public or if EPA will follow FERC’s guidance, Commissioner Colette Honorable said she expects the power grid regulator’s input will have an impact.
“I do feel confident that the EPA will rely upon FERC in a very meaningful way,” she said at a Platts Energy Podium event.
FERC has been caught between EPA and congressional Republicans and industry critics who oppose the carbon rules and say FERC should step in to ensure the administration’s climate change efforts don’t threaten the reliability of the power grid.
FERC held a series of technical conferences in February and March to assess EPA’s Clean Power Plan, including its expected effects on infrastructure and energy markets.
Critics of the rule argue that it will require shutting down many coal-fired power plants, which could pose a threat to electricity delivery. EPA and environmental groups have dismissed those concerns, noting that many of the plants slated for shutdown are aging or rarely used anymore.
Despite pressure from industry officials to avoid being “potted plants” in the face of a major environmental regulation, FERC’s five commissioners are focused on remaining fair in their assessment.
But, Honorable admitted, there is little FERC can do to force EPA’s hand.
“Our role is to provide advice and counsel to the EPA, and they are a sister agency. And so honestly one agency can’t trump the other, if you will. We wouldn’t have any mechanism to make the EPA accept it,” she said.
But EPA has an inherent interest in listening to FERC.
EPA’s expertise is in environmental impacts, while FERC knows the nation’s grid, Honorable said, and “that’s why I believe that they’re wanting to rely upon the support that we will provide.”
Honorable said she wasn’t aware of any “drop-dead deadline” to get FERC’s recommendations to EPA, but that her agency is working quickly.
Time is undoubtedly running short. EPA plans to release the final rule this summer. Several dozen FERC staffers are currently crafting the options for the commissioners to consider, but that is still a work in progress, and Honorable has yet to see a draft.
And FERC will continue to play a major role on reliability after the final rule is released.
“We won’t really know what the true reliability impacts are until we see a final rule, until we see final goals and until we see how each state will be impacted by the plan that EPA has developed,” Honorable said.
Honorable identified one possible path forward to address reliability concerns: a “safety valve” similar to the one used in EPA’s recent Mercury and Air Toxics Standards.
Under that process, a utility can ask FERC to consider whether a particular plant should remain operating for a certain period to maintain grid reliability, even though the plant isn’t yet in compliance with MATS. EPA must still make the final call, but FERC’s analysis provides significant weight.
FERC Chairwoman Cheryl LaFleur has said that the MATS reliability valve worked on a plant-by-plant basis, but that the forthcoming carbon rules are of an entirely different scope. And Honorable is far from sold on basing a safety valve for the carbon rules on the MATS setup.
“It’s certainly something I would consider, but I haven’t determined in my mind that that is the structure,” she said. “I’m very open to it, and I’m looking forward to reviewing any other comments that we receive regarding this reliability safety valve.”
It is also unclear whether FERC’s recommendations will be made public. Honorable said that is a decision left up to the commission’s leadership, likely leaving it up to Norman Bay, who will become chairman next week.
“I look forward to providing feedback in whatever way that our commission designates,” Honorable said. “If it’s public I certainly support that.”
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Michael Bloomberg’s War on Coal
Apr 8, 2015 | PoliticoPro
By Andrew Restuccia
Before Michael Bloomberg would commit tens of millions of dollars to the Sierra Club’s campaign to shut down coal plants all over the United States, he wanted something: more data specifying where his money would go.
The famously detail-oriented politician who had built a media empire on second-by-second financial minutiae was considering a major donation to what would become a successful state-by-state crusade against the nation’s cheapest and dirtiest source of electricity. But first, Bloomberg and his lieutenants “put us through the ringer,” Sierra Club Executive Director Michael Brune said in an interview Wednesday, recalling the conversations from late 2010.
Among other requests, Bloomberg wanted the group to create better ways of gauging the success of its efforts, including maps of every coal-fired power plant and details on their pollution controls.
The exercise paid off, culminating in a financial pledge Wednesday that will make Bloomberg and his allies a $110 million benefactor to the Sierra Club’s Beyond Coal campaign — cementing his role as the loudest and wealthiest foe of an industry already beset by EPA regulations and increased competition from wind and natural gas. The Sierra Club’s data-driven effort now spans 45 states, and it has claimed credit for ensuring the demise of 188 coal plants whose owners have announced plans to shutter or repurpose them since 2010.
The Beyond Coal campaign is “one of the most successful grass-roots environmental efforts in this country’s history,” said Bloomberg, whose aides get monthly reports detailing, down to the megawatt, which coal plants are being targeted for retirement.
“Mike Bloomberg has built his entire company on information,” Brune said. “And he believes that you can’t succeed at what you can’t measure.”
Since leaving office as New York City’s mayor in 2013, Bloomberg has plunged into political activism with the urgency of a 73-year-old bent on changing the world. Some of his efforts, such as his gun control initiative, have had only limited effect. His war on coal has had a far deeper impact.
Some in the coal industry hold him personally accountable for killing jobs and driving up electricity costs.
“The Sierra Club today may thank the Bloomberg foundation for an additional $30 million to fight affordable energy, but families across the country facing higher utility bills won’t be so grateful,” said National Mining Association President Hal Quinn, warning that anti-coal efforts are already “leaving tens of thousands of Americans without jobs and low-income families plus those on fixed incomes with still higher bills to pay.”
Others in the industry insist that Bloomberg’s spending doesn’t intimidate them.
“I think of Bloomberg’s millions the same way I do the millions [Tom] Steyer flushed down the toilet last year — flotsam,” said Laura Sheehan, a spokeswoman for the American Coalition for Clean Coal Electricity. She was referring to the San Francisco billionaire climate activist’s mostly unsuccessful efforts to sway the 2014 elections.
But Bloomberg says his efforts are already seeing big returns. And on Wednesday, he committed an additional $30 million to the Beyond Coal campaign — a sum he hopes to double with matching contributions from a dozen other donors — on top of the initial $50 million he pledged in 2011.
The campaign also set a new goal: By 2017, it wants to secure the planned retirements of half of the country’s coal fleet that existed in 2010. Its previous goal was to slash the fleet by one-third by 2020.
Meeting the new goal will require ensuring the closure of an additional 88,252 megawatts of coal-fired power by 2017, on top of the 77,600 megawatts the Sierra Club has secured since 2010, the group says.
“We need energy, nobody disputes that,” Bloomberg told a crowd of cheering volunteers during Wednesday’s announcement in Washington, which could have been mistaken for a campaign rally. “The question is: Do we have to kill ourselves while we’re getting it? I don’t think we have to do it, and nor do you.”
True to form, Bloomberg punctuated his speech with data points, making the case that the 188 coal plant retirements since 2010 will result in 7,500 fewer heart attacks and 80,000 fewer asthma attacks this year.
But there’s one data point he seemed frustrated not to have. “The unfortunate thing is we don’t know the names of those people who would have died from a heart attack or died from cancer,” he said. “If we could, it would resonate a lot more with the public.”
Later in the day, he received a different sort of honor: The British governmentnamed him an “Honorary Knight Commander of the Most Excellent Order of the British Empire,” during a ceremony that included a toast from Vice President Joe Biden.
Bloomberg’s passion for overhauling the country’s energy mix has its origins in his broader quest to improve public health, as shown in his campaigns against guns, sugary sodas and tobacco. People close to him say he’s also frustrated at watching wealthy industry groups muddle the debate over weaning the country off fossil fuels.
“One of the hallmarks of the Bloomberg approach is he has shown again and again that he’s not afraid to court controversy,” said Antha Williams, who leads Bloomberg Philanthropies’ environmental programs. “In places where moneyed special interests are standing in the way of practical policy that makes sense, he wants to fight that fight.”
Coal, Williams said, “is a crazy, outdated fuel. We can be doing better and one of the reasons that we’re not is coal has a lot of political power.”
Bloomberg’s opposition to coal has made his foundation toxic for at least one Republican: Senate Majority Leader Mitch McConnell’s wife, former George W. Bush administration Labor Secretary Elaine Chao, resigned from the board of Bloomberg Philanthropies in January amid news of the group’s anti-coal investments.
The Sierra Club donations are far from the only efforts on climate change that Bloomberg has pursued through Bloomberg Philanthropies. Earlier this year, he pledged $24 million — to be matched by a wealthy California couple — to help states find low-carbon strategies for complying with the Obama administration’s climate regulations for power plants.
Bloomberg is also board president and former chairman of a network of world cities that are working to cut greenhouse gas emissions.
Bloomberg often jokes about how the New York tabloids mocked him in 2009 for teaming up with Al Gore to paint the roof of a New York City building white to save energy. (The Associated Press reported at the time that the city hadn’t painted many of its own buildings, despite the photo-op with Gore).
“Today, if you fly over New York, Brooklyn and Queens have lots of flat-roof, five-story buildings. It’s got to be 85-90 percent that are painted white today,” he said at Wednesday’s news conference. “It may be fun in the newspapers, but people say, ‘Wait a second, I can reduce my energy bill by 25 percent with a couple cans of paint, why would I not do that?’”
Bloomberg’s donations have allowed the Sierra Club’s Beyond Coal effort to expand dramatically since 2011, when it was operating in only 15 states. The money has also helped Beyond Coal build a real-time database that tracks the progress of coal retirements.
Brune said the new money announced Wednesday will allow the campaign to hire more lawyers and activists to fight against power plants across the country.
Brune acknowledged that the Sierra Club can’t take full responsibility for all the closures — the industry is suffering from low natural gas prices and federal policies like an EPA mercury rule that takes effect next week. But he said the group believes its litigation against coal plants has helped ensure their demise.
It’s not the first time the Sierra Club has turned to wealthy businessmen to fund its Beyond Coal campaign. The environmental group came under fire in 2012 after disclosing that it had accepted $26 million in donations for the anti-coal effort from the natural gas industry, including from then-Chesapeake Energy CEO Aubrey McClendon. Brune said at the time that after he joined the group in 2010, he persuaded its board to stop accepting money from the gas industry — and then he personally blew the whistle.
In contrast, the Bloomberg donations could not be more public.
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EPA Overdue on Air Toxics Reviews, Complaint Says in Seeking Court Deadlines
Apr 9, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Environmental groups filed a lawsuit seeking court-ordered deadlines for the Environmental Protection Agency to review air toxics standards for various industries, including semiconductor manufacturing and municipal solid waste landfills, which allegedly are overdue for a potential update (Cal. Cmtys. Against Toxics v. McCarthy, D.D.C., 1:15-cv-512, 4/8/15).
The groups listed 21 source categories for which the EPA allegedly missed deadlines outlined under the Clean Air Act for reviewing standards for emissions of hazardous air pollutants, according to a complaint filed April 8 in the U.S. District Court for the District of Columbia.
The agency is required to review its air toxics standards within eight years of their establishment to evaluate residual health and environmental risks and to determine if additional emissions standards are necessary. The EPA also is required to conduct a technology review for each source category every eight years to review and revise the standards if necessary after taking into account developments in practices, processes and control technology.
“Yet the Administrator has missed the statutory deadlines to complete the required regulatory duties for 21 categories of sources of toxic air pollution,” the complaint said.
The environmental groups, which include California Communities Against Toxics, Louisiana Bucket Brigade and Neighbors for Clean Air, first told the agency of their intent to sue in February (24 DEN A-8, 2/5/15).
The source categories at issue are:
• solvent extraction for vegetable oil production;
• boat manufacturing;
• surface coating of metal coil;
• cellulose products manufacturing;
• generic MACT II - ethylene production;
• paper and other web coating;
• municipal solid waste landfills;
• hydrochloric acid production;
• reinforced plastics composites production;
• asphalt processing and asphalt roofing manufacturing;
• integrated iron and steel manufacturing;
• semiconductor manufacturing;
• engine test cells/stands;
• site remediation;
• miscellaneous organic chemical manufacturing;
• surface coating of metal cans;
• surface coating of miscellaneous metal parts and products;
• organic liquids distribution (non-gasoline);
• stationary combustion turbines;
• surface coating of plastic parts and products; and
• surface coating of automobiles and light-duty trucks.
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Los Angeles Mayor Proposes Suite of Green Initiatives
Apr 8, 2015 | The Hill - E2 Wire
By Timothy Cama
The mayor of Los Angeles released a sweeping set of sustainability initiatives Wednesday to summarize his environmental positions.
The plan from Mayor Eric Garcetti (D) includes many proposals the city has recently put forth and aims to incorporate sustainability across the city government, the Los Angeles Times reports.
Some ideas for the nation’s second-largest city include increasing the use of electric cars, cleaning the area’s groundwater and more closely watching air quality in poor neighborhoods.
All city-owned cars would be electric by 2035 under the plan, and a quarter of the entire city’s cars would be as well, the Times said.
It includes a previous goal to shrink water use and reduce electricity from coal-fired power plants.
Matt Petersen, Los Angele’s chief sustainability officer, said the plan is the first crack at becoming a more sustainable city.
“If we don't take the step to set targets, and measure progress to achieve those targets, how will we send the signals to the private sector, to the universities, that this is important as a community to come together,” Petersen told the Times.
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Bill Would Set Stabilization Requirement for Crude-by-Rail
Apr 9, 2015 | BNA Daily Environment Report
A bill introduced by Rep. John Garamendi (D-Calif.) would implement a national stabilization requirement for oil transported by rail. The Bakken Crude Stabilization Act of 2015 (H.R. 1679), introduced March 26, would set a maximum Reid vapor pressure of 9.5 pound per square inch (psi) for oil, removing some of the volatile components of the oil, before it can be shipped by rail. The proposed 9.5 psi is lower than North Dakota's stabilization rule that took effect April 1, which allows oil to be moved by rail at a level of 13.7 psi that has been called too high by Sen. Charles Schumer (D-N.Y.) (44 DEN A-7, 3/6/15). Politicians, industry and the public have debated what role stabilization should play in lowering risks associated with moving this flammable liquid by rail, a practice that has increased alongside domestic oil production in areas without adequate pipeline capacity. Garamendi's bill would take effect 90 days after the bill is enacted. H.R. 1679 is available at https://www.congress.gov/114/bills/hr1679/BILLS-114hr1679ih.pdf.
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