Written by Moms Clean Air Force

On Tuesday, March 28, the day President Trump signed an executive order that attacked our children’s clean air safeguards, Moms Clean Air Force joined an emergency rally at Lafayette Square, in Washington, DC, near the White House. Parents, children and concerned citizens gathered to show support for health and environmental protections and signify outrage over the Administration’s reckless disregard for family health.

Moms Clean Air Force’s Liz Brandt gives remarks at the rally.

Among the speakers was Liz Brandt, mother of two and Moms Clean Air Force Washington, DC field consultant. This is a transcript of Liz’s remarks:

Today’s executive actions to protect polluters is an unprecedented attack on clean air safeguards for our communities, for our children. Never has a president, or an EPA head, acted with such reckless disregard for our children’s health, or their safety in the face of a clear & present danger – at the bidding of the biggest polluters. Our children will bear the costs. Our communities will bear the costs. Our families will bear the costs. The biggest polluters will pollute with impunity. They will profit. The costs for our children will be profound unless we stand together to stop this.

Are you with us?

I’m concerned that my kids and ALL of our kids are being exposed to smog pollution that comes downwind from power plants across the nation. In December, we went to the EPA to back up the State of Maryland’s request that the EPA ensure that midwestern coal-fired power plants use their quality controls on more summer days so that downwind areas like DC, Maryland and Virginia would not have high ozone days. The air pollution has primarily blown in from the Midwest. These smoggy days cause asthma attacks and trigger warnings for people to stay inside. We need a strong federal agency to make sure that we aren’t suffering from increased respiratory illnesses because another state doesn’t think environmental protection is a priority. We can’t gut the EPA or the Clean Power Plan!

Kids suffering from asthma already miss a combined 14 million days of school each year because of scary episodes of labored breathing. We cannot afford to go backwards on this issue. We’ve made progress: Between 1970 and 2011, aggregate emissions of common air pollutants dropped nearly 70 percent, while the U.S. gross domestic product doubled! We have to keep moving forward!

We want to play outside! Everyday! It’s not fair that air pollution can cause it to be unhealthy to play outside.

We’re not taking this lying down! We are in for the fight, and there are plenty of ways for us to block the implementation of this executive order. We are going to be here every step of the rule making and court process to stand up for our kids’ right to clean air!

Are you with us?

We will continue the fight to protect our children’s health.

TELL YOUR SENATOR: PROTECT OUR HEALTH FROM AIR AND CLIMATE POLLUTION

When I heard there had been an explosion on an oil rig in the Gulf of Mexico, I knew it was going to be one of the most impactful events during my lifetime. In the spring of 2010, I was living in Florida, deep in the throes of graduate school and finals were looming. I knew that once I really started to pay attention to the news surrounding the spill, I was not going to be able to stop. So ...

The post #OurCoast: From Disaster to Restoration appeared first on Restore the Mississippi River Delta.

When I heard there had been an explosion on an oil rig in the Gulf of Mexico, I knew it was going to be one of the most impactful events during my lifetime. In the spring of 2010, I was living in Florida, deep in the throes of graduate school and finals were looming. I knew that once I really started to pay attention to the news surrounding the spill, I was not going to be able to stop. So ...

The post #OurCoast: From Disaster to Restoration appeared first on Restore the Mississippi River Delta.

When I heard there had been an explosion on an oil rig in the Gulf of Mexico, I knew it was going to be one of the most impactful events during my lifetime. In the spring of 2010, I was living in Florida, deep in the throes of graduate school and finals were looming. I knew that once I really started to pay attention to the news surrounding the spill, I was not going to be able to stop. So ...

The post #OurCoast: From Disaster to Restoration appeared first on Restore the Mississippi River Delta.

Written by Diane MacEachern

In a powerful victory for health, the environment and citizen activism, the general assembly of the state of Maryland has voted to ban the polluting energy practice known as fracking. Republican Governor Larry Hogan has promised to sign the legislative ban into law. “The possible environmental risks of fracking simply outweigh any potential benefits,” Hogan said. “Protecting our clean water supply and our natural resources is critically important to Marylanders; we simply cannot allow the door to be opened for fracking in our state.”

Maryland joins New York State, Vermont and a host of cities and counties across the U.S. in saying “no” to fracking, or hydraulic fracturing. Fracking is a dangerous process that pumps millions of gallons of water, sand and chemicals at very high pressure into petroleum-laden shale deposits far below ground. Pummeling the shale forces it to release the gas or oil it contains. But along with those fossil fuels come filthy waste water and cancer-causing by-products that endanger human health. Johns Hopkins University researchers have found that expectant mothers living near heavy fracking in Pennsylvania are significantly more likely to experience a high-risk pregnancy or give birth prematurely. People living near fracking operations are also 1.5 to 4 times likelier to suffer asthma attacks.

Cancer rates may increase in fracking zones, too. Says Don’t Frack Maryland, the non-profit that’s helped compile scientific research on the threats fracking poses, “Many of the chemicals used are known to have carcinogenic, neurotoxic, or endocrine-disrupting effects.”

Drilling and fracking have also contaminated drinking water. In this famous scene from the documentary “Gasland,” the water coming out of someone’s kitchen faucet actually catches fire because it is tainted with so much methane, a fracking by-product.

Plus, states that have never been known for earthquakes, like Ohio, Oklahoma and Pennsylvania, have seen a startling increase in earthquakes as fracking operations there increase. As Lisa Sharp reported here for Moms Clean Air Force, serious earthquakes in Oklahoma have gone from an average one and a half per year to two and a half each day.

Said Maryland Senator Robert “Bobby” Zirkin of Baltimore County, “There is no safe way to do fracking in this state. That technology does not exist. With the mountain of research growing every day about the dangers of fracking there is simply no regulatory way to protect our citizens from the dangers of this technology.”

Food and Water Watch, another non-profit working to protect states and people from water pollution, attributed Maryland’s success in banning fracking to a years-long grassroots organizing campaign that began in 2012. At the time the campaign launched, only a “small handful” of advocacy groups and activists were calling for a complete ban. But the group organized:

• in key political districts around the state
• educated elected officials and citizens
• built coalitions with public health advocates and community groups
• held dozens of meetings, rallies and action
• delivered 35,000 petitions and letters to lawmakers
• got actor John Astin, a Maryland native and former star of TV’s “Addams Family,” to record a radio ad urging people to contact their state representatives and senators

The coalition also began to get fracking banned county by county. The next step was passage of a two-year long state-wide moratorium that gave activists more time to organize across the state and lay the groundwork for the ultimate victory: a permanent ban. As the movement grew to include thousands of people and more than 170 organizations, it “set us up to win big at the state level,” says Food and Water Watch.

Interesting to note: Originally, Democratic Governor Martin O’Malley favored fracking in the state, releasing regulations in 2014 that would have eased the way for fracking to get started. Barely three years later, Republicans and Democrats, led by a Republican governor, said “No,” proving once again that when it comes to clean drinking water and human health, you can do the right thing no matter what party you belong to.

So, if you’re fighting fracking in your community, or tackling another seemingly impossible environmental challenge, take heart from what just happened in Maryland.

TELL YOUR SENATOR: PROTECT OUR AIR AND OUR RESOURCES

By EDF Blogs

By Andrew Barbeau, senior clean energy consultant

How does the electric utility fit in to a rapidly-evolving energy system? That’s what the Illinois Commerce Commission is trying to determine with its new effort, “NextGrid.” Together, we’re rethinking the roles of the utility, the customer, and energy solution providers in a 21st-century electric grid.

In some ways, NextGrid will follow in the footsteps of New York’s innovative Reforming the Energy Vision (REV) process, a multi-year effort to re-examine how electric utilities and customers interact. A new approach is essential to accelerating the adoption of clean energy technologies and services in the state.

Like REV, NextGrid is gaining national attention for stakeholder-driven processes to reveal new ways to value distributed energy resources (DER), like rooftop solar and batteries. New York and Illinois’ efforts also seek alternatives to simply building more and more wires, poles, and power plants to meet the energy needs of tomorrow.

Yet, Illinois is may go a few steps beyond New York, creating a comprehensive framework for utilities to measure how DER are making the grid smarter and more efficient. Here is what we know will happen so far.

On Wednesday, April 5, at the second annual Grid Modernization Forum in Chicago, I’ll be discussing why these provisions could change the future of our energy system.

Value of distributed energy

The Illinois Commerce Commission’s NextGrid plans grew out of the recently-passed Future Energy Jobs Act, a landmark piece of climate and energy policy that was widely heralded as a bipartisan oddity in the age of Trump. The Future Energy Jobs Act will provide significant new investments in renewables and energy efficiency over the next 13 years, redefine the role and value of rooftop solar and batteries on the grid, and lead to significant greenhouse gas emission reductions.

NextGrid will likely start laying the groundwork for valuing distributed energy resources (DER) as envisioned by the Future Energy Jobs Act, which introduces the concept of a new rebate. Illinois currently has a net metering policy, which lets people with solar panels sell their unused solar energy back to the grid to offset their electric bill. Yet the net metering policy had an arbitrary “cap,” or a certain level after which homes and businesses adding solar panels would no longer be able to benefit from net metering.

Although Illinois is still a few years away from meeting that previous “cap,” when it does hit that level, the new policy will ensure additional DER will still be rewarded. Under the new plan, the Value-of-DER rebate will replace net metering on the distribution portion of a customer’s bill (the charge for delivering electricity from the local substation to your house) with an upfront payment, which credits the customer for the value their solar provides to the local grid over the system’s life. Net metering for the energy supply portion of the bill would remain – i.e. homes and businesses would still be able to offset a significant portion of their electric bills by selling excess energy.

What is unique about Illinois’ approach is that the rebate is an upfront payment, rather than on ongoing tariff or reduced net metering compensation, for example. By allowing customers to get paid for the value solar provides to the system at the time it is installed, in the same way new wires, poles, and transformers would, this upfront payment positions DER investments as equally or more beneficial to customers and the electric grid. This is a huge step not only for regulators, but for utilities as well, as they begin to see distributed energy as an asset to the system.

This is a huge step for utilities, as they begin to see distributed energy as an asset to the system.

The rebate would also factor-in the variables of location, time, and performance of DER in the rebate formula, allowing for a more precise calculation of the value to the grid. Peak electricity demand can stress the local grid, causing wear and tear and failure of the equipment that serve our homes and businesses. Power from DER during peak times and in certain areas can alleviate those stresses, therefore providing a greater value than during times of average demand.

In addition, factoring-in the value of performance will take into account the other functions of distributed energy that help keep the lights on. For example, batteries can provide support for helping avoid voltage fluctuations that can cause outages and other costs to customers.

Forging new paths

The Value-of-DER rebate presents many questions for the evolving energy economy. How will it affect the utility relationship with rooftop solar? What does it mean for a utility to say that solar is a value to the electric grid, and not a cost? How will different DER assets be able to take advantage of a valuation that is specific to their capabilities on the system? And how can the utility get more involved in DER siting to enable additional grid benefits?

Join me at the second annual Grid Modernization Forum in Chicago to discuss these questions and how, with innovative concepts like the Value of DER policy, Illinois could leapfrog New York in building the utility of the future.

By EDF Blogs

By Andrew Barbeau, senior clean energy consultant

How does the electric utility fit in to a rapidly-evolving energy system? That’s what the Illinois Commerce Commission is trying to determine with its new effort, “NextGrid.” Together, we’re rethinking the roles of the utility, the customer, and energy solution providers in a 21st-century electric grid.

In some ways, NextGrid will follow in the footsteps of New York’s innovative Reforming the Energy Vision (REV) process, a multi-year effort to re-examine how electric utilities and customers interact. A new approach is essential to accelerating the adoption of clean energy technologies and services in the state.

Like REV, NextGrid is gaining national attention for stakeholder-driven processes to reveal new ways to value distributed energy resources (DER), like rooftop solar and batteries. New York and Illinois’ efforts also seek alternatives to simply building more and more wires, poles, and power plants to meet the energy needs of tomorrow.

Yet, Illinois is may go a few steps beyond New York, creating a comprehensive framework for utilities to measure how DER are making the grid smarter and more efficient. Here is what we know will happen so far.

On Wednesday, April 5, at the second annual Grid Modernization Forum in Chicago, I’ll be discussing why these provisions could change the future of our energy system.

Value of distributed energy

The Illinois Commerce Commission’s NextGrid plans grew out of the recently-passed Future Energy Jobs Act, a landmark piece of climate and energy policy that was widely heralded as a bipartisan oddity in the age of Trump. The Future Energy Jobs Act will provide significant new investments in renewables and energy efficiency over the next 13 years, redefine the role and value of rooftop solar and batteries on the grid, and lead to significant greenhouse gas emission reductions.

NextGrid will likely start laying the groundwork for valuing distributed energy resources (DER) as envisioned by the Future Energy Jobs Act, which introduces the concept of a new rebate. Illinois currently has a net metering policy, which lets people with solar panels sell their unused solar energy back to the grid to offset their electric bill. Yet the net metering policy had an arbitrary “cap,” or a certain level after which homes and businesses adding solar panels would no longer be able to benefit from net metering.

Although Illinois is still a few years away from meeting that previous “cap,” when it does hit that level, the new policy will ensure additional DER will still be rewarded. Under the new plan, the Value-of-DER rebate will replace net metering on the distribution portion of a customer’s bill (the charge for delivering electricity from the local substation to your house) with an upfront payment, which credits the customer for the value their solar provides to the local grid over the system’s life. Net metering for the energy supply portion of the bill would remain – i.e. homes and businesses would still be able to offset a significant portion of their electric bills by selling excess energy.

What is unique about Illinois’ approach is that the rebate is an upfront payment, rather than on ongoing tariff or reduced net metering compensation, for example. By allowing customers to get paid for the value solar provides to the system at the time it is installed, in the same way new wires, poles, and transformers would, this upfront payment positions DER investments as equally or more beneficial to customers and the electric grid. This is a huge step not only for regulators, but for utilities as well, as they begin to see distributed energy as an asset to the system.

This is a huge step for utilities, as they begin to see distributed energy as an asset to the system.

The rebate would also factor-in the variables of location, time, and performance of DER in the rebate formula, allowing for a more precise calculation of the value to the grid. Peak electricity demand can stress the local grid, causing wear and tear and failure of the equipment that serve our homes and businesses. Power from DER during peak times and in certain areas can alleviate those stresses, therefore providing a greater value than during times of average demand.

In addition, factoring-in the value of performance will take into account the other functions of distributed energy that help keep the lights on. For example, batteries can provide support for helping avoid voltage fluctuations that can cause outages and other costs to customers.

Forging new paths

The Value-of-DER rebate presents many questions for the evolving energy economy. How will it affect the utility relationship with rooftop solar? What does it mean for a utility to say that solar is a value to the electric grid, and not a cost? How will different DER assets be able to take advantage of a valuation that is specific to their capabilities on the system? And how can the utility get more involved in DER siting to enable additional grid benefits?

Join me at the second annual Grid Modernization Forum in Chicago to discuss these questions and how, with innovative concepts like the Value of DER policy, Illinois could leapfrog New York in building the utility of the future.

By EDF Blogs

By Andrew Barbeau, senior clean energy consultant

How does the electric utility fit in to a rapidly-evolving energy system? That’s what the Illinois Commerce Commission is trying to determine with its new effort, “NextGrid.” Together, we’re rethinking the roles of the utility, the customer, and energy solution providers in a 21st-century electric grid.

In some ways, NextGrid will follow in the footsteps of New York’s innovative Reforming the Energy Vision (REV) process, a multi-year effort to re-examine how electric utilities and customers interact. A new approach is essential to accelerating the adoption of clean energy technologies and services in the state.

Like REV, NextGrid is gaining national attention for stakeholder-driven processes to reveal new ways to value distributed energy resources (DER), like rooftop solar and batteries. New York and Illinois’ efforts also seek alternatives to simply building more and more wires, poles, and power plants to meet the energy needs of tomorrow.

Yet, Illinois is may go a few steps beyond New York, creating a comprehensive framework for utilities to measure how DER are making the grid smarter and more efficient. Here is what we know will happen so far.

On Wednesday, April 5, at the second annual Grid Modernization Forum in Chicago, I’ll be discussing why these provisions could change the future of our energy system.

Value of distributed energy

The Illinois Commerce Commission’s NextGrid plans grew out of the recently-passed Future Energy Jobs Act, a landmark piece of climate and energy policy that was widely heralded as a bipartisan oddity in the age of Trump. The Future Energy Jobs Act will provide significant new investments in renewables and energy efficiency over the next 13 years, redefine the role and value of rooftop solar and batteries on the grid, and lead to significant greenhouse gas emission reductions.

NextGrid will likely start laying the groundwork for valuing distributed energy resources (DER) as envisioned by the Future Energy Jobs Act, which introduces the concept of a new rebate. Illinois currently has a net metering policy, which lets people with solar panels sell their unused solar energy back to the grid to offset their electric bill. Yet the net metering policy had an arbitrary “cap,” or a certain level after which homes and businesses adding solar panels would no longer be able to benefit from net metering.

Although Illinois is still a few years away from meeting that previous “cap,” when it does hit that level, the new policy will ensure additional DER will still be rewarded. Under the new plan, the Value-of-DER rebate will replace net metering on the distribution portion of a customer’s bill (the charge for delivering electricity from the local substation to your house) with an upfront payment, which credits the customer for the value their solar provides to the local grid over the system’s life. Net metering for the energy supply portion of the bill would remain – i.e. homes and businesses would still be able to offset a significant portion of their electric bills by selling excess energy.

What is unique about Illinois’ approach is that the rebate is an upfront payment, rather than on ongoing tariff or reduced net metering compensation, for example. By allowing customers to get paid for the value solar provides to the system at the time it is installed, in the same way new wires, poles, and transformers would, this upfront payment positions DER investments as equally or more beneficial to customers and the electric grid. This is a huge step not only for regulators, but for utilities as well, as they begin to see distributed energy as an asset to the system.

This is a huge step for utilities, as they begin to see distributed energy as an asset to the system.

The rebate would also factor-in the variables of location, time, and performance of DER in the rebate formula, allowing for a more precise calculation of the value to the grid. Peak electricity demand can stress the local grid, causing wear and tear and failure of the equipment that serve our homes and businesses. Power from DER during peak times and in certain areas can alleviate those stresses, therefore providing a greater value than during times of average demand.

In addition, factoring-in the value of performance will take into account the other functions of distributed energy that help keep the lights on. For example, batteries can provide support for helping avoid voltage fluctuations that can cause outages and other costs to customers.

Forging new paths

The Value-of-DER rebate presents many questions for the evolving energy economy. How will it affect the utility relationship with rooftop solar? What does it mean for a utility to say that solar is a value to the electric grid, and not a cost? How will different DER assets be able to take advantage of a valuation that is specific to their capabilities on the system? And how can the utility get more involved in DER siting to enable additional grid benefits?

Join me at the second annual Grid Modernization Forum in Chicago to discuss these questions and how, with innovative concepts like the Value of DER policy, Illinois could leapfrog New York in building the utility of the future.

By Richard Denison

Richard Denison, Ph.D., is a Lead Senior Scientist.

A major reform of the Toxic Substances Control Act (TSCA) made by last year’s Lautenberg Act was to set in motion a process to ensure that EPA (and the public, to the maximum extent practicable) know how many and which chemicals are actually in use today, and to ensure that the identities of any active chemicals that are not publicly disclosed constitute actual trade secrets.

In January, EPA took its first step to implement this reform by issuing its proposed rule for Inventory notification.  The public comment period on this proposed rule closed recently.  EDF submitted extensive comments, which are available here.

The Inventory notification requirements of TSCA as amended by the Lautenberg Act, specified under sections 8(b)(4)(A)(i) and 8(b)(4)(B)(ii), have two interlocked purposes:

1. to ensure EPA has a full and current list of all chemical substances on the TSCA Inventory that are actively being made and processed – paramount to many other aspects of the law, especially the prioritization and risk evaluation provisions of section 6 and, more generally, in providing an up-to-date understanding of the magnitude of chemical production and use within the scope of TSCA relevant to long-term planning and resource allocation; and
2. to ensure that the only active chemicals not identified by name on the Inventory are those whose identities are actual trade secrets, by requiring reassertion, substantiation and EPA review of any prior confidential business information (CBI) claims a company has made and seeks to retain to protect its chemicals’ identities from public disclosure on the updated Inventory.

Many of EDF’s comments are aimed at ensuring that EPA’s proposed rule serves both purposes and is fully in compliance with the law.  In contrast, many comments received from industry interests would pit the first objective against the second and do so in ways that would not comply with what the law requires.  

As detailed in EDF’s submitted comments, the law is quite straightforward in what it requires in the Inventory notification process:

• Each manufacturer must, within 6 months of promulgation of this final rule, notify EPA of each chemical on the current TSCA Inventory that it has manufactured during the 10 years preceding the new law’s date of enactment (which are then deemed to be “active” chemicals). [Section 8(b)(4)(A)(i)]
• If the manufacturer wishes to continue to protect from disclosure the identity of its active chemical on the updated Inventory, it must include a request to do so in its notification to EPA. [Section 8(b)(4)(B)(ii)]  This option is limited, of course, only to chemicals that are currently on the confidential portion of the Inventory.
• EPA can require chemical processors to do the same. [Section 8(b)(4)(A)(i)]

The first requirement of the law – that each manufacturer must notify EPA of each active chemical it manufactures – is not only intended to serve the first objective of Inventory notification;  it is essential to achieving the second objective of ensuring that chemical identities that are not or are no longer trade secrets are not hidden from the public.

Some industry interests are arguing for two approaches, neither of which is allowed under the law and both of which would preclude the Inventory notification process from achieving its second key objective.  Each of these proposals is discussed below.

“One and done” is wrong and dumb

Some in the industry are pushing for an approach they have dubbed “one and done.”

Two big problems.  First, the proposal would have EPA rewrite the law’s requirement that each manufacturer notify EPA of its active chemical, to instead allow that once one company has notified EPA of a chemical, no other company need do so.  TSCA Section 8(b)(4)(A)(i) states (emphases added):

(i) IN GENERAL.—Not later than 1 year after the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Administrator, by rule, shall require manufacturers, and may require processors, subject to the limitations under subsection (a)(5)(A), to notify the Administrator, by not later than 180 days after the date on which the final rule is published in the Federal Register, of each chemical substance on the list published under paragraph (1) that the manufacturer or processor, as applicable, has manufactured or processed for a nonexempt commercial purpose during the 10-year period ending on the day before the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act.

Clearly this provision requires each manufacturer of a substance on the Inventory to notify EPA if it has been manufacturing it recently.  Nothing in this language allows for a subset of such manufacturers to file notices.

Second, the industry’s proposal won’t work in practice and likely won’t be desirable even to them.  Recall that part of the notice a manufacturer must file is a reassertion of any existing claim to protect from disclosure the identity of a chemical the company wishes to maintain; see section 8(b)(4)(B)(ii).  Such CBI claims and the basis for them are, of course, specific to the company asserting a claim.  If the Inventory notification process for a chemical could stop after the first notice is received, that could well mean that only that first notifier’s CBI claim would be asserted – and even then only if that notifier had an existing claim and wished to reassert it.  Under this scenario, requests to maintain existing CBI claims originating with other manufacturers of that same chemical might well not be received by EPA.

In this context, the law is clear that the identity of any active chemical for which no requests are received through the Inventory notification process to renew an existing CBI claim must be disclosed to the public [section 8(b)(4)(B)(iv); emphasis added]:

(B) CONFIDENTIAL CHEMICAL SUBSTANCES.—In promulgating a rule under subparagraph (A), the Administrator shall—

(iv) move any active chemical substance for which no request was received to maintain an existing claim for protection against disclosure of the specific chemical identity of the chemical substance as confidential from the confidential portion of the list published under paragraph (1) to the nonconfidential portion of that list.

I suspect that is not an outcome those in industry urging EPA to stop the Inventory notification process for a chemical after receipt of the first notice would be pleased with.

To try to address this problem that “one and done” would create, one industry commenter seeks to demand that EPA go through an additional, convoluted process that is not in the law at all, in order to ensure that “all potentially affected manufacturers and processors have had a full opportunity to reassert CBI claims” and that “if an ‘early’ notifier decides to waive an existing CBI claim, that action cannot itself prejudice subsequent notifiers or deprive them of an opportunity to reassert a claim.”

This tries to shift to EPA a burden that the law clearly places on companies.  And it begs the question why EPA should have to provide “all potentially affected manufacturers and processors” yet another “full opportunity to reassert CBI claims” when they just chose not to take up the opportunity afforded them under the law and EPA’s proposed rule to do so via the Inventory notification process.

In sum, the new law is clear that all manufacturers must notify EPA of their active manufacture of a chemical, and that, unless one or more of those companies reassert any existing CBI claims at that time (and those claims are later reviewed and found to be warranted), the identity of that chemical is to be made public.

CBI claims are company-specific and can’t be “borrowed” by other companies

Some 17,000 chemical identities on the Inventory are confidential at present, denying the public the ability to know the full range of chemicals being made and used in the U.S.  In enacting the Inventory notification provisions, Congress wanted EPA not only to update the Inventory to identify chemicals in active commerce, but also to require EPA to retrospectively review this large backlog of CBI claims to ensure that if the public is to continue to be denied access to some chemical identities, they are limited only to those that actually warrant protection from disclosure.

Congress did not intend for the Inventory notification process to be a means by which companies could assert new CBI claims for chemical identity.  The intent was to provide a means for EPA to review already existing chemical identity claims to determine if they are still warranted.

Consistent with this Congressional intent, the language of the law expressly provides only for requests under the Inventory notification process to “maintain an existing claim,” not to assert a new one; see section 8(b)(4)(B)(ii).  Because CBI claims are company-specific, it should not be possible for a company to seek to “maintain” a claim it did not make.

Unfortunately, EPA has proposed to allow a company to request to maintain a CBI claim for chemical identity through the Inventory notification that it had not asserted.  Industry interests have supported this approach in their comments.  EDF strongly disagrees:  we believe this approach is not allowed by law, and it would clearly frustrate achieving the second objective of the Inventory notification process.  In our comments, we argue that EPA’s final Inventory notification rule needs to specifically state that no company that had not previously asserted a CBI claim for the identity of a chemical substance can request that such a claim be maintained through the Inventory notification process.

None of this is to say that a company cannot at any point assert a new claim for CBI protection of the identity of a chemical on the confidential portion of the Inventory.  The law clearly provides for that to be done – but only through the procedures and requirements of section 14.  EPA should make clear that any new claim to protect the identity of a chemical must be asserted and addressed as laid out in section 14.

This is not a trivial distinction:  Among other differences, the section 14 process would require EPA to review such a claim within 90 days, rather than the potentially much longer timeframe provided under section 8(b)(4)(B), (C) and (D).  The much longer period (5-7 years) provided under the new law for EPA review of pre-existing CBI claims for chemical identity was an acknowledgment of the large number of such claims potentially requiring review; compounding that problem by allowing new claims to be asserted and then reviewed under the review plan would run entirely counter to the intent of this provision of the law.

Section 14 of the Lautenberg Act provides ample means to meet the needs EPA identifies in its rationale for its proposed approach:

A number of manufacturers and processors may legitimately benefit from the confidential status of a specific chemical identity, and the initial claimant may no longer exist.  EPA does not believe that Congress intended for specific confidential chemical identities to be disclosed without providing the opportunity for manufacturers and processors to make a request that the identities should remain confidential simply because the original claimants no longer manufacture the chemical substances.

Section 14 provides a clear and direct “opportunity for manufacturers and processors to make a request that the identities should remain confidential.”  Any company seeking to “legitimately benefit from the confidential status of a specific chemical identity” can do so simply by asserting a CBI claim for that chemical identity through the means provided under the Lautenberg Act, i.e., in conformance with the procedures and requirements delineated in section 14.  To do so, there is no need for a company to seek to identify the original or any other claimant.

In contrast to both of these proposals embraced by industry, the most straightforward approach is also the one that comports with the law.

By Richard Denison

Richard Denison, Ph.D., is a Lead Senior Scientist.

A major reform of the Toxic Substances Control Act (TSCA) made by last year’s Lautenberg Act was to set in motion a process to ensure that EPA (and the public, to the maximum extent practicable) know how many and which chemicals are actually in use today, and to ensure that the identities of any active chemicals that are not publicly disclosed constitute actual trade secrets.

In January, EPA took its first step to implement this reform by issuing its proposed rule for Inventory notification.  The public comment period on this proposed rule closed recently.  EDF submitted extensive comments, which are available here.

The Inventory notification requirements of TSCA as amended by the Lautenberg Act, specified under sections 8(b)(4)(A)(i) and 8(b)(4)(B)(ii), have two interlocked purposes:

1. to ensure EPA has a full and current list of all chemical substances on the TSCA Inventory that are actively being made and processed – paramount to many other aspects of the law, especially the prioritization and risk evaluation provisions of section 6 and, more generally, in providing an up-to-date understanding of the magnitude of chemical production and use within the scope of TSCA relevant to long-term planning and resource allocation; and
2. to ensure that the only active chemicals not identified by name on the Inventory are those whose identities are actual trade secrets, by requiring reassertion, substantiation and EPA review of any prior confidential business information (CBI) claims a company has made and seeks to retain to protect its chemicals’ identities from public disclosure on the updated Inventory.

Many of EDF’s comments are aimed at ensuring that EPA’s proposed rule serves both purposes and is fully in compliance with the law.  In contrast, many comments received from industry interests would pit the first objective against the second and do so in ways that would not comply with what the law requires.  

As detailed in EDF’s submitted comments, the law is quite straightforward in what it requires in the Inventory notification process:

• Each manufacturer must, within 6 months of promulgation of this final rule, notify EPA of each chemical on the current TSCA Inventory that it has manufactured during the 10 years preceding the new law’s date of enactment (which are then deemed to be “active” chemicals). [Section 8(b)(4)(A)(i)]
• If the manufacturer wishes to continue to protect from disclosure the identity of its active chemical on the updated Inventory, it must include a request to do so in its notification to EPA. [Section 8(b)(4)(B)(ii)]  This option is limited, of course, only to chemicals that are currently on the confidential portion of the Inventory.
• EPA can require chemical processors to do the same. [Section 8(b)(4)(A)(i)]

The first requirement of the law – that each manufacturer must notify EPA of each active chemical it manufactures – is not only intended to serve the first objective of Inventory notification;  it is essential to achieving the second objective of ensuring that chemical identities that are not or are no longer trade secrets are not hidden from the public.

Some industry interests are arguing for two approaches, neither of which is allowed under the law and both of which would preclude the Inventory notification process from achieving its second key objective.  Each of these proposals is discussed below.

“One and done” is wrong and dumb

Some in the industry are pushing for an approach they have dubbed “one and done.”

Two big problems.  First, the proposal would have EPA rewrite the law’s requirement that each manufacturer notify EPA of its active chemical, to instead allow that once one company has notified EPA of a chemical, no other company need do so.  TSCA Section 8(b)(4)(A)(i) states (emphases added):

(i) IN GENERAL.—Not later than 1 year after the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Administrator, by rule, shall require manufacturers, and may require processors, subject to the limitations under subsection (a)(5)(A), to notify the Administrator, by not later than 180 days after the date on which the final rule is published in the Federal Register, of each chemical substance on the list published under paragraph (1) that the manufacturer or processor, as applicable, has manufactured or processed for a nonexempt commercial purpose during the 10-year period ending on the day before the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act.

Clearly this provision requires each manufacturer of a substance on the Inventory to notify EPA if it has been manufacturing it recently.  Nothing in this language allows for a subset of such manufacturers to file notices.

Second, the industry’s proposal won’t work in practice and likely won’t be desirable even to them.  Recall that part of the notice a manufacturer must file is a reassertion of any existing claim to protect from disclosure the identity of a chemical the company wishes to maintain; see section 8(b)(4)(B)(ii).  Such CBI claims and the basis for them are, of course, specific to the company asserting a claim.  If the Inventory notification process for a chemical could stop after the first notice is received, that could well mean that only that first notifier’s CBI claim would be asserted – and even then only if that notifier had an existing claim and wished to reassert it.  Under this scenario, requests to maintain existing CBI claims originating with other manufacturers of that same chemical might well not be received by EPA.

In this context, the law is clear that the identity of any active chemical for which no requests are received through the Inventory notification process to renew an existing CBI claim must be disclosed to the public [section 8(b)(4)(B)(iv); emphasis added]:

(B) CONFIDENTIAL CHEMICAL SUBSTANCES.—In promulgating a rule under subparagraph (A), the Administrator shall—

(iv) move any active chemical substance for which no request was received to maintain an existing claim for protection against disclosure of the specific chemical identity of the chemical substance as confidential from the confidential portion of the list published under paragraph (1) to the nonconfidential portion of that list.

I suspect that is not an outcome those in industry urging EPA to stop the Inventory notification process for a chemical after receipt of the first notice would be pleased with.

To try to address this problem that “one and done” would create, one industry commenter seeks to demand that EPA go through an additional, convoluted process that is not in the law at all, in order to ensure that “all potentially affected manufacturers and processors have had a full opportunity to reassert CBI claims” and that “if an ‘early’ notifier decides to waive an existing CBI claim, that action cannot itself prejudice subsequent notifiers or deprive them of an opportunity to reassert a claim.”

This tries to shift to EPA a burden that the law clearly places on companies.  And it begs the question why EPA should have to provide “all potentially affected manufacturers and processors” yet another “full opportunity to reassert CBI claims” when they just chose not to take up the opportunity afforded them under the law and EPA’s proposed rule to do so via the Inventory notification process.

In sum, the new law is clear that all manufacturers must notify EPA of their active manufacture of a chemical, and that, unless one or more of those companies reassert any existing CBI claims at that time (and those claims are later reviewed and found to be warranted), the identity of that chemical is to be made public.

CBI claims are company-specific and can’t be “borrowed” by other companies

Some 17,000 chemical identities on the Inventory are confidential at present, denying the public the ability to know the full range of chemicals being made and used in the U.S.  In enacting the Inventory notification provisions, Congress wanted EPA not only to update the Inventory to identify chemicals in active commerce, but also to require EPA to retrospectively review this large backlog of CBI claims to ensure that if the public is to continue to be denied access to some chemical identities, they are limited only to those that actually warrant protection from disclosure.

Congress did not intend for the Inventory notification process to be a means by which companies could assert new CBI claims for chemical identity.  The intent was to provide a means for EPA to review already existing chemical identity claims to determine if they are still warranted.

Consistent with this Congressional intent, the language of the law expressly provides only for requests under the Inventory notification process to “maintain an existing claim,” not to assert a new one; see section 8(b)(4)(B)(ii).  Because CBI claims are company-specific, it should not be possible for a company to seek to “maintain” a claim it did not make.

Unfortunately, EPA has proposed to allow a company to request to maintain a CBI claim for chemical identity through the Inventory notification that it had not asserted.  Industry interests have supported this approach in their comments.  EDF strongly disagrees:  we believe this approach is not allowed by law, and it would clearly frustrate achieving the second objective of the Inventory notification process.  In our comments, we argue that EPA’s final Inventory notification rule needs to specifically state that no company that had not previously asserted a CBI claim for the identity of a chemical substance can request that such a claim be maintained through the Inventory notification process.

None of this is to say that a company cannot at any point assert a new claim for CBI protection of the identity of a chemical on the confidential portion of the Inventory.  The law clearly provides for that to be done – but only through the procedures and requirements of section 14.  EPA should make clear that any new claim to protect the identity of a chemical must be asserted and addressed as laid out in section 14.

This is not a trivial distinction:  Among other differences, the section 14 process would require EPA to review such a claim within 90 days, rather than the potentially much longer timeframe provided under section 8(b)(4)(B), (C) and (D).  The much longer period (5-7 years) provided under the new law for EPA review of pre-existing CBI claims for chemical identity was an acknowledgment of the large number of such claims potentially requiring review; compounding that problem by allowing new claims to be asserted and then reviewed under the review plan would run entirely counter to the intent of this provision of the law.

Section 14 of the Lautenberg Act provides ample means to meet the needs EPA identifies in its rationale for its proposed approach:

A number of manufacturers and processors may legitimately benefit from the confidential status of a specific chemical identity, and the initial claimant may no longer exist.  EPA does not believe that Congress intended for specific confidential chemical identities to be disclosed without providing the opportunity for manufacturers and processors to make a request that the identities should remain confidential simply because the original claimants no longer manufacture the chemical substances.

Section 14 provides a clear and direct “opportunity for manufacturers and processors to make a request that the identities should remain confidential.”  Any company seeking to “legitimately benefit from the confidential status of a specific chemical identity” can do so simply by asserting a CBI claim for that chemical identity through the means provided under the Lautenberg Act, i.e., in conformance with the procedures and requirements delineated in section 14.  To do so, there is no need for a company to seek to identify the original or any other claimant.

In contrast to both of these proposals embraced by industry, the most straightforward approach is also the one that comports with the law.

By Richard Denison

Richard Denison, Ph.D., is a Lead Senior Scientist.

A major reform of the Toxic Substances Control Act (TSCA) made by last year’s Lautenberg Act was to set in motion a process to ensure that EPA (and the public, to the maximum extent practicable) know how many and which chemicals are actually in use today, and to ensure that the identities of any active chemicals that are not publicly disclosed constitute actual trade secrets.

In January, EPA took its first step to implement this reform by issuing its proposed rule for Inventory notification.  The public comment period on this proposed rule closed recently.  EDF submitted extensive comments, which are available here.

The Inventory notification requirements of TSCA as amended by the Lautenberg Act, specified under sections 8(b)(4)(A)(i) and 8(b)(4)(B)(ii), have two interlocked purposes:

1. to ensure EPA has a full and current list of all chemical substances on the TSCA Inventory that are actively being made and processed – paramount to many other aspects of the law, especially the prioritization and risk evaluation provisions of section 6 and, more generally, in providing an up-to-date understanding of the magnitude of chemical production and use within the scope of TSCA relevant to long-term planning and resource allocation; and
2. to ensure that the only active chemicals not identified by name on the Inventory are those whose identities are actual trade secrets, by requiring reassertion, substantiation and EPA review of any prior confidential business information (CBI) claims a company has made and seeks to retain to protect its chemicals’ identities from public disclosure on the updated Inventory.

Many of EDF’s comments are aimed at ensuring that EPA’s proposed rule serves both purposes and is fully in compliance with the law.  In contrast, many comments received from industry interests would pit the first objective against the second and do so in ways that would not comply with what the law requires.  

As detailed in EDF’s submitted comments, the law is quite straightforward in what it requires in the Inventory notification process:

• Each manufacturer must, within 6 months of promulgation of this final rule, notify EPA of each chemical on the current TSCA Inventory that it has manufactured during the 10 years preceding the new law’s date of enactment (which are then deemed to be “active” chemicals). [Section 8(b)(4)(A)(i)]
• If the manufacturer wishes to continue to protect from disclosure the identity of its active chemical on the updated Inventory, it must include a request to do so in its notification to EPA. [Section 8(b)(4)(B)(ii)]  This option is limited, of course, only to chemicals that are currently on the confidential portion of the Inventory.
• EPA can require chemical processors to do the same. [Section 8(b)(4)(A)(i)]

The first requirement of the law – that each manufacturer must notify EPA of each active chemical it manufactures – is not only intended to serve the first objective of Inventory notification;  it is essential to achieving the second objective of ensuring that chemical identities that are not or are no longer trade secrets are not hidden from the public.

Some industry interests are arguing for two approaches, neither of which is allowed under the law and both of which would preclude the Inventory notification process from achieving its second key objective.  Each of these proposals is discussed below.

“One and done” is wrong and dumb

Some in the industry are pushing for an approach they have dubbed “one and done.”

Two big problems.  First, the proposal would have EPA rewrite the law’s requirement that each manufacturer notify EPA of its active chemical, to instead allow that once one company has notified EPA of a chemical, no other company need do so.  TSCA Section 8(b)(4)(A)(i) states (emphases added):

(i) IN GENERAL.—Not later than 1 year after the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Administrator, by rule, shall require manufacturers, and may require processors, subject to the limitations under subsection (a)(5)(A), to notify the Administrator, by not later than 180 days after the date on which the final rule is published in the Federal Register, of each chemical substance on the list published under paragraph (1) that the manufacturer or processor, as applicable, has manufactured or processed for a nonexempt commercial purpose during the 10-year period ending on the day before the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act.

Clearly this provision requires each manufacturer of a substance on the Inventory to notify EPA if it has been manufacturing it recently.  Nothing in this language allows for a subset of such manufacturers to file notices.

Second, the industry’s proposal won’t work in practice and likely won’t be desirable even to them.  Recall that part of the notice a manufacturer must file is a reassertion of any existing claim to protect from disclosure the identity of a chemical the company wishes to maintain; see section 8(b)(4)(B)(ii).  Such CBI claims and the basis for them are, of course, specific to the company asserting a claim.  If the Inventory notification process for a chemical could stop after the first notice is received, that could well mean that only that first notifier’s CBI claim would be asserted – and even then only if that notifier had an existing claim and wished to reassert it.  Under this scenario, requests to maintain existing CBI claims originating with other manufacturers of that same chemical might well not be received by EPA.

In this context, the law is clear that the identity of any active chemical for which no requests are received through the Inventory notification process to renew an existing CBI claim must be disclosed to the public [section 8(b)(4)(B)(iv); emphasis added]:

(B) CONFIDENTIAL CHEMICAL SUBSTANCES.—In promulgating a rule under subparagraph (A), the Administrator shall—

(iv) move any active chemical substance for which no request was received to maintain an existing claim for protection against disclosure of the specific chemical identity of the chemical substance as confidential from the confidential portion of the list published under paragraph (1) to the nonconfidential portion of that list.

I suspect that is not an outcome those in industry urging EPA to stop the Inventory notification process for a chemical after receipt of the first notice would be pleased with.

To try to address this problem that “one and done” would create, one industry commenter seeks to demand that EPA go through an additional, convoluted process that is not in the law at all, in order to ensure that “all potentially affected manufacturers and processors have had a full opportunity to reassert CBI claims” and that “if an ‘early’ notifier decides to waive an existing CBI claim, that action cannot itself prejudice subsequent notifiers or deprive them of an opportunity to reassert a claim.”

This tries to shift to EPA a burden that the law clearly places on companies.  And it begs the question why EPA should have to provide “all potentially affected manufacturers and processors” yet another “full opportunity to reassert CBI claims” when they just chose not to take up the opportunity afforded them under the law and EPA’s proposed rule to do so via the Inventory notification process.

In sum, the new law is clear that all manufacturers must notify EPA of their active manufacture of a chemical, and that, unless one or more of those companies reassert any existing CBI claims at that time (and those claims are later reviewed and found to be warranted), the identity of that chemical is to be made public.

CBI claims are company-specific and can’t be “borrowed” by other companies

Some 17,000 chemical identities on the Inventory are confidential at present, denying the public the ability to know the full range of chemicals being made and used in the U.S.  In enacting the Inventory notification provisions, Congress wanted EPA not only to update the Inventory to identify chemicals in active commerce, but also to require EPA to retrospectively review this large backlog of CBI claims to ensure that if the public is to continue to be denied access to some chemical identities, they are limited only to those that actually warrant protection from disclosure.

Congress did not intend for the Inventory notification process to be a means by which companies could assert new CBI claims for chemical identity.  The intent was to provide a means for EPA to review already existing chemical identity claims to determine if they are still warranted.

Consistent with this Congressional intent, the language of the law expressly provides only for requests under the Inventory notification process to “maintain an existing claim,” not to assert a new one; see section 8(b)(4)(B)(ii).  Because CBI claims are company-specific, it should not be possible for a company to seek to “maintain” a claim it did not make.

Unfortunately, EPA has proposed to allow a company to request to maintain a CBI claim for chemical identity through the Inventory notification that it had not asserted.  Industry interests have supported this approach in their comments.  EDF strongly disagrees:  we believe this approach is not allowed by law, and it would clearly frustrate achieving the second objective of the Inventory notification process.  In our comments, we argue that EPA’s final Inventory notification rule needs to specifically state that no company that had not previously asserted a CBI claim for the identity of a chemical substance can request that such a claim be maintained through the Inventory notification process.

None of this is to say that a company cannot at any point assert a new claim for CBI protection of the identity of a chemical on the confidential portion of the Inventory.  The law clearly provides for that to be done – but only through the procedures and requirements of section 14.  EPA should make clear that any new claim to protect the identity of a chemical must be asserted and addressed as laid out in section 14.

This is not a trivial distinction:  Among other differences, the section 14 process would require EPA to review such a claim within 90 days, rather than the potentially much longer timeframe provided under section 8(b)(4)(B), (C) and (D).  The much longer period (5-7 years) provided under the new law for EPA review of pre-existing CBI claims for chemical identity was an acknowledgment of the large number of such claims potentially requiring review; compounding that problem by allowing new claims to be asserted and then reviewed under the review plan would run entirely counter to the intent of this provision of the law.

Section 14 of the Lautenberg Act provides ample means to meet the needs EPA identifies in its rationale for its proposed approach:

A number of manufacturers and processors may legitimately benefit from the confidential status of a specific chemical identity, and the initial claimant may no longer exist.  EPA does not believe that Congress intended for specific confidential chemical identities to be disclosed without providing the opportunity for manufacturers and processors to make a request that the identities should remain confidential simply because the original claimants no longer manufacture the chemical substances.

Section 14 provides a clear and direct “opportunity for manufacturers and processors to make a request that the identities should remain confidential.”  Any company seeking to “legitimately benefit from the confidential status of a specific chemical identity” can do so simply by asserting a CBI claim for that chemical identity through the means provided under the Lautenberg Act, i.e., in conformance with the procedures and requirements delineated in section 14.  To do so, there is no need for a company to seek to identify the original or any other claimant.

In contrast to both of these proposals embraced by industry, the most straightforward approach is also the one that comports with the law.

By Richard Denison

Richard Denison, Ph.D., is a Lead Senior Scientist.

A major reform of the Toxic Substances Control Act (TSCA) made by last year’s Lautenberg Act was to set in motion a process to ensure that EPA (and the public, to the maximum extent practicable) know how many and which chemicals are actually in use today, and to ensure that the identities of any active chemicals that are not publicly disclosed constitute actual trade secrets.

In January, EPA took its first step to implement this reform by issuing its proposed rule for Inventory notification.  The public comment period on this proposed rule closed recently.  EDF submitted extensive comments, which are available here.

The Inventory notification requirements of TSCA as amended by the Lautenberg Act, specified under sections 8(b)(4)(A)(i) and 8(b)(4)(B)(ii), have two interlocked purposes:

1. to ensure EPA has a full and current list of all chemical substances on the TSCA Inventory that are actively being made and processed – paramount to many other aspects of the law, especially the prioritization and risk evaluation provisions of section 6 and, more generally, in providing an up-to-date understanding of the magnitude of chemical production and use within the scope of TSCA relevant to long-term planning and resource allocation; and
2. to ensure that the only active chemicals not identified by name on the Inventory are those whose identities are actual trade secrets, by requiring reassertion, substantiation and EPA review of any prior confidential business information (CBI) claims a company has made and seeks to retain to protect its chemicals’ identities from public disclosure on the updated Inventory.

Many of EDF’s comments are aimed at ensuring that EPA’s proposed rule serves both purposes and is fully in compliance with the law.  In contrast, many comments received from industry interests would pit the first objective against the second and do so in ways that would not comply with what the law requires.  

As detailed in EDF’s submitted comments, the law is quite straightforward in what it requires in the Inventory notification process:

• Each manufacturer must, within 6 months of promulgation of this final rule, notify EPA of each chemical on the current TSCA Inventory that it has manufactured during the 10 years preceding the new law’s date of enactment (which are then deemed to be “active” chemicals). [Section 8(b)(4)(A)(i)]
• If the manufacturer wishes to continue to protect from disclosure the identity of its active chemical on the updated Inventory, it must include a request to do so in its notification to EPA. [Section 8(b)(4)(B)(ii)]  This option is limited, of course, only to chemicals that are currently on the confidential portion of the Inventory.
• EPA can require chemical processors to do the same. [Section 8(b)(4)(A)(i)]

The first requirement of the law – that each manufacturer must notify EPA of each active chemical it manufactures – is not only intended to serve the first objective of Inventory notification;  it is essential to achieving the second objective of ensuring that chemical identities that are not or are no longer trade secrets are not hidden from the public.

Some industry interests are arguing for two approaches, neither of which is allowed under the law and both of which would preclude the Inventory notification process from achieving its second key objective.  Each of these proposals is discussed below.

“One and done” is wrong and dumb

Some in the industry are pushing for an approach they have dubbed “one and done.”

Two big problems.  First, the proposal would have EPA rewrite the law’s requirement that each manufacturer notify EPA of its active chemical, to instead allow that once one company has notified EPA of a chemical, no other company need do so.  TSCA Section 8(b)(4)(A)(i) states (emphases added):

(i) IN GENERAL.—Not later than 1 year after the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Administrator, by rule, shall require manufacturers, and may require processors, subject to the limitations under subsection (a)(5)(A), to notify the Administrator, by not later than 180 days after the date on which the final rule is published in the Federal Register, of each chemical substance on the list published under paragraph (1) that the manufacturer or processor, as applicable, has manufactured or processed for a nonexempt commercial purpose during the 10-year period ending on the day before the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act.

Clearly this provision requires each manufacturer of a substance on the Inventory to notify EPA if it has been manufacturing it recently.  Nothing in this language allows for a subset of such manufacturers to file notices.

Second, the industry’s proposal won’t work in practice and likely won’t be desirable even to them.  Recall that part of the notice a manufacturer must file is a reassertion of any existing claim to protect from disclosure the identity of a chemical the company wishes to maintain; see section 8(b)(4)(B)(ii).  Such CBI claims and the basis for them are, of course, specific to the company asserting a claim.  If the Inventory notification process for a chemical could stop after the first notice is received, that could well mean that only that first notifier’s CBI claim would be asserted – and even then only if that notifier had an existing claim and wished to reassert it.  Under this scenario, requests to maintain existing CBI claims originating with other manufacturers of that same chemical might well not be received by EPA.

In this context, the law is clear that the identity of any active chemical for which no requests are received through the Inventory notification process to renew an existing CBI claim must be disclosed to the public [section 8(b)(4)(B)(iv); emphasis added]:

(B) CONFIDENTIAL CHEMICAL SUBSTANCES.—In promulgating a rule under subparagraph (A), the Administrator shall—

(iv) move any active chemical substance for which no request was received to maintain an existing claim for protection against disclosure of the specific chemical identity of the chemical substance as confidential from the confidential portion of the list published under paragraph (1) to the nonconfidential portion of that list.

I suspect that is not an outcome those in industry urging EPA to stop the Inventory notification process for a chemical after receipt of the first notice would be pleased with.

To try to address this problem that “one and done” would create, one industry commenter seeks to demand that EPA go through an additional, convoluted process that is not in the law at all, in order to ensure that “all potentially affected manufacturers and processors have had a full opportunity to reassert CBI claims” and that “if an ‘early’ notifier decides to waive an existing CBI claim, that action cannot itself prejudice subsequent notifiers or deprive them of an opportunity to reassert a claim.”

This tries to shift to EPA a burden that the law clearly places on companies.  And it begs the question why EPA should have to provide “all potentially affected manufacturers and processors” yet another “full opportunity to reassert CBI claims” when they just chose not to take up the opportunity afforded them under the law and EPA’s proposed rule to do so via the Inventory notification process.

In sum, the new law is clear that all manufacturers must notify EPA of their active manufacture of a chemical, and that, unless one or more of those companies reassert any existing CBI claims at that time (and those claims are later reviewed and found to be warranted), the identity of that chemical is to be made public.

CBI claims are company-specific and can’t be “borrowed” by other companies

Some 17,000 chemical identities on the Inventory are confidential at present, denying the public the ability to know the full range of chemicals being made and used in the U.S.  In enacting the Inventory notification provisions, Congress wanted EPA not only to update the Inventory to identify chemicals in active commerce, but also to require EPA to retrospectively review this large backlog of CBI claims to ensure that if the public is to continue to be denied access to some chemical identities, they are limited only to those that actually warrant protection from disclosure.

Congress did not intend for the Inventory notification process to be a means by which companies could assert new CBI claims for chemical identity.  The intent was to provide a means for EPA to review already existing chemical identity claims to determine if they are still warranted.

Consistent with this Congressional intent, the language of the law expressly provides only for requests under the Inventory notification process to “maintain an existing claim,” not to assert a new one; see section 8(b)(4)(B)(ii).  Because CBI claims are company-specific, it should not be possible for a company to seek to “maintain” a claim it did not make.

Unfortunately, EPA has proposed to allow a company to request to maintain a CBI claim for chemical identity through the Inventory notification that it had not asserted.  Industry interests have supported this approach in their comments.  EDF strongly disagrees:  we believe this approach is not allowed by law, and it would clearly frustrate achieving the second objective of the Inventory notification process.  In our comments, we argue that EPA’s final Inventory notification rule needs to specifically state that no company that had not previously asserted a CBI claim for the identity of a chemical substance can request that such a claim be maintained through the Inventory notification process.

None of this is to say that a company cannot at any point assert a new claim for CBI protection of the identity of a chemical on the confidential portion of the Inventory.  The law clearly provides for that to be done – but only through the procedures and requirements of section 14.  EPA should make clear that any new claim to protect the identity of a chemical must be asserted and addressed as laid out in section 14.

This is not a trivial distinction:  Among other differences, the section 14 process would require EPA to review such a claim within 90 days, rather than the potentially much longer timeframe provided under section 8(b)(4)(B), (C) and (D).  The much longer period (5-7 years) provided under the new law for EPA review of pre-existing CBI claims for chemical identity was an acknowledgment of the large number of such claims potentially requiring review; compounding that problem by allowing new claims to be asserted and then reviewed under the review plan would run entirely counter to the intent of this provision of the law.

Section 14 of the Lautenberg Act provides ample means to meet the needs EPA identifies in its rationale for its proposed approach:

A number of manufacturers and processors may legitimately benefit from the confidential status of a specific chemical identity, and the initial claimant may no longer exist.  EPA does not believe that Congress intended for specific confidential chemical identities to be disclosed without providing the opportunity for manufacturers and processors to make a request that the identities should remain confidential simply because the original claimants no longer manufacture the chemical substances.

Section 14 provides a clear and direct “opportunity for manufacturers and processors to make a request that the identities should remain confidential.”  Any company seeking to “legitimately benefit from the confidential status of a specific chemical identity” can do so simply by asserting a CBI claim for that chemical identity through the means provided under the Lautenberg Act, i.e., in conformance with the procedures and requirements delineated in section 14.  To do so, there is no need for a company to seek to identify the original or any other claimant.

In contrast to both of these proposals embraced by industry, the most straightforward approach is also the one that comports with the law.

It will broadly endanger Americans' health and welfare, and lead the U.S. backward to an era of more pollution instead of forward to the clean energy economy.

By Tim O'Connor

Last week the California Air Resources Board unanimously voted to finalize new regulations to reduce oil and gas methane emissions. This is the first major environmental regulation that has been issued since the new Administration took office, and sends a clear message that states aren’t going to take the new administrations attacks on the environment lying down.

Every signal from the Trump Administration – from pledging to kill the Clean Power Plan, to the recent executive orders that order EPA to begin reversing important climate protections, to the massive proposed budget cuts to the Environmental Protection Agency– indicate that the United States government is keen to undo some of the fundamental environmental protections that are critical to our health and prosperity. And yet, through these signals, California is moving forward with sensible policies that will hold oil and gas companies accountable for their operations, and their pollution.

Unsurprisingly, many see California as an outlier state, and passing the strongest oil and gas regulations in the county to require companies to regularly inspect equipment for gas leaks will undoubtedly feed that narrative.  However, just as they would if passed in other jurisdictions, the state’s efforts to prevent leaks help stop companies from needlessly wasting our energy resources – currently California operators report wasting $50 million of gas every year through their leaky operations.

California is the third-largest producer of oil in the country – meaning its actions are much more than symbolic.  As such, policy makers in oil and gas producing states across the country should take a hard look at the economic and environmental benefits of the state’s newest protections as proof that better environmental outcomes can go hand-in-hand with responsible energy development and economic prosperity. In short, unlike what the Trump Administration would have Americans believe, we don’t have to choose between a healthy economy and a healthy environment, we can and should have both.

In fact the evidence shows that California isn’t an outlier on this issue: several other states have begun to make this point. For example, CARB’s rules come on the heels of similar actions undertaken by a mix of red and blue energy producing states. Colorado, Ohio and Wyoming each have policies that require oil and gas companies to use affordable methods to reduce emissions. Pennsylvania, the nation’s second-largest gas producer, is pursuing similar policies as well.

It’s easy to understand why states are pursuing emission reductions, and why our nation’s elected officials in Congress should resist efforts to backslide on its policies. Cutting oil and gas emissions is one of the most-cost effective ways to, protect air quality, tackle climate change and reduce energy waste. And it can be done by implementing home-grown solutions that are already being deployed right now – solutions that also result in new business opportunities.

California’s ability to double down on climate pollution without sparking economic chaos should send a message that smart environmental protections are what Americans deserve and our economy can easily accommodate.  The Administration can push back, but other policy makers – both in congress and in other states – can and should march forward. The climate data says it needs to be done, the economics show it works out, and the people across the land support and need it.

By Tim O'Connor

Last week the California Air Resources Board unanimously voted to finalize new regulations to reduce oil and gas methane emissions. This is the first major environmental regulation that has been issued since the new Administration took office, and sends a clear message that states aren’t going to take the new administrations attacks on the environment lying down.

Every signal from the Trump Administration – from pledging to kill the Clean Power Plan, to the recent executive orders that order EPA to begin reversing important climate protections, to the massive proposed budget cuts to the Environmental Protection Agency– indicate that the United States government is keen to undo some of the fundamental environmental protections that are critical to our health and prosperity. And yet, through these signals, California is moving forward with sensible policies that will hold oil and gas companies accountable for their operations, and their pollution.

Unsurprisingly, many see California as an outlier state, and passing the strongest oil and gas regulations in the county to require companies to regularly inspect equipment for gas leaks will undoubtedly feed that narrative.  However, just as they would if passed in other jurisdictions, the state’s efforts to prevent leaks help stop companies from needlessly wasting our energy resources – currently California operators report wasting $50 million of gas every year through their leaky operations.

California is the third-largest producer of oil in the country – meaning its actions are much more than symbolic.  As such, policy makers in oil and gas producing states across the country should take a hard look at the economic and environmental benefits of the state’s newest protections as proof that better environmental outcomes can go hand-in-hand with responsible energy development and economic prosperity. In short, unlike what the Trump Administration would have Americans believe, we don’t have to choose between a healthy economy and a healthy environment, we can and should have both.

In fact the evidence shows that California isn’t an outlier on this issue: several other states have begun to make this point. For example, CARB’s rules come on the heels of similar actions undertaken by a mix of red and blue energy producing states. Colorado, Ohio and Wyoming each have policies that require oil and gas companies to use affordable methods to reduce emissions. Pennsylvania, the nation’s second-largest gas producer, is pursuing similar policies as well.

It’s easy to understand why states are pursuing emission reductions, and why our nation’s elected officials in Congress should resist efforts to backslide on its policies. Cutting oil and gas emissions is one of the most-cost effective ways to, protect air quality, tackle climate change and reduce energy waste. And it can be done by implementing home-grown solutions that are already being deployed right now – solutions that also result in new business opportunities.

California’s ability to double down on climate pollution without sparking economic chaos should send a message that smart environmental protections are what Americans deserve and our economy can easily accommodate.  The Administration can push back, but other policy makers – both in congress and in other states – can and should march forward. The climate data says it needs to be done, the economics show it works out, and the people across the land support and need it.

By Tim O'Connor

Last week the California Air Resources Board unanimously voted to finalize new regulations to reduce oil and gas methane emissions. This is the first major environmental regulation that has been issued since the new Administration took office, and sends a clear message that states aren’t going to take the new administrations attacks on the environment lying down.

Every signal from the Trump Administration – from pledging to kill the Clean Power Plan, to the recent executive orders that order EPA to begin reversing important climate protections, to the massive proposed budget cuts to the Environmental Protection Agency– indicate that the United States government is keen to undo some of the fundamental environmental protections that are critical to our health and prosperity. And yet, through these signals, California is moving forward with sensible policies that will hold oil and gas companies accountable for their operations, and their pollution.

Unsurprisingly, many see California as an outlier state, and passing the strongest oil and gas regulations in the county to require companies to regularly inspect equipment for gas leaks will undoubtedly feed that narrative.  However, just as they would if passed in other jurisdictions, the state’s efforts to prevent leaks help stop companies from needlessly wasting our energy resources – currently California operators report wasting $50 million of gas every year through their leaky operations.

California is the third-largest producer of oil in the country – meaning its actions are much more than symbolic.  As such, policy makers in oil and gas producing states across the country should take a hard look at the economic and environmental benefits of the state’s newest protections as proof that better environmental outcomes can go hand-in-hand with responsible energy development and economic prosperity. In short, unlike what the Trump Administration would have Americans believe, we don’t have to choose between a healthy economy and a healthy environment, we can and should have both.

In fact the evidence shows that California isn’t an outlier on this issue: several other states have begun to make this point. For example, CARB’s rules come on the heels of similar actions undertaken by a mix of red and blue energy producing states. Colorado, Ohio and Wyoming each have policies that require oil and gas companies to use affordable methods to reduce emissions. Pennsylvania, the nation’s second-largest gas producer, is pursuing similar policies as well.

It’s easy to understand why states are pursuing emission reductions, and why our nation’s elected officials in Congress should resist efforts to backslide on its policies. Cutting oil and gas emissions is one of the most-cost effective ways to, protect air quality, tackle climate change and reduce energy waste. And it can be done by implementing home-grown solutions that are already being deployed right now – solutions that also result in new business opportunities.

California’s ability to double down on climate pollution without sparking economic chaos should send a message that smart environmental protections are what Americans deserve and our economy can easily accommodate.  The Administration can push back, but other policy makers – both in congress and in other states – can and should march forward. The climate data says it needs to be done, the economics show it works out, and the people across the land support and need it.