Preview Newsletter
ACC June 11
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(ACC Mentioned) Updating TSCA Would Help U.S. Chemical Manufacturers Avoid Lost Opportunities
Jun 11, 2015 | BNA Daily Environment Report
Terry Medley is the global director of corporate regulatory affairs and advocacy at E.I. du Pont de Nemours and Co., which has researched and developed building materials, fabrics, solar panels, seeds and other products as well as chemicals since 1802. He has more than 30 years of experience in science, environmental health and safety... -
(ACC Mentioned) It's Not Allowed in Baby Bottles, But BPA Is Probably Lining Your Canned Foods
Jun 10, 2015 | Vice News
By Kate Jenkins
In 2008, Nalgene stopped using a type of polycarbonate in its iconic water bottles because it included the estrogen-mimicking chemical BPA. Manufactures of baby bottles and sippy cups followed suit. And, in response to a request by the American Chemical Council, the US Food and Drug Administration imposed in 2012 a prohibition on the use... -
(ACC Mentioned) EWG Has Released New Report on BPA in Canned Food
Jun 10, 2015 | Treehugger
By Katherine Martinko
The Environmental Working Group has just released a new report on BPA in canned food. While many companies have pledged to get rid of the bisphenol A-based epoxy liners that are used to slow or prevent reactions between the food and metal can, a relatively small number of them have actually followed through. -
(ACC Mentioned) Foam Away From Home: NYC Businesses Prep For EPS Ban
Jun 10, 2015 | Plastics News
By Erica Davies
Single-serve foam containers will be banned in the city of New York starting July 1. The single-serve foam containers that come with New Yorkers' coffee, lo mein and other food to go are about to hit the road themselves. Next month, New York will become the largest city in the country to prohibit restaurants and other food establishments from... -
(ACC Mentioned) Chemical Legislation Will End Up Endangering Americans
Jun 11, 2015 | Albuquerque Journal
By Rick Hind
Fifty-two years ago when Rachel Carson’s book “Silent Spring” became a best seller, there were 62,000 chemicals in commerce. In a 1963 CBS News report about her book, she eloquently warned of the dangers of these chemicals. Today there are 84,000 chemicals on the market with more every year. -
Health Groups Petition FDA To Ban Eight Food Flavors
Jun 10, 2015 | The Hill - Regulation
By Lydia Wheeler
Health groups are petitioning the Food and Drug Administration (FDA) to ban eight synthetic flavors in food that are known carcinogens. The petition, led by the Natural Resources Defense Council (NRDC), said the flavors, which have been used for over 40 years, are found in ice cream, candy, baked goods and beverages. -
Groups Call For FDA Ban On Food Additives Linked To Cancer Risk
Jun 10, 2015 | E&E News PM
By Sam Pearson
Consumer groups filed a petition today asking the U.S. Food and Drug Administration to ban eight synthetic flavor additives from food products, arguing other agencies have scientific evidence linking the chemicals to cancer. The petition, which was filed jointly by the Natural Resources Defense Council, the Center for Science... -
EPA Grapples With Response To IG Call For Human Test Program Changes
Jun 10, 2015 | InsideEPA
By Maria Hegstad
EPA is grappling with how best to respond to challenging recommendations from its Inspector General (IG) regarding its human testing program, with agency officials questioning a recommendation from the IG that EPA must disclose potential cancer risk from exposure to pollutants during the studies that EPA seeks volunteers to undertake. -
OECD Publishes 'Unprecedented’ Volume Of Nanomaterials Data
Jun 10, 2015 | Chemical Watch
Echa is urging REACH registrants of nanoforms of substances to check whether their dossiers need updating following the OECD’s publication of what the global organisation calls an “unprecedented” volume of new data. As reported by Chemical Watch last summer (CW 26 June 2014), the OECD has decided to give free access to vast... -
Oil Spill Inquiries Show The Need For Real Oversight
Jun 10, 2015 | The Sacramento Bee
Though federal investigators have yet to pinpoint the precise cause of last month’s Santa Barbara oil spill, the basic story is becoming less and less mysterious. The federal Pipeline and Hazardous Materials Safety Administration revealed last week that the 28-year-old pipeline, buried just inland from a coastal paradise of beaches... -
Puerto Rico Tank Farm Blast Exposes Regulatory Gaps -- CSB
Jun 10, 2015 | E&E News PM
By Sam Pearson
Existing regulations of bulk petroleum storage tank terminals fail to consider the hazards present at these sites, the U.S. Chemical Safety Board said in a report today on a 2009 explosion and fire at a Puerto Rico facility. The board was considering a final report into one of its oldest outstanding investigations of a tank farm... -
Federal Land Management Plan Failed To Consider Oil, Gas Impacts, Lawsuit Says
Jun 11, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
Environmental groups filed a lawsuit June 10 challenging a federal plan for managing 400,000 acres of public lands and 1.2 million acres of mineral estate in eight Central California counties (Ctr. for Biological Diversity v. BLM, C.D. Cal., No. 2:15-cv-04378, 6/10/15. The Bureau of Land Management failed to adequately analyze the impacts... -
California Lawsuit Seeks To Block Oil Drilling On Federal Land
Jun 11, 2015 | Reuters
By Rory Carroll
Environmental groups on Wednesday filed a lawsuit challenging a plan to open large portions of federal land in central California to oil drilling, saying it did not consider the impacts of fracking on the environment. The lawsuit targets the Bureau of Land Management's (BLM)approval late last year of a plan that could lead to the leasing... -
Enviros Sue BLM To Stop Drilling Plan In Central Calif.
Jun 10, 2015 | E&E News PM
By Scott Streater
Two environmental groups are suing the Bureau of Land Management over the agency's approval last year of an amended land-use plan that the groups say will open more than a million acres in central California to oil and gas drilling. The lawsuit filed today in the U.S. District Court for the Central District of California's Western Division... -
Doctors Call on Oil, Gas Companies to Disclose Chemicals Injected Into Wells
Jun 11, 2015 | BNA Daily Environment Report
By Michael Bologna
The American Medical Association called June 9 on oil and gas exploration companies engaged in hydraulic fracturing to provide regulatory agencies with more information about the chemical cocktails they inject into wells to stimulate production. The action came in the form of a policy resolution approved by the AMA's House... -
Republican Senators Allege Inadequate Input From Small Businesses in Clean Power Plan
Jun 11, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency continues to not properly follow statutory requirements for gathering the input of small entities as it prepares to finalize its Clean Power Plan to address carbon dioxide emissions from the nation's fleet of power plants, seven Republican senators said June 10. -
Largest U.S. Grid Wins FERC Approval for Power Plant Reliability Plan
Jun 11, 2015 | BNA Daily Environment Report
By Jonathan N. Crawford
PJM Interconnection LLC, the nation's largest electricity grid, won permission from U.S. regulators for a plan to increase reliability at power plants and avoid a repeat of the shutdowns and price spikes during the unseasonably cold winter of 2014. The Federal Energy Regulatory Commission voted to approve the “pay-for-performance”... -
Capped Interior, EPA Spending Bill Faces Amendment in House Appropriations
Jun 11, 2015 | BNA Daily Environment Report
By David Schultz
In a pro forma voice vote, a House Appropriations subcommittee approved a bill to fund the Environmental Protection Agency, the Interior Department and other related agencies for the 2016 fiscal year. The subcommittee held a brief markup session June 10 on the nearly $30.2 billion spending bill, which it released ... -
House GOP, Democrats Spar Over 'Dare' For Obama To Veto EPA FY16 Bill
Jun 10, 2015 | InsideEPA
By David LaRoss
House Republicans say they will “dare” President Obama to veto controversial fiscal year 2016 funding legislation for EPA and other agencies if the measures successfully clear the GOP-led Congress, prompting vows from Democrats to try and halt the appropriations process until their concerns on the budget process and the bills are addressed. -
Coal Confronting Bigger Threat Than Obama's Rules for Clean Air
Jun 11, 2015 | BNA Daily Environment Report
By Mario Parker and Naureen S. Malik
U.S. coal companies worried that the Obama administration's proposed clean-air rules will put them out of business face a bigger threat: natural gas. Shale formations in the eastern U.S. are yielding record amounts of gas, pushing prices of the fuel in the region below coal, which had been 61 percent less expensive on average since 2001. -
Which Coal-Fired Plants Can Use Carbon Capture To Meet EPA Goals?
Jun 10, 2015 | The Hill - Contributors
By Deborah D. Stine and Haibo Zhai
As reported in The Hill, the Environmental Protection Agency (EPA) is entering the final stages of approval for its Clean Power Plan. On June 5, 2015, the Energy Information Administration (EIA) provided their projection of how the nation's power plant mix will change due to the Clean Power 111(d) Plan. Might carbon dioxide capture... -
EPA 'Environmental Justice' Map Highlights California's Pollution Ills
Jun 10, 2015 | LA Times
By Tony Barboza
Many Southern California communities stand out as some of the nation’s worst environmental justice hot spots, according to a new map released Wednesday by the Obama administration. The interactive online map created by the U.S. Environmental Protection Agency highlights low-income, minority communities across the country that face ... -
GOP Amendment Would Limit Climate Deals
Jun 10, 2015 | The Hill - E2 Wire
By Timothy Cama
A Republican amendment attached to the House’s customs and trade bill would limit the Obama administration’s ability to include any climate change provisions in trade agreements. The provision, sponsored by Ways and Means Committee Chairman Rep. Paul Ryan (R-Wis.), would “ensure that trade agreements do not require changes to U.S... -
Manufacturers Worry Over Ozone Proposal In Industry Survey
Jun 10, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
NAM has long been a major critic of EPA's proposal to lower the ozone standard from 75 parts per billion to a range of 65-70 ppb. The group has released studies estimating annual compliance costs as high as $140 million, or $1.7 trillion 2040. Many parts of the U.S. that meet the current standard would not immediately... -
Majority Of Manufacturers Worried About Ozone Standard -- Survey
Jun 10, 2015 | E&E News PM
By Amanda Peterka
The majority of manufacturers are worried about the effects of a more stringent national ozone standard on their bottom lines, according to a quarterly industry survey by the National Association of Manufacturers. U.S. EPA proposed last November to tighten the current national ambient air quality standard for ozone from 75 parts per... -
Bill for Rewrite of Water Jurisdiction Rule Approved Along Party Lines by Senate Panel
Jun 11, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Legislation requiring the Obama administration to rewrite the recently released rule clarifying the scope of Clean Water Act jurisdiction based on flow of water was approved June 10 by the Senate Environment and Public Works Committee. The committee voted 11-9 along party lines to send to the Senate floor... -
GOP Senators Defeat Democrats' Bid To Add Health Measures To CWA Bill
Jun 10, 2015 | BNA Daily Environment Report
By Bridget DiCosmo
Republican senators have defeated several Democratic amendments seeking to add public health protection measures to pending legislation that would force EPA to withdraw its recent final Clean Water Act (CWA) jurisdiction rule, and rejected Democrats' calls to allow the rule to remain in place to give clarity on the law's scope. -
Utilities Push Court To Reconsider Suit Over EPA CWA Memos On Merits
Jun 10, 2015 | InsideEPA
By David LaRoss
Wastewater utilities are asking a federal district court to reverse its finding that a suit over EPA letters that allegedly mandate strict new Clean Water Act (CWA) discharge permit toxic testing procedures is moot after the agency withdrew the memos, saying the court should rule on the suit's merits because regulators still see the... -
Republicans Take Aim At EPA's Push For Water Rule
Jun 11, 2015 | E&E Daily News
By Kevin Bogardus
Republican senators yesterday kept up their scrutiny of the Obama administration's new water rule, including U.S. EPA's aggressive advocacy for the regulation. At a Senate Judiciary Committee hearing examining the federal regulatory process, Chairman Chuck Grassley (R-Iowa) took aim at the agency's campaign to win support for... -
House Passes Spending Bill With Funding For Pipeline Safety, No Bar on Crude-by-Rail
Jun 11, 2015 | BNA Daily Environment Report
By Rachel Leven
The House passed an appropriations bill that would fund the Pipeline and Hazardous Materials Safety Administration for fiscal year 2016, with pipeline safety funding and rule-focused amendments tacked on. In the Transportation, Housing & Urban Development Appropriations Act (H.R. 2577), the House June 9 also moved... -
Proposed Corrosive Material Classification Changes in Top Issues for June UN Meeting
Jun 11, 2015 | BNA Daily Environment Report
By Rachel Leven
Revising rules related to corrosive substances, including by proposing alternative hazard classification for these materials, appeared to be among the domestic hazardous materials transportation industry's top concerns related to a United Nations meeting later this month, according to discussions from a Transportation Department...
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(ACC Mentioned) Updating TSCA Would Help U.S. Chemical Manufacturers Avoid Lost Opportunities
Jun 11, 2015 | BNA Daily Environment Report
Terry Medley is the global director of corporate regulatory affairs and advocacy at E.I. du Pont de Nemours and Co., which has researched and developed building materials, fabrics, solar panels, seeds and other products as well as chemicals since 1802. He has more than 30 years of experience in science, environmental health and safety regulatory oversight and policy with a particular focus in biotechnology, nanotechnology and environmental protection laws.
Medley leads the DuPont chemical management policy team and chairs the industry Nanotechnology Committee at the OECD Working Party on Manufactured Nanomaterials.
Bloomberg BNA reporter Pat Rizzuto spoke with Medley on why DuPont supports modernization of the Toxic Substances Control Act (TSCA) and his thoughts on the Senate and House bills that are designed to update the nearly 40-year-old law. The bills under consideration are the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) and the TSCA Modernization Act (H.R. 2576). This interview had been edited for clarity and length.
Bloomberg BNA:
Would you describe the range of global chemical regulations and chemical management programs with which you work?
TERRY MEDLEY:
DuPont is a global science company operating in 90 countries in three priority areas: agriculture and nutrition (food production), advanced materials and biobased industries (alternative fuels).
That means we are working in multiple markets—food, chemicals, pesticides, materials.
Being global, we are exposed to a number of chemical management systems from chemical registration approaches, such as Europe's REACH, to inventory-based systems like TSCA in the United States or the existing and new inventories established through Japan's Chemical Substances Control Law.
As a global company, we are involved in regional chemical management groups such as the American Chemistry Council, the European Chemical Industry Council (CEFIC) and the Japan Chemical Industry Association as well as international groups such as the International Council of Chemical Associations.
The International Council is working through initiatives such as the U.N.’s Strategic Approach to International Chemicals Management (SAICM) to make information on chemicals widely available. For example, it established the Global Product Strategy Chemicals Portal, which provides product safety information from companies on the chemical products they make.
Bloomberg BNA:
Based on observations you have made through your work, what impressions do other parts of the world have about the Toxic Substances Control Act?
Medley:
What we encounter globally is the perception that TSCA is outdated. So countries conclude TSCA isn't a model they can follow and they look to other chemical management systems, such as REACH [REACH is the European Union's registration, evaluation and authorization of chemicals regulation].
Bloomberg BNA:
How does that impression affect U.S. chemical companies and their ability to do business around the world?
Medley:
It has a significant impact when you think about lost opportunities.
For example, over the last several months there have been many discussions about the Transatlantic Trade and Investment Partnership and the products and sectors that should be included in the agreement.
On a number of occasions some EU groups have said chemicals should not be part of the partnership, because TSCA isn't equal to REACH.
Think about the implication of our industry not being part of that major trade agreement.
Our products already meet international environmental, health and safety standards, but how our law is viewed is critical.
Countries’ perceptions have a significant impact on trade opportunities. If their perception is that TSCA is outdated, then the U.S. system isn't considered as they modernize their chemicals management strategies.
If more countries adopt REACH-like registration approaches, that would affect innovation.
The European Commission recently released preliminary findings from a survey it is conducting on the impact of REACH. Of the more than 1,600 companies surveyed, 35 percent said REACH is negatively affecting their capacity to innovate.
There is a real impact if more countries adopt chemical regulations that are not based on risk but are driven by registration.
That turns into lost opportunities or delays in product introductions.
A modernized TSCA can serve as a model for other countries that are considering changes to their chemical management system.
We have an opportunity to make TSCA the most up-to-date chemicals management program available; we have the opportunity to make our law the model system.
Bloomberg BNA:
What features does an updated TSCA need to have to help U.S. chemical manufacturers in a global market?
Medley:
DuPont was one of the earlier supporters of comprehensive TSCA reform.
As early as 2010, we testified in hearings that the U.S. needed a comprehensive risk-based chemicals management system to address state concerns about chemicals and to reassure the public about the safety of the products they buy.
TSCA modernization should be based upon common principles such as those the EPA and American Chemistry Council released in 2009.
Bloomberg BNA:
Do either the House or Senate bills have those features?
Medley:
They offer very different approaches and yet have some similarities.
They both address the need for the EPA to systematically assess environmental, health and safety aspects of existing chemicals, and they both do so without unduly increasing the burdens on chemical manufacturers, which could discourage innovation.
Both bills move toward a standard that focuses on whether a chemical is safe for its intended use. That is really critical. That risk-based approach draws on both hazard and exposure information. In both, we're moving away from ‘is the chemical safe’ to ‘is it safe for its intended use.’
And they both acknowledge the need to protect confidential business information.
Protecting CBI isn't about not disclosing chemical information—EPA sees everything—we're talking about protecting our research and innovations from our competitors; making sure our competitors don't take our data to expedite their entry into the marketplace.
Another major issue is how they address new chemicals or Section 5 of TSCA. We feel that section is working very well, and the House did not change it at all.
Both bills accomplish those goals, but do so in different ways.
The Senate's bill is more prescriptive. The House's gives EPA broader authority but leaves implementation of that authority to the agency.
Prioritization Approaches Differ.
The clearest example of the bills’ differences are their approaches to prioritization.
The Senate bill revises Section 6 of TSCA, which addresses “existing” chemicals or chemicals in commerce, by directing the EPA to undertake a detailed, specific approach to prioritizing those substances.
The House sets a numerical goal—the EPA is directed to review 10 or more chemicals per year if appropriations are sufficient—and gives only broad guidance to the agency regarding how it should select those chemicals.
Although they take different approaches, when you look at the critical components, each tries to achieve confidence in the U.S. chemicals management system.
We hope that following floor discussions and favorable votes for each bill, there will be a final bill that goes to the president to sign.
Bloomberg BNA:
Which bill would build more confidence in the U.S. chemicals management system?
Medley:
Jim Jones, EPA assistant administrator for chemical safety and pollution prevention, has said EPA needs specific goals and deadlines (220 DEN A-16, 11/14/13).
I would rely on what the EPA says would give it the best chance of carrying out this program effectively.
What Jones asked for sounds more similar to the Senate bill, but hopefully as both sides of the Hill discuss their approaches in conference, they can reach a happy medium that will secure bipartisan support.
Bloomberg BNA:
Is anything missing from either bill? For example, is it a concern that neither bill would give the U.S. the ability to ratify the Stockholm Convention on Persistent Organic Pollutants (POPs) or the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC Convention)?
Medley:
What matters most is that the EPA have adequate resources to implement the statute.
Everyone is asking for a lot from TSCA.
Right now it's very important to get a TSCA-reform bill agreed to and signed into law.
We wouldn't want to jeopardize that in any way with the additional issues that could arise involving the ratification of international treaties.
We already comply with the POPs and PICs treaties. I wouldn't want the addition of treaty language in a TSCA bill to stop reform from moving forward through a bipartisan process.
Bloomberg BNA:
Anything else you'd like to say about TSCA reform and the U.S. chemical industry's global potential?
Medley:
Clearly we are operating under a statute viewed as outdated.
We have an opportunity to make TSCA the most up-to-date chemicals management program available; we have the opportunity to make our law the model system. That would give us a competitive advantage.
A modernized TSCA also will encourage other countries to manage their chemicals in the most cost effective way.
Looking at our situation, Congress has a wonderful opportunity to let the U.S. be an example of ensuring comprehensive chemicals management while continuing to foster innovation and allowing chemistry to bring society many benefits.
It's a wonderful opportunity. I am hopeful that before the election we will have a bill that goes out of the House, out of the Senate, into conference and to the president. I think we are really close. Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:8.0pt; mso-para-margin-left:0in; line-height:107%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}
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(ACC Mentioned) It's Not Allowed in Baby Bottles, But BPA Is Probably Lining Your Canned Foods
Jun 10, 2015 | Vice News
By Kate Jenkins
In 2008, Nalgene stopped using a type of polycarbonate in its iconic water bottles because it included the estrogen-mimicking chemical BPA. Manufactures of baby bottles and sippy cups followed suit. And, in response to a request by the American Chemical Council, the US Food and Drug Administration imposed in 2012 a prohibition on the use of BPA in bottles and food storage containers.
But another common point of contact with BPA has been largely overlooked: canned food.
Of the 252 brands analyzed by the non-profit Environmental Working Group (EWG), only 12 percent use BPA-free cans for all of their products.
"The biggest problem is that people have no reliable way of knowing whether they are buying food that is laced with this toxic chemical," said Samara Geller, EWG database analyst. "Federal regulations do not require manufacturers to label their products to identify cans with BPA-based linings. By releasing this analysis, we hope to arm people with the critical information they need to avoid BPA and make smarter shopping decisions."
Canned food producers use bisphenol A, or BPA, to line the inside of cans in order prevents the metal from corroding and to protect the contents from bacterial contamination.
When consumed, though, the chemical can disrupt the endocrine system. Some studies have linked BPA exposure to decreased fertility, breast cancer, and developmental disorders. Some scientists say that exposure at a young age — or in utero — presents a particularly high risk.
The EWG study recommends that the government restrict BPA levels in canned food, which are currently not regulated in the United States, to no more than 1 part per billion. EWG found BPA levels in canned food and baby formula as high as 385 parts per billion.
But the North American Metal Packaging Alliance (NAMPA) is confident that BPA does not pose a risk to consumer health.
"As expected, EWG cherry picked studies to support its flawed perspective on BPA while ignoring the weight of scientific evidence supporting its safety in food contact applications," said NAMPA's chairman John Rost, who holds Ph.D. in chemistry.
"[The report] was just Google searches and Facebook trolling to try to find out what companies were doing," Rost told VICE News. "It really doesn't add anything to the scientific debate about this issue."
NAMPA points to a pair of US Food and Drug Administration (FDA) studies that have led the agency to say BPA is safe at current levels in foods.
"A lot of the studies that have caused concern in the past weren't really relevant to human exposure," Rost said. "A lot of the things you might read, they might inject BPA directly into the bloodstream or, you know, use methods to bypass how humans are actually exposed to it."
And, Rost added, BPA is indispensable for modern food safety practices.
"There hasn't been a food-borne illness case from the failure of metal packaging in well over 35 years, which is trillions and trillions of cans," he said.
Related: McDonald's might rid its chickens of antibiotics - but critics say that factory farming remains rotten to the core
EWG also takes issue with the unregulated use of BPA-free labels. The term BPA-free can mean all sorts of things and could actually include cans that include some amount of the chemical as a lining.
Regulated labeling would allow consumers — regardless of their beliefs about BPA — to make more informed decisions, said Geller.
"We are calling for a consensus definition and ideally that would come from a government regulation that brings everybody in line, so everybody's on the same page," she told VICE News.
Geller said information on BPA use was difficult to access.
"They were very elusive, didn't want to define what specific products or even what particular brand lines across their entire portfolio were BPA-free cans," she said. "Without these qualifying statements, it's really hard for consumers to gauge what's going on here."
Rost said that using BPA was ultimately better than gambling on alternative substances we know little or nothing about.
"The fact that we have so much knowledge about epoxy-based coatings and BPA, and it's been deemed safe, it makes me feel very comfortable consuming and feeding current canned food technologies to my family," he said.
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(ACC Mentioned) EWG Has Released New Report on BPA in Canned Food
Jun 10, 2015 | Treehugger
By Katherine Martinko
The Environmental Working Group has just released a new report on BPA in canned food. While many companies have pledged to get rid of the bisphenol A-based epoxy liners that are used to slow or prevent reactions between the food and metal can, a relatively small number of them have actually followed through.
After surveying 252 common American brands of canned products, the EWG has come up with four categories: Best, Better, Uncertain, and Worst Players.
The Best Players, which claim to use exclusively BPA-free cans, include brands such as Amy’s Kitchen, Hain Celestial, Tyson, Annie’s, and Farmer’s Market.
The Worst Players, which use BPA-lined cans for all products, include Nestlé, Ocean Spray, Target, McCormick & Co., and Hormel Food Corporation.
Brands including Campbell’s Soup Co., Wal-Mart’s Great Value, Allen’s, Inc., Trader Joe’s, and Whole Foods are somewhere in between. These either use BPA-free cans for some of their brands and/or products, or do not make it clear whether they use BPA-free liners or not.Why is BPA so bad?
BPA has been classified as a female reproductive toxin and is known to be particularly hazardous when ingested by pregnant women. According to the report’s section on health hazards:
“Children cannot metabolize and excrete BPA as quickly and efficiently as adults. Detoxified BPA can be reactivated as it passes through the placenta to the fetus.”
BPA mimics thyroid and sex hormones in people and animals, and is associated with altered brain and nervous system development. The FDA stated in 2010 that it had “some concern about the potential effects of BPA on the brain, behavior, and prostate gland in fetuses, infants, and young children.”
The American Chemistry Council and food canning industry, however, are not eager to admit to these findings. When I wrote a post about canned tomatoes just a few weeks ago, I immediately received an email from the Chemistry Council, pointing out that I had failed to include the FDA’s updated opinion on BPA. Apparently the organization has changed its mind since 2010. No longer fearing for the development of the nation’s youth, it now says BPA is safe at the low levels to which consumers are exposed.
The EWG disagrees, however, and encourages consumers to avoid BPA whenever possible. You can do this by sticking with the Best and Better Players lists (available here) while shopping, but be aware that there is no industry-wide regulation or accountability for what it means to be BPA-free. Companies can claim to have BPA-free cans, and yet still have trace amounts in the food.What should you do?
Here are some practical suggestions provided by the EWG report:
- Eat fresh, frozen, dried, and home-canned food when possible
- Choose glass packaging
- Never heat food in a can
- Rinse food prior to use, if it comes in a BPA-lined can
- Avoid canned food if pregnant or a small child
- Spread the word! Contact companies to ask what’s really in their liners. -
(ACC Mentioned) Foam Away From Home: NYC Businesses Prep For EPS Ban
Jun 10, 2015 | Plastics News
By Erica Davies
Single-serve foam containers will be banned in the city of New York starting July 1.
The single-serve foam containers that come with New Yorkers' coffee, lo mein and other food to go are about to hit the road themselves.
Next month, New York will become the largest city in the country to prohibit restaurants and other food establishments from putting their victuals in expanded polystyrene. Enforcement of the ban won't begin for six months, though, and the moratorium could be extended until a legal challenge by the foam industry is resolved. Also, businesses with annual revenue of $500,000 or less can apply for an exemption.
But business owners have started to think about alternatives and how they will be affected as the city moves toward materials considered greener. Most say foam containers cost less than half as much as the cardboard or plastic ones that will remain legal, although when former Mayor Michael Bloomberg administration pushed the foam ban through the City Council in 2013, city officials said the price difference was marginal and getting smaller.
Higher costs
Tom Patilis, who has owned Perista Restaurant, a diner in the Kingsbridge section of the Bronx, for more than 40 years, heard about the ban on the radio.
"I don't like it, but I understand it," he said, citing the environmental rationale. "Slowly we'll get accustomed to it."
He prefers foam because it keeps food warm longer and preserves its quality. It is also cheaper: Patilis pays $17.95 for 200 foam containers, about 9 cents each, but $48.22, or 24 cents each, for the same quantity of aluminum ones. He plans to raise prices to keep up with costs.
"I can't really charge what other people in Queens or Manhattan charge," he said. "People in the Bronx don't have as much disposable income."
Mostafa Mohammed serves at least 100 customers a day from his halal-food truck on East 44th Street and Third Avenue. He pays about 22 cents each for plastic containers but just 9 cents each for the expanded-polystyrene equivalent.
"I'm sad to stop [using] the foam because it's cheaper," said the food vendor of 20 years.
Mohammed said foam containers are easier to manage, especially when dealing with the lunchtime rush on his own. He plans to continue using polystyrene until the ban fully goes into effect. Once it does, he said he will have no choice but to increase prices.
"I deal mostly with the middle class. The high prices aren't good for them," he said. "Everyone is suffering, but what are you going to do?"
Shin Kim, the manager of Everyday Gourmet Café on East 45th Street and Lexington Avenue, isn't opposed to the ban, which he heard about through word of mouth. He has used polystyrene cups and containers for more than a decade because they insulate better than paper products, which he said are priced two to three times higher.
A 'no-brainer'
"It's going to cost us more," Kim said. "We may need to raise prices, but not by much. Customers are not going to come if the price is too high."
New Yorkers on the whole appear more enthusiastic about the ban than merchants are.
In a 2013 Quinnipiac University poll, 69 percent of city voters supported the ban, which they said was justified because plastic foam blows around and becomes litter, takes hundreds of years to degrade and cannot be recycled economically.
The city has also said foam cannot be recycled, although the American Chemistry Council has been pushing back against that claim, saying there is commercial demand for recycled EPS.
"If there's enough research to show that foam containers are harming the environment, we should be cutting down on usage," said Brian Philip, 31, a customer at Perista in the Bronx. "We have to do a better job of caring for the environment."
The Bronx resident said other substitutes are a "no-brainer" and that the ban will force people to learn about biodegradable alternatives. He foresees higher costs but is willing to incur them.
"If we expect business owners to make that sacrifice," Philip said, "we should make it also." Newsletter Signup Sign up for the PN Daily Report Most Popular Most ReadMost Commented Honeywell breaks ground for nylon resin expansion in Virginia
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(ACC Mentioned) Chemical Legislation Will End Up Endangering Americans
Jun 11, 2015 | Albuquerque Journal
By Rick Hind
Fifty-two years ago when Rachel Carson’s book “Silent Spring” became a best seller, there were 62,000 chemicals in commerce. In a 1963 CBS News report about her book, she eloquently warned of the dangers of these chemicals. Today there are 84,000 chemicals on the market with more every year.
On April 28, the Senate Committee on Environment and Public Works approved a toxic chemicals bill (S.697) to the applause of the chemical lobby.
If this Congress took the lessons of Rachel Carson to heart, this legislation would instead have the support of community and public health advocates across the country who have for decades urged a complete overhaul of the famously weak 1976 Toxics Substances Control Act. But that’s not even being considered in this Congress.
Instead the committee approved a bill that was far too industry-friendly. In fact, according to the San Francisco Chronicle, “The draft bill, obtained by Hearst Newspapers is in the form of a Microsoft Word document. Rudimentary digital forensics – going to ‘advanced properties’ in Word – shows the ‘company’ of origin to be the American Chemistry Council.”
The American Chemistry Council represents major chemical manufacturers such as Dow Chemical, DuPont, Exxon and many others. Stung by these and other criticisms the committee made a few minor changes in the bill but nothing to dampen the Chemistry Council’s enthusiasm for it.
An unlikely ally aiding the chemical lobby has been Sen. Tom Udall, D-NM, who usually supports strong environmental protections. He partnered with Sen, David Vitter, R-La., who consistently seeks to weaken environmental protections.
Udall’s recent alliance with Vitter and the chemical industry coincided with his acceptance of $10,000 from the American Chemistry Council’s Political Action Committee and others such as Dow Chemical’s PAC in 2014. According to a new report by Open Secrets, Udall received $49,050 from chemical and related manufacturing in 2014.
As Will Rogers once said, “America has the best politicians money can buy.”
Lacking complete health and safety data, S.697 would prioritize testing of just 25 chemicals in the first 12 years. And even if the EPA tried to ban a dangerous chemical under S.697, the agency would be bogged down in court for years and possibly lose as it did when EPA tried to ban asbestos in 1989.
Permanently extending an ineffectual law is only half of the chemical lobby’s agenda. They also want to strip the rights of states to set more protective safety standards than the EPA.
This attack on the rights of states could set a dangerous precedent for other environmental laws. In the absence of protective federal standards, 38 states have set their own safety standards for dangerous chemicals such as formaldehyde, lead, mercury and toxic flame retardants.
Since 2007 the European Union has prioritized 170 chemicals for phase-out with hundreds slated for the same by 2020. If the Udall bill is enacted American consumers will continue to be exposed to toxic chemicals that people in Europe will be protected from and our own states will for the first time be limited from creating a safety net. If enacted S.697 will:
• Put the U.S. at risk of becoming a dumping ground for products laden with hazardous chemicals not allowed in Europe or other markets.
• Give European companies a competitive advantage over U.S. companies by allowing them to market their products in the U.S., while U.S. companies will be barred from exporting products that do not comply with European safety standards.
• Put U.S. companies at a competitive disadvantage in the development of safer chemicals.
• Open the door to potentially costly legal claims against U.S. companies for damages from chemicals banned in Europe.
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Health Groups Petition FDA To Ban Eight Food Flavors
Jun 10, 2015 | The Hill - Regulation
By Lydia Wheeler
Health groups are petitioning the Food and Drug Administration (FDA) to ban eight synthetic flavors in food that are known carcinogens.
The petition, led by the Natural Resources Defense Council (NRDC), said the flavors, which have been used for over 40 years, are found in ice cream, candy, baked goods and beverages.
The petition asks FDA to revoke its 1964 approval that allowed seven of the eight flavorings to be used in food and overturn the industry’s 1974 self-approval of the eighth synthetic flavor, which they assert can be used under a loophole in the law for chemicals that are “generally recognized as safe.”
Health groups who joined NRDC on the petition include the Center for Science in the Public Interest, the Center for Food Safety, Consumers Union, Improving Kids’ Environment and the Center for Environmental Health, the Environmental Working Group and Dr. James Huff, the former associate director for chemical carcinogenesis at the National Institute of Environmental Health Sciences signed the petition.
Research by the National Institutes of Health’s National Toxicology Program found that each of the eight flavors causes cancer in humans and animals, NRDC said.
“Consumers are vulnerable, the government isn’t doing its job and the food industry is calling the shots,” Erik Olson, director of NRDC’s Health Program said in a news release. “The FDA should be doing much more to ensure our food is safe, and that should start with obeying the law by banning these synthetic flavorings known to cause cancer in animals, rather than just continuing to let the food industry have its way.”
The flavors include Benzophenone, are also known as diphenylketone;Ethyl acrylate; Eugenyl methyl ether, also known as 4-allylveratrole or methyl eugenol; Myrcene, also known as 7-methyl-3-methylene-1,6-octadiene; Pulegone, also known as p-menth-4(8)-en-3-one; Pyridine; Styrene; and Trans,trans-2,4-hexadienal.
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Groups Call For FDA Ban On Food Additives Linked To Cancer Risk
Jun 10, 2015 | E&E News PM
By Sam Pearson
Consumer groups filed a petition today asking the U.S. Food and Drug Administration to ban eight synthetic flavor additives from food products, arguing other agencies have scientific evidence linking the chemicals to cancer.
The petition, which was filed jointly by the Natural Resources Defense Council, the Center for Science in the Public Interest, the Center for Food Safety, the Consumers Union, Improving Kids' Environment, the Center for Environmental Health, the Environmental Working Group and James Huff, a former associate director for chemical carcinogenesis at the National Institute of Environmental Health Sciences, calls for FDA to bar food companies from using eight additives -- benzophenone, ethyl acrylate, eugenyl methyl ether, myrcene, pulegone, pyridine, styrene and trans,trans-2,4-hexadienal.
The petition could be a key test of what's known as the Delaney Clause -- language added by Congress in the Food, Drugs and Cosmetic Act in 1958 that provides that additives cannot be deemed safe if they are found "after tests which are appropriate for the evaluation of the safety of food additives, to induce cancer in man or animal."
Though studies have found the chemicals cause cancer in lab rats, the groups said, FDA doesn't know at what levels they are present in food, making it difficult to determine whether they should be considered a health risk to humans. The International Agency for Research on Cancer, an arm of the World Health Organization, has named five of the substances as "possibly carcinogenic to humans," while California's Office of Environmental Health Hazard Assessment has named seven of them as known carcinogens, the petition said.
These tests were appropriate for FDA to consider under the Delaney Clause because they were "consistent with FDA's guidance for toxicology studies for food ingredients," the groups argued.
"Consumers are vulnerable, the government isn't doing its job and the food industry is calling the shots," said Erik Olson, director of NRDC's health program, in a statement. "The FDA should be doing much more to ensure our food is safe, and that should start with obeying the law by banning these synthetic flavorings known to cause cancer in animals, rather than just continuing to let the food industry have its way."
FDA could eliminate exposure to the substances in food, the groups said, by FDA revoking its approval of seven of the additives, which was granted in 1964. The eighth additive, which was approved when industry groups asserted it was generally recognized as safe, should also be revoked, the groups argue.
Some of these additives are among a set of substances approved not by FDA but by a trade organization called the Flavor and Extract Manufacturers Association. Under an agreement with FDA, the trade group is permitted to certify these additives as "generally recognized as safe."
Critics of the trade group say it can be difficult to obtain the health and safety information that the group uses. They also contend the group's function should be performed by a government agency, which will be less subject to influence by the food industry (Greenwire, June 9).
A spokesman for the International Food Information Council Foundation, an industry group, said the organization does not examine the safety of these chemicals but noted that some outside consultants have defended their use.
Henry Chin, a food safety consultant who was formerly the senior director of food safety, global scientific and regulatory affairs at the Coca-Cola Co., said in a statement that FDA should not defer to other health agencies, such as the International Agency for Research on Cancer or the National Institute of Health's National Toxicology Program, because these bodies did not consider exposure to these chemicals in food.
It was "another example of organizations being chemophobic as opposed to looking at the entirety of the diet," Chin said. "Taken literally, the petition would ban foods such as thyme, parsley, hops, oranges, bananas, cloves, and peppermint, since these foods contain myrcene, methyl eugenol, or pulegone."
FDA spokeswoman Marianna Naum said the agency was reviewing the petition.
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EPA Grapples With Response To IG Call For Human Test Program Changes
Jun 10, 2015 | InsideEPA
By Maria Hegstad
EPA is grappling with how best to respond to challenging recommendations from its Inspector General (IG) regarding its human testing program, with agency officials questioning a recommendation from the IG that EPA must disclose potential cancer risk from exposure to pollutants during the studies that EPA seeks volunteers to undertake.
During the first meeting of a National Academy of Sciences committee that EPA has tasked with assisting it in strengthening its human testing program, EPA research and development (ORD) officials touted the program as exceeding ethical standards set by the federal agencies' Common Rule on human testing.
EPA speakers at the June 1 meeting in Washington, DC, also described the program as essential to important agency decisions. A study's benefits are an important consideration for human research overseers, since only studies that are beneficial are ethical to conduct.
"Human subjects have been part of what we've done since 1973. More than 5,000 volunteers [have participated in EPA studies] with no permanent adverse effects," Bob Kavlock, ORD's deputy assistant administrator for science, told the committee members.
Human subjects research plays "a key role in seeking and modifying several standards," Kavlock added, noting that while the research primarily assists the agency in setting its criteria pollutant air standards, it also has aided the 1- and 8-hour ozone standards, fuel additive air standards and disinfection byproduct drinking water standards among others.
EPA is asking the committee to assist it in responding to several challenging recommendations to bolster the program's ethical guidelines and improve its communication of potential risks to prospective volunteers. EPA has yet to complete its responses to most of the IG's recommendations, released in an April 2014 report, but recently provided IG with an update report, one agency official told committee members.
An IG spokeswoman says that "EPA certified to the [IG] on April 24, 2015, that it has completed the corrective actions agreed upon with regard to the [IG's] recommendations . . ."
The IG's April 2014 report -- sparked by a request from former Rep. Paul Broun (R-GA) after several volunteers participating in EPA research studies had unanticipated responses to exposure to air pollutants -- concluded that EPA followed applicable regulations when it exposed 81 subjects to concentrated airborne particles or diesel exhaust in five studies that EPA conducted during 2010 and 2011. But, the report criticized EPA's policies for lacking guidance on how to address the need for "significant study modifications," when they arose, particularly when the agency's EPA's Human Studies Research Review Office (HSRO) must be consulted before a change was made.
IG's Recommendations
Additionally, IG raised concerns about the agency's consent forms that volunteers sign before engaging in studies. IG concluded EPA's forms did not consistently represent the exposure risks subjects might face. And IG called on EPA to make clear in its policies, guidance and consent forms its responsibilities for clinical follow-up of any adverse health events that occur with the tests, the IG says. Part of that call is for EPA to include in its updated guidance "a definition for 'reasonably foreseeable risks,'" the IG report says.
Further, IG recommended that EPA include in its consent forms information that "consistently present the risks of the pollutants to which human subjects are exposed," including EPA assessments of the pollutants' short- and long-term health risks as well as the upper amount to which they would be exposed, as well as "any known or likely carcinogenic effects of pollutants that the EPA uses in human exposure studies," according to the IG's report.
EPA indicates in its latest update to the IG that it has taken steps to respond to those recommendations. The report describes itself as "a status report with respect to the [IG] recommendations still outstanding."
One of the most challenging recommendations for EPA to address is IG's recommendation that EPA explain the potential cancer risk to which volunteers expose themselves when undertaking a study in its consent form. In the status report, EPA indicates it has crafted some language, which will be "pilot tested with a focus group with members of the lay public," according to the report.
Two years ago, EPA sought assistance from Murray Mittleman, an associate epidemiology professor at Harvard Medical School, to calculate cancer risk from exposure to air pollutants in one of its studies. In a document provided to the new NAS committee, Mittleman calculated the risk of experiencing atrial fibrillation, as happened to one study participant after two hours of exposure in an EPA study. "[W]e would expect to induce one episode of atrial fibrillation per just under 6 million participants exposed to a 2-hour chamber experiment," Mittleman writes in the 2013 document. "To put this in perspective, there are many risks that one encounters in every day life with a greater risk than the risk attributed to pollution in this chamber study."
Mittleman provides risk estimates from the Department of Transportation as comparison, indicating a risk of "1 excess death per" 641,026 people traveling in a motor vehicle for a 2 hour period or "1 excess death per" 65,789 people flying on a commercial airline for a 2 hour period. Mittleman is one of the members of the NAS committee.
EPA's proposed language for the consent form is "A lifetime of exposure to air pollution is known to increase your risk of developing lung cancer. However, the two hours of exposure to air pollution particles . . . in this study is unlikely to increase your risk in any meaningful way, just as smoking a single cigarette would carry much less risk than a lifetime of smoking."
But Toby Schonfeld, EPA's human subjects research review official, said there are concerns that explaining such high magnitude but low probability risks has been shown in ethics research to impair volunteers' judgment by focusing attention on those risks and leading them to ignore lower magnitude risks they are more likely to experience in their decision making.
During the phase of the research where volunteers are informed about the test, its procedures and risks, and a volunteer consents to undergo the study, researchers have three goals: fully describing the research, ensuring the volunteer understands the information about the study and its risks, and ensuring the participant's consent is voluntary.
Getting the committee's "help with these three pieces is important," Schonfeld said. "Including high magnitude but low probability risks [like death or lung cancer] may impair" a participant's decision-making. "The population is statistically illiterate."
Cancer Risk
Daniel Nelson, director of the agency's new Human Research Protocol Office, pointed out that the IG staff who drafted the recommendations were lawyers, not scientists. "The reason cancer [risk] was even on the table [during the IG review] is because the [International Agency for Research on Cancer] determined air pollution is a carcinogen," he said. "They [IG reviewers] are not scientists. I don't know there's even credible risk from two hours of exposure?"
EPA hired Schonfeld and Nelson shortly after the release last year of the IG's report as part of its effort to bolster its program, according to the agency's recent update to IG. Prior to joining EPA, Nelson chaired the Institutional Review Board at the University of North Carolina Chapel Hill, so he was familiar with EPA's research program since his board reviewed all of its studies for ethical concerns before signing off on any human research.
In its status update, EPA responds that staff "agree that it would be desirable for EPA studies using common procedures to describe the risks of these procedures in a consistent manner," and provides scripts that once reviewed and finalized, staff intend to insert into EPA's consent forms. They vary by pollutant, but include language such as "The maximum amount of air pollution particles to which you would be exposed in this study is about the same as spending a few days in a city with poor air quality like Los Angeles or New York City."
Other IG recommendations present some ongoing challenges, such as defining "reasonably foreseeable risks," which the Common Rule requires agencies to disclose to potential study participants. EPA's status update to IG says "There is no community-wide standard to which EPA and any other organization conducting research can point in applying this vague terminology," EPA says, and instead lays out some available ethical research EPA is using as the basis for its path forward. The agency indicates that such risks will be study-dependent, and that it intends to include actions intended to forestall such risks in its consent forms. "I joined the agency after the [IG] report was issued. I found that EPA did comply with all regulations," Schonfeld, told the committee members June 1. "We submitted our response of corrective actions May 24. We took some of the very good recommendations from IG . . . and went above and beyond. We took the recommendations for [EPA's] Chapel Hill [facilities, where the human studies are conducted] and made them agency wide . . . We also identified an area where we could use some help: reasonably identifiable risks. All research comes with risk. Some are acceptable, some are not. How do we approach that line?"
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OECD Publishes 'Unprecedented’ Volume Of Nanomaterials Data
Jun 10, 2015 | Chemical Watch
Echa is urging REACH registrants of nanoforms of substances to check whether their dossiers need updating following the OECD’s publication of what the global organisation calls an “unprecedented” volume of new data.
As reported by Chemical Watch last summer (CW 26 June 2014), the OECD has decided to give free access to vast swathes of data collected for its nanomaterials testing programme.
The organisation says the wealth of new information “has dramatically shifted the world’s understanding of the properties and application of nanomaterials”.
The data is being published now because the OECD has just completed its seven-year experimental testing programme for nanomaterials, covering 11 commercially viable nanomaterials and over 110 different chemical tests. More than 780 studies of the specific properties of such materials were conducted to plug gaps in scientific understanding.
Public acceptance of the use of nanomaterials in consumer products – partly driven by the lack of information on where they are used – remains a concern, and several EU member states have adopted, or are planning to draft, national laws requiring companies to report their uses (CW 28 May 2015).
Meanwhile, the European Commission is still working on proposed changes to the REACH information requirements for nanomaterials, and a related impact assessment.
Echa executive director Geert Dancet says the OECD’s data would not only help ongoing research projects, but would also be a “contribution for better transparency of safety information on existing nanomaterials on the market”.
And Bob Diderich, head of the OECD’s environmental, health and safety division, says the public “should feel confident that we now better know how to assess the safety of nanomaterials”.
The programme was established, says the OECD, to ensure that the approaches for hazard, exposure and risk assessment for manufactured nanomaterials “are of a high quality, science-based and internationally harmonised”. It has also provided useful information on the intrinsic properties of such materials.
The OECD has concluded that the approaches for the testing and assessment of traditional chemicals “are, in general, appropriate for assessing the safety of nanomaterials, but may have to be adapted to the specificities of nanomaterials. As with other chemicals, it is clear that each nanomaterial may pose specific challenges, but in most instances, they can be addressed with existing test methods and assessment approaches. In some cases, it might be necessary to adapt methods of sample preparation and dosimetry for safety testing. Similarly, adaptations may be needed for certain test guidelines, but it will not be necessary to develop completely new approaches for nanomaterials.”Importantly, the new data has been published in Iuclid format, making it compatible with the REACH-IT system that companies use to submit and update their REACH registration dossiers.
The nanomaterials covered by the programme are: fullerenes; single-walled carbon nanotubes;multi-walled carbon nanotubes;silver;gold;dendrimers;silicon dioxide (six different forms);nanoclays;titanium dioxide (six different forms);cerium dioxide; andzinc oxide.
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Oil Spill Inquiries Show The Need For Real Oversight
Jun 10, 2015 | The Sacramento Bee
Though federal investigators have yet to pinpoint the precise cause of last month’s Santa Barbara oil spill, the basic story is becoming less and less mysterious.
The federal Pipeline and Hazardous Materials Safety Administration revealed last week that the 28-year-old pipeline, buried just inland from a coastal paradise of beaches, had been severely eaten away by rot and corrosion. Unaddressed was who let it get to that point.
Refugio State Beach lies on an immaculate stretch of shoreline. It has been at risk for as long as oil development has gone on off the mineral-rich Santa Barbara coast.
We know this; California’s environmental movement grew out of the 1969 Santa Barbara oil spill. In fact, the pipeline that ruptured was built as an environmentally responsible alternative in crude oil transport. According to the Santa Barbara Independent, inland pipes were thought to be easier to secure than the potentially leaky oil tankers that the industry used to move cargo along the coast.
But even best practices require policing. And records show that the federal regulators – and state fire marshals who, for a time, were deputized to do the federal inspections – clearly failed to force Plains All American Pipeline, the conduit’s Texas-based owners, to do proper maintenance.
Another report, in the Los Angeles Times, found that Plains All American has spilled nearly 2 million gallons of hazardous liquid in the U.S. and Canada over the last decade. The Times notes that an acquisition spree in the 1990s left the company holding untold miles of aging, falling-apart infrastructure, and that the section that burst here was 11 years old when the company bought it.
But decades have passed while Plains All American apparently used bubble gum and bailing wire to paper over real problems. Yet another report, by The Associated Press, said the company insisted that a spill was “extremely unlikely,” even as its response plan grew more and more outdated. We let Plains get away with it.
At last count, cleanup of the epic mess was barely half finished. Clots of tar were washing up as far south as San Clemente. About 100 oil-soaked and sickened seabirds and marine mammals had been rescued. About 150 more creatures had died.
Sen. Hannah-Beth Jackson and Assemblyman Das Williams, who represent the area, will convene legislative hearings later this month. U.S. Rep. Lois Capps has requested a federal inquiry.
Williams wants mandatory shutoff valves on all pipelines, though Plains All American claims that wouldn’t have made a difference; Jackson wants annual pipeline inspections by the state, and speedier cleanups. Some lawmakers also want to ban new offshore drilling in the last part of the Santa Barbara coast where it’s still possible.
All fine, but how about just some real enforcement while we try to operate an oil industry and a paradise in the same space? Or is that too mysterious?
Read more here: http://www.sacbee.com/opinion/editorials/article23692804.html#storylink=cpy -
Puerto Rico Tank Farm Blast Exposes Regulatory Gaps -- CSB
Jun 10, 2015 | E&E News PM
By Sam Pearson
Existing regulations of bulk petroleum storage tank terminals fail to consider the hazards present at these sites, the U.S. Chemical Safety Board said in a report today on a 2009 explosion and fire at a Puerto Rico facility.
The board was considering a final report into one of its oldest outstanding investigations of a tank farm explosion in Bayamón, Puerto Rico, on Oct. 23, 2009.
The incident showed that industry standards were "inadequate to prevent similar incidents," the report said. For example, the report said existing National Fire Protection Association standards do not require multiple layers of protection for storage tanks or automatic overflow prevention systems. Standards by the International Code Council also do not require audible or visual alarms when storage tanks overflow, leaving it up to facility staff to detect these hazards on their own, the report said.
The tank farm was not required to complete a risk assessment or use redundant safeguards to prevent a risk, the CSB report said, and equipment at the site was poorly maintained and often broken.
The board was reviewing the document at a public meeting this afternoon. However, it was not able to vote to approve the report because board member Manuel Ehrlich was absent for health reasons.
The chemical tank facility operated by Caribbean Petroleum Corp. likely exploded and caught fire when a 5-million-gallon aboveground storage tank overflowed into a secondary containment dike, which caused the gasoline to form a large vapor cloud that ignited, the report said.
At the time, the facility was unloading more than 11.5 million gallons of gasoline from a tanker ship. It would take more than a day to transfer the gasoline into multiple tanks, because no single tank could hold the full shipment.
But the site failed to use the kind of safety management techniques present at other high-hazard facilities, because existing industry standards don't adequately account for the risk of tank overflow, the CSB report said. Because a gauge on one of the tanks had malfunctioned, workers were directed to check the level of gasoline in the tanks once an hour. However, their estimates for when the tanks would be full turned out to be wrong. When one tank overflowed into the secondary dike, it generated gasoline vapor that spread throughout the site.
One worker detected a strong smell of gas when he returned to perform the hourly test and directed that the flow of gasoline be shut off. Then the workers left the area to determine the source of the leak. However, the vapor ignited when the spilled gasoline spread to nearby electrical equipment.
The fireball engulfed 17 of the site's 48 gasoline tanks, causing a massive fire that burned more than 60 hours. The explosion also damaged more than 300 homes and businesses more than a mile from the site, CSB said.
Puerto Rico's government was forced to evacuate 152 inmates at a maximum security prison in the middle of the night, said CSB investigator Vidisha Parasram, as hundreds of firefighters responded to the blaze.
"The entire scene was incredibly chaotic," Parasram said, and area firefighters were not prepared to handle a fire of that magnitude.
The company has since filed for bankruptcy, leaving U.S. EPA liable for the cleanup, Parasram said.
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Federal Land Management Plan Failed To Consider Oil, Gas Impacts, Lawsuit Says
Jun 11, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
Environmental groups filed a lawsuit June 10 challenging a federal plan for managing 400,000 acres of public lands and 1.2 million acres of mineral estate in eight Central California counties (Ctr. for Biological Diversity v. BLM, C.D. Cal., No. 2:15-cv-04378, 6/10/15.
The Bureau of Land Management failed to adequately analyze the impacts of allowing oil and gas drilling, including hydraulic fracturing, when it approved the Bakersfield Resources Management Plan and related final environmental impact statement, the complaint said.
Plaintiffs the Center for Biological Diversity and Los Padres Forestwatch alleged violations of the National Environmental Policy Act.
The groups said the BLM violated NEPA by failing to consider a full range of alternative plans, including one that would “meaningfully restrict oil and gas development” and not fully discussing the impacts of hydraulic fracturing and other well stimulation activities on air and water quality, greenhouse gas emissions and fish, wildlife and plants.
According to the complaint, the BLM should have prepared a supplemental analysis to consider newly available information and science about the environmental impacts of unconventional well stimulation activities and examine oil and gas development relative to the state's ongoing drought.
San Francisco-based Earthjustice filed the complaint on behalf of the plaintiffs who are asking the U.S. District Court for the Central District of California to set aside the plan and block the bureau from “authorizing or otherwise proceeding with oil and gas leasing” and order additional environmental analysis.
Recreation, Travel Management, Drilling
At issue is a framework the BLM approved in December 2014 for managing public lands for recreation, travel management, oil and gas development, threatened and endangered species, grazing and other resources in Ventura, Santa Barbara, San Luis Obispo, Kings, Tulare, Madera, eastern Fresno and western Kern counties.
“Central California is ground zero for oil and gas drilling and yet the Bureau of Land Management is ignoring the elephant in the room by opening millions of federal acres to these intensifying extraction activities without meaningfully addressing the impacts,” Earthjustice attorney Tamara Zakim said in a written statement.
The BLM's “plan would auction off these lands to the highest bidder, placing them—and the clean water they provide to our farms and communities—at grave risk from oil development and fracking,” Los Padres Executive Director Jeff Kuyper said.
BLM spokesman David Christy told Bloomberg BNA June 10 that the bureau is identifying suitable parcels for oil and gas development but hasn't yet set any dates for lease sales.
Christy wouldn't comment on the lawsuit.
In announcing approval of the plan in January, the BLM said the document addresses climate change impacts, “puts in place best management practices” for oil and gas development, and incorporates best available science to inform analysis and on new leasing.
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California Lawsuit Seeks To Block Oil Drilling On Federal Land
Jun 11, 2015 | Reuters
By Rory Carroll
Environmental groups on Wednesday filed a lawsuit challenging a plan to open large portions of federal land in central California to oil drilling, saying it did not consider the impacts of fracking on the environment.
The lawsuit targets the Bureau of Land Management's (BLM)approval late last year of a plan that could lead to the leasing of 400,000 acres of public land and 1.2 million acres of subsurface mineral estate in the state's most oil-rich regions.
Plaintiffs argue that the Bakersfield plan failed to consider what impact hydraulic fracturing, or fracking, would have on air quality, water and wildlife, in violation of the National Environmental Policy Act. ADVERTISING
The lawsuit was filed by Earthjustice on behalf of the Center for Biological Diversity and Los Padres ForestWatch in U.S. District Court for the Central District of California, Western Division.
Fracking occurs when water and some chemicals are injected deep underground at high pressure to break up rock and release oil and gas into wells. The practice has raised health and safety concerns as well as criticisms from environmental groups such as Credo that it is an unwise use of water in the drought-ravaged state.
"We can't allow fracking pollution to threaten California's beautiful public lands," said Clare Lakewood, an attorney with the Center for Biological Diversity.
"From oil spills to water contamination, the oil industry has wreaked havoc in California," Lakewood said. "But the federal government wants to shrug off those risks and turn over vast stretches of our state to oil companies for drilling and fracking.
BLM spokesman David Christy said the agency does not comment on active litigation.
As of 2014, there were 2,361 fracking wells in Kern County and 456 fracking wells in Ventura County, two key oil-producing areas, according to the lawsuit.
If the plan goes forward, the BLM has estimated that it will lead to the drilling of between 100 and 400 new wells in the area over the next 10 years.
In 2013, a federal judge ruled that BLM violated the law when it issued oil leases in Monterey County without considering the environmental impact of fracking.
As a result there has been a de facto moratorium on new oil leasing in the state on BLM lands. California, which is the fourth largest oil-producing state, gets about 15 percent of its production from BML lands.
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Enviros Sue BLM To Stop Drilling Plan In Central Calif.
Jun 10, 2015 | E&E News PM
By Scott Streater
Two environmental groups are suing the Bureau of Land Management over the agency's approval last year of an amended land-use plan that the groups say will open more than a million acres in central California to oil and gas drilling.
The lawsuit filed today in the U.S. District Court for the Central District of California's Western Division claims BLM's approval of the amended Bakersfield Field Office resource management plan last December violates the law by opening up "hundreds of thousands of acres of federal property located in central California to oil and gas extraction, including unconventional and environmentally harmful techniques like hydraulic fracturing, or 'fracking,'" without first evaluating the potential environmental and health risks.
"In preparing the Bakersfield plan, the Bureau also failed to identify any genuine alternative to the agency's business-as-usual oil and gas development trajectory," according to the 14-page complaint, filed by Earthjustice on behalf of the Center for Biological Diversity and Santa Barbara, Calif.-based Los Padres ForestWatch.
The groups want the court to set aside the revised Bakersfield RMP and to order the agency to conduct a supplement to the final environmental impact statement (EIS) for the Bakersfield plan to analyze "significant new information regarding the environmental impacts of unconventional well stimulation and oil and gas activities."
"The Bureau's failure to take the requisite 'hard look' at the environmental impacts associated with oil and gas extraction, and the agency's additional failure to consider meaningful alternatives to continued extraction violates the National Environmental Policy Act and the regulations implementing that statute," the complaint says.
Tamara Zakim, an Earthjustice attorney, said the timing of the lawsuit is critical because the central California region has become "ground zero for oil and gas drilling, and yet the Bureau of Land Management is ignoring the elephant in the room by opening millions of federal acres to these intensifying extraction activities without meaningfully addressing the impacts."
A BLM spokesman in California said the agency cannot comment publicly on pending or ongoing litigation.
Tupper Hull, a spokesman for the Western States Petroleum Association in Sacramento, said he had not yet seen the lawsuit and could not comment.
The revised Bakersfield RMP, approved through a record of decision signed by BLM California State Director Jim Kenna in December, potentially opens slightly more than 400,000 acres of surface and about 1.2 million acres of subsurface mineral estate to drilling leases.
The lawsuit is the latest development in an ongoing public debate over drilling in the region, as well as the use of hydraulic fracturing and whether it can be conducted safely in California as the industry eyes the Monterey Shale formation, which could contain billions of barrels of oil.
The two environmental groups in a statement pointed to a report earlier this year by the California Council on Science and Technology (CCST) that said oil companies frack about half of all new wells drilled in California.
They also said in statements that BLM has not sufficiently analyzed the impacts of fracking on water quantity in a state that's in the midst of a historic drought.
But a separate scientific report overseen by CCST and commissioned by BLM concluded that the "direct environmental impacts" of fracking "appear to be relatively limited," and that the common industry practice consumes substantially less water per well in California than in other states (Greenwire, Aug. 28, 2014).
If drilling activity in the state does increase significantly in the coming years, as some experts project, "the primary impacts on California's environment" will not come from fracking itself, but from a host of related activities such as increased truck traffic, land clearing and wastewater disposal, the report found.
The independent scientific review did raise some concerns, noting that because oil reservoirs in the state are relatively shallow and close to the surface, fracking "poses a potential risk for groundwater if usable aquifers are nearby."
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Doctors Call on Oil, Gas Companies to Disclose Chemicals Injected Into Wells
Jun 11, 2015 | BNA Daily Environment Report
By Michael Bologna
The American Medical Association called June 9 on oil and gas exploration companies engaged in hydraulic fracturing to provide regulatory agencies with more information about the chemical cocktails they inject into wells to stimulate production.
The action came in the form of a policy resolution approved by the AMA's House of Delegates (HOD) during the association's annual meeting in Chicago. The resolution represents a significant shift in policy for the AMA, which had previously affirmed a policy merely seeking information about the potential human and environmental health risks linked to fracking.
“Monitoring for fracking chemicals should focus on human exposure in well water and surface water and government agencies should share this information with physicians and the public,” David O. Barbe, AMA board member, said in a statement.
The AMA took new policy positions on two additional environmental issues. The association voiced support for the Obama administration's proposed Clean Power Plan, which seeks to reduce greenhouse gas emissions from existing power plants. The AMA also supported a resolution opposing Congressional efforts to weaken the Environmental Protection Agency's Science Advisory Board.
With respect to fracking, the HOD supported a resolution directing the AMA to seek legislation requiring full disclosure of chemicals placed into the environment for petroleum, oil and natural gas exploration.
In addition, the resolution called for language requiring “government agencies to record and monitor the chemicals placed into the natural environment for petroleum oil and natural gas extraction and the chemicals found in flowback fluids, to monitor for human exposures in well water and surface water, and to share this information with physicians and the public.”
No Information on Chemical Dangers
Todd Sack, a Jacksonville, Fla., physician and primary author of the resolution, said most states fail to require exploration companies to disclose chemical mixtures used during fracking. In this environment, he said physicians operate with little or no information about the potential chemical dangers from fracking that could affect their patients.
“Seventy percent of well operators acknowledge that they have not disclosed at least one chemical, and that's really scary,” Sack told Bloomberg BNA in an interview June 10. “As physicians, if someone comes along and says ‘I have lung cancer and I live a mile from a well,’ how do I know whether to exonerate or blame the fracking company if I don't know what the person is drinking in his or her well water?”
Sack, who also serves as chairman of the Environmental & Health Section of the Florida Medical Association, acknowledged a recent EPA report finding that fracking has triggered very few environmental incidents affecting drinking water (109 DEN A-16, 6/8/15). At the same time, he said simple chemical disclosure rules would help treating physicians and patients affected by such incidents to fully understand the potential chemical risks lurking beneath the surface.
Carbon Emissions
In a separate resolution dealing with the Clean Power Plan, the HOD expressed support for the Obama administration's efforts to limit carbon dioxide pollution through rules affecting coal burned in the nation's power generating plants. In addition, the HOD voiced support for efforts to improve power plant efficiency, and shift to natural gas and renewable energy sources such as wind and solar.
In addition, the HOD directed the AMA to work with state medical societies to “encourage state governors to support the EPA regulations designed to limit carbon dioxide emissions from coal fired power plants; and encourage the governors' full compliance with the EPA regulations when promulgated.”
Upholding Environmental Science
The HOD also approved a pair of resolutions seeking to uphold environmental science standards within the EPA. One resolution expressed support for independent scientific advice on federal advisory panels and opposition to any legislation limiting the role of scientists on such panels. On this point, the resolution called on the AMA to lobby against the proposed EPA Science Advisory Board Reform Act (108 DEN A-7, 6/5/15).
A related resolution expressed opposition for legislation seeking to limit the role of science in federal rulemaking, including the Secret Science Reform Act.
“EPA and other rulemaking agencies should have access to a broad range of scientific studies to base their regulatory action,” the resolution stated.
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Republican Senators Allege Inadequate Input From Small Businesses in Clean Power Plan
Jun 11, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency continues to not properly follow statutory requirements for gathering the input of small entities as it prepares to finalize its Clean Power Plan to address carbon dioxide emissions from the nation's fleet of power plants, seven Republican senators said June 10.
The senators asked EPA Administrator Gina McCarthy in a letter to directly respond to conclusions from the Small Business Administration's Office of Advocacy in May that the agency failed to follow Regulatory Flexibility Act requirements by showing up unprepared for Small Business Advocacy Review (SBAR) meetings and failing to provide adequate information to small business attendees.
“It is absolutely essential for a federal agency to appropriately comply with all relevant laws during the rulemaking process,” the senators wrote. “Roughly one month has passed since EPA received advocacy's letter, and we have been told that the agency has not yet responded to or otherwise modified its approach to the panel to address advocacy's concerns.”
The senators, all of whom oppose the underlying regulation, further said the EPA was “entirely unprepared” for the small business entity meetings, “thereby undermining productivity and making it appear as though EPA does not prioritize its obligations to small entities as it must do” under the Regulatory Flexibility Act.
In response to earlier concerns, the EPA convened its Small Business Advocacy Review panel on April 30 to specifically examine the impacts of a federal implementation plan on small businesses. That plan would be used in states that elect not to develop their own plans for implementing the Clean Power Plan, once finalized.
Seven Republicans Sign
Republican Sens. David Vitter (La.), Jim Risch (Idaho), Marco Rubio (Fla.), Rand Paul (Ky.), Deb Fischer (Neb.), Tim Scott (S.C.), and Mike Enzi (Wyo.), all members of the Senate Small Business and Entrepreneurship Committee, signed the letter.
A broad group of senior Republicans raised similar concerns about how the agency could collect and incorporate meaningful small business input into the final plan, which the EPA intends to finalize sometime this summer (95 DEN A-3, 5/18/15).
The rule (RIN 2060-AR33) would set a unique carbon dioxide emissions rate for the power sector in each state. With that rule, the EPA plans to propose a model federal implementation plan to guide state regulators in developing their own compliance measures for the Clean Power Plan.
Publicly owned utilities and rural power cooperatives have also recently criticized the EPA's solicitation of small business input as it prepares its federal implementation plan for any states that elect not to comply with the Clean Power Plan (104 DEN A-17, 6/1/15).
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Largest U.S. Grid Wins FERC Approval for Power Plant Reliability Plan
Jun 11, 2015 | BNA Daily Environment Report
By Jonathan N. Crawford
PJM Interconnection LLC, the nation's largest electricity grid, won permission from U.S. regulators for a plan to increase reliability at power plants and avoid a repeat of the shutdowns and price spikes during the unseasonably cold winter of 2014.
The Federal Energy Regulatory Commission voted to approve the “pay-for-performance” proposal from PJM, which runs the 13-state grid from the mid-Atlantic to the Midwest.
Under the plan, which takes effect in 2018 after a capacity auction this year, generators that promise to be available during peak-demand periods will receive higher payouts than other plants and will, for the first time, be penalized for failing to meet those commitments. The auction, planned for May, was delayed after FERC declined PJM's initial proposal and asked for more information.
“Today's order approves, as modified, significant reforms to PJM's capacity market,” FERC said in the order June 9. “PJM has demonstrated the need for these reforms to ensure the long-term reliability of electric supply in the PJM region.”
About 22 percent of PJM's generating capacity went offline in January 2014 as coal plants saw their stockpiles freeze while natural gas plants couldn't access enough of the fuel as prices soared to records. Total customer billings more than tripled to $11 billion during the month versus an average monthly bill of $3.3 billion.
A typical residential electricity bill will increase by $2 to $3 per month when the program is in place in 2018, PJM estimates.
PJM, based in Valley Forge, Pa., says that the new plan will increase costs at the auction by $1.9 billion to $5 billion. The grid will use the payments to encourage owners to make their units more resilient to extreme weather, allowing them to run when others are forced to shut down.
Higher Payments
Under current rules, there are no penalties for failing to meet supply commitments, and generators can still receive half of their capacity payments even if they fail to provide any of the power they had promised, according to Joseph Bowring, president of Monitoring Analytics LLC, the independent market monitor for the grid based on Eagleville, Pa.
Plants that qualify for the higher payouts must be available for at least 700 hours of non-emergency operation during the year.
Exelon Corp., Public Service Enterprise Group Inc., American Electric Power Co., Dynegy Inc. and NRG Energy Inc. probably will benefit from the ruling, Bloomberg Intelligence analyst Kit Konolige wrote in research published June 8. They are the largest generators in PJM.
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Capped Interior, EPA Spending Bill Faces Amendment in House Appropriations
Jun 11, 2015 | BNA Daily Environment Report
By David Schultz
In a pro forma voice vote, a House Appropriations subcommittee approved a bill to fund the Environmental Protection Agency, the Interior Department and other related agencies for the 2016 fiscal year.
The subcommittee held a brief markup session June 10 on the nearly $30.2 billion spending bill, which it released publicly June 9. The subcommittee added no amendments to the bill and made no other alterations during the session.
An Appropriations Committee staffer told Bloomberg BNA that members are waiting to offer amendments until the full committee's markup, which will likely take place the week of June 15.
The proposed spending package includes a 2.8 percent increase in funding for the Bureau of Land Management, mostly unchanged funding levels for the Fish and Wildlife Service and the Forest Service and an 8.6 percent decrease for the Environmental Protection Agency 111 DEN A-2, 6/10/15).
Rep. Harold Rogers (R-Ky.), Appropriations Committee chairman, commended the subcommittee for developing a spending package that stayed within the mandated caps imposed by the Budget Control Act (Pub. L. No. 112-25), also known as sequestration.
“I know how tough it's been to work with that number, but it's the best we can do,” Rogers told the subcommittee.
Two Democrats Oppose Measure
Reps. Betty McCollum (D-Minn.) and Nita M. Lowey (D-N.Y.), the ranking members of the subcommittee and the full committee, respectively, both said they wouldn't support this spending bill because its sequester-level funding is inadequate.
However, neither attempted to block the bill from moving out of the subcommittee.
In an interview with Bloomberg BNA after the markup session, Lowey called the entire appropriations process—for this bill and for the 11 others her committee is working on—a charade.
“We are wasting taxpayer dollars,” she said. “It's time that we do a Murray-Ryan, or a Murray and whoever-the-other-person-is, and get rid of the sequester and put together real bills.”
Veiled Veto Threat?
While the White House has stopped short of saying outright that it would veto any spending bills that stay below Budget Control Act caps, it has strongly indicated its displeasure with the measures currently coming out of the House and Senate Appropriations Committees.
The Office of Management and Budget has sent letters to Rogers and his Senate counterpart, Thad Cochran (R-Miss.), calling each of the bills their respective committees has reported out thus far unacceptable.
A presidential veto of one or all of the spending bills could set up a government shutdown if Congress and the White House can't work out their differences before Sept. 30, the end of the current fiscal year.
“I sure hope the Republicans have a plan [to avoid this],” Lowey said. “They're in charge.”
Rogers' office did not respond to Bloomberg BNA's request for comment.
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House GOP, Democrats Spar Over 'Dare' For Obama To Veto EPA FY16 Bill
Jun 10, 2015 | InsideEPA
By David LaRoss
House Republicans say they will “dare” President Obama to veto controversial fiscal year 2016 funding legislation for EPA and other agencies if the measures successfully clear the GOP-led Congress, prompting vows from Democrats to try and halt the appropriations process until their concerns on the budget process and the bills are addressed.
At a June 10 House Appropriations Committee interior panel markup of EPA's spending bill, the full committee's Chairman Rep. Hal Rogers (R-KY) said the GOP will push its spending bills ahead regardless of Democratic opposition. “We want to pass these individual bills, send them to the Senate, force the Senate to either fish or cut bait, and send them on to the White House -- and dare the president to veto, for example, a bill funding our troops,” he said.
In response, interior panel ranking member Rep. Betty McCollum (D-MN) said she would call for the president to veto the House-crafted EPA funding bill if the Senate approves a similar bill. The measure as introduced in the House June 9 would cut the agency's budget by more than $700 million and block a suite of major rules.
“I haven't spoken with the president on this issue, but it wouldn't surprise me. . . . I would recommend to the president not to sign this bill,” she said at the markup, where the bill cleared by voice vote.
In the upper chamber, Sen. Chuck Schumer (D-NY) told a June 4 press conference the Democratic minority will seek to halt the appropriations process due to their concerns about the GOP's approach.
“We will not vote to proceed to the defense appropriations bill or any appropriations bills until Republicans have sat down at the table and figured out with us how we’re going to properly fund” both defense and non-defense accounts, he said.
While the Senate has not yet begun work on its EPA funding measure, Sen. Lisa Murkowski (R-AK), chairman of the Senate Appropriations Committee's interior panel, told reporters June 9 that she would push forward with a bill despite filibuster threats. “You don't make anything happen unless you start,” she said.
Murkowski added that although she could not speak to how the House would proceed on EPA's spending bill, she said the lower chamber has traditionally been “a little more aggressive with [policy] riders” than the Senate.
House Legislation
The House bill includes an array of riders aimed at EPA, including one that would prevent the agency from finalizing its pending greenhouse gas rules for new and existing power plants, and another to block EPA from implementing its recently finalized rule defining the scope of the CWA.
Overall, the draft bill, released June 9, sets significantly lower funding levels for EPA than President Obama floated in his FY16 proposal to fund the agency at $8.59 billion.
Nearly every EPA account would face cuts from FY15 levels under the GOP proposal, including the clean water and drinking water state revolving funds (SRFs) that support state infrastructure spending -- despite calls from states for lawmakers to hold the accounts steady at FY15 levels. President Obama in his budget plan had proposed to re-balance the two funds by raising the drinking water SRF while lowering the clean water account.
Under the House plan EPA's clean water SRF would be cut by $430 million or 30 percent, from the current $1.45 billion to $1.02 billion, while the drinking water SRF would drop from its current $906 million funding to $757 million, a 16 percent cut. The proposed cuts contrast with Obama's proposal that would cut the clean water SRF by $332 million down to $1.12 billion, but shift almost the entire amount of the cut into raising the drinking water SRF by $279 million, up to $1.186 billion.
The bill would reduce the overall state and tribal assistance grant account, which includes the SRFs, by $565 million from $3.55 billion down to $2.98 billion -- counter to the White House budget that would set the account at $3.59 billion. The House bill also targets the environmental programs and management account, which includes most EPA regulatory activities, for a $141 million reduction, from $2.61 billion to $2.47 billion.
However, the House plan would hold at FY15 levels accounts associated with contaminated site issues. The Superfund office would hold steady at $1.09 billion, while the leaking underground storage tank program would remain at $91.9 million. Obama had sought to raise the accounts to $1.15 billion and $95.3 million, respectively. The science and technology account would face a $29.7 million reduction under the House plan, from $734 million to $704 million -- in contrast to the president's proposal to raise the account to $759 million.
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Coal Confronting Bigger Threat Than Obama's Rules for Clean Air
Jun 11, 2015 | BNA Daily Environment Report
By Mario Parker and Naureen S. Malik
U.S. coal companies worried that the Obama administration's proposed clean-air rules will put them out of business face a bigger threat: natural gas.
Shale formations in the eastern U.S. are yielding record amounts of gas, pushing prices of the fuel in the region below coal, which had been 61 percent less expensive on average since 2001. As power generators use more gas, coal is piling up at the fastest rate since 2009, according to BB&T Capital Markets.
Coal producers are already reeling from regulations taking effect this year that will shut enough plants to power the homes in a city almost five times the size of New York. Gas drillers have cut costs by as much as half, allowing them to boost output to record highs even as prices dropped. As a result, coal demand may fall next year to the lowest level since 1987, Bloomberg New Energy Finance says.
“Natural gas is really the critical driver for the demise of the coal industry,” said Hans Daniels, executive vice president at Doyle Trading Consultants LLC, a Grand Junction, Colo.-based coal analytics company. “Cheap, abundant natural gas is crushing coal and there is no letup.”
U.S. utilities are on track to end 2015 with 171 million tons of coal in reserve, the highest since 2012, Mark Levin, an analyst at BB&T Capital in Richmond, Va., forecasts.
“It's going to be ugly,” says Daniels. “When stocks build up like that, it just defers the pain for the coal companies.”
Coal Plants
Nationwide, coal accounted for 36 percent of electricity generation through March, down from 42 percent a year earlier. By comparison, gas's share rose to 29 percent from 24 percent, according to the Energy Information Administration.
There is an environmental benefit to the shift. Gas emits half as much pollution-causing carbon dioxide as coal. President Barack Obama has proposed a series of regulations that aim to reduce emissions from power plants by 30 percent from 2005 levels (106 DEN A-1, 6/3/14).
Coal trails only crude oil as the world largest energy source.
Utilities will retire 23 gigawatts of coal-fired plants this year to comply with the Environmental Protection Agency's Mercury and Air Toxics Standard, BNEF estimates. The EPA is scheduled to complete its Clean Power Plan (RIN 2060-AR33) this summer, a measure that the Obama administration says will reduce coal's share of power to 30 percent by 2030 from 50 percent in 2007 (106 DEN A-4, 6/3/15).
Crushing Prices
The swelling stockpiles are crushing coal prices. Benchmark Appalachian coal on the New York Mercantile Exchange cost $44.22 a ton on June 9, the lowest since November 2009. CME Group Inc. moved last month to delist all contracts after 2016 because of declining trading volume.
Natural gas production in the U.S. will climb 5.7 percent this year to a record 78.96 billion cubic feet a day, the EIA forecast. Futures on the New York Mercantile Exchange are down 42 percent from a year ago.
Contracts on Nymex for gas next year are near $3 per million British thermal units, potentially reducing coal consumption to 724.8 million tons, the least since 1987, according to a report from BNEF analysts, including Meredith Annex.
Back in 2012, when a plunge in gas prices last battered coal to a similar degree, exports soared to a record 125 million tons. Now, a global glut and a stronger dollar has U.S. coal captive, Daniels said.
Global Demand
Even as U.S. consumption declines, the world's appetite for coal is still expanding, with annual growth of 2.1 percent through 2019, the Paris-based International Energy Agency forecast in its December Medium-Term Market report.
Appalachia, once the cradle of the U.S. coal industry, is also home to the Marcellus formation, the nation's biggest shale-gas deposit.
Prices tell the story of how gas has flipped coal's world upside down. From July 2001, when Central Appalachia coal started trading on the Nymex, through June 9, coal averaged a 61 percent discount to gas on the Texas Eastern Transmission's M3 Zone pipeline.
Gas on the line cost $1.45 per million Btu as of June 8, about 21 percent cheaper than Central Appalachia coal at the equivalent of $1.842 per million Btu. A power plant there can make $25.13 a megawatt hour by burning gas instead of coal, data compiled by Bloomberg show.
As a result, miners are slashing production. Alpha Natural Resources Inc. and Murray Energy Corp. said last month that they planned to close some of their operations.
Consol Energy Inc. shortened its work week to four days at its Harvey, Bailey and Enlow Fork mines in Pennsylvania. The Pittsburgh-based company, which also produces gas, said in April it would start offering customers contracts that would allow them to switch between coal and gas deliveries.
Gas for July delivery was little changed at $2.847 per million Btu at 9:52 a.m. on Nymex.
“The problem is anywhere you look you can find gas,” said Jim Thompson, a Knoxville, Tenn.-based director of coal for IHS Inc. “You can't have natural gas prices as low as they've been for as long as they've been and coal inventories not be a problem.”
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Which Coal-Fired Plants Can Use Carbon Capture To Meet EPA Goals?
Jun 10, 2015 | The Hill - Contributors
By Deborah D. Stine and Haibo Zhai
As reported in The Hill, the Environmental Protection Agency (EPA) is entering the final stages of approval for its Clean Power Plan. On June 5, 2015, the Energy Information Administration (EIA) provided their projection of how the nation's power plant mix will change due to the Clean Power 111(d) Plan. Might carbon dioxide capture, utilization and storage (CCUS) be an option for some of these plants?
The answer, according to a study from Carnegie Mellon University Scott Institute for Energy Innovation researchers Haibo Zhai, Yang Ou and Edward S. Rubin, is "yes." Their study, published in the prestigious journal Environmental Science & Technology, found that CCUS is a viable technical and economic option for some coal plants, which would allow them to remain in operation under the emission limits of the Clean Power Plan. Because of the way the plan is designed, however, CCUS is not a mitigation "building block" for coal-fired plants since, while recognizing the potential viability of partial CCS at some plants, the EPA concluded that it was neither technically or economically feasible due to concerns about space limitations and high cost. In partial CCUS, some, as opposed to all, of the carbon dioxide emissions are captured.
The Carnegie Mellon research analysis shows that this is not a correct conclusion in some situations. Using EPA data in a Carnegie-developed power plant modeling tool, the researchers identified 60 gigawatts of existing U.S. coal-fired electric generating units, known as EGUs, where unit-level emission rates could be reduced by 30 percent through the use of partial CCUS without significant increases in the cost of electricity generation. They found that CCUS is not feasible for the remaining coal-fired power plants, approximately 190 gigawatts, which may or may not include some of the plants expected or projected to retire.
According to the study, the key unit characteristics where CCUS is likely to be economically feasible for existing coal-fired plants when compared to natural gas combined cycle (NGCC) plants, depending on fuel prices, are when units are "fully or substantially amortized, relatively efficient, have net capacities of more than 300 MW [megawatts] with high utilization, and can operate for 20 years or more." Retrofitting existing plants with CCUS is not economically feasible when units are "only slightly or modestly amortized, or much older, with lower efficiencies and smaller capacities needing extensive upgrades."
Other technical actions that can be taken to reduce costs are the use of auxiliary gas-fired power systems to reduce energy costs and serving several EGUs with a large CCUS system.
Another policy options to enhance economic feasibility of CCUS in coal-fired plants is a carbon dioxide emission trading system, possibly in combination with an Enhanced Oil Recovery (EOR) market. This would increase the likelihood and speed of power plants deploying CCUS and lower electricity generation cost while reaching the carbon dioxide emission reduction goals of the Clean Power Plan.
Because this analysis is a model, it is important to understand that costs will vary from one plant to another, so a site-specific analysis should be conducted before a final decision is made to retrofit a plant with CCUS. The issue of space and water availability for CCUS operations is also site-specific and not considered in this analysis. Finally, power plants do not operate independently of one another, so the specific context as to how a plant fits into the grid in that region is yet another site-specific factor that should be taken into consideration.
The EPA indicated in their proposal that they would consider use of CCUS. Based on this analysis, partial CCUS is an option that states and operators can consider for approximately 25 percent of coal-fired power plants in the United States. Doing so may result in a change in the power plant mix projected in the EIA analysis above.
Stine is associate director for policy outreach at the Scott Institute for Energy Innovation and professor of the practice, Engineering and Public Policy at Carnegie Mellon University. Zhai is assistant research professor of engineering and public policy and project manager of Integrated Environmental Control Model (IECM) Development.
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EPA 'Environmental Justice' Map Highlights California's Pollution Ills
Jun 10, 2015 | LA Times
By Tony Barboza
Many Southern California communities stand out as some of the nation’s worst environmental justice hot spots, according to a new map released Wednesday by the Obama administration.
The interactive online map created by the U.S. Environmental Protection Agency highlights low-income, minority communities across the country that face the greatest health risks from pollution. The analysis combines demographic and environmental data to identify where vulnerable populations face heavy burdens from air pollution, traffic congestion, lead paint, hazardous waste sites and other hazards. You think of California as one the richest states and yet, there are still communities that are suffering as if they were in the poorest states in the nation - Cesar Campos, director of the Central California Environmental Justice Network
The map, known as EJSCREEN, allows residents of all 50 states to look up how their level of environmental risk compares to the rest of the nation.
The EPA analysis of more than 217,000 census block groups -- small communities that average about 1,400 residents -- found that many communities in California, especially in southeast Los Angeles County, the Inland Empire and the San Joaquin Valley, are among the most at-risk in the nation.
Environmental justice groups, which for decades have battled the concentration of landfills, refineries, rail yards and other polluting facilities in poor communities of color, said they would use the map to press for more emissions-cutting projects and environmental enforcement in the most affected areas.
Cesar Campos, who directs the Central California Environmental Justice Network and previewed the map, said it showed that parts of California were “comparable to places in Mississippi or the Appalachian Mountains.”
“You think of California as one the richest states and yet, there are still communities that are suffering as if they were in the poorest states in the nation,” Campos said.
The EPA analysis follows a similar environmental justice map completed last year by California agencies. The state is already using that map, called CalEnviroScreen, to distribute funds from its cap-and-trade program and to direct pollution-cutting projects to some of the state’s most disadvantaged neighborhoods.
The EPA said it would not use the data to label specific areas as environmental justice zones or as the basis for enforcement, funding and permitting decisions. Rather, it will be used to inform and guide environmental justice work by the agency, which refers to the map as a “pre-decisional” screening tool.
The EPA’s environmental justice director, Matthew Tejada, said the map, created nearly five years ago and used internally since 2012, “is one of the most visible steps that we have taken at incorporating environmental justice in a consistent way throughout the agency.”
The agency has already used EJSCREEN as part of a program targeting 50 environmentally burdened and economically distressed communities over next two years, he said. In California, the agency chose to prioritize the Imperial Valley and the Santa Clara County city of Gilroy.
The color-coded map allows users to search through eight measures of environmental impact. Among them are levels of ozone and fine-particle air pollution, proximity to hazardous waste facilities and Superfund dumping sites. Users can see how a community ranks relative to the rest of the nation.
Each of the criteria is indexed to demographic data -- the percentage of the population that is low-income and minority -- to highlight areas that face disproportionate effects from pollution.
The map drew some criticism from environmental groups and academics for its failure to include important environmental health data, such as cancer risk from toxic air pollutants.
Some of those measures were excluded from the current version of the map, the EPA said, because the data was 10 years old. But the agency plans to update the map with additional environmental data as it becomes available.
The EPA's map lacks some of the nuances of the one pioneered last year by California. The EPA map relies on less robust, nationally consistent data, said Manuel Pastor, director of the Program for Environmental and Regional Equity at USC.
Still, Pastor said, “It’s a very sophisticated and good tool that is going to be exceptionally useful for those other states in helping them pinpoint where the problems are.”
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GOP Amendment Would Limit Climate Deals
Jun 10, 2015 | The Hill - E2 Wire
By Timothy Cama
A Republican amendment attached to the House’s customs and trade bill would limit the Obama administration’s ability to include any climate change provisions in trade agreements.
The provision, sponsored by Ways and Means Committee Chairman Rep. Paul Ryan (R-Wis.), would “ensure that trade agreements do not require changes to U.S. law or obligate the United States with respect to global warming or climate change.”
It was added late Tuesday to the House’s customs bill, which lawmakers are using to put guidances and limitations on their so-called “fast track” legislation, allowing President Obama to negotiate the Trans-Pacific Partnership (TPP). It is therefore meant to apply to the TPP, but it would also apply to any other trade deals made under the fast-track authority, also known as Trade Promotion Authority.The House will vote as soon as Friday on the bill.
Republicans count it among provisions they say would strengthen the Trans-Pacific Partnership and prevent Obama from changing environmental law through trade deals.
The bill has a similar provision regarding immigration agreements.
“It’s just making sure that if the administration wants to go down a path of seeking legislative changes in climate or immigration, they can’t do it through trade agreements,” Ryan said at a Rules Committee hearing on the legislation.
Doug Andres, a spokesman for Paul, said the congressional delegation of coal-heavy West Virginia, which could suffer from climate deals, requested the language.
Republicans have for years worked to stop internationally binding climate treaties, fearing the economic repercussions domestically.
Environmentalists were angered with the Paul amendment when they discovered it Wednesday, saying it would unnecessarily tie Obama’s hands when it comes to getting meaningful international work done on climate.
“President Obama needs to make it clear that ‘21st century trade deals’ cannot block climate action,” Luísa Abbott Galvão, a climate campaigner with Friends of the Earth, said in a statement.
“The president should start by telling Republican leadership and the public that the provision in the customs amendment is unacceptable. President Obama cannot credibly claim that trade deals will force other countries to raise their environmental standards if he allows the same deals to secure a pass for the U.S. to keep dumping carbon into the planet’s atmosphere,” she said.
Rep. Raúl Grijalva (D-Ariz.), already a strong opponent of the fast-track authority, sharply criticized the amendment.
“Fast track trade authority is already primed to send jobs overseas, hurt the working people of this country and reduce Congressional oversight of our economy,” he said in a statement.
“Now Republicans want to use it to prevent any new climate change standards in our trade deals,” Grijalva continued. “Their goals have nothing to do with creating jobs and everything to do with jamming favors for their corporate sponsors into every bill they handle.”
Referring generally to the Republican amendments to the House customers bill, Rep. Sandy Levin (D-Mich.), ranking member of the Ways and Means Committee, accused the GOP of “using the Customs bill as a vehicle to further in TPA their rigid ideological agenda.”
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Manufacturers Worry Over Ozone Proposal In Industry Survey
Jun 10, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
NAM has long been a major critic of EPA's proposal to lower the ozone standard from 75 parts per billion to a range of 65-70 ppb. The group has released studies estimating annual compliance costs as high as $140 million, or $1.7 trillion 2040.
Many parts of the U.S. that meet the current standard would not immediately be in compliance with the lowered one — and manufacturers could be scared off from spending money on projects in those places if their factories cannot get approval to operate.
Of the respondents, 66.3 percent said they are concerned about how the new standard could impact their business, with another 17.9 percent each saying they are not concerned and that they are uncertain.
Just over half, 53.5 percent, said they are not likely to move forward on projects in non-attainment areas. 15.1 percent said they were somewhat likely to move forward, while 5.9 percent said they were very likely to do so and 25.5 percent said they were uncertain.
NAM in May surveyed 367 manufacturers of various sizes, sectors and regions.
EPA is slated to issue a final decision on the ozone standard by Oct. 1.
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Majority Of Manufacturers Worried About Ozone Standard -- Survey
Jun 10, 2015 | E&E News PM
By Amanda Peterka
The majority of manufacturers are worried about the effects of a more stringent national ozone standard on their bottom lines, according to a quarterly industry survey by the National Association of Manufacturers.
U.S. EPA proposed last November to tighten the current national ambient air quality standard for ozone from 75 parts per billion to between 65 and 70 ppb based on a review of public health science.
A vocal foe of the EPA proposal, the association released a widely cited report earlier this year that estimated a 65-ppb standard could cost up to $140 billion a year. The survey of companies released today named the proposal among manufacturers' top concerns.
Two-thirds of survey respondents said they were concerned about the effects of a new standard on their businesses. Nearly 80 percent of respondents said they either would likely not proceed or were uncertain about moving forward with new construction or major modifications in areas that are found to be out of compliance with a tighter standard.
NAM conducted the survey of 367 manufacturing firms between May 14 and May 29. For the policy questions, the error margin was 4 percentage points.
The survey generally found the manufacturing sector is growing but that year-to-date growth has slowed, a result that the trade group attributed to slowdowns at West Coast ports, crude oil price volatility and dampening global demand, among other factors. Manufacturers named the overall business climate and health care as their top two concerns.
The House Energy and Commerce Committee announced that two of its subcommittees would hold a joint hearing next week on the potential effects of tightening the ozone standard on manufacturing.
The Energy and Power Subcommittee is also holding a hearing Friday where members will grill acting EPA air chief Janet McCabe on the proposal (E&E Daily, June 10).
Chad Moutray, NAM's chief economist, said on a conference call today that the survey results would help shape NAM's priorities and that the group would focus on "trying to find ways that we can eliminate old regulations that are on the books but, more importantly, just try to find smart policies that kind of help to balance the needs of regulations with growth."
Environmentalists and public health advocates have pushed back against industry cost concerns over the ozone proposal, arguing that the nation's gross domestic product has increased as air quality has improved. They've also argued that the concerns about cost shouldn't factor into EPA's decision because the Clean Air Act says that the agency can consider only public health data when setting a new national ambient air quality standard.
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Bill for Rewrite of Water Jurisdiction Rule Approved Along Party Lines by Senate Panel
Jun 11, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Legislation requiring the Obama administration to rewrite the recently released rule clarifying the scope of Clean Water Act jurisdiction based on flow of water was approved June 10 by the Senate Environment and Public Works Committee.
The committee voted 11-9 along party lines to send to the Senate floor the Federal Water Quality Protection Act (S. 1140).
The bill was co-authored by Sens. John Barrasso (R-Wyo.) and Joe Donnelly (D-Ind.) and backed by 33 Republicans, including committee Chairman James Inhofe (R-Okla) and Senate Majority Leader Mitch McConnell (R-Ky.), and two Democrats—Sens. Joe Manchin (D-W.Va.) and Heidi Heitkamp (D-N.D.).
No Environment Committee Democrat voted for S. 1140, with Sen. Barbara Boxer (D-Calif.), the committee's ranking member, terming the bill a “backdoor attempt to repeal the Clean Water Act.” Manchin and Heitkamp aren't on the Environment Committee.
She characterized the vote on S. 1140 as a “low day for the committee,” because she and other Democrats said the bill would afford protections to only traditional navigable waters, such as the Potomac River, but leave open to pollution smaller sources of drinking water supplies.
The environmental groups, including American Rivers, Earthjustice, Environment America, League of Conservation Voters, Natural Resources Defense Council, and Sierra Club, favor the administration's rule and oppose S. 1140.
In contrast, the bill is supported by industry groups, such as the American Farm Bureau Federation, U.S. Chamber of Commerce, National Association of Home Builders, and National Mining Association, among others.
Inhofe said the bill is attempting to curb the administration's regulatory overreach.
Barrasso told Bloomberg BNA that securing passage of S. 1140 is a “very high priority for me.”
Seek Vote Expected ‘As Soon as Possible.'
Following the committee vote, Barrasso said he wants a vote on the bill “as soon as possible.”
S. 1140 would require the Environmental Protection Agency and the U.S. Army Corps of Engineers to write a new clean water rule no later than Dec. 31, 2016, and include only streams that have enough flow to transport pollutants at levels that would impair traditional navigable waters.
The bill also would require the agencies to set “quantifiable and statistically valid measures” of flow in streams in different geographic areas that, over 30 years, would allow pollutants to flow into and impair traditional navigable waters. Such measures would be based on volume, duration and frequency and be approved by the agencies following notice and comment.
The legislation presumes that certain medium-resolution waters mapped using the U.S. Geological Survey National Hydrology Dataset are waters of the U.S. but gives the agencies the authority to add or subtract waters based on actual flow that can be measured
Unlike the recently promulgated clean water rule, also known as the waters of the U.S. rule, S. 1140 moves away from relying on the bed, bank and physical indicators of the ordinary high water mark that depict flow of water.
Final Rule Said Worse Than Proposal
“The rule that the EPA has released is much worse than its proposed version,” Barrasso said, because the agencies will rely on aerial and laser-generated photographs to decide on whether a tributary has an ordinary high watermark instead of conducting field visits.
According to Deidre Duncan, an attorney with Hunton & Williams LLP who represents the Water Advocacy Coalition, the use of the ordinary high water mark standard is “problematic,” as it has been criticized by Justice Anthony Kennedy in the 2006 U.S. Supreme Court ruling in Rapanos v. EPA (547 U.S. 715, 62 ERC 1481 (2006).
The Waters Advocacy Coalition, which represents national construction, manufacturing, housing, real estate, mining, agricultural and energy industry groups, backs S. 1140 and opposes the jurisdiction rule.
Moreover, “there is no scientific support to establish that ‘physical indicators of ordinary high water mark' indicative of regular or frequent flow, as the agencies assert for the first time in the rule,” explained Duncan, who served as assistant to the U.S. Army general counsel on environment during the administration of President Bill Clinton.
The ordinary high water mark is “unreliable and inconsistently applied,” Duncan said, repeating the remarks she made at a June 8 discussion at the Environmental Law Institute on the final clean water rule that was released May 27 (RIN No. 2040–AF30)(102 DEN A-1, 5/28/15).
Case-by-Case Determination
During the committee markup, Barasso emphasized the need to pass S. 1140 by highlighting the problems he found with the final clean water rule.
For instance, he said, the rule allows the EPA and the corps to conduct a case-by-case jurisdictional determination for wetlands that fall within 4,000 feet of the ordinary high water mark of a traditional navigable water or its tributary, a provision that home builders questioned at the ELI discussion (110 DEN A-1, 6/9/15).
“Well, if you start drawing 4,000 foot circles around everything that the EPA identifies as a tributary, and everywhere there is potential aquatic habitat for birds and fish in that area, I expect nearly the whole country would be included—the whole country,” Barrasso said, pointing to the economic analysis of the rule that backed Barrasso's claim.
Boxer, who offered three out of the five Democratic amendments to the bill, said she was surprised that the Republicans on the committee chose to vote against an amendment that would nullify S. 1140 if the EPA and the corps determine it would increase costs and time to obtain Clean Water Act dredge-and-fill permits. No Republican offered an amendment.
Saying “You are attacking the fundamental premise of the Clean Water Act,” Sen. Ben Cardin (D-Md.) unsuccessfully attempted to amend S. 1140 to ensure that the rewritten rule is aimed at protecting and maintaining the physical, chemical and biological integrity of the nation's waters instead of just traditional navigable waters.
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GOP Senators Defeat Democrats' Bid To Add Health Measures To CWA Bill
Jun 10, 2015 | BNA Daily Environment Report
By Bridget DiCosmo
Republican senators have defeated several Democratic amendments seeking to add public health protection measures to pending legislation that would force EPA to withdraw its recent final Clean Water Act (CWA) jurisdiction rule, and rejected Democrats' calls to allow the rule to remain in place to give clarity on the law's scope.
After voting down the five amendments at a June 10 markup, the Senate Environment & Public Works Committee (EPW) approved the bill, S. 1140, in a 11-9 vote along party lines. Sen. John Barrasso (R-WY) introduced the bill, which would force EPA and the Army Corps of Engineers to withdraw their joint rulemaking, and then launch an extensive round of consultation with states, industry, and others to inform a new version of the regulation.
Democrats at the markup offered amendment aimed at preserving some discretion for EPA and the Corps to disregard the bill's provisions if it is determined necessary to ensure that drinking water is protected, or if the agencies determine it would raise costs, lengthen permit processes or create other adverse effects.
For example, EPW ranking member Sen. Barbara Boxer (D-CA) introduced an amendment -- defeated in a 11-9 vote -- that would negate portions of the bill that the agencies determine would be likely to increase the cost to comply with the CWA requirements, lengthen permitting time or perpetuate regulatory uncertainty.
The GOP in a 11-9 vote also defeated a Boxer amendment to add a savings clause to the bill to ensure nothing “affects EPA or the Corps' authority to protect the quality of surface water for public water supplies."
Similarly, the Republican majority defeated by 11-9 vote an amendment offered by Sen. Ed Markey (D-MA) that would negate provisions of the bill if their implementation would likely result in pollutant discharges in amounts that could adversely affect the health of those served by public drinking water systems.
At the markup, Sen. Ben Cardin (D-MD) and Boxer offered an amendment to strip language from the bill that Cardin said misstates the statutory goal of the CWA as serving to protect traditionally navigable waters (TNW). It would have replaced that provision with language from the statute that says its goal is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
S. 1140 as currently drafted would change the “Clean Water Act's fundamental principle to protect public health,” Cardin said.
EPW Chairman Sen. James Inhofe (R-OK) said in response to the Cardin-Boxer amendment that the TNW language would not amend the water law, rather it would send the final rule back to the agencies “for the areas we feel it needs a little surgery.” GOP lawmakers defeated the amendment 11-9.
CWA Jurisdiction
Democrats argued at the markup that EPA and the Corps have already devoted extensive time and resources to the rulemaking and should be allowed to implement the final rule because it would help end confusion about the scope of the water law stemming from competing Supreme Court tests for determining CWA jurisdiction.
The CWA rule, released May 27 jointly by EPA and the Corps, makes some substantial changes to the proposed version of the rule released in April 2014 to criticism from many industry groups and GOP lawmakers. For example, it revises language on how ditches are addressed and adds first-time physical limits on adjacent waters. But industry sources say those regulatory definitions invite extensive new litigation over the terms.
Republican committee members argued that the agencies should withdraw the rule and start over with greater consultations and outreach to state and local governments and other stakeholders, saying the final rule contains overly broad and vague definitions which will only create more confusion.
Barrasso said during the markup that the bill is necessary given that the rule would “greatly expand” EPA's authority, criticizing the rule's definition of “tributary” as overly broad and discretionary. The tributary definition is significant because the rule asserts jurisdiction over all waters that fall within the tributary definition.
S. 1140 would set a Dec. 31, 2016 deadline for EPA and the Corps to issue a revised rule after lengthy consultation with states and other stakeholders and outlines the types of waters subject to the law. During the markup, Democratic Sen. Tom Carper (DE) said that while he would vote against the bill, there were several aspects of the legislation that he thought “have merit,” including language requiring the agencies to craft a report to Congress to ensure that communities are not harmed by the rule and requiring maps that show which portions of watersheds would be covered by the rule.
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Utilities Push Court To Reconsider Suit Over EPA CWA Memos On Merits
Jun 10, 2015 | InsideEPA
By David LaRoss
Wastewater utilities are asking a federal district court to reverse its finding that a suit over EPA letters that allegedly mandate strict new Clean Water Act (CWA) discharge permit toxic testing procedures is moot after the agency withdrew the memos, saying the court should rule on the suit's merits because regulators still see the memos as binding.
In a June 4 motion, the Southern California Alliance Of Publicly Owned Treatment Works (SCAP) says newly discovered internal memos from state regulators show that the case is not moot as the court recently held. If the judge agrees, it could lead to a ruling on when agency memos are subject to judicial review as effectively binding rules.
The motion is in response to U.S. District Court for the Eastern District of California Chief Judge Morrison C. England Jr.'s May 15 ruling that declined to decide whether the EPA memos to state officials seeking the use of certain toxicity tests in water permits are reviewable by the court. Justifying his decision, the judge noted that the agency has voluntarily withdrawn them and a similar situation is unlikely to arise in the future.
But SCAP says that new memos from California regulators show that the state continues to believe that the EPA letters have legally binding requirements, regardless of the fact that the agency withdrew them.
“Only three days before the Court's entry of judgment, the State Water Board issued an unpublished, internal memorandum stating the State Water Board and Regional Water Quality Control Boards . . . would continue using the Test of Significant Toxicity ('TST') test because EPA's withdrawal of approval was only procedural in nature. In other words, the State Water Board is still leveraging EPA's failure to engage in formal notice-and comment rulemaking to continue to impose unpromulgated guidance as 'rules' on Plaintiffs and others,” the motion says.
In SCAP, et al. v. EPA, SCAP is asking the court to overturn March 2014 letters between EPA and the state water board seeking the use of TST in water permitting decisions, which the utilities claim would be unnecessary and overly burdensome.
SCAP and its allies argued the letters effectively required CWA discharge permits in California to include so-called “two-concentration toxicity” tests, without the public notice and comment period required by the Administrative Procedure Act (APA).
But England in his judgment said, “[T]here is no pattern of behavior that makes future litigation between Plaintiffs and Defendants likely. Finally, as stated above, the exact circumstances of this case are unlikely to occur again as any new [Alternative Test Procedure (ATP)] application and subsequent decision would be based on a new record and an amended regulation.”
SCAP's motion counters that as a result of California's more recent letters, “[w]hereas before it was 'highly unlikely' that EPA's approval of the TST testing method would continue to impact Plaintiffs' members after EPA's withdrawal of this approval . . . it is now abundantly clear that Plaintiffs' members remain subject to the TST test design that EPA previously approved because of the lack of a judicial ruling on the merits holding that such a method could not be properly used without a notice and comment rulemaking.”
Memo Challenges
If the court agrees with SCAT that the new memos show that “the exact circumstances of this case” are likely to recur, it could give the plaintiffs a new chance to extend the victory for challengers to EPA memos in Iowa League of Cities v. EPA, decided in March 2013 by the U.S. Court of Appeals for the 8th Circuit.
There, the court unanimously held that a collection of EPA letters and memos, including correspondence between then-acting water chief Nancy Stoner and Sen. Charles Grassley (R-IA), amounted to a substantive change in the agency's wastewater policy, undertaken without notice and comment as required by the APA.
In the Iowa League decision, judges said EPA had for all intents and purposes created a new rule by saying it would veto permits that include so-called mixing zones, where higher levels of bacteria are temporarily allowed in waters meant for swimming, or blending, where a portion of peak wet-weather flows is channeled around secondary treatment units, treated using other methods and blended with fully treated wastewater before discharge.
SCAP and its allies brought suit seeking to extend the standard set by the Iowa League court to the jurisdiction of the 9th Circuit, which includes California. They hope to win court review of EPA's letters, which came in response to an ATP application seeking federal permission to use a non-standard test method.
Specifically, the utilities are asking the court to rule that EPA effectively crafted a binding rule without notice and comment when it wrote that “approval is in this case state-wide, that is, it will apply to all new or revised [CWA discharge] permits issued by the State Water Board and Regional Water Quality Control Boards and any EPA-issued California permits that include whole effluent toxicity testing provisions.”
They said in briefs to the district court that making the approval statewide effectively forced all dischargers in California to use the two-concentration method, which SCAP said is expensive and inefficient, without the APA rulemaking process normally involved in establishing a new mandatory test method. But EPA withdrew the letters on Feb. 11, and further claimed that the withdrawal mooted the district court suit because California is unlikely to file a similar ATP application in the future -- a claim that England backed in his decision, because “[T]he chance of this situation reoccurring is slim.”
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Republicans Take Aim At EPA's Push For Water Rule
Jun 11, 2015 | E&E Daily News
By Kevin Bogardus
Republican senators yesterday kept up their scrutiny of the Obama administration's new water rule, including U.S. EPA's aggressive advocacy for the regulation.
At a Senate Judiciary Committee hearing examining the federal regulatory process, Chairman Chuck Grassley (R-Iowa) took aim at the agency's campaign to win support for its Waters of the U.S. rule. EPA has said the rule will combat water pollution, but its critics have contended it would be overly burdensome for businesses, particularly farms and ranches.
"Instead of attempting to address the legitimate concerns raised during the open comment period, the EPA and its allies in the professional advocacy community pushed a narrative that portrayed critics of the rule as misinformed, nutty or in favor of water pollution," Grassley said.
Grassley said the water rule is an example of federal overreach.
He added that "agencies are supposed to remain objective during the notice-and-comment period. But EPA's efforts to drive support for its own rule -- while belittling the concerns of the public -- indicate that it had a clear end goal in mind, regardless of public opinion or the rule of the law."
Grassley's line of criticism has become a common one for Republicans.
Last month, lawmakers from three House committees -- Agriculture; Oversight and Government Reform; and Science, Space and Technology -- asked EPA Administrator Gina McCarthy for documents regarding the agency's effort in support of the water rule (Greenwire, May 27). Sen. David Vitter (R-La.) likewise has asked EPA for records on the water rule campaign (E&ENews PM, May 26).
EPA has dismissed concerns about its campaign for the regulation. In a blog post last month, Liz Purchia, an EPA spokeswoman, said the "public outreach effort" was within the agency's mission.
The effort was also legal, she added in a statement at the time, saying the Anti-Lobbying Act "does not prohibit agencies from seeking input from the public on a rulemaking or restrict the agencies from educating or informing the public on a rulemaking under development."
Republicans have also tried to nullify the rule. Yesterday, the Senate Environment and Public Works Committee approved legislation to kill it on a 11-9 party line vote (Greenwire, June 10).
Business groups have pushed back against the rule, as well, saying EPA misled them regarding the proposal.
"It waged a public relations campaign aimed directly at farmers and ranchers, providing false and misleading assurances in speeches and blogs that the rule would not increase permitting requirements for farmers or get in the way of farming," Ellen Steen, general counsel and secretary of the American Farm Bureau Federation, said at yesterday's hearing.
Steen said she expects EPA to increase regulation of farms in the future.
"Anyone who practices law in this area can see where this train is headed, and it's headed towards wide-scale permitting requirements for farmers and ranchers," Steen said.
But Patrick Parenteau, a law professor and senior counsel for the Vermont Law School's Environmental and Natural Resources Law Clinic, said the agency was more than forthcoming when developing the water rule. He noted the multiple opportunities and time afforded to the public to participate in the process.
"Nothing in the law requires 400 meetings across the country with stakeholders, with local officials, with farmers and others concerned about this rule. Nothing in the Administrative Procedure Act or the law requires 207 days of public comment -- that's four times the amount of public comment period that is the standard under the Administrative Procedure Act," Parenteau said. "EPA in every measure went beyond what the law requires, what history and practice had been, and did the very best job it possibly could."
While particular attention was paid to the water regulation, Republicans took turns bashing the Obama administration for proposing various federal rules. Grassley discussed his legislation that would stop "sue-and-settle" lawsuits against agencies that Republicans believe lead to new regulations (Greenwire, Feb. 5).
Sen. David Perdue (R-Ga.) said there has been "dramatic and combative and punitive overreach by federal regulators."
"We have created the fourth arm of government -- the regulators," Perdue said. "This dramatic overreach is killing American businesses and our ability to compete abroad."
Sen. Orrin Hatch (R-Utah) called the regulatory system dysfunctional.
"Right now, it isn't working. Right now, bureaucracy tends to engulf everything in our lives, and somehow or the other, we have to get back to where statutes mean what they say," Hatch said.
Democrats said their GOP colleagues were undervaluing federal rules' benefits. Sen. Sheldon Whitehouse (D-R.I.) said Republicans often ignore economic gains that are possible from strong protections for the public.
"I'm concerned [this hearing's] purpose is to simply further my Republican colleagues' relentless and extreme anti-regulatory, pro-big business polluter agenda," Whitehouse said.
Robert Weissman, president of Public Citizen, said rather than moving too fast in proposing rules, agencies have been moving too slowly. Federal officials have been stalled by industry lobbying and procedural requirements that keep regulations off the books that could be protecting the public, according to the public interest activist.
"This delay leads to regulatory uncertainty and lost benefits for society," Weissman said.
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House Passes Spending Bill With Funding For Pipeline Safety, No Bar on Crude-by-Rail
Jun 11, 2015 | BNA Daily Environment Report
By Rachel Leven
The House passed an appropriations bill that would fund the Pipeline and Hazardous Materials Safety Administration for fiscal year 2016, with pipeline safety funding and rule-focused amendments tacked on.
In the Transportation, Housing & Urban Development Appropriations Act (H.R. 2577), the House June 9 also moved millions in funding to the Federal Railroad Administration from the Transportation Department's Office of the Secretary. However, at a time when attempting to reverse or block administration rules is common, the House declined to bar the latest rule on crude-by-rail safety from taking effect.
Overall, the $55.3 billion discretionary spending bill would fund the Pipeline and Hazardous Materials Safety Administration at roughly $227 million, roughly $6.9 million more than the agency's FY 2015 funding levels. The funding levels are about $62 million below the White House's FY 2016 budget request.
Were the bill to reach the White House, it likely would face a veto. The White House said in a June 1 statement of administration policy that the bill would inadequately fund activities on transportation of energy products, especially for the Federal Railroad Administration (106 DEN A-2, 6/3/15).
The full House, which approved the bill by a 216-210 vote, began considering H.R. 2577 on June 3.
Budget Targeted for Rules
The House adopted by a voice vote an amendment introduced by Rep. Lois Capps (D-Calif.) that targets $1 million within PHMSA's existing funding to issue certain pipeline safety rules that were required to be finalized by January 2014.
These rules address issues such as requiring new transmission pipelines to have automatic shutoff valves and improving leak detection technology stipulations for pipelines, Capps said in a statement.
Some of these oil spill prevention and mitigation rules are especially pertinent given a recent pipeline rupture in Santa Barbara County, Calif., where the transmission pipe carrying crude oil was the only pipe in the county not to have an automatic shutoff valve, which many said would have reduced significantly the amount of oil spilled. Capps has criticized PHMSA for its delay in issuing the rules (106 DEN A-19, 6/3/15).
Another amendment introduced by Rep. Cheri Bustos (D-Ill.) and adopted by voice vote moved $500,000 to PHMSA's operational expenses account from the Transportation Department's Office of the Secretary account.
FRA Safety Funds
Finally, under an amendment from Rep. Pat Meehan (R-Pa.) that was adopted by a voice vote the Federal Railroad Administration would receive $3.5 million more in funds for its safety and operations programs and $4 million in funds would be removed from the transportation secretary's office.
The increase would go toward the fund the White House expressed concern for in its statement of policy earlier this month, where the administration worried there wouldn't be adequate funding for inspectors for crude-by-rail movement.
Notably, the House didn't pass an amendment introduced by Rep. Paul Gosar (R-Ariz.) that would have blocked PHMSA from using its funds to implement or enforce its recently finalized rule on movement of crude oil or other flammable liquids transportation by rail. The amendment failed on a 136-286 vote (103 DEN A-20, 5/29/15).
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Proposed Corrosive Material Classification Changes in Top Issues for June UN Meeting
Jun 11, 2015 | BNA Daily Environment Report
By Rachel Leven
Revising rules related to corrosive substances, including by proposing alternative hazard classification for these materials, appeared to be among the domestic hazardous materials transportation industry's top concerns related to a United Nations meeting later this month, according to discussions from a Transportation Department preparatory meeting held June 10.
Canada offered the latest proposal on options for testing mixtures that moves away from needing animal testing (in-vivo or in-vitro), and the U.S., represented by the Pipeline and Hazardous Materials Safety Administration, agreed in principle with part of it.
However, industry members raised concerns that ultimately this approach could result in more animal testing and over-classification of materials and have other unnecessary implications.
“We were looking at this as introducing options for mixtures so that if you didn't have in-vivo or even in-vitro data, you could make an assessment voluntarily, as an option to get away from having to test and to use that. We saw some value to that,” a member of the PHMSA regulatory team said at the June 10 meeting.
“What we're hearing is, I think, that yes, there's some value there, but on the other hand there is a legitimization of some methods that could lead to more conservative assessments. So there are two factors here that we're trying to balance …but our goal is not to require a more conservative classification. It is to provide options and greater flexibility,” PHMSA said.
Subcommittee Will Consider Amendments
The U.S. delegation will leave for the June 22-26 meeting of the UN Subcommittee of Experts on the Transport of Dangerous Goods.
The subcommittee will consider amendments at this and three other meetings through December 2016, when the full UN Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labelling of Chemicals will consider the approved amendments.
If approved by the full committee, the amendments would be incorporated into the 19th Revised Edition of the UN Model Regulations.
More papers are expected to be proposed on this topic with different methods to updating the corrosive section of the model regulations, according to PHMSA.
Non-Destructive Testing Methods
The Canadian working paper—working paper 2015/21—proposed to recognize more “non-destructive testing methods” by using pH or “bridging principles” such as dilution as additional potential ways to classify by mixture rather than by in-vitro or in-vivo testing.
These amendments would move Chapter 2.8 of the UN Model Regulations closer to harmonization with Chapter 3.2 of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS) provisions. Canada stopped short of proposing to include additivity as a classification method for mixtures, instead asking the GHS subcommittee for more information on the subject.
The U.S. delegation agreed in principle with Canada's proposal to offer an option of using “extreme pH” levels to classify corrosive materials in the most stringent packing group and using bridging principles in certain circumstances.
PHMSA, however, said that the additivity method could be incorporated into transport regulations with appropriate caveats and parameters.
Could Move Classified Materials Groups
Meanwhile, many members of the hazardous materials industry expressed concern at the meeting that certain revisions could move many of Packing Group 2 and Packing Group 3 classified materials (less hazardous materials) into Packing Group 1 (the most hazardous group).
Certain parts of this proposal could lead to more animal testing, over-classification of materials and the unnecessary expenditures of thousands of dollars in emergency response and closures of highways or other facilities, in the case of hazmat transport accidents, members of industry said.
Industry and PHMSA representatives also discussed a proposal by PRBA—the Rechargeable Battery Association and the Dangerous Goods Advisory Council (Working Paper 2015/20) that would clarify when a cell or battery should be transported in line with a certain “damaged” or “defective” provision.
An Association of Hazmat Shippers proposal (Working Paper 2015/25) to add special provisions for transporting consumer and pharmaceutical products containing ethyl alcohol was also central to the meeting.
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