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March 1, 2014

Monthly Update for March 2014

Bergeson & Campbell, P.C.


EPA’s Endocrine Disruptor Screening Program Updates EDSP Comprehensive Management Plan: On February 21, 2014, the U.S. Environmental Protection Agency (EPA) updated its Endocrine Disruptor Screening Program (EDSP) Comprehensive Management Plan to emphasize the utilization of advanced informational technology and computational methods. The updated 2014 EDSP Comprehensive Management Plan provides strategic guidance for EPA personnel and outlines the critical EDSP activities that are planned for this program over the next five years. Among the many critical activities is a core focus on using informational technology to enhance data interpretation and applying computational methods to more efficiently prioritize and screen the universe of EDSP chemicals for potential effects on the endocrine system. More information on the EDSP is available online.

EPA Withdraws Proposed HPV Rules: EPA recently announced its decision to withdraw testing requirements and significant new use rules (SNUR) on 45 high production volume (HPV) chemicals. Until the rules are withdrawn, companies that make any of the 22 chemicals regulated under the SNURs are required to report exports of those compounds in accordance with Toxic Substances Control Act (TSCA) Section 12(b). Export notifications are required of any chemical for which SNURs — or other regulations authorized by the new chemicals section of TSCA — have been proposed or promulgated, according to an EPA website.

EPA Announces Exposure Modeling Public Meeting: On February 25, 2014, EPA scheduled an Exposure Modeling Public Meeting for March 24, 2014. 79 Fed. Reg. 10518. The notice announces the location and time for the meeting and sets forth the tentative agenda topics. Tentative topics for the meeting include: (1) estimating the magnitude of pesticide effects on avian reproductive success: Markov chain nest productivity model (MCnest); (2) the Surface Water Concentration Calculator; (3) development of a conceptual model for estimating aquatic exposure from the use of pesticides on rice using the Pesticide Flooded Application Model; (4) evaluation of North American Free Trade Agreement (NAFTA) kinetics guidance; (5) comparison of multiple spray drift deposition data sets; (6) guidance on modeling offsite deposition of pesticides via spray drift; (7) use of the Organization for Economic Cooperation and Development (OECD) ENASGIPS tool in U.S. settings; (8) a better sorption model for predicting pesticide behavior; (9) the significance of time-dependent sorption on leaching potential: A comparison of measured field results and modeled estimates; (10) evaluation of PRZM-GW using long-term ground water monitoring data; (11) comparing ground water models — why are there differences?; (12) modeling pesticide fate and transport through flowing water bodies for endangered species assessment in the California Central Valley; (13) Spatial Aquatic Model (SAM) pilot project update; and (14) EPA PRZM-GW Evaluation.

EPA Withdraws Proposal To Clarify Reporting Of Metal Mining Toxic Releases: On March 7, 2014, EPA withdrew a proposed rule intended to clarify which metal mining releases must be reported under the Toxics Release Inventory (TRI) program under Section 313 of the Emergency Planning and Community Right-to-Know (EPCRA). The proposed rule had been under review at the White House Office of Management and Budget (OMB) for nearly three years. It would have clarified the definitions of manufacturing and processing for metal mining activities, and specified which information should have been reported to the TRI about toxic chemicals produced and used at industrial facilities and how they should be managed. In 2001, the U.S. District Court for the District of Colorado ruled that EPA inappropriately subjected waste rock to certain TRI reporting requirements by too broadly defining manufacturing and processing. National Mining Association v. EPA, D. Colo., No. 97-N-2665 (Mar. 30, 2001). Metal mining companies currently are required to report from facilities where they manufacture or process at least 25,000 pounds or use at least 10,000 pounds of a listed chemical. EPA previously considered naturally occurring materials to be manufactured by natural processes.

EPA Releases Studies On Flame Retardant And DEP: On March 7, 2014, EPA released scientific studies of diethyl phthalate (DEP) and hexabromocyclododecane (HBCD) compiled from a scientific literature search. EPA also disclosed how it intends to evaluate those studies. The release is intended to enable interested stakeholders to review them prior to an April 29-30, 2014, meeting EPA has scheduled to discuss them as part of the Integrated Risk Information System (IRIS) Program. The preliminary information about DEP and HBCD and details on the April IRIS meeting are available online.

EPA Announces Registration For TRI Training Meeting: On March 11, 2014, EPA announced registration availability for the National Training Conference on TRI and Environmental Conditions in Communities scheduled for May 7-9, 2014. The conference will address TRI subjects ranging from toxic release rulemakings, to data quality and will include several speakers from EPA , the National Institutes of Health, industry representatives, and other federal agencies. EPA Administrator Gina McCarthy is scheduled as invited to give opening remarks and a keynote speech. The agenda is available online. Registration and other conference details are available online.

EPA Opens A New General Comments Docket For The IRIS Program: On March 13, 2014, EPA announced the availability of a “General Comments” docket for the IRIS Program. This docket will be used to accept public comments that have broad applicability to the IRIS Program, which may include comments on general scientific issues that apply to all assessments and/or other non-chemical-specific comments about the IRIS Program. This docket does not replace the IRIS Hotline, but rather provides another avenue to submit feedback to the IRIS Program. According to the Memorandum to Open Docket for Public Access, which is available online, EPA will accept comments “from March 6, 2014 to December 31, 2014.” Please consult the Memorandum for instructions on how to submit comments.


California Announces First Draft Priority Products Under Safer Consumer Products Regulations: The California Department of Toxic Substances Control (DTSC) announced on March 13, 2014, the first draft Priority Products (PP) under the Safer Consumer Products Regulations (SCPR). The three draft PPs are:

  • Children’s foam-padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate (TDCPP);
  • Spray polyurethane foam (SPF) systems containing unreacted diisocyanates; and
  • Paint and varnish strippers and surface cleaners containing methylene chloride.

DTSC states that the designation as a draft PP “imposes no new regulatory requirements on manufacturers until DTSC finalizes it by adopting regulations.” Under the SCPR, DTSC will begin a rulemaking process for each PP, and DTSC anticipates it could take a year to promulgate a final rule. Once the final rules adopt the PPs into the regulations, manufacturers of PPs will have 60 days to notify DTSC and begin the Alternatives Analysis (AA) process. DTSC states that the findings of each manufacturer’s AA report will determine what regulatory response, if any, DTSC may impose. Under the SCPR, DTSC has available a range of regulatory responses, from product labeling to a sales prohibition. More information is available on DTSC’s website. A more detailed memorandum is available online.


NSF Announces Availability Of Market Report On Emerging Nanotechnology: On February 25, 2014, the National Science Foundation (NSF) announced the results of an NSF and National Nanotechnology Coordination Office (NNCO)-funded independent study that identifies more than $1 trillion in global revenue from nano-enabled products in 2013. NSF states that, to help quantify the global growth in nanotechnology research and development, Lux Research released a new report on global spending for emerging nanotechnology and the next generation of nano-enabled products. According to NSF, the findings “help illustrate the long-term impact investments in fundamental science and engineering research under an innovative initiative can have on the global marketplace.” NSF states:

The survey shows global funding for emerging nanotechnology has increased by 40-to-45 percent per year for the last three years. It shows that revenue from nano-enabled products grew worldwide from $339 billion in 2010 to $731 billion in 2012 and to more than $1 trillion in 2013. Revenue from the United States alone was $110 billion, $236 billion and $318 billion those same years, respectively.

More information is available online.

NNCO Releases 2014 NNI Strategic Plan: On February 28, 2014, the NNCO announced the release of the 2014 National Nanotechnology Initiative (NNI) Strategic Plan. The NNI Strategic Plan represents the consensus of the participating agencies as to the high-level goals and priorities of the NNI and specific objectives for at least the next three years. It is intended to provide an integrated, interagency approach informing the nanotechnology-specific strategic plans of NNI agencies. The Strategic Plan describes the four overarching goals of the NNI, the major program component areas (PCA) used to track the categories of investments needed to ensure the success of the NNI, and the near-term objectives that provide concrete steps toward collectively achieving the NNI vision and goals. The Strategic Plan also describes collaborative interagency activities, including Nanotechnology Signature Initiatives (NSI), which serve as a model of specifically targeted and closely coordinated interagency, cross-sector collaboration designed to accelerate innovation in areas of national priority. The first three NSIs, launched in 2010, are focused on solar energy, sustainable manufacturing, and next-generation electronics. In 2012, two additional NSIs on informatics and sensors were introduced. The goals of the NNI are to:

  • Advance a world-class nanotechnology research and development program;
  • Foster the transfer of new technologies into products for commercial and public benefit;
  • Develop and sustain educational resources, a skilled workforce, and a dynamic infrastructure and toolset to advance nanotechnology; and
  • Support responsible development of nanotechnology.

The Strategic Plan is available online.

OECD Issues Expert Meeting Report On Ecotoxicology And Environmental Fate Of Manufactured Nanomaterials: On March 7, 2014, OECD posted a report entitled Ecotoxicology and Environmental Fate of Manufactured Nanomaterials: Test Guidelines, which provides a report of the discussion and recommendations from the January 2013 expert meeting on ecotoxicology and environmental fate. As part of OECD’s Program on the Safety of Manufactured Nanomaterials, it initiated a series of expert meetings intended to improve the applicability of the OECD Test Guidelines (TG) to nanomaterials. The main objective of the meeting was to assess the applicability of existing TGs to manufactured nanomaterials, with a view to:

  1. Identify the needs for updating the OECD TGs related to environmental fate and ecotoxicology, and developing new nanospecific TGs;
  2. Identify specific needs for developing/updating existing guidance documents, including identifying the need for additional sections for fate and ecotoxicology testing of nanomaterials; and
  3. Develop separate specific or adapt existing guidance documents for environmental fate and ecotoxicology testing of nanomaterials.

Meeting participants concluded that OECD TGs 201, 211, 222, 225, 305, 315, and 317 are applicable to engineered nanomaterials (ENM). According to the participants, TG 105 is not appropriate for nanomaterials, and a TG should be developed that addresses the dissolution behavior of ENMs. The participants concluded that TG 106 for measuring the adsorption and desorption behavior of a substance in soils cannot be applied for the testing of nanomaterials, since no valid differentiation between adsorbed and not adsorbed ENMs is possible. The OECD report includes specific recommendations regarding the application of each TG to ENMs and details about the data analysis, acceptable loss of the ENMs during the test, endpoints, test procedure, selection of the test media, and target organism. The report is available online.

European Parliament Objects To European Commission’s Definition Of Engineered Nanomaterials In Food: The European Parliament (EP) passed a resolution on March 12, 2014, that objects to the European Commission’s (EC) proposed regulation that would define “engineered nanomaterials” in food. According to the EP’s press release, the EC’s proposed regulation “would grant a blanket exemption from food-labelling requirements for nano-additives already on the market.” The press release quotes EP Member Carl Schlyter, who is credited for the EP’s “scrutiny” of the proposed regulation, as stating: “The EP has repeatedly called for proper nano-labelling and it is highly surprising that the Commission even tried to weaken what has been decided by both Parliament and the Council. Consumers have the right to know and make their own choice. They do not want the Commission to do that for them. That is why today’s vote is important.” The press release states that the EC’s justification for the exemption, that consumers might assume that existing food additives being labeled as “nano” were new to the market, is “erroneous and irrelevant.” More information is available online.

The EC published the proposed regulation as a delegated regulation in the December 19, 2013, Office Journal of the European Union, and then, on December 20, 2013, published a notice declaring it “null and void.” The withdrawal of the amendment was the result of a procedural error by the EC.


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


DOT Issues And Subsequently Amends Emergency Order Requiring Stricter Standards To Transport Crude Oil By Rail: Issuing its fourth Emergency Order or safety advisory on crude oil in the last seven months, the U.S. Department of Transportation (DOT) on February 25, 2014, issued an Emergency Order requiring all shippers to test crude oil from the Bakken shale region to ensure the proper classification of the crude oil before it is transported by rail, while also prohibiting the transportation of crude oil in the lowest-strength packing group. The Emergency Order requires those who offer crude oil for transportation by rail to ensure that the product is properly tested and classified in accordance with federal safety regulations. The Emergency Order also requires that all Class III crude oil shipments be designated as Packing Group I or II, thereby requiring the use of a more robust tank car. Packing Group III, a lower risk designation, will not be accepted until further notice. Shippers are required to use nine hazard classes as a guide to classify properly their hazardous materials. Proper classification will ensure that the material is placed in the proper package and that the risk is accurately communicated to emergency responders. Shipping crude oil — or any hazardous material — without proper testing and classification could result in material being shipped in containers that are not designed to store it safely, or could lead first responders to follow the wrong protocol when responding to a spill. In response to concerns raised by shippers, on March 6, 2014, DOT amended the Emergency Order. The amended Order clarifies the scope and frequency of the testing requirements. The revised Order states that classification tests should be of “sufficiently representative samples” to determine the crude oil’s flash point and boiling point prior to shipment, that existing test data may be relied upon if there is a “reasonable degree of certainty,” that it is representative of the product, and that tests should occur with “sufficient frequency” to ensure data remains accurate and current. According to the Order, establishment of testing intervals should account for variability of the material, including the time, temperature, and location of extraction.

DOT’s PHMSA Announces First Results From 2013 Investigation Into Transportation Of Bakken Oil: DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) recently announced the first results from its 2013 investigation into the transportation of Bakken oil, known as Operation Classification, which show that crude oil taken from cargo tanks en route to rail loading facilities was not properly classified. PHMSA has issued three Notices of Probable Violations to the companies involved as a result. PHMSA first launched Operation Classification in the summer of 2013, in response to increased activity in the Bakken region. Beginning in August to November 1, 2013, PHMSA inspectors tested samples from various points along the crude oil transportation chain, from cargo tanks that deliver crude oil to rail loading facilities, from storage tanks at the facilities, and from the pipeline connecting the storage tank to the rail car that would move the crude across the country. Based on the test results, 11 of the 18 samples taken from cargo tanks delivering crude oil to the rail loading facilities were not assigned to the correct packing group. As a result of these findings, PHMSA has expanded the scope of Operation Classification to include testing for other factors that affect proper characterization and classification such as Reid Vapor Pressure, corrosivity, hydrogen sulfide content, and composition/concentration of the entrained gases in the material.


Shimkus Releases Discussion Draft Of TSCA Reform Legislation: On February 27, 2014, Representative John Shimkus (R-IL), Chair of the House Energy and Commerce Subcommittee on Environment and the Economy, released a much anticipated discussion draft that would update TSCA. According to Shimkus’ press release, the Chemicals in Commerce Act (CICA) “keys off” S. 1009, the Chemical Safety Improvement Act (CSIA), which was introduced on May 22, 2013, by the late Senator Frank R. Lautenberg (D-NJ) and Senator David Vitter (R-LA). Under Shimkus, the Subcommittee has held five hearings that reviewed several core sections of Title I of TSCA and proposed Senate amendments to those sections. The discussion draft of CICA is available online. Highlights of the bill are available online. Memoranda regarding S. 1009 and on the Congressional hearings held to date are available online. A more detailed memorandum on CICA is available online.

House Subcommittee Holds Hearing On TSCA Reform: On March 12, 2014, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing focused on the discussion draft of CICA. As discussed above, on February 27, 2014, Representative John Shimkus (R-IL), Chair of the Subcommittee, released a much anticipated discussion draft that would update TSCA. The March 12 hearing was intended to provide the Subcommittee an opportunity to review the provisions of CICA. An analysis of the draft legislation is available in our March 3, 2014, memorandum. The background memorandum and a webcast of the hearing are available online.

Shimkus began the hearing by noting that work on the discussion draft of CICA is just that — a discussion draft — and that discussions are continuing. Shimkus described making laws as a dynamic process that requires collaboration and diverse input and that he saw the discussion draft status and the hearing as providing an opportunity to further this process. According to Shimkus, the language in the discussion draft is likely to change as Congress works to reach consensus. Representative Paul Tonko (D-NY), Ranking Member, stated that he wants to work with Shimkus and other members of the Committee. While he understands that staff members have had some good opening discussions, the discussion draft does not yet meet the needs of all stakeholders. Representative Henry Waxman (D-CA), Committee Ranking Member, stated that letters opposing the discussion draft “have poured in.” According to Waxman, if CICA were enacted, it would weaken the current law and endanger public health. Waxman would like to work with Shimkus and Representative Fred Upton (R-MI), Committee Chair. Waxman concluded his remarks by commenting that while House Democrats cannot pass a bill without Republican support, he believes House Republicans cannot enact a law without Democratic support. A detailed Bergeson & Campbell, P.C. review and analysis of the hearing is available online.

House Passes Bill Blocking EPA GHG Rules: Along largely party lines, the House of Representatives on March 6, 2014, passed the Electricity Security and Affordability Act (H.R. 3826). The measure, passed by a 229-183 vote, with only ten Democrats voting for passage, would block EPA from issuing, implementing, or enforcing any proposed or final rule under the Clean Air Act (CAA) that establishes a performance standard for greenhouse gas (GHG) emissions from any new source that is a fossil fuel-fired electric utility generating unit. EPA would also be required to regulate sources fueled with coal separately from those fueled with natural gas. EPA would also be prohibited from setting a standard based on the best system of emission reduction for new sources within the coal category unless it has been achieved on average for at least one continuous 12-month period by each of at least six units within the category. The bill is a response to a proposed EPA rule that Republicans contend would require new coal-fired plants to achieve an emission standard that is virtually impossible using today’s widely available technology. Representative Ed Whitfield (R-KY), the bill’s sponsor, states the rule will effectively ban new power plants. The bill is unlikely to be taken up in the Senate, and even if it were, President Obama would almost certainly veto any such legislation placed before him for signature. The House’s action does, however, signal that Republicans will continue their attack on the Obama Administration’s efforts to regulate emissions of GHGs from the utility industry. The White House strongly opposes H.R. 3826, stating it would “undermine the public health protections of the Clean Air Act…and stop U.S. progress in cutting dangerous carbon pollution from power plants.” In a Statement of Administration Policy, the White House stated the bill would “nullify proposed carbon pollution standards for future power plants, and arbitrarily restrict the available technologies that could be considered for any new standards. This requirement would stifle progress in reducing carbon pollution by discouraging the adoption of currently available and effective technology, and would limit further development of cutting-edge clean energy technologies.” The statement concluded that “if the President is presented with H.R. 3826, his senior advisors would recommend that he veto the bill.”

Senate Environment And Public Works Committee Shifts Subcommittee Chairs: In the wake of Senator Max Baucus’ departure from the U.S. Senate and appointment as U.S. Ambassador to the People’s Republic Of China, the Democrats of the Senate Environment and Public Works (EPW) Committee have reshuffled Subcommittee chairmanships. Senator Sheldon Whitehouse (D-RI) will now chair the Clean Air and Nuclear Energy Subcommittee, Senator Tom Carper (D-DE) will lead the Transportation and Infrastructure Subcommittee, and Senator Cory Booker (D-NJ) will chair the Oversight Subcommittee. Senator Tom Udall (D-UT) will continue to chair the Superfund, Toxics and Environmental Health Subcommittee. Senator Jeff Merkley (D-OR) stays as the Chair of the Green Jobs and the New Economy Subcommittee and Senator Ben Cardin (D-MD) will remain as the Chair of the Water and Wildlife Subcommittee.

House Subcommittee Chair Introduces Bill To End EPA “Secret Science”: On February 6, 2014, Representative David Schweikert (R-AZ) introduced a bill intended to end EPA’s alleged use of “secret science.” The bill, the Secret Science Reform Act of 2014 (H.R. 4012), would prohibit EPA from proposing regulations based upon science that is not transparent or not reproducible. Schweikert chairs the House Committee on Science, Space, and Technology Subcommittee on the Environment. “The Secret Science Reform Act ends costly EPA rulemaking from happening behind closed doors and out of public view,” stated Schweikert. “Public policy should come from public data, not based on the whims of far-left environmental groups. For far too long, the EPA has approved regulations that have placed a crippling financial burden on economic growth in this country with no public evidence to justify their actions. This common-sense legislation forces the EPA to be transparent and accountable with their findings.”

House Passes Energy Efficiency Bill: On March 5, 2014, the House of Representatives passed bipartisan legislation intended to boost energy efficiency in homes and federal agencies. The legislation, authored by Representatives Peter Welch (D-VT) and David McKinley (R-WV), aims to boost energy conservation with a program called Tenant Star, which provides incentives to landlords and tenants who up their energy savings. The legislation, which passed 375 to 36, also promotes energy efficiency in federal agencies. The Better Buildings Act (H.R. 2126) would authorize EPA and the Department of Energy to establish the Tenant Star program and model it after the successful Energy Star program.

Misclassification And Transport Of Crude Oil Sparks Hearings In Committees In Both Houses: Misclassification of petroleum crude oil and recent incidents involving rail shipments of crude oil — including an August 2013 derailment and explosion in Canada that killed 47 — have prompted several Committees in Congress to investigate whether improvements are needed in U.S. hazardous materials rail transportation. The House Transportation and Infrastructure Subcommittee on Railroads, Pipeline and Hazardous Materials on February 26, 2014, held a hearing entitled “Oversight of Passenger and Freight Rail Safety.” (This hearing was originally scheduled for February 13 but was postponed due to weather.) A webcast of the hearing and the written witness testimonies are available online. Testifying at the hearing were:

  • Joseph Szabo, Administrator of DOT’s Federal Railroad Administration (FRA);
  • Cynthia Quarterman, Administrator of DOT’s PHMSA;
  • Robert Sumwalt, National Transportation Safety Board (NTSB) Member;
  • Edward Hamberger, President and CEO of the Association of American Railroads (AAR);
  • Jack Gerard, President and CEO of the American Petroleum Institute (API);
  • Michael Melaniphy, President American Public Transportation Association; and
  • John Tolman, Vice President and National Legislative Representative, Brotherhood of Locomotive Engineers and Trainmen.

Quarterman testified that PHMSA is close to issuing a proposed rule that would revise rail tank car design standards. PHMSA issued an Advance Notice of Proposed Rulemaking (ANPRM) on rail safety in September 2013. Quarterman stated that PHMSA “wants to see a proposed rule on DOT-111 rail tank car design released as soon as possible.” Quarterman was pressed by Committee members to set a date for the issuance of the proposed rule, but she declined to do so. Sumwalt testified that NTSB is “not convinced” that an existing rail industry standard for tank cars that are used to transport crude oil offers “significant safety improvements.” The petroleum industry adopted a voluntary industry standard, CPC-1232, for all new rail tank cars ordered after October 1, 2011. Sumwalt criticized the standard and added that DOT needs to adopt an improved federal standard for the design of DOT-111 rail tank cars. NTSB recommends that DOT set a regulatory standard that goes beyond the CPC-1232 standard, stated Sumwalt. Sumwalt mentioned full head shields and thicker head and shell materials as design features that should be required for cars used to transport crude oil. Gerard stated that DOT’s February 25, 2013, Emergency Order on the testing and classification of crude oil creates confusion for shippers of crude oil. The Order requires shippers of crude oil to conduct testing of “sufficient frequency and quality” to ensure the proper classification of crude oil. “We don’t know what that means,” stated Gerard. Quarterman stated DOT did not specify what constituted sufficient frequency and quality of testing because DOT wanted that to be determined by shippers based on their individual operations. Gerard stated the petroleum industry needs to meet with DOT officials to gain clarity on DOT’s expectations on crude oil classification testing. (DOT has subsequently revised the Order, as discussed elsewhere in this update.)

Senate Convenes Hearing On Rail Security: On March 6, 2014, the Senate Commerce, Science, and Transportation Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security held a hearing titled “Enhancing Our Rail Safety: Current Challenges for Passenger and Freight Rail.” Like the House hearing, this examined the state of safety on the nation’s passenger and freight rail networks, including a discussion of recent high-profile rail accidents. Several of the witnesses from the February 26 House hearing reprised their roles. The witnesses were:

  • Joseph Szabo, Administrator, FRA;
  • Cynthia Quarterman, Administrator, PHMSA;
  • Christopher Hart, Vice Chairman, NTSB;
  • Geoffrey Blackwell, Chief, Office of Native Affairs and Policy, Federal Communications Commission;
  • Prentiss Searles, Group Director, Downstream and Industry Operations, API; and
  • Ed Hamberger, President and CEO, AAR.

A webcast of the hearing and the witness testimonies are available online.

Also on March 6, 2014, the House Energy and Commerce Subcommittee on Energy and Power held a hearing where the issue of rail transport of crude oil was discussed. AAR President and CEO Edward Hamberger testified that certain crude oil contain highly combustible natural gas liquids such as methane and butane than other kinds of oil, making it more volatile. Hamberger defended the railroad’s safety record, noting that “99.98 percent” of 832,000 carloads of crude oil shipped between 2000 and 2013 “arrived at their destination without a release caused by an accident.”

The issue of enhanced safety for crude oil transport is unlikely to disappear any time soon. U.S. crude oil production is projected to increase to 9.3 million barrels per day in 2015, following a low of 5 million barrels per day in 2008, according to Energy Information Administration data. Safety issues surrounding transporting crude oil by rail come as new drilling techniques and technologies such as hydraulic fracturing and horizontal drilling have changed the energy landscape and unlocked oil in shale formations like the one that is beneath parts of North Dakota and Montana. In 2013, the country’s major railroads shipped 408,000 carloads of crude oil, or about 800,000 barrels per day “up from virtually nothing just a few years ago,” stated Hamberger.

Senate EPW Committee Holds Hearing On Improving Safety At Chemical Plants: The Senate EPW Committee on March 6, 2014, held a hearing to examine preventing potential chemical threats and improving safety. The hearing focused on oversight of the President’s Executive Order (E.O. 13560) on improving chemical facility safety and security and the Chemical Safety and Drinking Water Protection Act of 2014 (S. 1961). The webcast and witness testimonies are available online. The witnesses were:

  • Mathy Stanislaus, EPA Assistant Administrator for Solid Waste and Emergency Response;
  • Rafael Moure-Eraso, Chair of the U.S. Chemical Safety Board;
  • Dr. Michael Wilson, Chief Scientist, Office of the Director, California Department of Industrial Relations;
  • James Frederick, Assistant Director for Health, Safety & Environment, United Steelworkers International Union;
  • Evan Hansen, President, Downstream Strategies;
  • Billy Pirkle, Senior Director, Environment, Health and Safety, Crop Production Services (on behalf of The Fertilizer Institute); and
  • Scott Berger, Executive Director, Center for Chemical Process Safety, American Institute of Chemical Engineers.

Moure-Eraso, along with the Democratic Senators at the hearing, generally endorsed the use of inherently safer technologies (IST) at chemical facilities to enhance safety and security. Stanislaus, who also co-chairs an interagency working group tasked with improving chemical safety and security, also agreed that the use of IST reduces risk at chemical facilities. Moure-Eraso stated the use of IST would have reduced the consequences from recent chemical spills and accidents and he advocated the use of the CAA to require the implementation of ISTs.

House Passes Bill To Streamline Environmental Reviews And Permitting: The House of Representatives on March 6, 2014, passed the Responsibly and Professionally Invigorating Development (RAPID) Act (H.R. 2641). The bill, passed by a vote of 220-179, would streamline permitting by requiring a lead agency to set a schedule with deadlines and requiring participating agencies to do their work concurrently. The bill also specifies that if an agency failed to act, the permit, license, or approval application would be deemed approved. The RAPID Act would prohibit requiring more than one environmental impact statement and one environmental assessment for a project, except as otherwise provided by law. It would impose fixed, hard deadlines for the completion of an Environmental Impact Statement (EIS) or Environmental Assessment (EA) under the National Environmental Policy Act (NEPA). The bill would require the lead agency to complete a review that requires an EA within one year, with one six-month extension allowed under certain circumstances. It would require an EIS to be completed within two years, with a one-year extension possible. For a project requiring both an EA and an EIS, the entire environmental review process should not take more than 54 months total, with maximum extensions granted. The White House strongly opposes the bill and has issued a veto threat, stating the legislation “will increase litigation, regulatory delays, and potentially force agencies to approve a project if the review and analysis cannot be completed before the proposed arbitrary deadlines.”

President Obama Unveils FY 2015 Budget; EPA’s Coffers Take Slight Hit: President Obama on March 4, 2014, unveiled his Fiscal Year (FY) 2015 budget for the federal government. EPA would receive $7.9 billion in funding, down from FY 2014’s level of $8.2 billion, with most of the major cuts coming in Clean Water Act and Safe Drinking Water Act revolving funds. Big winners in the EPA budget, however, include programs to implement the President’s Climate Action Plan (including state implementation of GHG rules) and efforts to implement the President’s Executive Order on improving chemical plant safety.

Responsible Electronics Recycling Act Introduced In Senate: Senator Sheldon Whitehouse (D-RI) on March 6, 2014, introduced legislation intended to curb exports of electronic wastes to countries that are not equipped to handle the wastes responsibly. The Responsible Electronics Recycling Act (S. 2090) is virtually identical to a House bill (H.R. 2791) introduced in July 2013 by Representative Gene Green (D-TX). S. 2090 would amend the Resource Conservation and Recovery Act (RCRA) to prohibit the export of “restricted electronic waste” to countries that are not members of OECD or the European Union (EU), or Liechtenstein. The bill would also require EPA to develop and promulgate procedures for identifying certain electronic equipment as well as additional restricted toxic materials contained in such equipment that poses a potential hazard to human health or the environment. The bill defines “restricted electronic waste” to include electronic equipment such as computers, televisions, printers, copiers, video game systems, telephones, and similar used electronic products that contain cathode ray tubes, batteries, switches, and other parts containing lead, cadmium, mercury, organic solvents, hexavalent chromium, beryllium, or other toxic ingredients. The bill was referred to the EPW Committee for consideration.

Brownfields Redevelopment And Economic Development Act Introduced: Representative Janice Hahn (D-CA) on March 6, 2014, introduced a bill intended to facilitate brownfield redevelopment projects. The bill, the Brownfields Redevelopment and Economic Development Act (H.R. 4173) would re-establish a guarantee financing program for brownfields at the U.S. Department of Housing and Urban Development.

House Subcommittees Hold Joint Hearing On CCS: Two House Science, Space and Technology Committee Subcommittees held a joint hearing on March 12, 2014, on the feasibility of carbon capture and storage (CCS) as a means of controlling GHG emissions. The Subcommittees on Environment and Energy held the hearing to explore the basis for EPA’s conclusion that CCS is adequately demonstrated as a technology for controlling carbon dioxide emissions in full-scale commercial power plants. Technical experts testifying at the hearing focused on the potential use of CCS in both coal and natural gas fired power plants and the challenges associated with long-term geologic sequestration of carbon dioxide. The hearing also examined EPA’s rationale in proposing New Source Performance Standards (NSPS) for commercial power plants. Testifying at the hearing were:

  • David Hawkins, Director of Climate Change Programs, Natural Resources Defense Council;
  • Robert G. Hilton, Vice President, Power Technologies for Government Affairs, Alstom Power Inc.;
  • Robert C. Trautz, Senior Technical Leader, Electric Power Research Institute;
  • Scott Miller, General Manager and CEO, City Utilities of Springfield Missouri, American Public Power Association; and
  • Janet McCabe, Acting Assistant Administrator, Office of Air and Radiation, U.S. Environmental Protection Agency.

The witness testimonies are available online.

House Republicans Seek Further Information From EPA On CCS: On March 12, 2014, House Energy and Commerce Committee Republicans ramped up their demand for more information about the basis for EPA’s proposed mandate that all future coal-fired power plants use partial CCS to limit heat-trapping emissions. In a letter to EPA Administrator Gina McCarthy, six GOP Committee leaders charged that EPA’s proposed rule may exceed EPA’s authority under the CAA. They asked for more details about how EPA arrived at its decision that partial CCS is “the best system of emissions reduction … adequately demonstrated” for new coal plants and especially about the role three Energy Department-funded CCS projects played in that decision. The letter asks EPA to provide documents showing the process that led to the proposed rule, starting with a December 2010 settlement agreement with environmental plaintiffs.


SASB Issues Guidelines On Sustainability Measures: On February 25, 2014, the Sustainability Accounting Standards Board (SASB), a nonprofit standards-setting organization, released voluntary guidelines to help commercial banks, insurance companies, and others in the financial sector report on relevant sustainability issues in annual filings with the Securities and Exchange Commission (SEC). The financial sector standards are part of the SASB’s efforts to improve the quality of environmental, social, and governance (ESG) disclosure in mandatory SEC filings. SASB’s standards identify a minimum set of sustainability issues that are considered material, or relevant, to disclose for seven industries within the financial sector: asset management and custody activities; commercial banks; consumer finance; insurance; investment banking and brokerage; mortgage finance; and security and commodity exchanges. SASB’s reporting standards for the financial sector are available online.

CPSC Issues NPRM To Update Regulation That Interprets CPSA Section 6(b): On February 26, 2014, the Consumer Product Safety Commission (CPSC) issued a Notice of Proposed Rulemaking (NPRM) to update the regulation that interprets Section 6(b) of the Consumer Product Safety Act (CPSA). 79 Fed. Reg. 10712. In 1983, CPSC issued a regulation interpreting the provisions of CPSA Section 6(b), and is now proposing to modernize that regulation to account for the significant improvements in information technology that have occurred since the regulation’s adoption. CPSC is also proposing to streamline the regulation to be as closely aligned with Section 6(b) as possible, while maintaining its compliance with the statutory requirements and the protections of Section 6(b)(5) for information filed in accordance with the requirements of CPSA Section 15(b). Comments must be received by April 28, 2014.

EPA Reopens Comment Period On Ecolabels: On February 27, 2014, EPA reopened the comment period on draft guidelines for product performance standards and ecolabels for voluntary use in federal procurement. 79 Fed. Reg. 11102. The guidelines are intended to provide a transparent, fair, and consistent approach to using nongovernmental product environmental performance standards and ecolabels in federal purchasing, consistent with federal standards policy and sustainable acquisition mandates. The draft guidelines were developed in response to requests via a wide variety of stakeholder engagement channels from suppliers, manufacturers, environmental organizations, federal purchasers, and other stakeholders over the last several years. Voluntary guidelines for standards and ecolabels would help agencies implement sustainable acquisition requirements of Executive Order 13514 and the Federal Acquisition Regulation (FAR) 23.103, which requires 95% of the government’s applicable contract actions to be sustainable. Specifically, the guidelines for standards and ecolabels could provide clarity regarding the term “environmentally preferable” for purposes of the Executive Order. In addition to seeking input on the draft Guidelines themselves, EPA is seeking input on how standards and ecolabels should be assessed for conformance to such guidelines. The proposed draft guidelines and supplementary information can be found in the docket and online. Comments must be received on or before April 25, 2014.

EPA Requests Nominations For Peer Reviewers Of Draft Health Effects Documents For Perfluorooctanoic Acid And Perfluorooctane Sulfonate: On February 28, 2014, EPA requested the public to nominate scientific experts to be considered as peer reviewers for the contractor-managed external peer review of the draft documents entitled “Health Effects Document for Perfluorooctanoic Acid” and “Health Effects Document for Perfluorooctane Sulfonate.” 79 Fed. Reg. 11429. EPA also announced the release of the draft health effects documents for public comment. The draft documents and charge questions were prepared to support potential future regulatory evaluations and decisions. These draft documents do not represent and should not be construed to represent final EPA policy. The nomination period for scientific experts ends on March 21, 2014.

OSHA Posts Letters Of Interpretation On Revisions To HCS On Website: On March 4, 2014, the Occupational Safety and Health Administration (OSHA) posted four letters of interpretation, which are available online. All four of these letters relate specifically to aspects set forth in the March 26, 2012, revisions to the Hazard Communication Standard (29 C.F.R. § 1910.1200). The first letter details responses to specific questions posed regarding identification, disclosure, and classification of petroleum streams. OSHA suggests an approach on how to address issues relating to disclosure of complex chemical substances as well as an approach specific to petroleum streams on classification endpoints, like carcinogenic constituents. The second letter details a series of questions specific to Appendix C to 29 C.F.R. § 1910.1200 — Allocation of Label Elements (Mandatory), C.4.30 Label elements of OSHA defined hazards, combustible dusts. In the majority of the responses, OSHA does indicate usage of Hazardous Materials Identification System (HMIS) and National Fire Protection Association (NFPA) information as well as precautionary statements as being allowed as long as the information displayed does not “contradict or cast doubt on the label information required by HCS 2012 (C.3.1) or impede the user’s ability to identify the information required by HCS 2012 (C.3.2).” The letter also elaborates on circumstances where downstream users would be required to label under this mandatory appendix. The third letter provides additional guidance to industry with respect to addressing the OSHA category of hazards not otherwise classified (HNOC) as defined under 29 C.F.R. § 1910.1200(c). The fourth letter responds to questions regarding endpoints found in Appendix A to 29 C.F.R. § 1910.1200 — Health Hazard Criteria (Mandatory), specifically addressing questions on mixture cutoff concentration tables set forth under A.8 Specific Target Organ Toxicity Single Exposure (STOT SE) (Table A.8.2: Cut-off values/concentration limits of ingredients of a mixture classified as a specific target organ toxicant that would trigger classification of the mixture as Category 1 or 2) and A.9 Specific Target Organ Toxicity Repeated or Prolonged Exposure (STOT RE) (Table A.9.3: Cut-off value/concentration limits of ingredients of a mixture classified as a specific target organ toxicant that would trigger classification of the mixture as Category 1 or 2). In the letter, OSHA elaborates on circumstances for which limited classification approaches can be undertaken.

OCSPP Develops A Vision Plan: On March 12, 2014, Jim Jones, Assistant Administrator, Office of Chemical Safety and Pollution Prevention (OCSPP), shared with his colleagues a vision plan that was developed to guide OCSPP’s work over the next several years. The document, entitled Office of Chemical Safety and Pollution Prevention Envisioning Accomplishments in 2017, outlines several actions that will be taken by OCSPP regarding pesticide registration, existing chemicals, the EDSP, creating a whole new Design for the Environment (DfE), and employing green solutions. Actions that will be taken in implementing OCSPP’s vision are also outlined. The document is available online.

IARC Lists Chemicals To Be Reviewed During 2014 Meetings: The International Agency for Research on Cancer (IARC) released recently the identity of the chemicals that it will review this year and in March 2015. In June, IARC will review: perfluorooctanoic acid (PFOA; Chemical Abstracts Service (CAS) No. 124-07-2); tetrafluoroethylene (CAS No. 116-14-3); dichloromethane (CAS No. 75-09-2); 1,2-dichloropropane (CAS No. 78-87-5); and 1,3-propane sultone (CAS No. 1120-71-4). IARC’s request for data about those chemicals ends May 3, 2014. In September, IARC will review carbon nanotubes, fluoro-edenite, and silicon carbide (CAS No. 409-21-2). Carcinogenicity, detailed biological (mechanistic), and other information about the compounds can be submitted through September 3, 2014, according to IARC’s website. Finally, the agency announced that in March 2015, IARC will review the carcinogenicity of certain pesticides and related chemicals, the exact identity of which has not been disclosed. Nominations of scientists who wish to be considered for the March 2015 review panel are due July 30, 2014. Individuals and organizations that wish to observe the March 2015 meeting should contact IARC before November 3, 2014. A list of IARC’s upcoming meetings and instructions for submitting information for each meeting are available online.