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February 1, 2014

Monthly Update for February 2014

Bergeson & Campbell, P.C.


EPA Delivers ITC’s 73rd Report To EPA Administrator: On January 23, 2014, the U.S Environmental Protection Agency (EPA) published the Interagency Testing Committee’s (ITC) 73rd Report to the EPA Administrator. 79 Fed. Reg. 4068. The Report removes five High Production Volume (HPV) program orphan chemicals from the ITC’s Toxic Substances Control Act (TSCA) Section 4(e) Priority Testing List. The chemicals are: 1,3-hexanediol, 2-ethyl- (CAS No. 94-96-2); octane, 1-chloro- (CAS No. 111-85-3); octadecane, 1-chloro- (CAS No. 3386-33-2); phenol, 2,4-bis(1,1-dimethylpropyl)-6-[2-(2-nitrophenyl)diaze nyl]- (CAS No. 52184-19-7); and barium, carbonate nonylphenol complexes (CAS No. 68515-89-9). Comments on the ITC’s actions are due February 24, 2014.

EPA Adds Chemicals To Safer Chemical Ingredients List: On January 23, 2014, EPA’s Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP), Jim Jones, highlighted in a blog the addition of 50 chemicals to EPA’s Safer Chemical Ingredients List (SCIL). The SCIL was created in September 2012 and now contains almost 650 safer chemicals and includes more than 150 fragrance chemicals. The SCIL serves as a resource for manufacturers interested in making safer products, health and environmental advocates seeking to encourage the use of safer chemicals, and consumers seeking information on the ingredients in safer chemical products. It also serves as a guide for manufacturers of Design for the Environment (DfE) labeled products that must meet EPA’s scientific standards for protecting human health and the environment. About 2,500 products are certified under the DfE Standard for Safer Products, including all-purpose cleaners, laundry and dishwasher detergents, window cleaners, car and boat care, and many other products. Using DfE-certified products significantly reduces exposures to potentially problematic chemicals, which helps protect families and the environment. For additional information, please visit Jones’ blog is available online.

EPA Releases Draft Guidance Documents Regarding Consideration Of Spray Draft In Pesticide Risk Assessment: EPA announced on January 29, 2014, the availability of two draft guidance documents for public comment. 79 Fed. Reg. 4691. According to the notice, the documents describe how EPA will evaluate off-site spray drift for ecological and human health risk assessments for pesticides. The notice states that pesticide drift can be characterized as the physical movement of a pesticide through the air at the time of application or soon thereafter from the target site to any non- or off-target site. According to the notice, drift is dependent on the design of application equipment, size of spray droplets or dry particles, weather conditions, and other factors. The notice states that once off-target, pesticide drift can potentially deposit in unintended areas or directly onto people or nontarget species. EPA developed the draft guidance documents to provide guidance to EPA staff and stakeholders. The draft documents, which describe EPA’s approach to assessing pesticide drift in human health and ecological risk assessments, are: Guidance on Modeling Offsite Deposition of Pesticides via Spray Drift for Ecological and Drinking Water Assessments for the Environmental Fate and Effects Division; and Residential Exposure Assessment Standard Operating Procedures (SOPs), Addenda 1: Consideration of Spray Drift. Comments on the draft documents are due March 31, 2014. The draft documents are available online.

EPA Posts Charges On Ammonia And Trimethylbenzenes: On January 30, 2014, EPA posted questions on its draft toxicological reviews for ammonia and trimethylbenzenes for which it would like the Chemical Assessment Advisory Committee’s advice. The EPA charges focus stakeholders on the scientific issues for which EPA has used judgment because data do not permit a clear-cut conclusion. The committee’s peer reviews of the two chemicals will be the first conducted since EPA established it in 2013 as part of EPA’s broader Science Advisory Board. Links to both draft risk assessments, as well as EPA’s charges, are available online.

EPA Announces Central Data Exchange Registration Walkthrough For EDSP Test Order Recipients: On February 4, 2014, EPA announced the availability of a fully electronic, Web-based submission system to handle the receipt of responses to future Endocrine Disruptor Screening Program (EDSP) test orders. Recipients of these orders will be required to register with and submit through the Central Data Exchange (CDX) to use this system. On Tuesday, February 25, 2014, from 1:00-4:00 p.m. (EST), EPA will be conducting, for pesticide stakeholders, a Web-based walkthrough of the registration process in preparation for these orders. Please note that the focus of the session is on the registration process, and that specific reporting requirements will not be discussed during the demonstration. Access to the session is available online.

EPA’s 2012 Toxics Release Inventory Shows Air Pollutants Continue To Decline: On February 4, 2014, EPA issued a summary of 2012 Toxics Release Inventory (TRI) data. Total releases of chemicals decreased 12 percent from 2011-2012, according to the EPA annual TRI report. The decrease includes an eight percent decline in total toxic air releases, primarily due to reductions in hazardous air pollutant (HAP) emissions. The 2012 data show that 3.63 billion pounds of toxic chemicals were either disposed or otherwise released into the environment through air, water, and land. There was also a decline in releases of HAPs such as hydrochloric acid and mercury, which continues a long-term trend. Between 2011 and 2012, toxic releases into surface water decreased three percent and toxic releases to land decreased 16 percent. This year’s TRI national analysis report includes new analyses and interactive maps for each U.S. metropolitan and micropolitan area, new information about industry efforts to reduce pollution through green chemistry and other pollution prevention practices, and a new feature about chemical use in consumer products. Also available is the expanded TRI Pollution Prevention (P2) Search Tool, which allows users graphically to compare facilities within the same industry using a variety of environmental metrics. Under the Emergency Planning and Community Right-to-Know Act (EPCRA), facilities must report their toxic chemical releases to EPA by July 1 of each year. The Pollution Prevention Act of 1990 also requires facilities to submit information on waste management activities related to TRI chemicals. More information on the 2012 TRI analysis, including metropolitan and micropolitan areas, is available online.

More information on facility efforts to reduce toxic chemical releases, including the new P2 facility comparison report, is available online.

EPA Issues Final SNUR For Photoluminescent Dye: On February 4, 2014, EPA issued a final Significant New Use Rule (SNUR) for substances identified as complex strontium aluminate, rare earth doped. 79 Fed. Reg. 6470. The rule requires persons who intend to manufacture (including import) or process any of the chemical substances for an activity that is designated as a significant new use by this final rule to notify EPA at least 90 days before commencing that activity. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit the activity before it occurs. The final rule is effective April 7, 2014.

EPA Proposes SNUR On Certain Chemical Substances: On February 10, 2014, EPA proposed SNURs under TSCA for three chemical substances that were the subject of premanufacture notices (PMN). 79 Fed. Reg. 7621. The proposal action would require persons who intend to manufacture (including import) or process any of the chemical substances for an activity that is designated as a significant new use by this proposed rule to notify EPA at least 90 days before commencing that activity. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit the activity before it occurs. The PMNs state that the uses of the PMN substances are as flame retardants/plasticizers in polymers and extreme pressure lubricants in metal working fluids (MWF). There are also several confidential business information (CBI) uses that are generically described as: Plasticizer and lubricant with flame retardant properties. By analogy to medium chain chlorinated paraffins (MCCP — alkyl chain length of 14 to 17), EPA expects long chain chlorinated paraffins (vLCCP) and possible degradation products to be potentially highly persistent, potentially bioaccumulative, and potentially toxic. EPA also expressed concerns with the potential for the vLCCPs to degrade to shorter chain chlorinated compounds, as well as concerns about potential impurities or small fractions of MCCPs and/or long-chain chlorinated paraffins (LCCP — alkyl chain length of 18 to 20). Comments must be received on or before April 11, 2014.

EPA Issues Direct Final SNURs On 35 Chemicals: On February 12, 2014, EPA issued a direct final rule imposing SNURs on 35 perfluorinated, nanoengineered, and other chemicals. 79 Fed. Reg. 8273. EPA determined that 21 of the 35 chemicals would not pose an unreasonable risk, provided they are manufactured in accordance with the conditions and for the applications detailed in the original manufacturers’ PMNs. Other manufacturing procedures, types of worker exposures, environmental releases, or uses of the chemicals might raise concerns, however. These SNURs would apply the PMN conditions to any subsequent manufacturer. The SNURs require notification 90 days before the intended new use so EPA can determine whether that new manufacturing process or application of the chemical would pose an unreasonable risk to human health or the environment. Of the total 35 chemicals covered in EPA’s regulations, nine are perfluorinated, also called polyfluorinated, compounds. EPA negotiated TSCA Section 5(e) consent orders with the manufacturer because the nine polyfluorinated compounds are analogous to chemicals such as perfluorooctanoic acid (PFOA) and perflurooctanesulfonate (PFOS), chemicals believed to pose risk due to their persistence and other characteristics. The original manufacturer of an additional four chemicals, described generically as multiwalled carbon nanotubes (MWCNT), also agreed to make those chemicals under a Section 5(e) consent order. The four carbon nanotubes in the rule are used as additives in semiconductor packaging, electronic devices, windmill blades, building frames, vehicles, and batteries. EPA is concerned about potential risks to workers and others if the nanotubes were inhaled, and it is concerned about aquatic toxicity. Among other limits, the consent order bars manufacture of the MWCNTs in the U.S. and any release of them into the surface water.

EPA Releases List Of Hospital Disinfectants: On February 10, 2014, EPA released a list of effective hospital disinfectants, the result of an effort to test the efficacy of registered hospital disinfectants and tuberculocide products. The list identifies products that have passed testing under EPA’s antimicrobial testing program, products that have not yet undergone post-market testing by EPA, and products that are under deliberation by EPA, including products that are still undergoing testing or will be the subject of regulatory or enforcement actions. EPA stated the list should be of interest to hospitals and other purchasers of antimicrobial pesticide products that make public health claims. The list is available online. The updated list of registered products that are effective against clostridium difficile spores is available online.

EPA Announces Workshop On ToxCast Data And Access: On February 12, 2014, EPA announced that it will hold a stakeholder engagement workshop on the new screening data on 1,800 chemicals (ToxCast data). The workshop, scheduled for April 2-3, 2014, will provide a variety of opportunities to familiarize the community with the ToxCast data and ways to access them, and in return EPA seeks feedback on how it might improve the data interface and usability. The workshop will be held at the Food and Drug Administration (FDA) White Oaks facilities. In addition, the meeting will be webinar-accessible. The meeting website is available online and provides more information about the agenda, logistics, and other related outreach efforts.


EPA Issues Final Rule Authorizing The Use Of Electronic Hazardous Waste Manifests: EPA on February 7, 2014, issued a final rule under the Resource Conservation and Recovery Act (RCRA) that authorizes the use of electronic hazardous waste manifests. 79 Fed. Reg. 7518. The Hazardous Waste Electronic Manifest Establishment Act, signed into law in October 2012, requires that EPA issue a final RCRA rule authorizing the use of electronic hazardous waste manifests. The February 7 final rule fulfills that obligation and codifies several of the essential provisions of the law and provides the legal and policy framework to authorize the use of electronic manifests. Although the final rule is, in EPA’s description, “a key step” in the use of electronic manifests, EPA has much regulatory work ahead of it. This includes establishing the overall electronic manifest system, fee structure, and compliance dates. The final rule is effective August 6, 2014.


EPA Issues Interim Safety Advisory For Natural Gas Processing Facilities: EPA has issued an interim safety advisory cautioning that some natural gas processing plants that handle and store liquefied petroleum gas may not be designed in accordance with applicable industry standards and codes. In the interim advisory, EPA stated newly constructed natural gas processing plants appear to have been built in compliance with the National Fire Protection Association’s (NFPA) Liquefied Petroleum Gas Code, known as NFPA 58, but stated those standards do not apply to natural gas processing plants and that more specific industry standards should be used. EPA further stated that proper engineering of facilities and tanks is necessary to comply with the risk management provisions of Section 112(r) of the Clean Air Act (CAA). The interim advisory is available online. EPA is accepting comments on the interim advisory until July 31, 2014.


EPA Reports DfE Alternatives Assessment For DecaBDE And BPA In Thermal Paper: On January 29, 2014, EPA released two final Alternatives Assessment Reports for the flame retardant decabromodiphenyl ether (DecaBDE) and bisphenol A (BPA) in thermal paper. These comprehensive assessments were developed with public participation under EPA’s DfE program and profile the environmental and human health hazards for DecaBDE, BPA, and their alternatives. DecaBDE is a flame retardant that has been used in electronics, vehicles, textiles, and building materials. The U.S. manufacturers of DecaBDE committed to phase-out production of the chemical by December 2013. The final DfE Alternatives Assessment Report on DecaBDE profiles 29 alternatives, including some predicted to be safer than DecaBDE. This report is part of a broader Agency effort to address flame retardant chemicals. Additional information on this report can be found online. BPA is used as a building block for plastics and to develop images on thermal paper, which is used in printed retail receipts, and in many other applications, such as airline and movie tickets. EPA’s final BPA DfE Alternatives Assessment includes a review of 19 chemicals that may be used as heat-activated “developers” in thermal paper. The assessment found that there were trade-offs with respect to human health or environmental safety for all of the possible alternatives. Information on this report can be found online. For more information on EPA’s DfE program, please visit


ISO Publishes Report On Development Of Nomenclature For Naming Nano-Objects: The International Organization for Standardization (ISO) published on January 6, 2014, a report entitled Nanotechnologies — Considerations for the development of chemical nomenclature for selected nano-objects (ISO/TR 14786:2014), which is intended to provide information and analyses in support of the development of chemical nomenclature for the naming of “nano-objects.” An earlier ISO report, ISO/TS 80004-1:2010, defines “nano-objects” as “materials with one, two, or three external dimensions in the nanoscale,” with the nanoscale defined as the “size range from approximately 1 nm to 100 nm.” Nano-objects are further defined as nanoplates, nanofibers, and nanoparticles. ISO states that ISO/TR 14786:2014 “is intended to facilitate communications between developers and potential users of nomenclature including academia, industry, government and non-governmental organizations.” The report is available for purchase online.

German FAQs Regarding The Safety Of Cosmetics Address Nanomaterials: On January 27, 2014, the Federal Institute for Risk Assessment (BfR) posted frequently asked questions (FAQ) regarding the risk assessment of cosmetic products. BfR states that there are repeated critical public reports and discussions about several ingredients of cosmetic products, leading consumers to ask whether cosmetics pose a health risk. Several of the FAQs address nanomaterials:

Why are nanoparticles used in cosmetic products?

Nanoparticles made of titanium dioxide and/or zinc oxide are used as UV filters in suncreams to protect the skin from UV radiation. Materials produced using nanotechnology (so-called biocomposites) in toothpaste are intended to support the natural tooth repair mechanism of saliva.

Cosmetics containing ingredients in the form of nanomaterials must contain a reference to this effect in the list of ingredients in line with the EU cosmetics regulation (EC Reg. No. 1223/2009). The names of these components must be followed by the word “nano” in brackets.

What is known about the health effects of nanoparticles in cosmetic products?

Toxicological tests have already been made for several nanoparticles used in cosmetic products. Accordingly, the behaviour of nanoparticles made of titanium dioxide and zinc oxide on the skin has been well examined. It was confirmed in several experiments that these nanoparticles cannot penetrate healthy human skin cells and remain on the skin surface. They can remain on the skin for longer periods via the hair follicles, but they cannot penetrate it. Hair growth then transports them back to the skin surface.

There are currently many open questions in the assessment of the health risk of nanoparticles. The possible but not yet experimentally proven special potencies of particles in the biological system based on their nanoscalability are largely unknown, nor is much data available on the exposure of humans to nanoparticles.

Can sunscreen with nano-sized UV filters be used for babies?

Children aged under two years should not be exposed to direct sunlight because their skin has not yet developed its own protection function against solar radiation. Textile sun protection is also recommended in the shade.

If direct exposure to the sun cannot be avoided, a sunscreen product should be carefully applied to the uncovered areas of the body to prevent sunburn. Although knowledge of the possible risks of nanomaterials is still a bit sketchy in some places, the effects of nanoparticle-sized substances on human skin is comparatively well researched. As the tiny particles cannot penetrate healthy skin, their use in UV filters for sunscreen products does not pose a health risk.

The FAQs are available online.

German Federal Environment Agency Supports Creation Of EU Register Of Products Containing Nanomaterials: The German Federal Environment Agency (UBA) has posted an English translation of a 2012 document entitled Concept for a European Register of Products Containing Nanomaterials. The document states that, due to the particular uncertainties concerning evaluation of the possible risks of nanomaterials for human health and the environment, UBA supports the establishment of a European register of products containing nanomaterials as a precautionary measure. The objective of the product register would be to provide an overview of products containing nanomaterials that have applications in the consumer area and in an open environment. According to UBA, this would enable public authorities to set priorities in enforcement and monitoring, to estimate exposure for humans and the environment, and, in the case of adverse effects, to ensure traceability. For actors in the supply chain, a product register would create transparency. UBA states that the establishment of the product register should take place at the European Union (EU) level and be managed centrally. UBA acknowledges that a national product register would overlap with EU legislation and obligations and regulations in individual EU Member States, which would mean increased costs for authorities and stakeholders subject to notification. Substances and mixtures (manufactured or imported) that comprise or contain nanomaterials would be subject to notification, as well as articles that intentionally or unintentionally release nanomaterials. The report is available online.

Lynn L. Bergeson Participates In Congressionally-Requested Forum On Nanomanufacturing, Which Is Summarized In New GAO Report: On February 7, 2014, the U.S. Government Accountability Office (GAO) released a report entitled Nanomanufacturing: Emergence and Implications for U.S. Competitiveness, the Environment, and Human Health, which provides highlights from a Congressionally-requested forum on specific issues in nanotechnology manufacturing that was held July 23-24, 2013. The House Committee on Science, Space, and Technology asked the GAO and the National Academies to convene the forum and elicit the views of a group of leading experts, including Lynn L. Bergeson, Managing Partner of Bergeson & Campbell, P.C. The report summarizes forum discussions in the following areas:

  • The future of nanomanufacturing, as viewed by forum participants;
  • U.S. investments in nanotechnology research and development (R&D) and current challenges to U.S. competitiveness in nanomanufacturing;
  • Ways to enhance U.S. competitiveness; and
  • Issues in addressing the environmental, health, and safety (EHS) implications of nanomanufacturing.

The report states that forum participants identified gaps and challenges in four key areas where they believe future action is needed: (1) international data on R&D investment; (2) international standards; (3) U.S. competitiveness; and (4) EHS issues. The report includes profiles of four nanomanufacturing industries: “Nanotechnology and the Future of the Semiconductor Industry”; “Nanotechnology and the Future of Battery-Powered Vehicles”; “Nanotechnology and the Future of Nano-Based Concrete”; and “Nanotechnology and the Future of Nanotherapeutics in Medicine.” The report is available online.

Belgium Creates Register Of Nanomaterials: On February 7, 2014, Belgium announced that the Council of Ministers agreed on the royal decree concerning the marketing of substances containing nanomaterials. The royal decree creates a national register of nanomaterials, requiring manufacturers to register nanomaterial substances and mixtures containing such substances. According to Belgium the register will ensure the traceability of these nanoparticles. The register will open January 1, 2016, for nanomaterial substances, and January 1, 2017, for mixtures containing nanomaterial substances. Belgium states that it will evaluate the registration of products containing nanomaterials and that they will be recorded later. The press release, which has not yet been posted in English, is available online.

EC Scientific Committee Calls For Information On Nano Silica: The European Commission (EC) Scientific Committee on Consumer Safety (SCCS) has opened a call for information for a scientific opinion on the safety of silica (nano). The SCCS invites interested parties to submit any relevant information, such as identification of the type of cosmetic product using silica in nano-structured form and their concentration; protocols of applications; differences in solubility, including for surface coated materials; information on adverse health effects; results from toxicological tests with such products or ingredients contained within, including inhalation toxicity, genotoxicity/carcinogenicity/toxicokinetic studies, photocatalytic activity and phototoxic effect, or any other scientific data/publications considered relevant to assess the safety of such products. Information is due May 31, 2014. More information is available online.


BRAG™ Biobased Products News And Policy Report: Bergeson & Campbell, P.C.’s consulting affiliate, B&C® Consortia Management, L.L.C., manages the Biobased and Renewable Products Advocacy Group (BRAG™). For access to a weekly summary of key legislative, regulatory, and business developments in biobased chemicals, biofuels, and industrial biotechnology, go to


Chemical Safety And Drinking Water Protection Act Introduced In The Senate: In direct response to the tragic and in many respects avoidable events that occurred in West Virginia on January 9, 2014, on January 27, 2014, Senators Joe Manchin (D-WV), Barbara Boxer (D-CA), Chair of the Environment and Public Works (EPW) Committee, and Jay Rockefeller (D-WV) introduced the Chemical Safety and Drinking Water Protection Act of 2014. The bill would amend the Safe Drinking Water Act (SDWA) by adding Part G — Protection of Surface Water from Contamination by Chemical Storage Facilities. The bill is intended to strengthen states’ ability to prevent chemical spills such as the January 9, 2014, spill into the Elk River that contaminated the water supply in West Virginia. A fact sheet regarding the bill is available online.

The bill’s key principles include: requiring regular state inspections of above-ground chemical storage facilities; requiring industry to meet standards for good design, construction, and maintenance of above-ground chemical storage facilities, supply information on storage facility inventory and stored chemicals, develop state-approved emergency response plans, and develop employee training and safety plans; allowing states to recoup costs incurred from responding to emergencies; and ensuring drinking water systems have the tools and information to respond to emergencies.

The bill would define “covered chemical storage facility” as a facility at which a chemical is stored and EPA or state determines that the release of the chemical poses a risk of harm to a public water system. Under the bill, state programs would be required to include certain minimum requirements for covered chemical storage facilities, including acceptable standards of good design, construction, or maintenance; leak detection; spill and overflow control; inventory control; an emergency response and communication plan; an employee training and safety plan; an inspection of the integrity of each covered chemical storage facility; and lifecycle maintenance, including corrosion protection. Covered chemical storage facilities would be required to provide notice to EPA, the appropriate state agency, and applicable public water systems, of the potential toxicity of the stored chemicals; safeguards or other precautions that can be taken to detect, mitigate, or otherwise limit the adverse effects of a release of the stored chemicals; and financial responsibility requirements, including proof of insurance, bond, or other similar instrument.

The bill would require inspections of covered chemical storage facilities at least every three years for a covered chemical storage facility identified in a source water assessment area under SDWA Section 1453. Any other covered chemical storage facility would be inspected at least every five years. State programs would be required to create a comprehensive inventory of the covered chemical storage facilities.

The bill would give EPA or a state the authority to order the owner or operator of a covered chemical storage facility to carry out the requirements of the bill. The owner or operator of a covered facility would be liable for costs incurred by EPA or a state for undertaking a response action under the bill relating to the release of a chemical. The bill would prohibit owners or operators of covered facilities from transferring the facility unless, prior to closing or completion of the transfer, the owner or operator provides the results of a pretransfer inspection of the integrity of the covered chemical storage facility. The transferor or the transferee must agree to take appropriate measures to address the results of the pretransfer inspection within 30 days of the facility closing or being transferred.

Under the bill, EPA or the state “shall” provide public water systems with information relating to emergency response plans for covered facilities located within the same watershed as the public water system, and an inventory of each chemical held at the covered facility. Emergency response plans must be submitted to EPA and the Secretary of Homeland Security. The bill states that EPA or a state, as applicable, “may keep confidential information the Administrator or the State determines to be sensitive and present a security risk to a covered chemical storage facility.” Exceptions are provided, however, for public health information and for sharing of information with EPA, the Secretary of Homeland Security, a public water system, or a public agency involved in emergency response.

Senate EPW Hearing On Climate Change Devolves Into Partisan Bickering Over Science: The Senate EPW Committee held a hearing on January 16, 2014, to discuss President Obama’s environmental policy and the issue of man-made climate change. The discussion was sidelined by an argument over whether or not humans are disrupting the global environment in the first place. Obama Administration witnesses at the hearing included EPA Administrator Gina McCarthy; Nancy Sutley, Chair of the White House Council on Environmental Quality; Dan Tangherlini, Administrator of the General Services Administration; and Daniel Ashe, Director of the U.S. Fish and Wildlife Service. Other witnesses were Bill Ritter, Director of the Center for the New Economy at Colorado State University; Dr. Andrew Dessler, Professor of Atmospheric Sciences at Texas A&M University; Dr. Daniel Lashof, Director of Climate and Clean Air Program at the Natural Resources Defense Council; Dr. Judith Curry, Professor and Chair, School of Earth and Atmospheric Sciences, Georgia Institute of Technology; and Kathleen Hartnett White, Distinguished Senior Fellow-In-Residence and Director, Armstrong Center for Energy and the Environment at the Texas Public Policy Foundation. Witness testimony can be viewed online.

Despite the substantial academic and professional credentials of the witnesses, quarreling on the science of climate change began early in the hearing, during opening statements, and never relented. Committee Chair Barbara Boxer (D-CA) opened with a statement in which she stated catastrophic climate change is already “unfolding before our very eyes,” adding that “Future generations are going to look back on this moment and judge each of us — each of us — on whether we started to act on this issue.” But many of the Committee’s Republicans disputed that claim. Senator James Inhofe (R-OK), for example, accused the President and EPA of denying “the truth.” Mississippi Republican Roger Wicker suggested that the science on the issue was not yet settled. Administrator McCarthy defended the President’s environmental policies, insisting that “both the economy and the environment must provide for current and future generations.” But Republicans on the Committee accused the President of overreaching in his use of executive authority to impose new environmental regulations. Senator David Vitter (R-LA) stated the “avalanche of regulatory actions” being unveiled by EPA and the White House would “frustrate our already struggling economy” and “clearly damage our ability to utilize our abundant energy resources.”

Bill Would Allow Cities To Modify Clean Water Act Requirements: Legislation introduced on January 14, 2014, by Representatives Bob Latta (R-OH) and Tim Walz (D-MN) would allow municipalities to modify Clean Water Act (CWA) permits, restructure CWA consent agreements, and take other actions to ease financial and compliance obligations related to their CWA regulatory obligations. According to Representatives Latta and Walz, the Clean Water Affordability Act (H.R. 3862) would codify EPA’s 2012 Integrated Planning Framework Policy, which enables municipalities to modify consent agreements, modify CWA permits, and take other actions that provide greater flexibility in meeting CWA obligations. The bill would also extend permits issued under the National Pollutant Discharge Elimination System (NPDES) from their current five year limit to up to 25 years.

Superfund Reinvestment Act Introduced In The House: Representative Earl Blumenauer (D-OR) introduced the Superfund Reinvestment Act (H.R. 3870), which would amend Section 111 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) to direct the use of CERCLA funds to purposes specific to remediation of hazardous substances contamination. The bill would also reinstate the excise taxes under CERCLA. Given the Republican control of the House, the bill is unlikely to be taken up in any of the committees to which it was referred.

Senators Schatz And Rockefeller Introduce Legislation Amending CERCLA In Response To Recent Chemical Spills: Following the recent spill of approximately 7,500 gallons of crude 4-methylcyclohexane methanol (MCHM) into the Elk River in West Virginia and a 233,000-gallon molasses spill in Honolulu Harbor in September, Senators Brian Schatz (D-HI) and Jay Rockefeller (D-WV) on January 16, 2014, introduced legislation “to make those responsible for such spills pay for the clean-up and to provide more funding for states and agencies responsible for responding to these incidents.” The first bill, S. 1951, would amend CERCLA Section 107 to require companies who spill materials that are dangerous but not deemed hazardous by EPA, such as molasses or MCHM, to reimburse the government for response costs under CERCLA. Currently only those chemicals deemed hazardous substances under CERCLA trigger liability under Section 107. The second piece of legislation, S. 1958, would raise the response cap on clean-ups associated with harmful spills from $2 million to $4 million, doubling the amount of response funds available for spill remediation. The current $2 million cap has not been updated since 1986, or kept up with inflation.

Senate Subcommittee Holds Hearing On West Virginia Chemical Spill: On February 4, 2014, the Senate EPW Subcommittee on Water and Wildlife held a hearing entitled “Examination of the Safety and Security of Drinking Water Supplies Following the Central West Virginia Drinking Water Crisis.” The hearing focused on the January 9, 2014, spill of MCHM from a facility owned by Freedom Industries, Inc. (Freedom) into the Elk River in West Virginia. Testifying at the hearing were:

  • Natalie E. Tennant, Secretary of State for West Virginia, highlighted the lasting economic impacts of the spill, called for further study, and for action to restore the public’s confidence in the water supply.
  • Randy C. Huffman, Cabinet Secretary, West Virginia Department of Environmental Protection, testified on the gap in regulatory coverage for above-ground storage tanks.
  • Erik D. Olson, Senior Strategic Director for Health and Food, Natural Resources Defense Council, examined aspects of the SDWA and the CWA that failed to prevent or mitigate the release.
  • Brent Fewell, Vice President of Environmental Compliance, United Water, argued for more communication between EPA and state and local agencies and also urged a higher degree of disclosure of potential upstream risk to utilities.
  • Michael W. McNulty, General Manager, Putman Public Service District, called for greater local controls for water supplies.
  • Richard O. Faulk, Hollingsworth LLP, speaking on his own behalf, cautioned against a “top down” response to the spill by federal regulators, arguing that such a response could displace a protective system of state and local laws and regulations.
  • R. Peter Weaver, Vice President of Government Affairs, International Liquid Terminals Association, devoted most of his testimony to reciting the federal regulations applicable to the management of chemicals in liquid terminals. He stated that “even with an expansive net of regulatory requirements, anomalous circumstances exist where an incident such as this [Elk River spill] can occur.” Weaver argued that the first step in a proper oversight response requires an understanding of those circumstances within which it was allowed, and as such federal legislative action in response to Elk River at this moment would be premature.

Subcommittee Chair Ben Cardin (D-MD) opened the hearing by stressing the rights of citizens to have access to clean and safe drinking water. While acknowledging that Freedom acted recklessly, Cardin also pointed out that the federal regulatory system governing the storage of chemicals also failed. Senator David Vitter (R-LA), ranking EPW member, also made an opening statement, although he used his time to criticize EPW Chair Barbara Boxer (D-CA) for not bringing several pieces of environmental legislation for Committee markup.

Senate Joint Resolution Disapproves Of EPA Regulation Limiting CO2 Emissions From New Power Plants: Senate Minority Leader Mitch McConnell (R-KY) on January 16, 2014, introduced a joint resolution on EPA’s New Source Performance Standard (NSPS) that limits emissions of carbon dioxide (CO2) from new power plants. The resolution, S.J. Res. 30, states that “Congress disapproves the rule submitted by the Environmental Protection Agency relating to new source performance standards for emissions of carbon dioxide for new affected fossil fuel-fired electric utility generating units (published at 79 Fed. Reg. 1430 (January 8, 2014)), and such rule shall have no force or effect.”


ECHA Adds Seven Chemicals To SVHC List: On December 16, 2013, the European Chemicals Agency (ECHA) added seven hazardous chemicals to the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) list of substances of very high concern (SVHC). The seven substances are cadmium sulfide, disodium 3,3′-[[1,1′-biphenyl]-4,4′-diylbis(azo)]bis(4-aminona phthalene-1-sulphonate) (C.I. Direct Red 28), disodium 4-amino-3-[[4′-[(2,4-diaminophenyl)azo][1,1′-biphenyl ]-4-yl]azo]-5-hydroxy-6-(phenylazo)naphthalene-2,7-di sulphonate (C.I. Direct Black 38), dihexyl phthalate, imidazolidine-2-thione (2-imidazoline-2-thiol), lead di(acetate), and trixylyl phosphate. The addition of the substances brings to 151 the number of chemicals listed as SVHCs under REACH. Listing the substances triggers an obligation for producers or importers of products containing the substances at a concentration above 0.1 percent by weight to notify ECHA. Notifications must be submitted within six months. The substances could also be prioritized for inclusion in REACH Annex XIV. On January 24, 2014, it was reported that Sweden intends to submit a dossier proposing that the chemical 1,2-benzenedicarboxylic acid, dihexyl ester, branched and linear be listed as an SVHC under REACH. The ECHA SVHC list is available online.

CSB Report On 2010 Tesoro Refinery Fatal Explosion Calls For Strengthening National Chemical Safety Regulations And The Use Of Inherently Safer Technology: On January 29, 2014, the U.S. Chemical Safety Board (CSB) issued its draft report on the 2010 fatal explosion and fire at the Tesoro refinery in Anacortes, Washington. The explosion killed seven employees. The draft report states that the accident was caused by damage to the heat exchanger, a mechanism known as “high temperature hydrogen attack” or HTHA, which severely cracked and weakened carbon steel tubing leading to a rupture. CSB makes far-reaching recommendations to EPA and the Governor and State Legislature of the State of Washington to do more to protect workers and communities from potentially catastrophic chemical releases. CSB found the industry-wide method used to predict the risk of HTHA damage to be inaccurate, with equipment failures occurring under conditions the method deemed to be safe. It cited deficiencies in the company’s safety culture that led to a “complacent” attitude toward flammable leaks and occasional fires. Investigators also determined that during the unit startup, Tesoro did not correct the history of hazardous conditions or limit the number of people involved in the hazardous non-routine startup of the heat exchangers. But because of the reoccurring leaks and the need to manually open a series of valves that required over one hundred turns by hand to open, a supervisor requested five additional workers to help. All seven lost their lives as a result of the blast. CSB Chairperson Dr. Rafael Moure-Eraso stated: “The accident at Tesoro could have been prevented had the company applied inherent safety principles and used HTHA resistant construction materials to prevent the heat exchanger cracking. This accident is very similar to the one that occurred at the Chevron refinery in Richmond, California in August 2012, where corrosion of piping went undetected for decades until it ruptured, endangering the lives of 19 workers caught in a vapor cloud and sending 15,000 community members to the hospital. Companies must do a better job of preventing refinery accidents, which occur all too frequently.” The report concludes, “nherently safer design is a better approach [than current industry practices] to prevent HTHA.” Chairperson Moure-Eraso stated: “We need a national mandate for state and federal regulators to require chemical facilities utilize inherently safer technology to the greatest extent practicable.” The report found that both the Tesoro and Chevron incidents could have been prevented if inherently safer technology were used. The draft report is available for public comment until March 16, 2014.

NTSB Issues Recommendations To Improve Rail Transport Of Crude Oil: The National Transportation Safety Board (NTSB) and the Transportation Safety Board of Canada (TSB) jointly recommended on January 23, 2014, that U.S. and Canadian regulators take several steps to reduce the hazards associated with the transport of crude oil by rail. The recommendations came in the form of a Safety Recommendation Letter to the Department of Transportation (DOT). Crude oil shipments by rail have increased by over 400 percent since 2005, according to the Association of American Railroad’s Annual Report of Hazardous Materials. NTSB is concerned that major loss of life, property damage, and environmental consequences can occur when large volumes of crude oil or other flammable liquids are transported on a single train involved in an accident, as seen in the Lac Megantic, Quebec, accident, as well as several accidents the NTSB has investigated in the U.S. The NTSB issued three recommendations to DOT’s Federal Railroad Administration (FRA) and Pipeline and Hazardous Materials Safety Administration (PHMSA). The first would require expanded hazardous materials route planning for railroads to avoid populated and other sensitive areas. The second recommendation to FRA and PHMSA is to develop an audit program to ensure rail carriers that carry petroleum products have adequate response capabilities to address worst-case discharges of the entire quantity of product carried on a train. The third recommendation is to audit shippers and rail carriers to ensure that they are properly classifying hazardous materials in transportation and that they have adequate safety and security plans in place.

DOT Issues Advisory Bulletin Regarding Facility Response Plans: DOT’s PHMSA on January 28, 2014, issued an advisory bulletin to remind onshore oil pipeline operators of the circumstances of the Marshall, Michigan, pipeline accident and the need to update facility response plans (FRP) every five years. 79 Fed. Reg. 4532. PHMSA also stated that it will make FRPs publicly available by posting them on its website. The bulletin further reminds onshore oil pipeline operators that FRPs must be updated whenever there are new or different operating conditions that would affect the implementation of a response plan, and that when updating their FRPs, operators should utilize Appendix A to 49 C.F.R. Part 194 — Guidelines for the Preparation of Response Plans. What sparked PHMSA’s issuance of the bulletin was a July 25, 2010, incident in Marshall, Michigan, when a segment of a 30-inch-diameter pipeline ruptured in a wetland. The rupture was not discovered or addressed for over 17 hours. The release caused extensive contamination. About 320 people reported symptoms consistent with crude oil exposure. Cleanup and remediation continues, and costs have exceeded $1 billion. The NTSB determined that the probable cause of the pipeline rupture was stress corrosion cracking that grew and coalesced from crack and corrosion defects under disbonded polyethylene tape coating. NTSB further found that the rupture and prolonged release were caused by pervasive organizational failures by the pipeline operator.

California Agency Adds Trichloroethylene To Proposition 65 List Of Reproductive Toxicants: On February 5, 2014, the California Office of Environmental Health Hazard Assessment (OEHHA) added the industrial solvent trichloroethylene to the state’s list of chemicals known to cause reproductive toxicity. OEHHA announced that it added trichloroethylene (CAS No. 79-01-06) to the list based on formal determination by EPA that the chemical is associated with male reproductive toxicity and developmental toxicity. The addition of trichloroethylene, also known as TCE, to the list was effective January 31, 2014. The updated version of California’s Proposition 65 list is available online.

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