Preview Newsletter
ACC june 12
-
(ACC Mentioned) ACC Sees U.S. Chemicals Growth to Top GDP, But Cuts View
Jun 11, 2015 | Zacks
U.S. chemical production will continue to expand both this year and the next and the American chemical industry will eventually transcend the nation’s overall economic growth – according to the recently published “Mid-Year 2015 Chemical Industry Situation and Outlook” by the American Chemistry Council ("ACC"). -
(ACC Mentioned) Designing For Circularity: Global Event Tackles Solutions For A World Where Plastic Is Used, But Without Its Current Footprint
Jun 11, 2015 | PR Newswire
The 4th annual Plasticity Forum took place in Cascais, Portugal June 8-9, with the global event bringing together business and industry officials, sustainability experts, plastic producers and users, innovators, government representatives and other thought leaders to discuss innovative solutions to the growing plastic... -
(ACC Mentioned) Global Polymers Pricing Analysis
Jun 11, 2015 | Platts
US low density polyethylene prices were assessed June 10 at $1,378-$1,400/mt (62.5-63.5 cents/lb) FAS Houston, down $22/mt, as offers from US producers into key export destinations trended lower. Trader sources also saw indications that more resin could be coming available after most were limited to standard allocations at the start... -
(ACC Mentioned) Rewrite Proposed Nanoscale Chemicals Rule, American Chemistry Council Tells EPA
Jun 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency should revise and re-propose a data collection rule proposed in April to address industry concerns and to provide needed clarifications, a toxicologist representing the American Chemistry Council's Nanotechnology Panel said June 11. -
(ACC Mentioned) ACC Urges EPA To Re-Propose Nano Data Rule Due To Unclear Provisions
Jun 12, 2015 | InsideEPA
By Dave Reynolds
The American Chemistry Council (ACC) is urging EPA to withdraw, revise and re-propose its pending Toxic Substances Control Act (TSCA) data collection rule for nanoscale materials, saying the existing proposal is unclear on which substances must be reported and arguing that certain requirements lack sufficient scientific backing. -
(ACC Mentioned) Industry Decries EPA Proposal For Reporting On Nanoscale Materials
Jun 11, 2015 | E&E News PM
By Sam Pearson
Industry groups today urged U.S. EPA to reconsider a planned reporting requirement for manufacturers of nanoscale materials, calling it overbroad and burdensome to manufacturers. Earlier this year, the agency proposed a one-time reporting requirement for nanoscale materials in a previously unused... -
(ACC Mentioned) Liquid Natural Gas Fuels a Future for Plastics Logistics
Jun 11, 2015 | The Wall Street Journal
By Erica E. Phillips
I just want to say one word to you, just one word. Are you listening? Plastics. Make that two words: plastics logistics. At the NAIOP Commercial Real Estate Development Association’s Industrial Conference in Long Beach Thursday, Owen Kean, senior director of the American Chemistry Council, said the boom in natural gas production in the U.S... -
(ACC Mentioned) Not All Software Is The Same When Reviewing Chemical Risks, Study Says
Jun 11, 2015 | Plastics News
By Roger Renstrom
While brand developers have multiple software tools to evaluate the chemicals in their products, their focus should be on overall risk rather deciding solely on a material’s hazard profile. An extensive study of 32 decision-support tools from industry, academia and governments evaluated the software in five categories: screening and prioritization... -
(ACC Mentioned) Business Groups: NY Leaders Should Support Federal Efforts To Regulate Chemicals, Not State 'Toxic Toys' Legislation
Jun 11, 2015 | Auburn Citizen
By Robert Harding
A collection of national and state-level business groups are throwing their support behind federal legislation to modernize the Toxic Substances Control Act. The coalition, known as New York Businesses United for Product Safety, are urging Gov. Andrew Cuomo and state legislative leaders to support the TSCA Modernization Act... -
California Group Threatens Proposition 65 Action for Discharges of Oil Wastewater
Jun 12, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
An Oakland, Calif.-based environmental group is threatening to file the first-ever Proposition 65 lawsuit for disposal of oil and gas production wastewater because it contains toxic chemicals that exceed safety standards. The Center for Environmental Health said June 11 it would sue Houston-based Seneca Resources Corp... -
Scientists Sought for New Committee To Advise EPA Office on Risk, Other Issues
Jun 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency is seeking nominations of toxicologists, epidemiologists, biostatisticians, synthetic biologists and other scientists for a new committee that will advise the agency's Office of Pollution Prevention and Toxics (OPPT), which regulates chemicals. -
UNEP Report Calls For Phase-Out Of Microbeads
Jun 11, 2015 | Chemical Watch
A UN Environment Programme (Unep) report recommends an eventual phase-out and ban on microplastics in personal care products and cosmetics. Released on World Oceans Day, the report – Plastics in Cosmetics – is a compilation of current knowledge of the connection between cosmetics and marine plastics pollution. -
(ACC Mentioned) Groups Decry Lack Of Regulatory Follow-Up To Obama's 2013 Order
Jun 11, 2015 | E&E News PM
By Sam Pearson
The administration is missing an opportunity to protect workers and communities near chemical facilities from safety lapses as the clock ticks down on President Obama's days in office, an advocacy group warned today. Despite Obama's 2013 executive order calling for agencies to work together to improve safety at chemical... -
Hackers Target Big Oil, Equipment; Seek Political Gain, Snoop Confidential Data
Jun 12, 2015 | BNA Daily Environment Report
By Isaac Arnsdorf
Hackers have made the energy industry a favorite target. A study conducted in April by Symantec Corp., the world's biggest cybersecurity firm, found that computer-system invaders attacked 43 percent of global mining, oil and gas companies at least once last year. In a separate survey the same month, conducted... -
House Panel OKs Bill Authorizing Interior To Determine Gas Pipeline Corridors in Parks
Jun 12, 2015 | BNA Daily Environment Report
By Alan Kovski
The Interior Department would be authorized to designate corridors across national parks for natural gas pipeline routes under a bill approved June 11 by the House Natural Resources Committee. The vote on the National Energy Security Corridors Act (H.R. 2295) was 21–15, mostly along party lines. -
Appeals Court Rejects Challenge To Shell Oil Spill Clean-Up Plans
Jun 11, 2015 | The Hill - E2 Wire
By Devin Henry
A federal appeals court has upheld the Interior Department's approval of a Royal Dutch Shell oil spill clean-up strategy for the company's planned Arctic drilling operations. Environmental groups had sued the Interior Department's Bureau of Safety and Environmental Enforcement (BSEE) over its decision to sign off on Shell's oil spill response plans... -
Cardin Introduces Proposed Drilling Restrictions
Jun 12, 2015 | E&E Daily News
By Mike Soraghan
Sen. Ben Cardin (D-Md.) introduced a bill yesterday to more strictly regulate oil and gas operations under the Clean Water Act. "Oil and gas companies that already enjoy tax breaks should be required to follow the same laws to protect our water and public health as other industries," Cardin said in a news release. -
Shell's Alaska Arctic Spill Response Plan Wins Court Approval
Jun 11, 2015 | Reuters
By Jonathan Stempel
A divided federal appeals court on Thursday rejected an effort by a coalition of environmental groups to revoke federal approval of Royal Dutch Shell Plc's oil spill response plans related to drilling on Alaska's remote Arctic coast. By a 2-1 vote, the 9th U.S. Circuit Court of Appeals said the Bureau of Safety and Environmental Enforcement, which... -
Upcoming Standards for Oil, Gas Wells Unnecessary, Republicans Tell Obama
Jun 12, 2015 | BNA Daily Environment Report
By Andrew Childers
A pending Environmental Protection Agency proposal to regulate methane emissions from oil and natural gas wells is unnecessary and misguided, top Senate Republicans said in a June 11 letter to President Barack Obama. Rather than new regulations, the EPA should assess the emissions reductions already being achieved... -
Injection of Oil, Gas Wastewater Primary Cause of Induced Earthquakes, USGS Say
Jun 12, 2015 | BNA Daily Environment Report
By Tripp Baltz
The disposal of oil and gas wastewater by injecting it underground is the primary cause of the increased number of earthquakes in the U.S., according to scientists with the U.S. Geological Survey. Multiple damaging earthquakes have occurred with the dramatic increase in seismicity in the central and eastern U.S. over the past six years. -
U.S., Canada Scientists Call for Moratorium On New Development in Alberta Oil Sands
Jun 12, 2015 | BNA Daily Environment Report
By Jeremy Hainsworth
More than 100 Canadian and American scientists are requesting a moratorium on further development of Alberta's oil sands, calling continued expansion “incompatible” with global efforts to fight climate change. In a June 10 letter proclaiming a “unified voice,” the group said: “No new oil sands or related infrastructure projects should proceed... -
MATS Decision Shouldn't Affect Legality Of Clean Power Plan, EPA Attorney Says
Jun 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The U.S. Supreme Court's upcoming ruling on the Environmental Protection Agency's mercury and air toxics standards “should not have much of an effect” on the legality of the agency's plan to regulate carbon emissions from existing power plants, an agency attorney said June 11. -
Republicans Could Block All EPA Nominees Until McCarthy Answers Questions on Rules
Jun 12, 2015 | BNA Daily Environment Report
By Anthony Adragna
Senate Republicans aren't receiving prompt replies to their requests for information from Environmental Protection Agency Administrator Gina McCarthy and are considering blocking all pending agency nominations until they receive adequate answers. Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works... -
Decision on FERC Demand-Response Program Likely by Early 2016, LaFleur Says
Jun 12, 2015 | BNA Daily Environment Report
By Rebecca Kern
The Federal Energy Regulatory Commission demand-response case before the U.S. Supreme Court will likely be decided in early 2016, FERC Commissioner Cheryl LaFleur said. The briefings for the case will be filed by September, and the Supreme Court will likely hear the case this fall, LaFleur said during the June 11 Energy Efficiency Forum... -
Inhofe: Climate Change Fight Really About Global Control
Jun 11, 2015 | The Hill - E2 Wire
By Timothy Cama
Sen. James Inhofe (R-Okla.) told a conference of global warming skeptics Thursday that the fight against climate change is really about global control with little accountability. Inhofe, chairman of the Environment and Public Works Committee and an outspoken climate skeptic, said he agreed with former French President Jacques Chirac’s... -
Groups Sharpen Legal Arguments After D.C. Circuit Rejects Early ESPS Suits
Jun 11, 2015 | InsideEPA
By Lee Logan & Dawn Reeves
Lawyers for the administration, environmental groups and industry associations are sharpening their legal arguments for the near-certain legal challenges over the EPA's final greenhouse gas (GHG) rule for existing power plants after a key appellate court rejected a series of early challenges to the proposed version of the rule. -
EPA Creating Small Business Advisory Panel For CERCLA Finance Rules
Jun 11, 2015 | InsideEPA
By Suzanne Yohannan
EPA is seeking nominations from the small business community interested in serving on an advocacy panel that will provide input into the agency's development of a long-delayed proposed Superfund rule to establish financial responsibility requirements for hardrock mining facilities to ensure companies can pay for any subsequent... -
EPA Seeks Input on Revised Costs To Operate Nitrogen Oxides Controls
Jun 12, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency is seeking input on an updated manual used to determine the cost of installing and operating pollution controls for an ozone precursor. The EPA has updated two chapters in its Control Cost Manual that detail the cost calculations for selective catalytic reduction (SCR) and selective non-catalytic reduction... -
Lawsuit Argues Maryland Must Act On Both Phases of Delayed NOx Rules
Jun 12, 2015 | BNA Daily Environment Report
By Kathy Lundy Springuel
Maryland Gov. Larry Hogan's (R) Jan. 21 order that pulled clean air regulations from the Jan. 23 Maryland Register in which they were set to “go final” violated state procedures for handling duly approved regulations, two groups alleged in a lawsuit (Physicians for Soc. Responsibility v. Hogan, Md. Cir. Ct, 6/11/15). -
GOP Eyes Blocking EPA Nominees To Force McCarthy Answers On Rules
Jun 11, 2015 | InsideEPA
By David LaRoss
Senate Republicans are weighing possible “holds” to block all pending nominees for top EPA positions from further consideration until agency Administrator Gina McCarthy answers what the GOP says are outstanding questions on a slew of major policies including its Clean Water Act (CWA) jurisdiction rule and greenhouse gas regulations. -
Occasional Flow of Water Doesn't Translate Into Clean Water Act Coverage, EPA Says
Jun 12, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Occasional flows of water through arid areas, such as desert washes, won't be considered as jurisdictional ephemeral tributaries under the final clean water rule, the top Environmental Protection Agency water official said June 11. “We know that topography can cause water to flow through certain areas, but it would not necessarily create... -
Ag Lobby: Final EPA Water Rule Is Worse Than Proposal
Jun 11, 2015 | The Hill - E2 Wire
By Timothy Cama
The largest lobby group for farmers and ranchers declared Thursday that the Obama administration’s new rule asserting power over small waterways is worse than what had been proposed. The American Farm Bureau Federation, one of the most vocal opponents of the Environmental Protection Agency’s (EPA) regulation, wrapped up... -
(ACC Mentioned) Us Chemicals Sector Hails New Federal Study On Rail Rate Charges
Jun 11, 2015 | ICIS News
By Joe Kamalick
A new federal study says that railroad freight rate-setting procedures are badly in need of reform, a finding hailed on Thursday by US chemical sector officials but blasted by rail industry leaders. The study by the Transportation Research Board (TRB) found that while federal reforms in 1980 rescued the nation’s then-floundering major railroads... -
Commission Finalizes Radioactive Transport Rule Related to International, DOT Standards
Jun 12, 2015 | BNA Daily Environment Report
By Rachel Leven
The Nuclear Regulatory Commission on June 12 will finalize a rule that ensures compatibility of domestic nuclear regulations with Transportation Department and international standards for moving radioactive material. The rule (RIN 3150-AI11) will harmonize parts of the commission's rules with the International Atomic Energy Agency's 2009...
Industry and Association News
Chemical Management News
Chemical Security News
Energy and Environment News
Transportation News
Full Text of Stories Below
-
(ACC Mentioned) ACC Sees U.S. Chemicals Growth to Top GDP, But Cuts View
Jun 11, 2015 | Zacks
U.S. chemical production will continue to expand both this year and the next and the American chemical industry will eventually transcend the nation’s overall economic growth – according to the recently published “Mid-Year 2015 Chemical Industry Situation and Outlook” by the American Chemistry Council ("ACC").
The Washington, DC-based chemical industry trade group noted that notwithstanding the slowdown in global manufacturing and oil price volatility, the U.S. chemical industry is seeing production volume gains. Production is expected to pick up pace on the heels of new capital investments and capacity additions.
However, the ACC has dialed back its estimates for national chemical production for both 2015 and 2016 factoring in economic softness in the first quarter of 2015 and the impact of a stronger dollar. A mightier greenback is holding down U.S. exports, reducing their attractiveness in overseas markets.
The ACC now envisions U.S. chemical production to rise 3.2% this year and 3% in 2016. Earlier, the trade group expected a 3.7% growth in 2015 and 3.9% in 2016. Nevertheless, the revised outlook is still higher than 2% growth witnessed in 2014.
The trade group also added that the U.S. economy is growing below its potential as high taxes and debt coupled with regulatory burdens are denting business and consumer confidence. It expects U.S. GDP to rise 2.5% in 2015 and 2.9% in 2016.
The ACC expects the domestic chemical industry to grow at a faster clip than the overall U.S. economy in the long haul and emerge as a long-term economic growth engine as improvements in key end-use industries and emerging markets take hold. It sees demand for chemicals to grow over the next several years on continued healing across end-use markets, the industry’s sustained competitiveness and the eventual return of global economic growth.
Growth in the chemical industry is also expected to usher in improved job prospects. The ACC sees employment in the industry to grow 0.7% in 2015 with jobs being added through 2020, reversing a decade-long trend in declining employment. The trade group expects the chemical industry to continue adding high-paying jobs through the end of the decade.
The ACC said that although strength in the U.S. manufacturing, an improving job market and expansion in major end-use markets have boosted demand for chemicals, persistent softness in overseas markets has constrained U.S. export sales. A stronger dollar coupled with sluggishness in external markets is expected to restrain trade growth.
The ACC does not expect the U.S. chemical industry to rake in trade surplus until 2018. National chemical exports are expected to rise with the strengthening of overseas demand and the industry is expected to notch up record trade surpluses by 2020.
The shale gas boom and abundant supply of natural gas liquids have provided the U.S. petrochemicals producers a compelling cost advantage over their global counterparts. The ACC expects this competitiveness to drive export demand and new capital investment in the country. New capacity is expected to provide a significant boost to chemical production as these investments come on stream in the coming years.
The shale revolution has incentivized a number of chemical companies to invest billions of dollars to ramp up capacity in the country. Chemical makers including Dow Chemical (DOW - Analyst Report), DuPont (DD - Analyst Report), LyondellBasell Industries (LYB - Analyst Report), Eastman Chemical (EMN - Analyst Report), Celanese (CE - Analyst Report) and Westlake Chemical (WLK - Snapshot Report) are investing heavily on shale gas-linked projects to take advantage of ample natural gas supplies which is expected to boost capacity and export over the next several years.
The U.S. chemical industry, a more than $800 billion enterprise, is heavily linked to the overall condition of the nation’s economy. It has been consistently leading the U.S. economy’s business cycle due to its early position in the supply chain.
The highly cyclical industry is gradually gaining strength after being roiled by the global economic crisis. The industry’s upturn is expected to be backed by strong momentum in the light vehicles market and continued recovery in the construction space. -
Jun 11, 2015 | PR Newswire
The 4th annual Plasticity Forum took place in Cascais, Portugal June 8-9, with the global event bringing together business and industry officials, sustainability experts, plastic producers and users, innovators, government representatives and other thought leaders to discuss innovative solutions to the growing plastic problem facing our land and marine environments. The unique event's focus on upstream solutions include the theme "Designing for Circularity, and Opportunities in Action That Now Need Scale."
Some of the research, developments and initiatives included: Plastic bottles that can be upscaled into roof tiles for buildings in developing communities Building bricks made of hard-to-recycle plastic waste material which can be used in building construction A new report on the plastic-to-fuel industry was launched between with Ocean Recovery Alliance and the American Chemistry Council to help unlock the potential for plastic-to-fuel technologies to deliver economic and environmental benefits A new Net Benefit Analysis report to be conducted with a number of Plasticity participant companies to show the broad economic, social and financial impacts of making decisions related to waste reduction, new design, material use, packaging changes and use of increased recycled content Plastic made from algae, which can also be deployed along with the fish farming industry
Dr. Denise Hardesty, senior research scientist with CSIRO's Oceans and Atmosphere Flagship, said, "Plasticity creates the critical conversation we need to be having around the world. These experts are the people making changes, and we collectively need these programs, products, opportunities and solutions to scale across countries."
"The Plasticity Forum is an inspiring event, which brought together a real mix of business, industry and entrepreneurs who are all doing important work which will result in reducing the problems of waste in our communities, waters and ocean," said Steve Russell, VP, plastics division, American Chemistry Council.
According to Doug Woodring, founder of Plasticity, "The global reach, along with the positive, solutions-based approach, have made Plasticity Forum an event like no others, engaging those interested in managing and recovering plastic as a resource; scalable innovations in plastic that save money; use of new materials; designing for sustainability; and solutions for a world where plastic is used, but without its current footprint."
Patty Long, senior VP of industry affairs at the Plastics Industry Trade Association (SPI), said, "Beyond big ideas and divergent perspectives, there is very meaningful dialogue which revolves around some real and proven solutions to some key issues related to plastic waste."
About Plasticity Forum
The Plasticity Forum is a cross section of thinkers and those who appreciate scale to expedite the solutions and innovations that exist today to keep plastic from becoming a problem for our communities and environment. Plasticity offers a global discussion and perspective on solutions, how to standardize across products or industries, and how to bring about new opportunities in production and recovery operations. www.plasticityforum.com.
-
(ACC Mentioned) Global Polymers Pricing Analysis
Jun 11, 2015 | Platts
US low density polyethylene prices were assessed June 10 at $1,378-$1,400/mt (62.5-63.5 cents/lb) FAS Houston, down $22/mt, as offers from US producers into key export destinations trended lower.
Trader sources also saw indications that more resin could be coming available after most were limited to standard allocations at the start of the month.
Preliminary data released June 10 by the American Chemistry Council showed US LDPE inventories rose by more than 14 million lb in May.
With domestic producers seeking an increase in July, there were expectations producers could turn to the export market in an attempt to keep inventories low through the end of June, sources said.
Domestic contracts remained unsettled, with talk of a potential rollover based on the lack of price announcements for the month.
May domestic LDPE contracts were assessed at 84-85 cents/lb ($1,852-$1,874/mt), up 5 cents/lb from April after producers successfully implemented an increase last month. An additional 5-cent increase has been announced for July.
Market sources said pushing an additional increase through could prove difficult, with some pointing to the increase as a potential move to keep June demand up after strong sales in March, April and May.
May LDPE production stood at more than 587 million lb, while total sales exceeded 573 million lb, according to ACC data. Sales fell more than 33 million lb from final April totals.
LATIN AMERICA
Latin American spot import prices were stable in Peru and lower in Brazil on June 10 following talk of lower-priced offers from key regions, sources said.
Import assessments for low-density polyethylene were flat in Peru on week assessed June 10 at $1,500-$1,510/mt CFR, amid stable US offers. US-origin material was heard mostly stable with offers trending in the low-$1,500s, sources said.
Despite fewer offers from the US, sources said LDPE was readily available along the West Coast of South America. "Right now, we are seeing a lot of material in Peru," a Lima-based buyer said. Market participants said that sellers were holding offers amid last week's announcement of an increase of 5-cent/lb ($110/mt) for July for all grades of polyethylene from US producers.
Regional South American producers announced similar hikes of 5 cent as demand has grown for material
throughout the second quarter of 2015 and buyers along the Pacific coast of South America have turned to regionally sourced material for prompt delivery.
Meanwhile, CFR FE Asian pricing fell $10/mt week on week as demand has been described slowing in the region. Regional South American and US-origin material has been the preferred choice for buyers due to the shortened delivery time, sources said.
Shipments from Asia have been heard shipping as late as July which would likely lead to a early August delivery, according to market feedback.
In Brazil, the LDPE import assessment dropped $5/mt on the week at $1,445-$1,455/mt CFR Brazil, as domestic demand was talked thin.
Prices were also pressured down by global markets such as Asia and US. Asian low density polyethylene prices fell due to weak demand in the lead up to the Muslim holy month of Ramadan which starts June 18, sources in Asia said.
"The Brazilian market is still very weak because manufacturers were buying less material and reducing their production," a Brazil-based distributor said. "Braskem prices are better to do business than importing material."
In addition, participants said that even with import prices getting lower, they were not attractive, with inventories sufficient for at least two months.
Participants said Brazil cut resin purchases considerably in a year-on-year span. In the domestic market Braskem plans to increase, on average, roughly $128/mt in all PE's resins, a source said.
The reason for the price increase was depreciation of the local currency against US dollar. June 10's exchange rate was 3.11 reals/US dollar.
In exports from Brazil, the FOT assessment were stable at $1,545-$1,555/mt to Mercosur, as offers from Brazil were stable, though for certain volumes and clients, material from Brazil was sold at a discount.
"Producers had to make discounts in order to sell more volumes in the end of May," a Paraguay-based distributor said.
Braskem also raised export prices, a source said. PE prices rose by an average of $5-$102/mt, depending on grade and region, the source said.
ASIA/MIDDLE EAST
Asian low density polyethylene prices fell due to weak demand in the lead up to the Muslim holy month of Ramadan which starts June 18.
During this month -- which is a period of daily fasting from sunrise to sunset -- demand is typically low in the Middle East and Southeast Asia.
It is typical for manufacturers to lower their operating rates during the month, while some factories also undergo maintenance shutdowns and workers work shorter hours, market participants said.
In plant news, China's Shanghai Petrochemical, a subsidiary of Sinopec, plans to restart its 100,000 mt/year LDPE line in Shanghai on June 14, said a source close to the company June 10. It was shut May 31 for turnaround.
The company's other 100,000 mt/year LDPE plant was running normally, the source added.
EUROPE
European low density polyethylene spot prices fell Eur25/mt on the week to Eur1,675/mt FD NWE, falling for the first time since February amid expectations of easing supply.
LDPE spot prices had touched fresh record highs every week since mid-April. The fall was cushioned by shortness in some grades like 0.3 MFI, sources said. At the same time, availability of off prime grade increased, sources said.
Sabic restarted its low density polyethylene plant in Wilton, Teesside, northeast England, sources said.
The force majeure on LDPE supplies remains, sources said. "We are doing all that is required to resolve the situation as soon as possible and to reestablish normal operations. Will keep you informed when we can expect the unit to be back in full production," a company spokeswoman said.
The fall in Asian prices contributed to easing bullishness in Europe. LDPE was assessed at $1,380/mt CFR Far East Asia June 10, down $10/mt week on week.
PE prices in Europe were the highest globally and were attracting imports, sources said. Converters had begun buying more "carefully" and "selectively," a converter said.
In the contract market, prices were flat on the week at Eur1,750/mt FD NWE. So far prices have moved by Eur110.mt on the month.
Converters were "fiercely resisting" three-digit increases. In other production news, Total's LDPE plant in Carling, France, was facing production issues due to the outage at the Naphtachimie cracker in Lavera, sources said.
It was not clear if force majeure had been declared on supplies from the 60,000 mt/year plant.
A fire erupted at the Naphtachimie cracker in Lavera on May 17. The Naphtachimie cracker in Lavera is still not in production, Total said in the letter earlier this week to its customers.
"The operator of the Lavera's units is active in repair works and a startup of the units producing our raw material is estimated in the fourth week of June," it said.
Naphtachimie is a joint venture between Total and Ineos. -
(ACC Mentioned) Rewrite Proposed Nanoscale Chemicals Rule, American Chemistry Council Tells EPA
Jun 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency should revise and re-propose a data collection rule proposed in April to address industry concerns and to provide needed clarifications, a toxicologist representing the American Chemistry Council's Nanotechnology Panel said June 11.
“Because of the substantial changes to the proposed rule that we feel are necessary and the complexity of the subject, we suggest that EPA re-propose the rule for comments after it has been revised,” Steven Gordon, a toxicologist with the 3M Co., said during a meeting the EPA held to discuss a data collection rule proposed in April (58 DEN A-4, 3/26/15)(80 Fed. Reg. 18,330).
The proposed rule is too broad, some of its requirements are vague, and it would require companies to report certain physical-chemical data even though there are no agreed-upon protocols and methods for generating that data, Gordon and other industry representatives told the agency during a meeting it held to solicit comments on its proposed rule.
Gordon spoke on behalf of ACC's Nanotechnology Panel, which has a membership that in addition to 3M includes BASF Corp., Cabot Corp., DuPont, Evonik Corp., Lockheed Martin Corp. and Procter & Gamble.
One-Time, Ongoing Obligations
The EPA proposed rule consisted of a one-time and an ongoing reporting obligation.
Jeff Morris, deputy director for programs in the EPA Office of Pollution Prevention and Toxics, said the rule is needed for the agency to understand what nanoscale chemicals are being commercialized and to give the public confidence that it is being developed in responsible ways.
Under the proposed rule, companies that make, import or process separate, or what the agency called “discrete,” nanoscale forms of existing chemicals—substances that already are on the Toxic Substances Control Act's inventory of chemicals that are or have been in commerce—would have a one-time obligation to submit basic production, volume and other information.
That other information would include much more extensive physical-chemical properties data about nanoscale chemicals than the agency typically receives from chemical manufacturers or processors.
Form Addresses Spectrum of Data
A form the EPA posted in the rulemaking docket to illustrate the spectrum of information that companies would report includes up to 43 physical and chemical properties such as vapor pressure, solubility, flammability, crystal structure, particle size distribution, particle shape, surface area, porosity, surface chemical composition, surface charge and biodegradation rate.
In addition to the one-time reporting requirement, the proposed rule would require chemical manufacturers and processors to notify the agency 135 days before they intend to make, import or process a new discrete form of an existing nanoscale chemical. The requirement to submit these notifications would be ongoing, meaning the proposed rule didn't describe whether or when the obligation would end.
Companies providing the notifications would be asked to provide the same information as did companies that were subject to the one-time reporting obligation, the EPA's proposed rule said.
Rule Proposed Under TSCA Section 8(a)
The EPA proposed the rule under Section 8(a) of TSCA, which provides the agency the authority to require the submission of certain types of data companies already have or that is reasonably ascertainable by them.
The proposed rule wouldn't require the generation of data, Jim Alwood, a program manager in the EPA Chemical Control Division, told the audience.
Alwood and Morris asked the audience to offer perspectives on at least six specific aspects of the proposed rule, including how the agency should define what constitutes a discrete form of a chemical.
For example, Morris said, an existing chemical could be made in 10, 50 and 80 nanometer sizes with slightly differing crystal structures.
“Are they all reportable as one [form of a nanoscale chemical] or are they all separate forms?” Morris asked. “These are the types of decisions people who will have to report will have to make.”
Burden Imposed on Producers, Processors
Gordon said “separate reporting on each discrete form as currently described in the proposed rule is not adequately justified on the basis of health or environmental risk and would place a large burden on many nanomaterial producers and processors.”
There isn't enough scientific evidence to conclude that any particular physical or chemical property of a nanoscale chemical is consistently associated with posing an increased hazard to people or the environment, he said.
“There is insufficient justification at the present time for using these [physical-chemical] properties as criteria for distinguishing ‘discrete forms,’ ” Gordon said.
Reportable Chemical Substance
Jo Anne Shatkin, founder of Vireo Advisors, a company that offers risk assessment expertise, market analysis and other services, raised a concern shared by other speakers about the proposed rule's definition of a chemical substance that would be subject to reporting requirements.
TSCA defines a chemical substance as “an organic or inorganic substance of a particular molecular identity.”
The proposed rule's definition of a chemical subject to reporting includes size parameters and the requirement the chemical exhibit “unique and novel characteristics or properties” because of its size.
How can a company measure whether its chemical has novel or unique characteristics or properties, Shatkin asked.
Various international and scientific organizations have described the physical-chemical property data identified in the agency's proposal as being of potential interest in understanding whether a nanoscale chemical would have the potential to harm human health or the environment, Shatkin said.
Guidance Said Needed
“However, we would need guidance,” Shatkin said.
If companies are going to provide useful information that could inform future EPA policies for nanoscale chemicals, the agency will need to provide guidance on issues, including how to measure the physical-chemical properties it is interested in and how to prepare chemical samples for such measurements, she said. “It is in EPA's interest, in our interest that we provide the best information.”
Martha Marrapese, a partner with Keller & Heckman LLP and general counsel for the NanoManufacturing Association, said the proposed rule “appears to be trying to expand the statutory definition of a chemical substance, when all EPA is actually interested in is receiving information on physical-chemical properties.”
Other Concerns Cited
Speakers also said they are concerned about:
• the proposed establishment of a 135 notification requirement,
• the rule's application to processors, which could mean a wide range of companies that would work with nanoscale materials purchased from other companies, and
• the lack of a definition of what constitutes a “trace” amount of a reportable chemical substance.
The proposed rule would not apply to chemical substances that only have trace amounts of primary particles or particle clumps of particles, called “aggregates or agglomerates,” in the size range of one nanometer to 100 nanometers.
ACC: Align U.S., Canadian Efforts
Gordon was among the speakers that urged the EPA to work with Canada to make their approaches to obtaining information on nanoscale chemicals more similar than their proposed approaches are.
“[ACC's Nanotechnology] Panel is extremely concerned that unless the U.S. and Canadian approaches are more closely aligned, the information requested will not be comparable and the reporting burden on industry will be very high,” Gordon said.
Gordon referred to a consultation Environment Canada and Health Canada launched in February to obtain information on nanoscale forms of chemicals.
Marrapese said Canada's approach is clearer and covers a narrower range of materials.
Canada's proposed approach consists of three phases:
• establishing a list of existing nanomaterials in Canada,
• prioritizing existing nanomaterials for action and
• action on substances identified for further work.
-
(ACC Mentioned) ACC Urges EPA To Re-Propose Nano Data Rule Due To Unclear Provisions
Jun 12, 2015 | InsideEPA
By Dave Reynolds
The American Chemistry Council (ACC) is urging EPA to withdraw, revise and re-propose its pending Toxic Substances Control Act (TSCA) data collection rule for nanoscale materials, saying the existing proposal is unclear on which substances must be reported and arguing that certain requirements lack sufficient scientific backing.
At a June 11 public meeting on the rule at EPA's headquarters in Washington, D.C., ACC and other chemical sector groups sought to narrow the scope of the proposal, pushing for clearer guidance on reportable materials and additional exemptions from reporting. Industry also argued that a provision for notifying EPA in advance of future manufacturing risks stigmatizing nanomaterials as a class, something the agency has stated it does not intend.
The early industry push-back could hint at the comments groups will find on the proposed TSCA section 8(a) nano reporting and recordkeeping rule that EPA published in the April 6 Federal Register.
EPA is taking comment through July 6 on the proposal, which follows years of wrangling with the nano industry and White House officials over the scope of the rule. The substances pose a novel problem for regulators because their unique properties that advance technology may also present health and safety risks.
The proposal would require a one-time data submission to EPA six months after issuance of the final rule. The agency is also proposing that any company that intends to manufacture a substance that would have been subject to the one-off rule but does not do so until after the effective date of the regulation would have to report to EPA at least 135 days before commencing manufacturing. Data collected will guide future EPA policies on the substances, including potential regulation of some nanomaterials found to pose risks to human health or the environment.
Industry groups used their remarks at the public hearing to highlight their early concerns with the proposal. For example, Steven Gordon said on ACC's behalf that, “Without significant refinement of scope and clarification of certain key concepts, the proposed rule would be highly subjective and arbitrary and would create an uneven playing field for nanomaterial manufacturers and processors. . . .We suggest that EPA re-propose the rule after it has been revised.”
Martha Marrapese of the NanoManufacturing Association (NMA) did not call for re-proposing the rule, but echoed ACC's other arguments. She urged EPA to clarify materials that will require reporting and to harmonize aspects of the proposal with a recently-announced Canadian proposal, which includes exemptions for certain substances.
“This proposal, if implemented, places a heavy and arguably disproportionate burden on the regulated community to figure out what they need to report on to comply because specific chemical identities are not provided and the criteria for determining what a reportable chemical substance (RCS) is are untested,” Marrapese said.
Data Collection
EPA staff told the meeting that the agency's collection effort focuses on nanoscale materials derived from existing substances already on the TSCA inventory, as agency officials believe EPA review processes for new chemicals are effective at ensuring substances do not pose health and safety risks.
Industry officials said EPA's proposal inappropriately shifts the burden of determining what is reportable onto companies, and they sought possible solutions, ranging from additional guidance on measurement methods to better identify reportable substances, to withdrawing and reissuing the proposal.
Specifically, ACC's Gordon argued that an EPA criteria for identifying nanomaterials for reporting, that the substance have “unique and novel characteristics or properties” as a result of its size, hinges on vague terms that different companies will interpret differently.
Gordon said EPA should specify what novel or unique properties would subject a material to reporting and also provide scientific justification for why those properties may pose risks to human health and the environment. Additionally, he said EPA's plan to require separate reporting for every discrete form of a substance is not backed by adequate science. “There is currently insufficient scientific evidence for concluding that any particular physical or chemical property of nanoscale substances is consistently associated with increased hazard to humans or the environment,” he said, noting a possible exception for the shape of certain nanomaterials.
Marrapese argued EPA should exempt certain substances from the proposal, and noted that a similar proposal Canadian regulators issued in February exempts polymers, as well as certain pigments and dyes.
NMA, in future written comments, will call for clarification or expansion of exemptions from EPA's requirement “so that when polymers and coatings are processed, they are treated consistently in North America,” Marrapese said.
Nano Reporting
At the outset of the meeting, Jeff Morris, deputy director of EPA's Office of Pollution Prevention and Toxics, said the agency is not seeking to require companies to generate new data, but merely report the information they have on materials in commerce.
EPA in 2008 sought to obtain similar information through a voluntary request, though the industry response was limited, he said.
Morris said EPA is seeking comment on its approach for identifying nanomaterials subject to reporting requirements, including whether the agency's criteria for distinguishing materials based on their performance, behavior and measurability make sense. “Have we got it right?” Morris asked at the outset of the meeting. “Have we done the best job we can in trying to focus reporting on those materials, and that essential set of information for each material, that is going to be most useful?”
-
(ACC Mentioned) Industry Decries EPA Proposal For Reporting On Nanoscale Materials
Jun 11, 2015 | E&E News PM
By Sam Pearson
Industry groups today urged U.S. EPA to reconsider a planned reporting requirement for manufacturers of nanoscale materials, calling it overbroad and burdensome to manufacturers.
Earlier this year, the agency proposed a one-time reporting requirement for nanoscale materials in a previously unused application of the Toxic Substances Control Act of 1976. Under the reporting requirement, companies would be required on a one-time basis to submit exposure and health and safety information on nanoscale materials, which are generally classified as having chemical structures 800 to 1,000 times smaller than the width of a human hair.
EPA already requires under its chemical data reporting rule that companies file reports on the production volume of various chemicals. In addition, TSCA requires companies to file premanufactured notices with EPA if they are introducing a new chemical in the marketplace, which is supposed to give EPA time to decide whether the chemical poses a health threat and should be blocked through regulatory action. However, the proposed reporting rule is the first to target nanomaterials specifically for heightened scrutiny.
EPA officials heard comments today at a meeting at agency headquarters that was open to the public, but which largely saw industry representatives attend. A public comment period for the proposed rule is due to close July 6.
Under its most recent Unified Agenda filed by the Office of Interagency and Regulatory Affairs, EPA plans to finalize the reporting rule by June 2016 (Greenwire, May 22).
These actions are "not justified on the basis of risk and could have the effect of stigmatizing nanomaterials," Steve Gordon, a toxicologist at 3M Corp. and a member of the American Chemistry Council's Nanotechnology Panel, said in a preview of the trade association's written comments.
Also at issue is how EPA would define the chemicals subject to reporting requirements. Gordon said the language needed to be clarified to excise phrases that are "vague and prone to varied interpretations," such as whether a nanoscale chemical has novel or unique properties.
In all, the EPA reporting requirement would give the United States "the most stringent regulatory hurdle, in my opinion, of any country right now," said Martha Marrapese, a partner at the law firm Keller and Heckman LLP and the general counsel of the Nanomanufacturing Association.
EPA should revise the rule and propose it again when these changes have been made, Gordon said.
Canadian regulators have similar goals when it comes to understanding the health and safety risks of nanoscale materials, but have gone about it differently, Gordon said. To minimize disruption to businesses, EPA should consider gathering information already provided to those officials and structuring its own program in the most similar way possible, Gordon said.
EPA officials said they would take the industry response seriously. Jim Jones, the assistant administrator for chemical safety and pollution prevention, has defended the proposed rule as a necessary response for EPA to determine whether it needs to take regulatory action to protect the public from particular nanoscale materials that could pose unique health and safety threats (Greenwire, March 25).
"We think it's critically important for public confidence, but we want to get it right," said Jeff Morris, EPA's deputy director for programs in the Office of Pollution Prevention and Toxics. "We don't want to lose sight of the broader objective, which is trying to understand, broadly for new chemicals and existing chemicals, what's being commercialized and what's available."
-
(ACC Mentioned) Liquid Natural Gas Fuels a Future for Plastics Logistics
Jun 11, 2015 | The Wall Street Journal
By Erica E. Phillips
I just want to say one word to you, just one word. Are you listening?
Plastics.
Make that two words: plastics logistics.
At the NAIOP Commercial Real Estate Development Association’s Industrial Conference in Long Beach Thursday, Owen Kean, senior director of the American Chemistry Council, said the boom in natural gas production in the U.S. is “rippling downstream” to the plastics industry.
Addressing a room full of industrial real-estate developers, Mr. Kean said chemical companies will need to invest more in export logistics facilities as they ramp up U.S. plastics production. “For the most part, what’s happening in the chemical industry is largely an export story,” Mr. Kean said.
Steve Schellenberg, a vice president for trade and supply chain consultants IMS Worldwide Inc., said the U.S. in the next five years is expected to produce an additional 22 billion pounds of polyethylene and polypropylene-plastics made by refining natural gas.
“Most of that—a lot of that—will be exported,” Mr. Schellenberg said. Based on that volume, “that means about 40 million square feet of warehouse space will be required as export centers” for the approximately 800,000 20-foot equivalent units (the standard measurement for containerized cargo) the U.S. will be exporting, he said.
Development to support that new oil- and gas-driven export economy is already underway.
Thomas Tunstall of the Institute for Economic Development at the University of Texas, San Antonio, cited the Port of Corpus Christi, which has recently sold out of available land. Like many ports, “They’re seeing a huge impact as a result of the low price of natural gas here in the U.S.,” he said. Now, some small cities to the north of that port are working on development projects, to be completed in the coming 10 years.
Mr. Schellenberg said Los Angeles and Long Beach face challenges in finding “that needle in the haystack” of available land, but the East Coast ports at Charleston, S.C., Savannah, Ga., and Norfolk, Va., as well as the Texas cities of Houston, Dallas and Freeport are undertaking projects to build out their export infrastructure.
-
(ACC Mentioned) Not All Software Is The Same When Reviewing Chemical Risks, Study Says
Jun 11, 2015 | Plastics News
By Roger Renstrom
While brand developers have multiple software tools to evaluate the chemicals in their products, their focus should be on overall risk rather deciding solely on a material’s hazard profile.
An extensive study of 32 decision-support tools from industry, academia and governments evaluated the software in five categories: screening and prioritization, database utilization, hazard assessment, exposure and risk assessment and certification-labeling.
“Scoring on the basis of 100, the highest was 77,” Tony Kingsbury reported at a June 1 workshop during the Sustainable Brands ’15 conference in San Diego.
“Only four tools received the maximum score of 10 for assessing both hazard and exposure,” said Kingsbury, founder and president of consultancy TKingsbury LLC of San Ramon, Calif.
One tool was evaluated after completion of the broad technical review. The Lens-brand chemical safety assessment platform from SciVera LLC of Charlottesville, Va., “would be at the top if it was evaluated among the 32,” Kingsbury said.
“As tools differentiate themselves, they will improve [and] become more rigorous. Some will fall by the wayside.”
Twelve authors contributed to the 13-page paper, which was published in the April 2015 edition of the Society of Environmental Toxicology and Chemistry’s Integrated Environmental Assessment and Management journal.
In understanding context about potential toxicity, a product design may include biocides that are needed for controlling microorganisms or titanium dioxide, which is “in everything white such as paper, golf balls and paint,” Kingsbury said. Without this kind of consideration, the selection of an alternative chemical “can be worse.”
In a generalization, Kingsbury pointed out, “A sustainability über tool does not exist yet.”
The American Chemistry Council’s value chain outreach committee and San Francisco-based ChemRisk LLC, a unit of environmental services firm Cardno Ltd., funded the evaluation. Cardno of Brisbane, Australia, acquired ChemRisk in 2012.
Another workshop presenter, Ann Mason, senior director of the Washington-based ACC’s chemical products and technology division, agreed that not all tools are created equal and that an analysis must match the tool to relevant questions about a product’s end use.
Mason noted two ACC pilot projects now in process. One involves a screening comparison of seven chemical hazards. “The outcome depends on the tools used in the screening process,” she said. “Some tools are not transparent.”
The second project relates to a comparative analysis of life-style exposure tools in conjunction with the independent non–profit National Academy of Sciences.
To make a point, Mason displayed the list of a product’s chemical composition and drew several concerns about the acceptability of a couple of environmentally-suspect chemicals. After audience input, Mason disclosed that the product was blueberries and that the chemicals in minute quantities performed critical safety roles.
Rather than the chemical itself, Mason pointed to the dosage and method of application as key steps in whether a product becomes poisonous.
Mason has more than 40 years of experience in regulatory and legislative issues and value chain initiatives.
Government regulations, retailer policies and stakeholder pressures are drivers for increased sustainability focus, said workshop participant Tim Greiner, managing director of consultancy Pure Strategies Inc. of Gloucester, Mass.
Greiner observed that cleaning supplies maker S.C. Johnson & Son of Racine, Wis., created its own Greenlist-brand tool to identify better solutions and that data storage firm Seagate Technology plc of Cupertino, Calif., can respond to environmental inquiries in two days now versus weeks after requiring full material disclosures from its suppliers.
“It is critical that vendors pass on information,” Greiner said.
He noted that not all software tools include all capabilities. A Pure Strategies review of 11 vendors’ sustainable chemicals management software programs worked through screening of restricted-substances inventories, hazard and exposure assessments and identification of alternatives.
Greiner suggested the need for product design involvement at early stages to avoid what he called “some regrettable substitutions” in products.
Greiner has experience as a material science engineer, was formerly in the semiconductor industry and co-founded Pure Strategies in 1998.
-
Jun 11, 2015 | Auburn Citizen
By Robert Harding
A collection of national and state-level business groups are throwing their support behind federal legislation to modernize the Toxic Substances Control Act.
The coalition, known as New York Businesses United for Product Safety, are urging Gov. Andrew Cuomo and state legislative leaders to support the TSCA Modernization Act, which aims to update standards for regulating chemicals.
The bill has bipartisan support. U.S. Rep. Paul Tonko, an Albany-area Democrat who served as a state assemblyman and president of the New York State Energy Research and Development Authority, is supporting the legislation.
New York Businesses United for Product Safety view the bill as an appropriate measure, especially as state legislators push a bill, the Child Safe Products Act, which would increase state regulation of chemicals in children's products.
Several groups, including the American Chemistry Council and the Business Council of New York State, oppose the Child Safe Products Act.
"We believe that chemical regulation should continue to be handled by the federal government," the coalition said in a joint statement. "(The Child Safe Products Act) would not protect children and would only succeed in hurting businesses across New York that employ thousands of New Yorkers.
"A much needed update to federal chemical regulations would give all New Yorkers and all Americans increased confidence in the products they buy and use every day."
The Child Safe Products Act is supported by prominent environmental groups, including Environmental Advocates of New York and the Sierra Club.
While the legislation has been approved by the Assembly, it hasn't been brought to the floor for a vote in the Senate. Environmental groups say there is a clear path to passage in the Senate, with nearly 40 senators signing on as cosponsors of the bill.
But the chairman of the Senate Environmental Conservation Committee, state Sen. Tom O'Mara, has said he won't hold a vote on the Child Safe Products Act. He believes the legislation is too broad and hopes to develop a compromise measure that would address concerns raised by industry groups.
Any action on the Child Safe Products Act or a compromise bill must be taken by Wednesday — the final day of the 2015 legislative session.
If the Senate doesn't vote on the bill, it must be reintroduced for consideration in 2016.
-
California Group Threatens Proposition 65 Action for Discharges of Oil Wastewater
Jun 12, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
An Oakland, Calif.-based environmental group is threatening to file the first-ever Proposition 65 lawsuit for disposal of oil and gas production wastewater because it contains toxic chemicals that exceed safety standards.
The Center for Environmental Health said June 11 it would sue Houston-based Seneca Resources Corp. for allegedly violating the law unless the company ceases discharging wastewater from its hydraulic fracturing activities. The wastewater allegedly contains levels of naphthalene, benzene and ethylbenzene that exceed Proposition 65 safety standards into injection wells near a potential source of drinking water.
All three chemicals are listed under Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, as causing cancer and/or reproductive harm.
Seneca Resources Corp. is a subsidiary of Natural Fuel Gas Co. that has operations near Lost Hills in Kern County, Calif. The company has 60 days to respond to the notice.
The group's allegations are based on information the state gathers from companies on oil and gas well stimulation activities that is required under legislation enacted in 2013. The law, S.B. 4, requires companies to disclose the chemicals in produced water from their drilling operations and explain how they dispose of the wastewater.
In its June 10 notice of violation, the center alleged Seneca's Proposition 65 violations have been ongoing since at least June 2012.
State documents show that at least two of Seneca's fracking wells produce large amounts of toxic wastewater. The produced water is discharged into four injection wells at their Tisdale Disposal facility, the group said.
High Levels of Contaminants Cited
Levels of benzene in the two fracking wells were 2,000 times the state's safety level, the group said. The reported data showed naphthalene levels at 181 times the safety standard and ethylbenzene at 20 times the safety level.
Last summer, the state's Division of Oil, Gas and Geothermal Resources acknowledged it had allowed some oil companies to inject wastewater into wells connected to aquifers that could potentially be used for drinking water supplies. Seneca's four injection wells at issue here are on that list.
“Toxic wastewater from fracking must not be allowed to contaminate our precious drinking water supplies,” CEH Executive Director Michael Green said.
The warning notice involves the “discharge prohibition” under Proposition 65, Peter Hsiao, an attorney at Morrison and Foerster LP in Los Angeles, told Bloomberg BNA June 11.
Most Proposition 65 actions involve provisions of the law requiring warnings whenever exposing consumers to listed chemicals.
One thing to consider in this action, he said, is that a provision of Proposition 65 (Health and Safety Code Section 25249.9) exempts discharges that take place under a valid permit and that are in conformity with all other laws.
-
Scientists Sought for New Committee To Advise EPA Office on Risk, Other Issues
Jun 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency is seeking nominations of toxicologists, epidemiologists, biostatisticians, synthetic biologists and other scientists for a new committee that will advise the agency's Office of Pollution Prevention and Toxics (OPPT), which regulates chemicals.
Nominations are due July 13, the agency said in a prepublication Federal Register notice scheduled for publication June 12.
The new Chemical Safety Advisory Committee's purpose is to provide scientific advice, information and recommendations to OPPT especially regarding the scientific basis for risk assessments, methodologies used to evaluate chemicals and pollution prevention measures or approaches, the notice said.
“The new advisory committee offers a timely and excellent opportunity to provide input on critically important topics at the core of OPPT's mission,” Lynn Bergeson, managing partner of Bergeson & Campbell P.C., told Bloomberg BNA in an e-mail. Her law firm specializes in chemical regulation and policy.
“Since the demise of the last advisory committee, OPPT has not had the benefit of much needed independent input on critically important issues,” she said.
Bergeson referred to OPPT's National Pollution Prevention and Toxics Advisory Committee (NPPTAC), which the agency dissolved in 2007 following the resignation of three environmental advocates (195 DEN A-8, 10/10/06).
Unlike NPPTAC, the new Chemical Safety Advisory Committee will consist of members selected for their expertise in scientific and technical fields relevant to chemical risk assessment and pollution prevention.
Areas of Expertise Being Sought
The agency is seeking nominations of experts in toxicology, pathology, environmental toxicology and chemistry, exposure assessment and related sciences, such as synthetic biology, pharmacology, biotechnology, nanotechnology, biochemistry, computational toxicology, epidemiology and other scientific disciplines.
NPPTAC consisted of individuals selected to represent a variety of interests, including the divergent perspectives of industries, nongovernmental organizations, states and tribes, academia and other institutions.
Instead of scientific and technical advice, the NPPTAC was designed to offer advice on OPPT's policies and programs.
-
UNEP Report Calls For Phase-Out Of Microbeads
Jun 11, 2015 | Chemical Watch
A UN Environment Programme (Unep) report recommends an eventual phase-out and ban on microplastics in personal care products and cosmetics.
Released on World Oceans Day, the report – Plastics in Cosmetics – is a compilation of current knowledge of the connection between cosmetics and marine plastics pollution.
A proposal for legislation banning or phasing out microplastics has already begun in the US, with a House panel passing a bill that would ban the sale or distribution of such products containing them from 1 January 2018 (CW 18 May 2015). The states of Illinois, California and New York are also pursuing measures.
An Australian cosmetics body has also pledged to phase them out by 2017 (CW 21 November 2014).
Microbeads and other plastic ingredients are present in products ranging from toothpaste and shower gel to eye shadows and nail polish.
-
(ACC Mentioned) Groups Decry Lack Of Regulatory Follow-Up To Obama's 2013 Order
Jun 11, 2015 | E&E News PM
By Sam Pearson
The administration is missing an opportunity to protect workers and communities near chemical facilities from safety lapses as the clock ticks down on President Obama's days in office, an advocacy group warned today.
Despite Obama's 2013 executive order calling for agencies to work together to improve safety at chemical plants in 2013, there are still no concrete proposals for change, the Coalition to Prevent Chemical Disasters said.
The group noted that 13 years ago today, former EPA Administrator Christine Todd Whitman planned to propose placing new safety requirements on chemical facilities in response to the risk of terrorist attack. But the George W. Bush White House subsequently blocked Whitman's initiative.
The former EPA administrator has continued to advocate for the regulations in the years since she left office.
Under the most recent Regulatory Agenda, EPA plans to issue a proposed rule to update its risk management program, which requires industrial facilities using specified chemicals at high levels to account for the risks of an accidental release by September. But advocates warn that last-minute rulemaking may be too late to remain in place after Obama's term if a new president decides to roll it back or Congress blocks it using the Congressional Review Act.
While the Obama administration has pushed back against a hostile Congress on issues like climate change and water protection, many chemical safety advocates lament the White House has so far not taken the same approach to chemical security. Rather, officials have largely focused on outreach to industry and coordination among federal agencies, rather than changes that could impose new responsibilities on plant operators.
Industry groups like the American Chemistry Council and the Society of Chemical Manufacturers and Affiliates contend these policies are more effective than new government mandates, which would be burdensome to businesses and aren't guaranteed to work.
Concepts such as requiring chemical facilities to use inherently safer processes are "a component of the process safety engineering operations reviews already conducted by ACC member companies," Karen Haase, the trade group's senior director of safety, told the U.S. Chemical Safety Board this week.
Ultimately, Americans need to not tolerate safety incidents at chemical facilities in the same way that nuclear plant mishaps and airline safety problems are considered unacceptable, said Kim Nibarger, a health and safety specialist at United Steelworkers.
Until then, Nibarger said, "we're going to continue to see workers killed and communities polluted."
-
Hackers Target Big Oil, Equipment; Seek Political Gain, Snoop Confidential Data
Jun 12, 2015 | BNA Daily Environment Report
By Isaac Arnsdorf
Hackers have made the energy industry a favorite target.
A study conducted in April by Symantec Corp., the world's biggest cybersecurity firm, found that computer-system invaders attacked 43 percent of global mining, oil and gas companies at least once last year. In a separate survey the same month, conducted for the Organization of American States by another security company, Trend Micro Inc., 47 percent of energy organizations reported attacks, the highest among all corporate sectors and surpassed only by governments.
“Nowadays you have computers running everything,” said Alvaro Cardenas, a computer science professor at the University of Texas at Dallas and a member of the Cyber Security Research and Education Institute. “You can create blackouts or oil spills and hurt a lot of people.”
As if last year's oil-price drop wasn't enough, costs for energy companies rose faster than the U.S. average during the past five years, according to a study by the Ponemon Institute for Hewlett-Packard Co. Cybercrimes cost energy and utilities companies an average of $13.2 million annually in lost business and damaged equipment, higher than in any other industry, according to Ponemon's survey of 257 businesses.
Spending worldwide on cybersecurity for oil and gas infrastructure will reach $1.9 billion by 2018, according to ABI Research, a technology data company with offices worldwide.
Operation Petrol
Like all big enterprises, energy companies want to protect sensitive data. But they have another dimension to worry about—the potential for hackers to cause physical damage to equipment such as drilling rigs or power stations. While the industry has long prioritized physical security, with electric fences and cameras typically standing guard at refineries and power plants, cyberdefenses are only recently getting similar attention.
Last year's attacks on the energy sector included Anonymous hackers’ Operation Petrol and the Sandworm attack by Russian hackers trying to infiltrate North American utilities in order to control them at a later date. In 2012, Saudi Arabian Oil Co., the world's largest crude exporter, said it suffered an attack that affected 30,000 computers.
Energy companies face all the usual threats from hackers who want to make a political point or snoop on confidential data to get an investing edge, according to Tom Kellerman, chief cybersecurity officer of Trend Micro, a Tokyo-based software provider. But their strategic and economic importance also makes them a target.
Unlikely Source
The vulnerability of U.S. companies has an unlikely source. After the 2003 East Coast blackout, power companies connected infrastructure to the Internet to make it more reliable, according to Kellerman.
Weaknesses in this strategy could multiply as technology companies market Web-connected home appliances, sometimes called the “Internet of things,” he said. Depending on how these devices are secured, they actually could create more openings for hackers to enter networks.
“It's a double-edged sword,” Kellerman said. “Currently, the energy sector is woefully unprepared for protecting itself from cyberattacks.”
Susceptibility is also a problem overseas. The Kuwait National Petroleum Co. disconnected the computer network that runs its three refineries from the Internet after hackers with the Anonymous collective announced plans last year to target Middle Eastern oil companies, according to Abdul-Aziz Duaij, the company's top technology officer. The network wasn't compromised, he said.
Needs Permission
The KNPC uses software that prevents anyone from installing any program without permission to make it tougher for hackers, Duaij said. “We consider everybody a threat, even insiders,” he said.
In early June, U.S. officials revealed that hackers breached U.S. Office of Personnel Management computers, stealing the confidential records of as many as 4 million current and former government employees.
While sources of attacks can be difficult to identify, U.S. companies such as Mountain View, California–based Symantec point to activity coming from Russia, China, North Korea and Iran. Documents made public by U.S. National Security Agency contractor Edward Snowden suggested the NSA spied on Petroleo Brasileiro SA, Brazil's state-run oil-company, according to a report by Globo TV.
Monitoring Networks
U.S. Director of National Intelligence James R. Clapper acknowledged that the country does gather information on “economic and financial matters” but doesn't steal trade secrets and share them with U.S. companies.
Companies can protect themselves by monitoring network traffic for unusual activity and training employees to recognize suspicious e-mails. Still, no matter how secure a company makes its technology, state-sponsored hackers almost always gain access by manipulating people, said Antonio Forzieri, a Symantec strategist.
“I'd love to have a patch to deploy to the humans, but you can't do that,” he said. “These attacks are not science fiction, they are every day.”
-
House Panel OKs Bill Authorizing Interior To Determine Gas Pipeline Corridors in Parks
Jun 12, 2015 | BNA Daily Environment Report
By Alan Kovski
The Interior Department would be authorized to designate corridors across national parks for natural gas pipeline routes under a bill approved June 11 by the House Natural Resources Committee.
The vote on the National Energy Security Corridors Act (H.R. 2295) was 21–15, mostly along party lines.
Introduced by Rep. Tom MacArthur (R-N.J.), the bill especially would allow for quicker development of gas pipelines in the Eastern U.S., where a minimum of 10 corridors would be required.
Interior now must receive congressional approval for gas pipelines across parks but not across other federal lands.
The bill would not require National Environmental Policy Act analyses for the corridors but would leave NEPA requirements in place for individual pipeline proposals, an approach that did not sit well with Democrats, who opposed the basic elements of the bill.
Existing System Defended
Democrats said they would rather retain the requirement that Congress approve pipelines across national parks, and they wanted NEPA requirements to be applied to corridor designations.
Rep. Don Beyer (R-Va.) argued that the existing approach has worked effectively. He cited the example of dozens of pipelines crossing the Appalachian Trail in the Eastern U.S.
Republicans and industry representatives have argued that the existing approach is too slow, adding possibly a year to project approvals that could take two years.
The Interstate Natural Gas Association of America issued a June 11 statement praising MacArthur and Rep. Rob Bishop (R-Utah), chairman of the House Natural Resources Committee, for moving the bill forward.
INGAA noted that Interior has the authority to grant right-of-way permits for electric power lines, water pipelines and telecommunications facilities crossing national parks. Gas pipelines should be treated like other infrastructure, the group said. 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;}
-
Appeals Court Rejects Challenge To Shell Oil Spill Clean-Up Plans
Jun 11, 2015 | The Hill - E2 Wire
By Devin Henry
A federal appeals court has upheld the Interior Department's approval of a Royal Dutch Shell oil spill clean-up strategy for the company's planned Arctic drilling operations.
Environmental groups had sued the Interior Department's Bureau of Safety and Environmental Enforcement (BSEE) over its decision to sign off on Shell's oil spill response plans. But the 9th Circuit Court of Appeals ruled Thursday that the bureau acted lawfully when it approved the proposal, Reuters reports. Shell's plans deal with drilling leases in Alaska's Beaufort and Chukchi seas granted in 2005, 2007 and 2008. Green groups said the BSEE erred when it approved the oil spill plans in 2012 by accepting Shell claims it would be able to recover at least 90 percent of the oil that could leak out during a potential spill there.
Two appeals court judges disagreed, saying the agency couldn't reject the spill recovery plan because Shell had followed environmental laws. The decision upheld a 2013 ruling in favor of the BSEE.
A third judge dissented and said the BSEE should have ensured the company was complying with endangered species laws before approving the plan.
In April, the Obama administration gave Shell the go-ahead to drill for oil and gas in the Arctic Ocean, something the company hopes to do this summer. Green groups have slammed the decision, arguing an oil spill in the Arctic would be exceedingly difficult to clean up.
-
Cardin Introduces Proposed Drilling Restrictions
Jun 12, 2015 | E&E Daily News
By Mike Soraghan
Sen. Ben Cardin (D-Md.) introduced a bill yesterday to more strictly regulate oil and gas operations under the Clean Water Act.
"Oil and gas companies that already enjoy tax breaks should be required to follow the same laws to protect our water and public health as other industries," Cardin said in a news release.
The bill he introduced has been dubbed the "Focused Reduction of Effluence and Stormwater Runoff Through Hydrofracking Environmental Regulation Act" (FRESHER Act). It would increase regulation of drilling under the Clean Water Act, including provisions on stormwater runoff.
Maryland recently imposed a two-year moratorium on shale drilling (EnergyWire, June 1).
-
Shell's Alaska Arctic Spill Response Plan Wins Court Approval
Jun 11, 2015 | Reuters
By Jonathan Stempel
A divided federal appeals court on Thursday rejected an effort by a coalition of environmental groups to revoke federal approval of Royal Dutch Shell Plc's oil spill response plans related to drilling on Alaska's remote Arctic coast.
By a 2-1 vote, the 9th U.S. Circuit Court of Appeals said the Bureau of Safety and Environmental Enforcement, which is part of the Department of the Interior, acted lawfully in approving the plans, which relate to Shell oil leases in the Beaufort and Chukchi seas from 2005, 2007 and 2008.
It rejected arguments by environmental groups such as the National Audobon Society, the Natural Resources Defense Council and the Sierra Club, that the approval was "arbitrary" and "capricious," based on Shell's unsupported assumption that it could recover 90 percent to 95 percent of any oil spilled. ADVERTISING
Many environmental advocates oppose drilling in the Arctic on concern that any spill might prove difficult to clean up.
Shell hopes to resume Arctic fossil fuel exploration as soon as next month, having put it on hold following a mishap-laden 2012 drilling season.
The company, with offices in London and the Hague, won federal approval in early 2012 for its spill plans, which it updated after the April 2010 explosion of the Deepwater Horizon rig in the Gulf of Mexico. That disaster has cost rival BP Plc tens of billions of dollars.
Writing for the 9th Circuit majority, Circuit Judge Jacqueline Nguyen said the BSEE lacked discretion to reject Shell's plans because they complied with federal oil pollution laws.
She also said Shell never made, and the BSEE did not rely on, an assumption about the company's ability to clean up oil.
Circuit Judge Dorothy Nelson dissented, faulting the BSEE's failure to consult with environmental agencies to ensure Shell complied with laws protecting endangered species and habitats.
Thursday's decision upheld an August 2013 ruling by Chief Judge Ralph Beistline of the federal court in Anchorage.
Holly Harris, a lawyer for Earthjustice representing the environmental groups, said the "troubling" decision "puts the Arctic Ocean at risk from Shell's drilling." She urged the government to reject Shell's drilling plans.
Shell spokesman Curtis Smith called the decision "welcome news," adding: "We look forward to receiving the remaining permits necessary to commence exploration activities offshore Alaska in the weeks to come."
The U.S. Department of Justice, which defended the BSEE approval, did not respond to a request for comment.
The case is Alaska Wilderness League et al v. Jewell et al, 9th U.S. Circuit Court of Appeals, No. 13-35866.
-
Upcoming Standards for Oil, Gas Wells Unnecessary, Republicans Tell Obama
Jun 12, 2015 | BNA Daily Environment Report
By Andrew Childers
A pending Environmental Protection Agency proposal to regulate methane emissions from oil and natural gas wells is unnecessary and misguided, top Senate Republicans said in a June 11 letter to President Barack Obama.
Rather than new regulations, the EPA should assess the emissions reductions already being achieved by the industry through voluntary measures and existing standards, the Republicans, led by Sens. Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, and Lisa Murkowski (R-Alaska), chairman of the Energy and Natural Resources Committee, said in the letter, which seeks new details about the agency's upcoming regulations.
“Simply stated, the evidence is clear that these mandatory reductions are unnecessary and will be less effective than a voluntary, cooperative effort,” the senators said. “Greater federal regulatory burdens will complicate ongoing state efforts to reduce emissions, slow domestic energy production and, in this instance, possibly trigger even costlier and more far-reaching rules on the sector.”
The EPA is expected to propose in August a rule to set methane and volatile organic compound emissions standards for new and modified oil and natural gas wells as part of a methane strategy announced in January (10 DEN A-1, 1/15/15).
However, the senators said the industry is already working toward compliance with similar performance standards for hazardous air pollutants and volatile organic compounds that the EPA issued in 2012. Though those standards didn't directly regulate methane emissions, they were expected to produce significant reductions in the pollutant.
“It is therefore practically sensible to assess the results of these rulemakings, as well as ongoing voluntary and state regulatory efforts, before embarking on another series of federal mandates that could prove detrimental to job creation, energy security and environmental progress,” the senators said.
Rule Details Sought
The Republicans asked the administration to elaborate on its plans to regulate methane emissions from oil and natural gas wells.
The EPA has said it will issue performance standards for new and modified wells under Section 111(b) of the Clean Air Act. Doing so would trigger a Clean Air Act requirement that the EPA issue similar standards under Section 111(d) for existing wells.
The EPA hasn't said how it would regulate existing wells, and the Senate Republicans asked the administration for how it plans to regulate those sources or its legal reasoning for why it believes that would not be necessary.
Additionally, the senators asked about any voluntary programs the EPA might pursue as part of the upcoming standards, whether it has begun reviewing available control technologies before proposing its standards and whether the agency has conducted any outreach to states in advance of proposing the rule.
The letter was also signed by Sens. David Vitter (R-La.), John Barrasso (R-Wyo.), Jeff Sessions (R-Ala.), Shelley Moore Capito (R-W.Va.), and Roger Wicker (R-Miss.).
-
Injection of Oil, Gas Wastewater Primary Cause of Induced Earthquakes, USGS Say
Jun 12, 2015 | BNA Daily Environment Report
By Tripp Baltz
The disposal of oil and gas wastewater by injecting it underground is the primary cause of the increased number of earthquakes in the U.S., according to scientists with the U.S. Geological Survey.
Multiple damaging earthquakes have occurred with the dramatic increase in seismicity in the central and eastern U.S. over the past six years. Earthquakes of greater than 3.0 in magnitude have risen from an average of 24 from 1973-2008 to an average of 193 quakes in 2009-2014, contemporaneous with a boom in oil and gas activity, the June 10 report said.
While hydraulic fracturing, the high-pressure injection of water, sand and chemicals deep underground to stimulate production of natural gas and oil, has often been implicated as the cause of the quakes, the technique is really only responsible for a small percentage of the induced seismicity observed, USGS said. The report was published in the July/August issue of Seismological Research Letters.
The goal of the report, the USGS said, was to dispel confusion about methods of fluid injection used by the oil and gas industry. It also explained how injection can cause earthquakes and discusses the possibility of mitigating the hazard.
Most injection operations don't cause earthquakes, the report said. There are about 35,000 active wastewater injection wells, 80,000 active enhanced oil-recovery wells, and tens of thousands of fracked wells in the U.S. Only a few dozen are known to have induced earthquakes that can be felt by people, the survey said.
Several factors are necessary for injection to induce a “felt” earthquake. These include faults that are large enough to produce such quakes, stresses that are large enough to produce quakes, the presence of fluid pathways from the injection point to faults and fluid pressures large enough to induce quakes, the USGS said.
Not All Wastewater Seen From Fracking
Although oil and gas production has increased because of the widespread use of fracking in conjunction with horizontal drilling, the practice isn't responsible for all the wastewater that the industry generates, Justin L. Rubinstein, research geophysicist with the USGS in Menlo Park, Calif., and one of the authors of the article, told Bloomberg BNA June 11.
Induced seismicity has been observed in purely conventional drilling fields where fracking isn't being used, he said. In Oklahoma, where a number of induced quakes have been felt, no more than 10 percent of the wastewater injected into wells is frack water, he said.
However, the vast majority of the fluid that is disposed of in wells is produced water, the salty brine from ancient oceans that was trapped in rock when sediments were deposited. When oil and gas is extracted, produced water comes up with it.
The oil and gas boom has increased the volume of wastewater injected into deep wells, as well as the area over which wastewater is injected, Stephen Horton, research scientist and professor at the Center for Earthquake Research and Information at the University of Memphis, told Bloomberg BNA June 11.
-
U.S., Canada Scientists Call for Moratorium On New Development in Alberta Oil Sands
Jun 12, 2015 | BNA Daily Environment Report
By Jeremy Hainsworth
More than 100 Canadian and American scientists are requesting a moratorium on further development of Alberta's oil sands, calling continued expansion “incompatible” with global efforts to fight climate change.
In a June 10 letter proclaiming a “unified voice,” the group said: “No new oil sands or related infrastructure projects should proceed unless consistent with an implemented plan to rapidly reduce carbon pollution, safeguard biodiversity, protect human health, and respect [aboriginal] treaty rights.”
Choices made about the oil sands would “reverberate globally, as other countries decide whether or how to develop their own large unconventional oil deposits,” they said.
The 103 scientists—including 12 fellows of the Royal Society of Canada, 22 members of the U.S. National Academies, five recipients of the Order of Canada and a Nobel Prize winner—said continued expansion of oil sands and similar unconventional fuels in Canada and elsewhere is “incompatible with limiting climate warming to a level that society can handle without widespread harm.”
They also said most people who live in Canada, the U.S. and elsewhere in North America want their leaders to address climate change and contend that those residents would be willing to pay more for energy to help make that happen. “We believe they should be at the center of the public debate about further development of the oil sands, a carbon-intensive source of nonrenewable energy,” the statement said.
Most of Canada's oil is produced in Alberta's oil sands region, estimated to contain 1.84 trillion barrels of crude bitumen, according to Alberta Energy, a provincial government department.
Canada's Simon Fraser University energy economist Mark Jaccard, one of the statement's authors, told Bloomberg BNA that the scientists wanted a moratorium on future projects related to oil sands development and related pipelines, but were not calling for a halt to existing projects.
Greg Stringham, vice president for markets and oil sands at the Canadian Association of Petroleum Producers, said the association backs research to reduce emissions, but rejects calls for a moratorium on oil sands production.
Environment Canada has projected that by 2020 Alberta will be responsible for 40 percent of national greenhouse gas emissions, with much of it coming from oil sands expansion.
The Alberta-based Pembina Institute warned May 15 that Canada cannot meet its climate change commitments without addressing the oil sands sector.
-
MATS Decision Shouldn't Affect Legality Of Clean Power Plan, EPA Attorney Says
Jun 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The U.S. Supreme Court's upcoming ruling on the Environmental Protection Agency's mercury and air toxics standards “should not have much of an effect” on the legality of the agency's plan to regulate carbon emissions from existing power plants, an agency attorney said June 11.
Lorie Schmidt, associate general counsel for air and radiation at the EPA, said that because Section 111 of the Clean Air Act already instructs the agency to take cost into account when setting performance standards, the Supreme Court's decision on the MATS standards won't have broader implications for the proposed Clean Power Plan.
The court is reviewing whether the agency was required to consider cost in determining it was appropriate to regulate power plant emissions of mercury and other hazardous air pollutants. That determination ultimately led to the promulgation of the 2012 MATS rule, which is being challenged by states and industry groups.
Schmidt, speaking during a panel discussion hosted by the American Law Institute's Continuing Legal Education Group, also discounted a legal argument that the existence of the MATS standards bars the EPA from promulgating the Clean Power Plan (RIN 2060-AR33), but other attorneys on the panel said the Supreme Court's pending decision could affect that argument, depending on the remedy the court would provide petitioners.
Court Heard Arguments in March
The Supreme Court heard oral arguments in the litigation over the MATS rule in March and is expected to issue its opinion sometime in June (Michigan v. EPA, U.S., No. 14-46, oral arguments 3/25/15; 58 DEN A-1, 3/26/15).
Schmidt said the EPA views Michigan v. EPA as an “easy Step Two Chevron deference case” for the court to dispense with. That view is in line with a 2014 decision by the U.S. Court of Appeals for the District of Columbia Circuit, which upheld the MATS rule after concluding that the EPA decision to not consider cost was reasonable and the agency deserves deference (White Stallion Energy Ctr. LLC v. EPA, 748 F.3d 1222, 78 ERC 1757, 2014 BL 103957 (D.C. Cir. 2014)).
“They [Congress] know how to require cost considerations when they want us to,” Schmidt said.
Competing Amendments Discussed
Schmidt acknowledged that the Supreme Court's ruling on MATS could affect a legal argument that the EPA is precluded from regulating carbon emissions from power plants under Section 111(d) of the Clean Air Act because the agency already regulates hazardous air pollutant emissions under Section 112.
The argument is based on conflicting amendments to Section 111(d). The Senate amendment would prevent the EPA from regulating pollutants under Section 111(d) if the pollutants are already subject to hazardous air pollutant standards, while the House amendment can be read as barring the agency from regulating sources of pollution under Section 111(d) if they are subject to Section 112 standards.
“Our view is those arguments don't have merit,” Schmidt said.
However, Thomas Lorenzen, a partner at Dorsey & Whitney LLP, identified the conflicting amendments as one of several live legal issues with the proposed Clean Power Plan.
That legal challenge might have played out in litigation against the proposed version of the Clean Power Plan, Lorenzen said. However, the D.C. Circuit dismissed challenges to the proposed rule without reaching the merits of the lawsuits (In re: Murray Energy Corp., D.C. Cir., No. 14-1112, 6/9/15; West Virginia v. EPA, D.C. Cir., No. 14-1146, 6/9/15; 111 DEN A-1, 6/10/15).
Supreme Court's Ruling
With respect to the Clean Power Plan, if the Supreme Court rules against the EPA in Michigan v. EPA, the issue of the remedy provided by the court will be “paramount,” Lorenzen said. If the court vacates the MATS rule, there would no longer be a Section 112 standard in existence, and the argument raised by Murray Energy against the proposed Clean Power Plan could go away, Lorenzen said.
However, if the Supreme Court remands the rule back to the EPA without vacating the standards, that would pose a “much more tricky question” on whether there is a valid Section 112 rule in place, Lorenzen said.
Lisa Heinzerling, the Justice William J. Brennan Jr. Professor of Law at the Georgetown University Law Center, agreed that such a decision would raise a complicated legal issue.
Heinzerling and Lorenzen both predicted that if the Supreme Court were to remand the MATS rule but leave it in place, the issue of whether it is a valid Section 112 rule that precludes the EPA from issuing Section 111(d) performance standards would be litigated once the Clean Power Plan is final.
The EPA is expected to issue its final Clean Power Plan rule sometime in August.
-
Republicans Could Block All EPA Nominees Until McCarthy Answers Questions on Rules
Jun 12, 2015 | BNA Daily Environment Report
By Anthony Adragna
Senate Republicans aren't receiving prompt replies to their requests for information from Environmental Protection Agency Administrator Gina McCarthy and are considering blocking all pending agency nominations until they receive adequate answers.
Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, appeared open during a hearing on three EPA nominees to a suggestion from Sen. Dan Sullivan (R-Alaska) to halt any confirmations until McCarthy responds to questions about controversial rulemakings like the waters of the U.S. rule and carbon pollution standards for the nation's power plants.
“What other leverage do we have?” Inhofe asked in response to Sullivan's suggestion.
At issue during the hearing were the nominations of Ann Dunkin to be assistant administrator of environmental information, Jane Nishida to be assistant administrator for international and tribal affairs and Thomas Burke to be assistant administrator for research and development. No votes were held.
Nominees Qualifications Acknowledged
None of the senators—Republicans or Democrats—questioned the qualifications of the nominees, and Inhofe again said President Barack Obama generally deserves to have his own team in place.
But they said the lack of responsiveness by the EPA might mean some nominations get caught up in the dispute between the agency and Congress.
“These candidates may be qualified, they're certainly motivated to serve their country, but until we actually get answers from the head of the EPA, who stonewalls this committee and this Congress, we're not going to move forward on any nominations,” Sullivan said, asking the witnesses if they thought such a hypothetical approach was appropriate.
“In some ways you're a bit in the crossfire of what I think is a really, really important issue that your boss seems to ignore,” Sullivan, chairman of the Fisheries, Water and Wildlife Subcommittee, said. “And that's not acceptable.”
Hearing Sending Message to Agency
Mike Anderson, a spokesman for Sullivan, later told Bloomberg BNA the Alaska Republican believes the nominees would receive votes in the coming weeks but said the EPA should be on alert.
“Today's hearing should send the message to the EPA that the committee is interested in fulfilling its oversight duties one way or the other,” Anderson said. “Transparency is a critical component to the work of any federal agency, and the EPA should not be exempt.”
The EPA said in a statement to Bloomberg BNA that it “works diligently to address questions from members of Congress” and “will continue to provide responses to inquiries, including those raised” at the hearing. It didn't address whether it would be appropriate for Congress to delay all nominations.
Boxer Slams Delays
Sen. Barbara Boxer (D-Calif.), the committee's ranking member, slammed Republicans for holding up the nominations of “independent voices and thinkers” like Burke, Nishida and Dunkin.
“I have not seen three people who were more overly qualified for the job for which they have been nominated,” Boxer said. “I don't know who would be better, and I just want to thank you—from the bottom of my heart—for putting up with all of this.”
All three have been nominated previously by President Barack Obama for slots at the agency but never had the Senate act on their nominations. They all currently serve in acting capacities at the EPA while awaiting confirmation to permanent positions.
Obama renominated Nishida and Dunkin in February and sent Burke's nomination to the Senate in March.
Dunkin previously said during a radio interview that lengthy delays in the confirmation process made it harder for agencies to attract talented candidates (39 DEN A-8, 2/27/15).
Republicans Blame Administration
Republicans said at least part of the fault for the lengthy delays in considering nominations lies with the Obama administration.
Though all three of the nominees at the June 11 hearing were renominated several months ago, the EPA only transmitted the necessary paperwork May 27, Inhofe said.
Congress has yet to receive the required paperwork to move forward with the nomination of Stanley Meiburg, nominated to be deputy administrator, despite the fact Obama formally selected him in January (15 DEN A-19, 1/23/15).
“This committee intends to be fair and thorough in reviewing EPA nominees,” Inhofe said.
-
Decision on FERC Demand-Response Program Likely by Early 2016, LaFleur Says
Jun 12, 2015 | BNA Daily Environment Report
By Rebecca Kern
The Federal Energy Regulatory Commission demand-response case before the U.S. Supreme Court will likely be decided in early 2016, FERC Commissioner Cheryl LaFleur said.
The briefings for the case will be filed by September, and the Supreme Court will likely hear the case this fall, LaFleur said during the June 11 Energy Efficiency Forum in Washington.
In the meantime, the program for paying large energy users for reducing power usage during peak times, known as Order 745, is “going forward” as planned, she said.
The Supreme Court will decide whether FERC has authority to run a demand-response compensation program in the wholesale electricity markets. The program aims to reduce electricity demand during peak periods by paying industrial and large business customers for reducing energy use in dollar amounts comparable to actual electricity generation (FERC v. Elec. Power Supply Ass'n, U.S., No. 14-840, cert. granted, 5/4/15; 86 DEN A-15, 5/5/15).
Last December, the U.S. Court of Appeals for the District of Columbia Circuit granted FERC's request for a stay on the appeal court's May decision vacating the Order 745 program, so that it could continue to operate, LaFleur said (242 DEN A-14, 12/17/14).
-
Inhofe: Climate Change Fight Really About Global Control
Jun 11, 2015 | The Hill - E2 Wire
By Timothy Cama
Sen. James Inhofe (R-Okla.) told a conference of global warming skeptics Thursday that the fight against climate change is really about global control with little accountability.
Inhofe, chairman of the Environment and Public Works Committee and an outspoken climate skeptic, said he agreed with former French President Jacques Chirac’s statement that global warming “is the first component of authentic global governance.”“The United Nations is the reason that this all came along. We all know that,” Inhofe told attendees at a conference organized by the Heartland Institute, the top climate skeptic think tank.
“They want independence. They don’t want to be accountable to anybody, to the United States or any other country,” he said, explaining that global climate change policies would give the United Nations its own funding source and make it unaccountable to its member countries.
Inhofe said that the U.N.’s 1997 Kyoto Protocol is “about leveling the playing field for big business worldwide,” and if bureaucrats control carbon emissions, “you control life.”
The Heartland Institute, along with the Heritage Foundation, gave Inhofe the Political Leadership on Climate Change Award for his work against environmental policies.
In presenting the award, Jim DeMint, a former Republican senator and now president of Heritage, said Inhofe “has championed an ethic of rational conversation and conservatism that we must preserve our environment for the sake of people, not hurt them by entertaining ill-conceived doomsday prophecies which are neither honest nor scientific.”
In his speech opening the annual convention and accepting the award, Inhofe praised the institute's members, saying they “are on the right side of the Lord on all of these things,” and God “will richly bless you for it.”
He gave the attendees handouts that he said would help them rebut many of the arguments for why climate change is real and caused by humans, a position that 97 percent of climate scientists agree on.
“These are old arguments that have been refuted over and over again,” he said, pointing specifically to arguments that ice in Antarctica is retreating and that the polar bear population is declining.
“There is a problem with polar bears right now: It’s overpopulation,” he said. “If you look at the alarmists, [they say] the polar bears are disappearing. Well, that’s not quite true.”
He specifically criticized the Obama administration’s policies, particularly the Environmental Protection Agency’s proposed carbon limits for power plants, and implied that EPA head Gina McCarthy is a liar and has no problem doing it.
Inhofe noted that leaders in 32 states oppose the rule
“Two states, including my state of Oklahoma, have formally announced their intent just to say ‘no,’ because what they’re trying to do is illegal. And despite this, the president is choosing to ignore the will of Congress,” he said.
Inhofe also made reference to the time in February that he threw a snowball on the Senate floor to rebut climate change models.
He’s been mocked repeatedly for the stunt by Democrats, including President Obama. But it’s also become an indicator of how he sees his role overseeing the federal government’s environmental policies.
“You can’t take these things too seriously,” he said of the snowball. “You’ve got to have fun in life.”
-
Groups Sharpen Legal Arguments After D.C. Circuit Rejects Early ESPS Suits
Jun 11, 2015 | InsideEPA
By Lee Logan & Dawn Reeves
Lawyers for the administration, environmental groups and industry associations are sharpening their legal arguments for the near-certain legal challenges over the EPA's final greenhouse gas (GHG) rule for existing power plants after a key appellate court rejected a series of early challenges to the proposed version of the rule.
Those challenges will likely center on what critics say is a chief vulnerability in the proposed existing source performance standards (ESPS) -- EPA's broad, “outside the fence line” approach in setting state GHG reduction targets -- though environmentalists are offering a detailed defense of the agency's target-setting method.
But sources also expect the rule to face a host of threshold and other issues, including the question the U.S. Court of Appeals for the District of Columbia Circuit sidestepped: whether the agency lacks underlying authority to regulate power plants' GHG emissions under Clean Air Act section 111(d) because the agency earlier regulated plants' mercury emissions under section 112.
A three-judge panel June 9 rejected as premature a series of challenges filed by states and industry groups seeking to block the proposed ESPS, finding in a per curiam judgment that the court lacks jurisdiction to review the proposal.
The three-judge panel was considering consolidated litigation brought by coal mining firm Murray Energy Corp., as well as a coalition of a dozen states led by West Virginia. The petitioners brought three separate cases -- In re: Murray Energy, Murray Energy, et al. v. EPA, et al., and West Virginia, et al. v. EPA, et al. -- to convince the court to find it has jurisdiction to review the proposal.
The underlying issues in all three cases are complicated because House and Senate amendments to section 111(d) were never reconciled in a conference committee before the 1990 air act amendments were signed into law. The Senate amendment would explicitly allow EPA's proposed rule by limiting section 111(d)'s "112 exclusion" to pollutants already regulated under that section.
The court's opinion did not address the merits of petitioners' argument, leaving that for the next round of litigation, where many observers expect the most immediate legal battle to focus on whether the D.C. Circuit should stay implementation of the ESPS as it reviews petitioners' arguments on the merits.
While the stay process would consider petitioners' “likelihood of success” on the merits, it would still not provide a substantive ruling on the merits, likely leaving that question open for years.
In the wake of the court's ruling, EPA suggested its final rule will withstand legal scrutiny and that officials would resolve at least some of the critics' concerns. “The Clean Power Plan is built on a time-tested state-federal partnership established by Congress decades ago in the Clean Air Act that gives states important flexibility to design plans that meet their individual and unique needs,” the agency said in a statement following the ruling. “EPA addressed the legal foundation for our actions when we issued the proposed rule in June and we will address all comments we’ve received on this issue in the final Clean Power Plan,” the statement adds.
New Litigation
The petitioners' argument in the just-decided suits will almost certainly be raised in litigation filed after the rule is finalized this August, though some observers say EPA could be more vulnerable on its proposal to base state GHG targets on a series of actions that can be taken beyond the “fence lines” of regulated power plants.
As proposed, the ESPS sets state-specific targets based on four “building blocks,” or compliance strategies: improved efficiency at coal plants, greater use of existing gas-fired generation, increased renewables and nuclear, and expanded energy efficiency programs.
Industry argues that EPA is limited only to building block 1, which involves changes to individual power plants, and that the remaining measures fall outside a plant's fence line and should not be used to set targets. If successful, the arguments would result in several key portions of the rule being rejected and state targets being significantly weakened.
EPA and environmentalists, however, say the agency can consider the entire electricity system as it crafts the “best system of emission reduction” (BSER) used to set targets under section 111(d).
A recent law journal article from Natural Resources Defense Council (NRDC) attorney David Baake provides a detailed defense of EPA's approach, saying the agency's proposal is reasonable because of the legislative history of the Clean Air Act and a previous rule that set targets based on activities beyond the regulated source.
“Of particular relevance here, EPA has a strong basis for considering credits for activities undertaken by third parties at off-site locations, including activities that prevent emissions by substituting low- or zero-emission output for high-emission output,” Baake writes.
In particular, he points to a House commerce committee's report on the 1977 amendments to the Clean Air Act, which said that EPA should consider “all of the processing steps performed on a material from its natural state through to final usage” when setting section 111 standards.
For example, when setting standards for oil desulfurization and denitrification at refineries, EPA should “give credit for accepted minemouth and other precombustion fuel treatment processes, whether they occur at, or are achieved by, the source or by another party.”
“Thus, Congress specifically contemplated that section 111 standards would reflect the availability of credits for off-site activities implemented by third parties,” Baake writes, noting that at that time the statute said BSER for new sources should be set using a “technological” system, narrower language than the current statute.
Baake adds that a subsequent 1979 sulfur dioxide section 111 rule for coal-fired power plants, which included a fuel pretreatment requirement, was upheld in the D.C. Circuit in a 1981 ruling in Sierra Club v. Costle, which said EPA had “adequately demonstrated the achievability” of the standard.
“This decision and the associated history indicate that section 111 standards may reflect the ability of regulated entities to obtain credits for off-site activities that prevent emissions from regulated sources,” Baake writes.
Recent Poll
A recent poll of 130 environmental attorneys and law professors about the legality of the ESPS underscores the importance of the “beyond the fence” issue. The poll, conducted by Foley & Lardner attorney Brian Potts and Vermont Law School student Abigail Barnes, found an almost perfect split among respondents on whether the proposal is legal.
Of the 56 people that said the plan is illegal, 75 percent cited the portions of state targets tied to renewables and energy efficiency, while only about half cited the same legal rationale in the early suit brought by states and Murray Energy.
“Given these results, building blocks 3 and 4 appear the most susceptible to attack, with building block 2 and the statutory section 111(d) challenge close behind,” Potts and Barnes write.
Further, only about 20 percent of those who believe the plan is illegal think it will be scrapped on constitutional grounds, showing the relative lack of support for arguments raised by law professor Laurence Tribe, who has given high-profile testimony to that effect in Congress and at the D.C. Circuit.
Potts and Barnes note that they did not receive as many responses from attorneys with environmental groups or government sectors as they did from the private sector, which “may have affected the outcome of our results.”
One industry lawyer says that the rule's survival, at least initially, will depend largely on the composition of the D.C. Circuit panel that hears the litigation. If the panel includes judges seen as more liberal -- such as Judges Cornelia Pillard or Judith Rogers -- it would be a “slam dunk for [the] Obama EPA.”
But if conservative-leaning Judges Brett Kavanaugh or Thomas Griffith are on the panel, “then building blocks outside the fenceline probably will be vacated.”
In that scenario, the attorney says EPA would likely win an en banc review in the D.C. Circuit because President Obama has appointed several recent members of the court. But, based on the Supreme Court's 2014 ruling limiting the scope of EPA's GHG permitting program and the “composition of the current court, [it] will quite likely throw out building blocks beyond the fenceline.”
Underscoring the importance of the fence line issues, Baake in a blog post summarizing his recent article says that while industry has raised several “colorful legal arguments” against the ESPS, “most observers expect the fate of the Plan to turn on a single issue: whether EPA may establish emission goals based on measures such as renewable energy and demand-side energy conservation that are implemented 'beyond the fenceline' of regulated power plants.”
Motions for a Stay
Regarding the instant suits brought by West Virginia and Murray Energy, a second industry attorney formerly with the Department of Justice says it is “doubtful” that the petitioners will seek Supreme Court review because that would not “advance the ball substantially unless they can convince the court quickly to take the case and issue affirmative relief essentially granting the writ. That seems a very high hurdle.”
The attorney adds that EPA is only a few months from issuing the final rule, which will give critics “ample opportunity” to file motions seeking to stay implementation of the rule.
“This was a worthwhile shot by petitioners to try and halt the rule in its tracks before it was finalized,” the source says. “But we are not far from finalization, and there will be stay motions in the D.C. Circuit, and there are some very credible arguments to be made” for why the rule should be stayed during judicial review.
As a legal matter, petitioners seeking to stay regulations are required to show that they are likely to succeed on the merits, that the regulation would impose “irreparable harm,” that other parties will not be harmed by a stay and that any stay is in the public interest. Courts balance the four factors when weighing a request for a stay.
Winning a stay on the ESPS appears to be facing mixed prospects, though many observers agree that if the court does not grant a stay, all parties will likely seek expedited consideration on the merits.
West Virginia Attorney General Patrick Morrisey (R) said in a June 9 statement that his office recognized there would be procedural challenges when it filed the case last summer, but “believed it was necessary to take all available action to stop this rule as soon as possible.” Morrisey adds that the office thinks it has a “compelling case” on the merits, and that the litigation “has further revealed the weakness of EPA's arguments on the issue.
-
EPA Creating Small Business Advisory Panel For CERCLA Finance Rules
Jun 11, 2015 | InsideEPA
By Suzanne Yohannan
EPA is seeking nominations from the small business community interested in serving on an advocacy panel that will provide input into the agency's development of a long-delayed proposed Superfund rule to establish financial responsibility requirements for hardrock mining facilities to ensure companies can pay for any subsequent cleanups.
The move comes as the agency is under significant pressure from a federal appellate court to expedite the financial assurance rule for the hardrock mining industry, after Congress more than 30 years ago required the agency to identify classes of facilities needing such rules. The U.S. Court of Appeals for the District of Columbia Circuit June 5 granted the United States a two-week extension, until June 23, to come up with a schedule, preferably jointly agreed to with environmental litigants, for issuing its financial assurance rules.
At the same time, lawmakers in the House are attempting to block any such rules, attaching a rider to an EPA appropriations bill this week that would block EPA from using any of its fiscal year 2016 appropriations on the financial assurance rules.
Under section 108(b) of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), Congress required EPA by 1983 to identify classes of facilities for which to develop financial assurance requirements, but it did not establish a date-certain for promulgating rules, only saying such rules should be promulgated sometime after December 1985.
Financial assurance requires that owners of facilities treating, storing or disposing of hazardous waste prove they have sufficient funds to pay for cleanup and post-closure care of a facility; to pay for cleanup of any accidental releases; and to compensate third parties for any damage, EPA's website says. This can be done through a variety of mechanisms, such as surety bonds, self-insurance measures, insurance policies and letters of credit.
EPA in 2009 identified hardrock mining as the first sector for which it will issue such rules and identified three other sectors -- chemical manufacturing; petroleum and coal products manufacturing; and electric power generation, transmission, and distribution -- for which it is weighing such rules.
EPA announced June 8 that it is seeking nominations from small entities that may be subject to the hardrock mining financial assurance rule, in order to serve on a Small Business Advocacy Review (SBAR) Panel. Those selected by EPA "will serve as the Small Entity Representatives (SERs), providing advice and recommendations on behalf of their company, or organization to the federal panel on the proposed rule," EPA says in a June 8 news release on the announcement. The agency says it is taking nominations until June 22.
Hardrock mining involves "the extraction, beneficiation or processing of metals and non-metallic, non-fuel minerals," EPA says in the announcement.
Under the Regulatory Flexibility Act, EPA is required to set up a federal panel for rules that will have a significant economic impact on a large number of small entities, the agency says.
Those eligible for participating on the panel include small businesses, small governments and small not-for profit organizations, EPA says in a posting on its website. "The role of a SER is to provide advice and recommendations to ensure that the Panel carefully considers small entity concerns regarding the potential rule's impact on their organizations and to communicate with other small entities within their sector who do not serve as SERs," EPA says.
Proposed Rule
EPA has indicated it expects to publish a proposed rule for the hardrock mining sector by August 2016 and finalize it by August 2019, but during oral arguments in In re: Idaho Conservation League, et al., legal counsel for the agency said EPA did not have a schedule for proposing rules for the other three sectors because it has not yet determined if those rules are necessaryy.
A May 19 order from the D.C. Circuit ordered EPA to update its schedule for issuing the rules for the hardrock mining industry, saying the agency should expedite the rules "to the greatest possible extent." The court also called on EPA to provide a date by which the agency will decide whether it will require financial assurance measures for the other three industrial sectors.
Those submissions are now due June 23. In a joint motion asking for a time extension on submitting the timeline and other supplemental documents, the United States and environmental petitioners say they have conferred and "made progress" regarding a schedule for EPA's issuance of the rules, "but have not yet agreed to a proposed schedule."
The court also wants EPA to submit to the court the date by which it will circulate to interested parties a recently completed framework for the mining rule.
During May 12 oral arguments in the case, Department of Justice attorney John Sullivan said the framework explains how various parts of the rule will function -- such as preemption issues related to states that already have bonding requirements -- and said it would be distributed to various interest groups, such as states, the financial sector, industry and the petitioners for discussion.
Meanwhile, the House Appropriations interior, environment and related agencies subcommittee approved June 10 an FY16 EPA appropriations bill that includes a policy measure that would bar EPA from using any FY16 appropriations "to develop, propose, finalize, implement, enforce, or administer any regulation that would establish new financial responsibility requirements pursuant to section 108(b)" of CERCLA. House Republicans unveiled the FY16 spending bill for EPA June 9, proposing to impose major cuts to core agency programs, as well as block this rule and high-profile rules such as the agency's pending climate rules for power plants.
-
EPA Seeks Input on Revised Costs To Operate Nitrogen Oxides Controls
Jun 12, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency is seeking input on an updated manual used to determine the cost of installing and operating pollution controls for an ozone precursor.
The EPA has updated two chapters in its Control Cost Manual that detail the cost calculations for selective catalytic reduction (SCR) and selective non-catalytic reduction (SNCR) controls for emissions of nitrogen oxides.
The EPA said in a notice of data availability to be published in the Federal Register June 12 that it's seeking additional input on its estimate of the controls' useful life, differences in installation between power plants and other industrial facilities and possible emissions control contingencies. The EPA is also asking for additional data on replacing catalysts in selective catalytic reduction units.
The EPA uses the Cost Control Manual to determine the cost of its regulations and to decide which emissions controls qualify as best available control technology (BACT) in new source review permits and best available retrofit technology (BART) as part of the regional haze program.
The Cost Control Manual was last updated in 2003, but the Consolidated Appropriations Act of 2014 (Pub. L. No 113-76) requested that the EPA begin work on a seventh edition of the manual.
Richard Alonso, a partner at Bracewell & Giuliani LLP, said the revisions could have significant impact on the permitting process, in particular. The EPA considers how effective cost controls are during it best available control technology review. If the EPA finds the costs for the controls have decreased, that could mean more smaller industrial sources such as boilers would be required to install them.
Anticipates Costs Declining
“It's been a while since they've updated these costs, so I'm anticipating the price of these controls is going down,” Alonso told Bloomberg BNA June 11.
States will be seeking additional nitrogen oxides controls if the EPA sets a more stringent air quality standard for ozone this October as expected, Alonso said.
The EPA will accept comments until Aug. 11. Comment can be made at http://www.regulations.gov and should reference Docket ID No. EPA-HQ-OAR-2015-0341.
-
Lawsuit Argues Maryland Must Act On Both Phases of Delayed NOx Rules
Jun 12, 2015 | BNA Daily Environment Report
By Kathy Lundy Springuel
Maryland Gov. Larry Hogan's (R) Jan. 21 order that pulled clean air regulations from the Jan. 23 Maryland Register in which they were set to “go final” violated state procedures for handling duly approved regulations, two groups alleged in a lawsuit (Physicians for Soc. Responsibility v. Hogan, Md. Cir. Ct, 6/11/15).
The June 11 complaint, which seeks to have the rules published and enforced, was filed in Maryland Circuit Court for Anne Arundel County by Chesapeake Physicians for Social Responsibility and the Sierra Club Maryland Chapter, both of which previously announced their intent to sue (78 DEN A-13, 4/23/15).
The rules at issue are aimed at cutting nitrogen oxide emissions from smaller coal-fired power plants generally used only during peak summer demand, as most larger units already have been fitted with NOx controls under Maryland's Healthy Air Act of 2006.
The two-pronged regulations halted by Hogan (R) included short-term “phase I” rules intended to curtail emissions during the May 1-to-Sept. 30 ozone season and longer-term “phase II” provisions that would have required plant owners to upgrade emissions controls by 2020 or close the offending units for good.
After stalling the broader rulemaking in January, Hogan's administration subsequently re-issued the phase I requirements to take effect on an emergency basis for the current ozone season, starting May 1 (76 DEN A-5, 4/21/15).
State officials announced at that time that the second phase of the NOx rulemaking would be subject to a reexamination this fall that will result in “equal or greater public health protection while also providing flexibility to support a healthy economy and protect jobs.”
A spokesman for the Maryland Department of the Environment didn't comment on the Maryland Procedure Act claims raised in the complaint, but Environment Secretary Ben Grumbles told Bloomberg BNA in an e-mail that “we have a very clear plan: enforcing the brand new regulation for 2015, issuing in the coming months strong and protective regulations for 2016 and beyond and leveraging significant progress in upwind states that put Maryland at risk.”
Would Make Phase I Permanent
In addition to adopting the ozone-season NOx limits on an emergency basis for summer 2015, MDE proposed in the May 29 Maryland Register to make those phase I requirements permanent, with a public hearing on the matter slated for June 29.
-
GOP Eyes Blocking EPA Nominees To Force McCarthy Answers On Rules
Jun 11, 2015 | InsideEPA
By David LaRoss
Senate Republicans are weighing possible “holds” to block all pending nominees for top EPA positions from further consideration until agency Administrator Gina McCarthy answers what the GOP says are outstanding questions on a slew of major policies including its Clean Water Act (CWA) jurisdiction rule and greenhouse gas regulations.
“Would it be a legitimate exercise of our oversight authority if I said, 'Until we actually get answers from the head of the EPA, who stonewalls this committee -- this Congress -- we're not going to move forward with any nominations'? asked Sen. Dan Sullivan (R-AK) at a June 11 environment panel hearing on three EPA nominees.
While raising the threat of placing a hold on the three nominees until he gets responses from McCarthy, the senator conceded to the nominees it places them “in the crossfire of what I think is a really important issue.”
The nominees who attended the hearing are Thomas Burke, nominated to lead EPA's Office of Research and Development (ORD); Jane Nishida, who would head the Office of International and Tribal Affairs (OITA); and Ann Dunkin, tapped to lead the Office of Environmental Information (OEI).
All three nominees are heading those offices in an acting capacity pending confirmation by the Senate, which Senate Environment & Public Works Committee Chairman James Inhofe (R-OK) said in his opening statement makes them accountable for their offices' policies.
Inhofe also echoed Sullivan's concerns about a lack of answers from McCarthy to the GOP's inquiries and added, “I think it's very appropriate that you bring this up.”
Speaking to reporters after the hearing, he questioned whether the committee has any other options beyond blocking nominees to compel a response from McCarthy on lingering questions the GOP has about various agency rules. “I can assure you that that's what I would do, and what he would do, and what the majority would do, if they don't respond. You have to respond to questions, and there is no other leverage,” Inhofe said.
However, the senator added that because the outstanding requests for McCarthy's responses come from an array of GOP senators rather than the committee majority's office, answering the questions might not be enough for the nominees to escape a hold if legislators disagree with the content of McCarthy's responses. “You'd have to ask them” whether a substantive response would be enough to cancel a hold, Inhofe added.
Republicans' Queries
Sullivan highlighted three questions McCarthy has not answered, the first being a request for the legal justification for the recently published rule detailing which waters are “waters of the United States” protected by the CWA -- a rule that critics saw unlawfully expands the CWA's reach.
The second example he highlighted is a request for the legal argument supporting EPA's recently released endangerment finding for aircraft GHG emissions.
And third request centers on allegations that the agency's work with environmental and grass-roots organizations to push back against criticism of the CWA rule may have broken federal lobbying law. EPA has rejected any claims that its work on the regulation was unlawful.
Sullivan also highlighted a question that was asked of Burke at his 2013 hearing on his ultimately unsuccessful nomination to head ORD that year. At that hearing, Sen. John Barrasso (R-WY) questioned the nominee on whether the agency is using outdated data to support any rulemaking efforts, which Sullivan said never got a response.
“I've been asking the administrator for months for the detailed legal analysis that gives EPA the authority to issue the 'waters of the U.S.' rule. She won't give it to us,” Sullivan said at the new hearing.
In addition to Burke, Dunkin and Nishida, two other EPA nominees are pending before the Senate and could be affected by a blanket hold on confirmations: Stan Meiburg, who has been nominated as deputy EPA administrator, and Karl Brooks, who would head the agency's Office of Administration and Resources Management.
Nominee Questions
Senators at the hearing had few policy questions for the nominees, focusing instead on broader policy issues that they acknowledged were beyond the appointees' purview.
Addressing Burke -- who is also serving at the agency's science adviser -- Inhofe asked whether he agreed with a National Academy of Sciences panel that it could be a conflict of interest for the EPA science advisor to also head a policy office like ORD; Burke responded that he disagreed with the conclusion but would respond at length in writing.
Sen. John Boozman (R-AR) asked whether Burke would support interagency collaboration on science issues as a way to pursue new research in a time of limited budgets, which Burke agreed with, and asked him to work with legislators to develop bills reforming the Science Advisory Board.
Boozman is pushing one such bill that scientists have argued would restrict scientists' ability to advise policy makers. Burke said he would work with legislators on SAB issues but declined to comment on specific policy approaches.
Addressing Dunkin, Sen. Shelley Moore Capito (R-WV) asked her to weigh in on the accusations of improper outreach surrounding the CWA rule, Dunkin responded that public outreach on the rule was the responsibility of the Office of Public Affairs, which is not part of OEI.
Inhofe asked her to address a recent federal district court ruling where a judge said EPA has neglected its legal obligations in responding to Freedom of Information Act (FOIA) requests.
Dunkin replied that the case was based on actions before she joined EPA and that she has sought to treat FOIA requests fairly as an acting official.
Finally, Inhofe asked Nishida to describe in writing the scope of EPA grants and other expenditures overseas that are handled by OITA. In response, Nishida promised to submit an answer following the hearing but said such grants are “a small part” of EPA's budget.
-
Occasional Flow of Water Doesn't Translate Into Clean Water Act Coverage, EPA Says
Jun 12, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Occasional flows of water through arid areas, such as desert washes, won't be considered as jurisdictional ephemeral tributaries under the final clean water rule, the top Environmental Protection Agency water official said June 11.
“We know that topography can cause water to flow through certain areas, but it would not necessarily create a bed and bank and an ordinary high water mark, ” Ken Kopocis, EPA deputy assistant administrator for water, said in response to questions during an EPA webinar on the final clean water rule, also known as the waters of the U.S. rule.
Kopocis was asked whether ephemeral streams are considered jurisdictional. He and other officials from the U.S. Corps of Engineers also were asked how the agencies would distinguish ditches from tributaries, using the definition provided in the final rule.
Kopocis emphasized that the final clean water rule only considers ephemeral streams to be jurisdictional if they meet the definition of a tributary.
Under the final rule, a tributary must possess the physical characteristics of a bed, a bank and an ordinary high water mark, Kopocis said. Moreover, he said a tributary must have “sufficient evidence of flow, of frequency, duration and volume” that illustrate the defining physical characteristics of such waters.
Erosional Features Are Excluded
Kopocis said this is particularly important for areas where water collects and flows naturally. He cited erosional features as an example, saying that is why the agencies have specifically excluded them from Clean Water Act jurisdiction.
Not only do roadside ditches fail to meet the physical characteristics of tributaries, but a large number of ditches in rural and agricultural and rural areas also will not meet the definition of a tributary “because they will not have the flow sufficient to establish an ordinary high water mark,” according to Kopocis.
He said the final rule excludes from coverage ditches with ephemeral and intermittent flows that are excavated within streams or made through channelizing streams. Ditches that drain into wetlands are also excluded, he said.
Most importantly, Kopocis said a ditch that is excluded from regulation won't fall under jurisdiction even if it falls within the defined limits of adjacent waters. Waters and wetlands are considered adjacent if they are within 1,500-feet of traditional navigable waters and their tributaries and within the 100-year floodplain.
“An exclusion will trump inclusion under the rule,” he said.
Ordinary High Water Mark Guidance
Regarding the ordinary high water mark, Margaret Gaffney-Smith, corps deputy director for operations and regulatory division, said the corps already has a manual to identify ordinary high water mark for the arid west and mountain regions, but is working on developing a guide that can be applied nationwide.
The EPA and the corps jointly released the final clean water rule on May 27 (RIN 2040–AF30). The rule for the first time defines tributaries and limits statutory coverage for wetlands and waters adjacent to navigable waters and their tributaries. The rule also allows the agencies to determine jurisdiction on a case-specific basis by determining the significance of impact that isolated wetlands and waters have either singly or in combination with similarly situated waters and wetlands on downstream navigable waters (102 DEN A-1, 5/28/15).
On the case-specific analyses of five regional isolated waters, Kopocis made it clear that even if one of the five regional isolated waters, such as California vernal pools or prairie potholes, are found to be similarly situated, the agencies would still have to evaluate the significance of their impact on downstream waters.
For an isolated wetland, such as a playa lake, the agencies would either test for adjacency if it is located within 1,500 feet of a 100-year floodplain, or would evaluate the significance of its impact to downstream waters if it is located at a distance of 4,000 feet, he said.
However, if a playa lake or an isolated wetland is found within the domain of adjacency then it would be deemed jurisdictional, as would be waters that straddle these boundaries.
Agencies Accused of Regulating Land Use
The American Farm Bureau Federation released its own analysis of the rule that said the agencies are giving themselves “sweeping powers” to regulate land use.
They pointed out that the agencies are no longer requiring the “actual presence” of a bed, a bank and an ordinary high water mark, but relying on physical indicators of these features. They noted that the final rule allows agencies to cover ephemeral streams as tributaries based on past conditions, rather than current conditions.
“Thus, land features may be deemed to be tributaries (regulated immediately under the rule) even if they are invisible to the landowner and even if they no longer exist on the landscape. So much for clarity!” the farm bureau wrote in their analysis.
On the question of ditches and erosional features, the farm bureau raised the spectre of the so-called “invisible” tributaries. The bureau said the landowners would find that ditches on their land are federally protected waters because they were channelized out of streams decades earlier.
The farm bureau joined Republican Senators, notably Sen. John Barrasso (R-Wyo.), in criticizing the agencies for attempting to regulate every single water across the country.
Barrasso has co-authored the Federal Water Quality Protection Act (S.1140) with Sen. Joe Donnelly (D-Ind.), which would require a rewrite of the rule that is based on establishing jurisdiction based on flow of pollutants to traditional navigable waters rather than the significance of impact on downstream waters.
The Senate Environment and Public Works Committee approved S. 1140 along party lines on June 10 (112 DEN A-14, 6/11/15).
-
Ag Lobby: Final EPA Water Rule Is Worse Than Proposal
Jun 11, 2015 | The Hill - E2 Wire
By Timothy Cama
The largest lobby group for farmers and ranchers declared Thursday that the Obama administration’s new rule asserting power over small waterways is worse than what had been proposed.
The American Farm Bureau Federation, one of the most vocal opponents of the Environmental Protection Agency’s (EPA) regulation, wrapped up a detailed two-week review of the rule and concluded that the agency did not properly respond to criticisms from farmers.“Our public affairs specialists and legal team have assembled the best analysis available anywhere, and their conclusions are sobering: Despite months of comments and innumerable complaints, the waters of the U.S. proposal is even worse than before,” Farm Bureau President Bob Stallman said in a statement.
“Our analysis shows yet again how unwise, extreme and unlawful this rule is,” Stallman said.
The Obama administration said it wrote the rule to ensure that small streams, ponds, wetlands and other important waterways can be regulated under the Clean Water Act, which requires permits for actions the harm or pollute water.
It has long concerned the Farm Bureau, which fears that farmers would be subject to permitting requirements and restrictions for common agricultural practices on their land like filling ditches and spraying fertilizer.
The Farm Bureau said the EPA made its rule even more broad than what it put out for public comment in March 2014, echoing a criticism that congressional Republicans have made since the May 27 announcement of the final rule.
Specifically, the Farm Bureau said that the EPA’s definition of a tributary was broadened, and it now requires only “physical indicators of a bed and banks and ordinary high water mark.”
This means that ditches, wet land near streams, isolated water and other areas are subject to the rule, the Farm Bureau argued.
Obama administration officials sought to highlight with the rollout everything that is not regulated under the rule. They argued that opponents had no reason to fear the rule unless they intend to pollute.
“It does not interfere with private property rights or address land use,” EPA Administrator Gina McCarthy said at the time. “It does not regulate any ditches unless they function as tributaries. It does not apply to groundwater or shallow subsurface water, copper tile drains or change policy on irrigation or water transfer.”
The Farm Bureau did not say whether it would sue the EPA to have the rule overturned.The House has voted to block the rule’s implementation, and the Senate Environment and Public Works Committee voted Wednesday to block it and give instructions to re-write it.
-
(ACC Mentioned) Us Chemicals Sector Hails New Federal Study On Rail Rate Charges
Jun 11, 2015 | ICIS News
By Joe Kamalick
A new federal study says that railroad freight rate-setting procedures are badly in need of reform, a finding hailed on Thursday by US chemical sector officials but blasted by rail industry leaders.
The study by the Transportation Research Board (TRB) found that while federal reforms in 1980 rescued the nation’s then-floundering major railroads from collapse, those reforms are themselves now in need of modernisation.
The board, part of the National Academy of Sciences (NAS), recognised that the 1980 Staggers Act eliminated or eased many federal rules that were choking rail operations and then enabled a return to profit-making.
The NAS is a taxpayer-funded agency that advises the federal government on science and technical issues, and its findings typically influence Congress.
But, said the TRB study, a legacy of the Staggers Act has left freight rail shippers unable to seek relief from or challenge what they regard as unreasonable shipping rates.
The US chemicals industry, along with other high-volume rail shippers such as the coal sector and grain farmers, has long complained that market protections afforded the railroads in 1980 serve to leave some shippers “stranded” and vulnerable to arbitrary rate decisions by a single rail carrier.
The TRB report noted that the Staggers Act did provide a means for shippers to challenge freight rates through the Surface Transportation Board (STB), which was established by that statute.
But the board found that “while the Staggers Act affords shippers with the ability to challenge unusually high rates, the [study] committee found that the formula used to identify high rates is unreliable and economically invalid”.
That in turn leads to “regulatory procedures that systematically deny large numbers of shippers’ access to the law’s maximum rate protections”, according to the TRB.
The study noted that, as has often been argued by chemical shippers and others, appealing a rate issue to the STB “can cost millions of dollars for litigation, and some [appeals] have taken years to resolve, deterring shippers with smaller claims from seeking rate relief”.
“The system has the effect of safeguarding railroad revenues by making it too costly for most shippers to litigate a case,” the STB report says. “Shippers are thus denied equal and effective access to the law’s maximum rate protections.”
The board’s report recommends that the STB complaint procedure be replaced with outside arbitration hearings “that compel faster, more economical resolutions of rate cases”.
It also recommends that outside arbitrators have authority to force reciprocal switching “for those rates found to be unreasonable”.
This remedy addresses a shortcoming of the Staggers Act that chemicals producers say creates “captive shippers”, manufacturers dependent on a single rail carrier that can charge exorbitant rates to connect one shipper site to another nearby carrier’s tracks.
American Chemistry Council (ACC) president Cal Dooley on Thursday hailed the TRB report as “more proof that freight rail reform is long overdue”.
“The conclusions outlined in the expert report make it very clear that the STB’s current freight rail policies are broken and are not able to address rising rates and declining service,” Dooley said.
But Edward Hamberger, president of the Association of American Railroads (AAR), slammed the TRB study as “a solution in search of a problem”.
Hemberger said that US freight rail customers “today pay rates that on average are 43% less than paid in 1980”.
“The TRB report is a theoretical exercise that would upend the real world concrete successes achieved since the Staggers Act passed in 1980,” Hemberger said.
Dooley said that the TRB report lends support to rail reform legislation approved earlier this year by the Senate Committee on Commerce, Science and Transportation.
That legislation, the “Surface Transportation Board Reauthorisation Act” (S-808), is awaiting action by the full Senate.
-
Commission Finalizes Radioactive Transport Rule Related to International, DOT Standards
Jun 12, 2015 | BNA Daily Environment Report
By Rachel Leven
The Nuclear Regulatory Commission on June 12 will finalize a rule that ensures compatibility of domestic nuclear regulations with Transportation Department and international standards for moving radioactive material.
The rule (RIN 3150-AI11) will harmonize parts of the commission's rules with the International Atomic Energy Agency's 2009 Regulations for the Safe Transport of Radioactive Material and builds on a Pipeline and Hazardous Materials Safety Administration final rule issued in July 2014 (133 DEN A-18, 7/11/14).
For example, the commission will update definitions for terms such as “special form radioactive material” and adopt certain test methods, according to the NRC final rule.
It also will update administrative requirements for the agency's quality assurance program, re-establish certain safety restrictions related to fissile material and clarify requirements for certain licenses and certificates.
The commission says the rule won't have a significant impact on the human environment. There will be reduced risk of a self-sustaining nuclear reaction occurring when moving low-enriched fissile material under the fissile material exemption.
However, some natural materials and ore will now be able to transported without being hazmat-regulated, increasing the amount of “low-level” material exempted from hazardous materials requirements.
Certain commission-licensees, holders of or applicants for Certificate of Compliance and holders of a quality assurance program approval will be affected by this rulemaking.
The rule, located at Docket No. NRC-2008-0198, will take effect July 13.
Industry and Association News
Chemical Management News
Chemical Security News
Energy and Environment News
Transportation News
Full Text of Stories Below
Add recipients
Suggested