Preview Newsletter
acc june 19
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(ACC Mentioned) Automated Computational Screens Will Be Integrated Into EPA's Endocrine Test Regime
Jun 19, 2015 | BNA Daily Environment Report
By Michael C. Davis
New technologies to speed the screening of chemicals for their potential to disrupt human and animal endocrine systems will soon be put into use by the Environmental Protection Agency, the EPA announced June 18. Jim Jones, assistant administrator for EPA's Office of Chemical Safety and Pollution Prevention, said the agency... -
Jessica Alba Lobbies Congress For Stronger Chemical Protections
Jun 18, 2015 | The Hill - E2 Wire
By Tim Devaney
Actress Jessica Alba came to Capitol Hill on Thursday to lobby lawmakers for stronger chemical protections. The “Fantastic Four” star and co-founder of The Honest Company, which sells nontoxic household products, met with more than a half-dozen lawmakers, including Senate Minority Leader Harry Reid (D-Nev.). -
Actress Jessica Alba Joins Green Business Execs To Push For TSCA Changes
Jun 18, 2015 | E&E News PM
By Sam Pearson
Top representatives of companies that make products using less-toxic chemicals -- including Honest Co. co-founder and actress Jessica Alba -- were at the Capitol today weighing in on pending legislation to update the Toxic Substances Control Act of 1976 and urging lawmakers to press harder for safety protections. -
Dispute Over PCP Leach at Pacific Gas Site Over RCRA, Clean Water Act Jurisdiction
Jun 19, 2015 | BNA Daily Environment Report
By Steven M. Sellers
Pentachlorophenol and dioxins that leached from chemically treated utility poles stored at Pacific Gas & Electric facilities constitute “solid waste” regulated by the Resource Conservation and Recovery Act, according to a brief filed in the Ninth Circuit (Ecological Rights Found. v. Pacific Gas & Elec. Co., 9th Cir., No. 15-15424, brief filed, 6/15/15). -
IG Presses EPA To Finalize Guide For Long-Term Care At Waste Facilities
Jun 18, 2015 | InsideEPA
By Suzanne Yohannan
EPA’s Inspector General (IG) is pressing the agency to soon finalize its draft guidance outlining criteria states and EPA regions can use to require monitoring or oversight for potential releases beyond the 30-year post-closure care (PCC) period at hazardous waste landfills, with the IG saying challenges remain to ensure long-term risks are addressed. -
US Government Clarifies Position On Electronics Rating System
Jun 18, 2015 | Chemical Watch
The US government has quashed NGO concerns (CW 9 April 2015) that it will stop using a tool that allows federal purchasers to identify electronics products that meet standards on hazardous substances, by confirming its use in an official document. Last week, the government released instructions for implementing... -
OECD Improves Access To Worldwide Chemical Classifications
Jun 18, 2015 | Chemical Watch
The OECD has made it easier for users of its eChemPortal to view classifications of chemicals that have been reviewed by a regulatory body or an intergovernmental organisation. A new search function on the portal will give users access to data from jurisdictions around the world that have revised an individual chemical's classification... -
Canada Adds 31 Substances to DSL
Jun 19, 2015 | Chemical Watch
The Canadian government has added 31 substances to the Domestic Substances List (DSL). Twenty two of these are to Part 1 and the rest to Part 2. Substances on the DSL do not require notification unless they are subject to a Snac regulation. Those not on the list are considered to be new to Canada and subject to notification. -
(ACC Mentioned) Chemical Board Members Split Over New Interim Chairman, Staffers on Leave
Jun 19, 2015 | BNA Daily Environment Report
By Robert Iafolla
Leaders at the Chemical Safety and Hazard Investigation Board are split over the appointment of a new interim chairman and the temporary removal of two top staffers tied to the agency's previous regime. Board member Manuel Ehrlich Jr. told Bloomberg BNA June 18 that he considers invalid the June 11 vote to ... -
Senate Bill Cuts Funds For EPA Fracking Research
Jun 18, 2015 | E&E News PM
By Geof Koss
Senate appropriators have rejected the Obama administration's request for additional funds for U.S. EPA to research the safety of hydraulic fracturing -- including for its long-awaited report on the link between fracking and groundwater supplies. The instructions are contained in the committee report accompanying the $30 billion... -
Oklahoma Earthquake Surge Linked to Oil, Gas Drilling, Stanford University Study Finds
Jun 19, 2015 | BNA Daily Environment Report
By Paul Stinson
Oklahoma's recent escalation in earthquakes is primarily due to dramatic increases in wastewater injections of brackish water coexisting with oil and gas beneath the ground, rather than “flowback water” generated following fracking operations, according to a new Stanford University study. -
Oil, Gas Drilling Wastewater Blamed for Earthquakes in Oklahoma
Jun 18, 2015 | Bloomberg
By Justin Doom
Wastewater from oil and natural gas drilling that’s pumped underground for disposal is more likely to trigger earthquakes than extracting the fuel by fracking, according to a new study. The salty byproduct of hydraulic fracturing is often injected back underground where it penetrates fault lines and triggers seismic activity, said Mark Zoback... -
High-Rate Fluid Injection Linked to Quakes, University of Colorado, USGS Study Finds
Jun 19, 2015 | BNA Daily Environment Report
By Tripp Baltz
The U.S. Geological Survey and the University of Colorado released a broad-based study on the correlation between high-rate fluid injection wells and the dramatic increase in earthquakes in the central and eastern U.S. The study, the focus of a paper appearing in the June 18 issue of Science, draws conclusions similar to other recent reports... -
Studies Link Quakes To Oil And Gas Wastewater Disposal
Jun 18, 2015 | E&E News PM
By Mike Soraghan
Two studies out today point to oil and gas activity, specifically deep injection of wastewater, as the cause of a surge in earthquakes in Oklahoma and the central United States. To slow or stop the earthquakes, the studies say, oil and gas producers will need to cut the volume of waste fluid they're injecting into wells. -
Interior-EPA Spending Bill Wins Approval With Cuts for EPA, Warnings of Stalemate
Jun 19, 2015 | BNA Daily Environment Report
By Alan Kovski
Sharp cuts in spending for the Environmental Protection Agency were approved June 18 by the Senate Appropriations Committee, while the Interior Department and the U.S. Forest Service were largely spared the ax in the same bill. The committee voted 16-14 along party lines to approve the fiscal year 2016 appropriations bill for Interior... -
Interior-EPA Appropriations Bill Slated For House Floor Next Week, McCarthy Says
Jun 19, 2015 | BNA Daily Environment Report
By Ari Natter
A $30.2 billion fiscal year 2016 Interior and Environment appropriations bill will be brought to the House floor next week, House Majority Leader Kevin McCarthy (R-Calif.) said June 18. The bill, which would provide $7.4 billion for the Environmental Protection Agency—a 9 percent reduction over current funding levels—also includes... -
Senate Democrats Vow To Block EPA-Interior Bill
Jun 18, 2015 | PoliticoPro
By Darren Goode
Senate Democrats are promising to kill the Republican 2016 Interior-EPA spending bill that would slash spending for the EPA and gut much of President Barack Obama’s environmental agenda. On a 16-14 party-line vote, the Senate Appropriations Committee reported out the $30 billion bill that includes $7.6 billion for EPA, a $538.8 million cut... -
Congressional Sparks Fly In Debate About Biomass In Clean Power Plan
Jun 19, 2015 | E&E Daily News
By Tiffany Stecker
As U.S. EPA nears the finalization of a rule to regulate greenhouse gas emissions from the nation's power sector, environmental groups and the biomass industry are working hard to sway the agency in their direction. Nearly two dozen bipartisan members of Congress signed a letter led by Reps. Annie Kuster (D-N.H.) and Bruce... -
Savings From Energy Efficiency Contracts May Be Overstated -- GAO
Jun 18, 2015 | E&E News PM
By Katherine Ling
Federal agencies may not be achieving the energy and cost savings reported by contractors from upgrading equipment and facilities, according to a Government Accountability Office report released yesterday. The GAO report found a lack of oversight and understanding of reporting rules allowed contractors to overstate reductions in... -
Hypocritical Attack On EPA And Supporters Of Water Rule
Jun 19, 2015 | The Hill - Congress Blog
By Whit Fosburgh
A 5 Comments from Will Coggin of the Environmental Policy Alliance attacks the EPA’s recently released final rule to clarify protections of the Clean Water Act. Coggin also attempts to disparage the honesty and integrity of the Theodore Roosevelt Conservation Partnership (TRCP) and other sportsmen’s groups who support... -
DOJ Cites Lack Of Standing To Fight Supreme Court Review Of CWA Findings
Jun 18, 2015 | InsideEPA
By David LaRoss
The Department of Justice (DOJ) is urging the Supreme Court to again reject a case testing whether Clean Water Act (CWA) jurisdictional determinations (JDs) are subject to pre-enforcement review despite a circuit court split on the issue, arguing that the recycling firm seeking the review lacks legal standing to pursue the case. -
Pope Blasts California’s Cap-And-Trade System
Jun 18, 2015 | San Francisco Gate
By David R. Baker
In its brief history, California’s cap-and-trade system to fight global warming has faced many foes, including oil-company executives and manufacturing magnates. On Thursday, it came under fire from a new quarter: the Vatican. Pope Francis, in his highly anticipated call to action against climate change, took an unexpected swipe... -
Republicans Duck Fight On Climate Encyclical
Jun 18, 2015 | PoliticoPro
By Darren Goode and Andrew Restuccia
epublicans mostly kept their heads down after Pope Francis issued his encyclical on climate change Thursday, quietly offering up praise for the pontiff while tactfully disagreeing with his call for action on global warming. That’s a shift from earlier this week, when a leaked version of “Laudato Si” prompted statements of derision... -
Obama Cheers Pope's Climate Change Push
Jun 18, 2015 | The Hill - E2 Wire
By Devin Henry
President Obama said he “deeply admires” Pope Francis’s encyclical on the environment and his “decision to make the case — clearly, powerfully, and with the full moral authority of his position — for action on global climate change.” “As Pope Francis so eloquently stated this morning, we have a profound responsibility to protect our children... -
O’Malley Pushes Aggressive Climate Change Platform
Jun 18, 2015 | The Hill - E2 Wire
By Devin Henry
Former Maryland Gov. Martin O’Malley says that if he is elected president he will phase out the use of fossil fuels by 2050 and convert the United States to clean energy only. “I believe, within 35 years, our country can, and should, be 100 percent powered by clean energy, supported by millions of new jobs,” O’Malley, a Democratic presidential... -
O'Malley Cites Clean Energy Future As No. 1 Priority If He Wins White House Bid
Jun 19, 2015 | E&E Daily News
By Jennifer Yachnin
Former Maryland Gov. Martin O'Malley yesterday vowed to make a nationwide transition to renewable energy his top priority if he wins election to the White House in 2016, asserting the country could wean itself from fossil-fuel-generated power by 2050. O'Malley, who is seeking the Democratic presidential nomination... -
Riders Would Bar EPA From Implementing Ozone Rule, but Length of Delay Unknown
Jun 19, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
It is unclear how long the Environmental Protection Agency would be prohibited from implementing revised national ozone standards under legislative language proposed by congressional Republicans. But observers told Bloomberg BNA that inclusion of the language in the House fiscal year 2016 appropriations bill covering the Interior Department... -
(ACC Mentioned) Surface Transportation Board Revamp Advances
Jun 19, 2015 | E&E Daily News
By Sean Reilly
The Senate has approved S. 808, a reauthorization bill that would expand the leadership of the Surface Transportation Board and give the tiny regulatory agency new authority to investigate freight-rail industry problems. The measure, which passed late yesterday by unanimous consent, now goes to the House. Sponsored by Senate ... -
FMCSA Changes Hazmat Permit Enforcement; Industry Reaction Mixed, Potential for Appeal
Jun 19, 2015 | BNA Daily Environment Report
By Rachel Leven
The Federal Motor Carrier Safety Administration is changing how it identifies hazardous materials safety permits for safety reviews and how it decides whether to renew individual permits, the agency will announce June 19. The rule, which incorporates continual monitoring of these permits through a safety management system, implements part...
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(ACC Mentioned) Automated Computational Screens Will Be Integrated Into EPA's Endocrine Test Regime
Jun 19, 2015 | BNA Daily Environment Report
By Michael C. Davis
New technologies to speed the screening of chemicals for their potential to disrupt human and animal endocrine systems will soon be put into use by the Environmental Protection Agency, the EPA announced June 18.
Jim Jones, assistant administrator for EPA's Office of Chemical Safety and Pollution Prevention, said the agency will soon begin using “groundbreaking” validated computational technologies with automated cellular testing to screen substances for endocrine-disrupting effects.
The agency will use the computational and testing tools as alternatives for three traditional assays to screen chemicals in the first tier of the EPA's endocrine disruptor screening program.
Jones said the EPA has partial screening results for more than 1,800 chemicals that have been evaluated using the high throughput assays and a computational model the agency has developed for the estrogen receptor pathway. The agency expects to have evaluations available on about 3,000 chemicals by fiscal year 2016 using these techniques.
The EPA will publish a notice of the addition of the automated and computational assays to its endocrine disruptor screening program in the Federal Register June 19. Comments on the proposal will be accepted for 60 days under Docket ID No. EPA-HQ-OPPT-2015-0305.
Jones said the combination of high throughput cellular studies and computational assays will reduce review time for suspected endocrine-disrupting chemicals by 75 percent. The screening technique also is 100 times faster and eliminates the use of animals.
In the prepublication copy of the Federal Register notice, the agency said the bioactivity data provided by the computational estrogen receptor binding model (ER Model) it has devised for use with the automated high throughput (Toxcast) tests illustrated that one of the Tier 1 screens, a uterotrophic assay requiring the use of live female rats, no longer would provide added value if the ER Model data are available.
Rick Becker, senior toxicologist at the American Chemistry Council, told Bloomberg BNA that the EPA's proposal to accept the new types of data is backed by extensive research that shows the new types of estrogen receptor tests generate reliable data. The agency's proposal supports the growing scientific and regulatory interest in high throughput, computational and other testing technologies, he said.
EPA Seeks Input on ER Model
The EPA is specifically seeking comment on the use of the ER Model for bioactivity as an alternative method for estrogen receptor and estrogen receptor transactivation assays in the Tier 1 battery; use of the ER Model for bioactivity as an alternative for the uterotrophic Tier 1 screening assay; and the use of the results from the ER Model for bioactivity on more than 1,800 chemicals as partial screening for the estrogen receptor pathway.
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Jessica Alba Lobbies Congress For Stronger Chemical Protections
Jun 18, 2015 | The Hill - E2 Wire
By Tim Devaney
Actress Jessica Alba came to Capitol Hill on Thursday to lobby lawmakers for stronger chemical protections.
The “Fantastic Four” star and co-founder of The Honest Company, which sells nontoxic household products, met with more than a half-dozen lawmakers, including Senate Minority Leader Harry Reid (D-Nev.).Alba is joining the American Sustainable Business Council, of which her company is a member, in a push for stronger chemical protections.
She suggested the rise of chronic illnesses may be linked to toxic chemicals.
“Who wants to be guinea-pigged to test chemicals?” Alba asked.
In Congress, lawmakers are weighing two competing bills that would reform the 1976 Toxic Substances Control Act, but Alba suggested neither piece of legislation goes far enough to protect consumers.
“It’s just not strong enough,” Alba said. “We feel it could be stronger. That’s really what we’re here lobbying for."
Alba is also meeting with Sens. Dick Durbin (D-Ill.), Charles Schumer (D-N.Y.), Patty Murray (D-Wash.), Ed Markey (D-Mass.), Barbara Boxer (D-Calif.) and Susan Collins (R-Maine).
Alba said she took an interest in chemical reform after her children were born.
"That’s the first time I ever read a label and cared about the ingredients, when I was pregnant with my first daughter, and it inspired me to create a company,” Alba said.
"Those of us who have children are aware, and we’re the ones who have to safeguard our kids,” she added.
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Actress Jessica Alba Joins Green Business Execs To Push For TSCA Changes
Jun 18, 2015 | E&E News PM
By Sam Pearson
Top representatives of companies that make products using less-toxic chemicals -- including Honest Co. co-founder and actress Jessica Alba -- were at the Capitol today weighing in on pending legislation to update the Toxic Substances Control Act of 1976 and urging lawmakers to press harder for safety protections.
The delegation from the American Sustainable Business Council met with lawmakers, including Sens. Charles Schumer (D-N.Y.), Harry Reid (D-Nev.), Jeff Merkley (D-Ore.), Dick Durbin (D-Ill.), Ed Markey (D-Mass.) and Susan Collins (R-Maine), to urge them to strengthen legislation emerging in the House of Representatives rather than greenlight a competing Senate plan, S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act."
Alba was visiting with David Levine, president of the American Sustainable Business Council; Honest Co. co-founder Christopher Gavigan; and Jeffrey Hollender, the founder of Seventh Generation Inc. and current CEO of personal care product company Sustain Condoms, among others.
Making her way through the maze of hallways beneath the U.S. Capitol complex, Alba said the group had gotten a positive reception from lawmakers.
"Nobody wants themselves or their kids or their grandkids to be guinea pigs to see if something's unsafe and they can potentially get sick from it," Alba said, noting the important role of states in protecting residents from harmful chemicals.
Alba was on the Hill in 2011 to push for the "Safe Chemicals Act," a bill introduced by the late Sen. Frank Lautenberg (D-N.J.) that failed to win the support of Republicans (Greenwire, May 24, 2011).
Since then, the sustainable products company she co-founded that year, Honest Co., has grown from an estimated $10 million in revenue in 2012 to an estimated $150 million this year. The firm has been valued at an estimated $1 billion, which would make Alba's stake in the firm worth as much as $200 million (Greenwire, June 3).
The success of the company shows that businesses don't have to choose between making money and eliminating unsafe chemicals from their supply chains, Alba said. In part, she added, the company's growth stems from the federal government's failure to take action to more closely regulate these chemicals.
Absent more aggressive action by regulators, consumers "love outsourcing their trust to us and our company, and they're voting with their dollars," Alba said.
House and Senate committees have advanced legislation to update TSCA this year, though the two bills take significantly different approaches. The House bill, led by Rep. John Shimkus (R-Ill.) and Energy and Commerce Committee Democrats, has tried to take a narrower approach, while a competing Senate plan by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) aims to fix the 39-year-old law's problems more broadly.
The House is set to vote on its bill as soon as next week. In the Senate, Majority Leader Mitch McConnell (R-Ky.) has said he wants to bring his chamber's bill to the floor before the August recess, though he has not said specifically when that would happen.
Though both bills now have significant numbers of co-sponsors in both parties, many environment and public health groups say the bills still need work -- a point Alba echoed today.
"There are still some big leaps that we have to take," Alba said.
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Dispute Over PCP Leach at Pacific Gas Site Over RCRA, Clean Water Act Jurisdiction
Jun 19, 2015 | BNA Daily Environment Report
By Steven M. Sellers
Pentachlorophenol and dioxins that leached from chemically treated utility poles stored at Pacific Gas & Electric facilities constitute “solid waste” regulated by the Resource Conservation and Recovery Act, according to a brief filed in the Ninth Circuit (Ecological Rights Found. v. Pacific Gas & Elec. Co., 9th Cir., No. 15-15424, brief filed, 6/15/15).
The June 15 appeal by the Ecological Rights Foundation, which claims the toxic substances have migrated into California waters, challenges a summary judgment ruling by the U.S. District Court for the Northern District of California that such discharges from the PG&E facilities are regulated by the Clean Water Act (33 U.S.C. §1365(a)) and not RCRA (42 U.S.C. §6972(a)(1)(B)).
ERF's citizen suit contends that RCRA concurrently regulates alleged discharges of PCPs and dioxins from treated wood stored at four PG&E facilities in California, and it relies in part on a 2014 guidance memorandum issued by the U.S. Environmental Protection Agency.
That memorandum—which disputes a Ninth Circuit ruling in a previous RCRA case brought by ERF—concludes that a wood preservative, once it no longer serves its intended purpose, may become a discarded “solid waste” within RCRA's reach.
Jason Flanders, of the Aqua Terra Aeris Law Group in Oakland, Calif., represents ERF in the U.S. Court of Appeals for the Ninth Circuit. He declined June 17 to elaborate on the brief's substantive arguments but told Bloomberg BNA in an e-mail the remedy his client seeks “should be relatively simple.”
“Keeping stored waste materials under cover from exposure to rainfall, and improving general housekeeping practices like sweeping and cleaning would go a long way,” Flanders said.
“The utilities already have storm water treatment systems to remove dioxins from discharges from the facilities where the poles are treated, and there's no reason not to require the same treatment of the same dioxins discharging from facilities where the treated poles are stored, maintained, and disposed of,” he said.
Dioxin Contamination Alleged
The utility poles at the PG&E facilities were treated with PCP, a wood preservative containing carcinogenic dioxins. ERF contends the chemicals drip from the wood, leach into the soil and migrate into San Francisco Bay and Humboldt Bay through stormwater runoff and vehicle traffic.
The organization said it has “overwhelming and incontrovertible” proof that dioxin emissions at the PG&E facilities pose an imminent and substantial endangerment to health or the environment because toxic substances recorded at the facilities greatly exceed regulatory limits.
ERF also alleged elevated levels of PCPs and dioxins in stormwater runoff that ultimately ends up in the bays.
Here, PCP-laden wood, sawdust and old poles at the sites serve no continuing and useful industrial purpose and therefore fall within the scope of RCRA injunctive mechanisms that may force PG&E to remediate and prevent further contamination, ERF said.
EPA Guidance Memorandum Cited
The district court questioned ERF's standing to challenge discharges on PG&E property and also held that RCRA's terms bar its application in a way that duplicates the Clean Water Act.
ERF said this anti-duplication provision prohibits only the inconsistent application of RCRA, not the concurrent enforcement called for here.
In 2013, the California-based organization lost a similar Ninth Circuit appeal—on both RCRA and CWA grounds—over PCP contamination leached from installed utility poles (Ecological Rights Found. v. Pacific Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013).
But the organization said the guidance memorandum of the EPA Office of Enforcement and Compliance Assurance bolsters its position here.
Concerns Raised Over ‘Solid Waste' Definition
“OECA is concerned that defendants in RCRA citizen suits and EPA enforcement actions may attempt to use this decision to narrow the definition of solid waste,” the EPA memorandum said in opposition to the Ninth Circuit's 2013 decision.
The EPA concluded that the Ninth Circuit's interpretation of the law undermined its ability to ensure the cleanup of RCRA-regulated facilities—and ERF argued the agency's reasoning is entitled to deference on appeal.
Pacific Gas & Electric's reply brief is due July 15.
The Aqua Terra Aeris Law Group represents the Ecological Rights Foundation in the appeal.
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IG Presses EPA To Finalize Guide For Long-Term Care At Waste Facilities
Jun 18, 2015 | InsideEPA
By Suzanne Yohannan
EPA’s Inspector General (IG) is pressing the agency to soon finalize its draft guidance outlining criteria states and EPA regions can use to require monitoring or oversight for potential releases beyond the 30-year post-closure care (PCC) period at hazardous waste landfills, with the IG saying challenges remain to ensure long-term risks are addressed.
The IG in a June 17 report says EPA’s guidance on considering and adjusting the PCC period at hazardous waste facilities is overdue, with the agency originally planning to finalize it by the end of fiscal year 2013. Without the guidance, “states made decisions on adjusting PCC without the benefit of national guidance on the criteria they should consider in making these decisions,” the IG says.
EPA in response agrees with the IG's recommendation to issue the guidance and has taken steps to resolve delays, saying it will finalize the document by the end of the current fiscal year.
On April 29, the agency released draft guidance that gives assurances to states that regulators have the discretionary authority to lengthen the PCC period beyond 30 years to require continued monitoring for potential releases at hazardous waste landfills, outlining criteria states can use to make the assessments. The agency is currently accepting public comment on the draft version until the end of June.
Under Resource Conservation & Recovery Act (RCRA) subtitle C regulations governing hazardous waste management, owners or operators of hazardous waste disposal facilities follow PCC requirements for a 30-year period after closing a unit.
But the regulations also "provide discretionary authority to the permitting authority to extend or shorten the length of the post-closure care period," Barnes Johnson, director of EPA's Office of Resource Conservation & Recovery, says in the April 29 draft guidance.
PCC involves specific monitoring and maintenance activities that facility operators or owners must undertake after a waste unit is closed to ensure the integrity of waste containment systems and to prevent releases of hazardous pollutants, the guidance says.
PCC Requirements
The PCC requirements apply to land disposal units where hazardous waste is left in place after closure, such as landfills, land treatment units, surface impoundments, or other units, according to the guidance.
EPA committed to writing the guidance after state regulators pressured EPA to issue it as many waste facilities were nearing the end of their 30-year PCC period covered by the regulations. The Association of State and Territorial Solid Waste Management Officials (ASTSWMO) in 2012 released a position paper urging EPA to issue guidance on addressing subtitle C hazardous waste sites following the 30-year PCC period.
“The regulating authorities need timely guidance and mechanisms, such as environmental covenants, to support good decisions on long-term care of disposal units closed with hazardous waste left in place,” the IG report says. In reviewing the draft guide, the IG says while it offered a clear statement requiring financial assurance if the PCC period has to be extended, “it provided little guidance on how states would implement this requirement.”
States have pointed to financial assurance as a benefit to extending PCC rather than using other long-term care mechanisms, the report says.
EPA told the IG it does not plan to issue guidance on financial assurance for extended PCC but that it has the necessary tools to offer timely support to regions and states to address financial assurance issues, the report says.
“If the regulator decides to extend the post-closure care period, the owner or operator must amend the post-closure plan and the related cost estimates for the work entailed by the plan, and continue to demonstrate the necessary financial assurance,” EPA waste chief Mathy Stanislaus says in an April 20 response letter to the draft report.
Additional Challenges
The IG found that in addition to the delayed guidance, some other challenges remain in terms of addressing long-term risks at sites past the 30-year PCC period. “Although some legal and operational safeguards are in place or under development, we identified remaining challenges to the protection of human health and the environment through appropriate long-term care of hazardous waste disposal units closed with waste in place,” the report says.
For instance, RCRA regulations do not mandate that regulators conduct periodic reviews once the PCC period ends, and not all states have adopted environmental covenant laws that would strengthen land use controls on future land use, it says.
Also, state and EPA regulators “face an increased workload as more units reach the end of their expected 30-year post-closure periods. The challenges create risks to long-term protection of human health and the environment from the hazardous waste left in these units,” it says.
In its recommendations, the IG also calls for EPA to identify states that have not adopted the Uniform Environmental Covenant Act (UECA) or a similar environmental covenant statute and reach out to them on the benefits of implementing institutional controls under such statutes.
The National Conference of Commissioners on Uniform State Laws, with backing from EPA, in 2003 developed a model environmental covenant -- known as UECA -- for all states to use to ensure land use controls, monitoring requirements and enforcement capabilities would "run with the land" at sites not cleaned up to unrestricted use, according to ASTSWMO.
The IG points out that 18 states and territories have not adopted UECA or a similar law, and that recorded property record notices alone fail to provide enforceable land use restrictions and can be overridden.
EPA agreed to the UECA recommendation after the IG committed to remove language that Stanislaus thought would require the agency to offer incentives to state legislatures to adopt UECA, which he said the agency cannot do. On the issue of whether regulators, particularly states in Region 3, have enough staff to address projected increases in the workload associated with extended PCC periods, the agency says that Region 3 has already determined that states have enough resources to address the projected increased workload. “Region [3] has already conducted reviews of state capacity in this area and has taken action,” Stanislaus says in the letter.
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US Government Clarifies Position On Electronics Rating System
Jun 18, 2015 | Chemical Watch
The US government has quashed NGO concerns (CW 9 April 2015) that it will stop using a tool that allows federal purchasers to identify electronics products that meet standards on hazardous substances, by confirming its use in an official document.
Last week, the government released instructions for implementing a presidential executive order (13693), which sets out requirements on how federal departments and agencies will increase resource efficiency and improve their environmental performance.
While the executive order did not mention the rating system, the Electronic Product Environmental Assessment Tool (Epeat), the implementing instructions clarify that it is the only tool that allows the government to meet its sustainability goals for federal agencies.
Furthermore, alternative tools can only be used if the EPA does not have a recommended standard for the product category. The agency already recommends using Epeat on its greener products website.
NGOs, the Electronics Takeback Coalition and the Green Electronics Council [which manages Epeat], were concerned that by “abandoning” Epeat, the government was “opening the door for weaker standards to be used”.
The instructions say Epeat is currently the only tool available to achieve its “electronic stewardship mandates”, and any future tools used will need to meet or exceed current levels of sustainable and environmental performance.
Electronics Takeback Coalition’s national coordinator, Barbara Kyle, said in a blog that, at some point, there may be competing tools that are “as good or better” and that the EPA may recommend using them in addition to Epeat.
“We only hope that these labels or standards will choose to become part of the Epeat programme (even if they were not developed under the Epeat system) and place the qualified products on the Epeat registry,” she added.
In addition, the instructions raise the government's requirement for purchasing electronics products that meet the recommended sustainability standard, from 95% to 100%.
Green Electronics Council’s CEO, Robert Frisbee, said in a blog that the government’s continued use of Epeat will help all elements of the marketplace.
“As the largest electronics purchaser in the world, the US government will continue to bring stability and market share to environmentally preferable products. The leadership that the Epeat Registry has represented will set the basis for continued advancement of green electronics.”
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OECD Improves Access To Worldwide Chemical Classifications
Jun 18, 2015 | Chemical Watch
The OECD has made it easier for users of its eChemPortal to view classifications of chemicals that have been reviewed by a regulatory body or an intergovernmental organisation.
A new search function on the portal will give users access to data from jurisdictions around the world that have revised an individual chemical's classification, based on the UN Globally Harmonised System (GHS).
The first sources available are Echa’s Classification and Labelling (C&L) Inventory and the Japanese government's GHS classification results.
The eChemPortal provides free access to information of regulatory relevance on industrial chemicals, pesticides and biocides.
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Canada Adds 31 Substances to DSL
Jun 19, 2015 | Chemical Watch
The Canadian government has added 31 substances to the Domestic Substances List (DSL). Twenty two of these are to Part 1 and the rest to Part 2.
Substances on the DSL do not require notification unless they are subject to a Snac regulation. Those not on the list are considered to be new to Canada and subject to notification.
Substances not on the DSL, but listed on the Non-Domestic Substances List (NDSL), are subject to lesser information requirements.
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(ACC Mentioned) Chemical Board Members Split Over New Interim Chairman, Staffers on Leave
Jun 19, 2015 | BNA Daily Environment Report
By Robert Iafolla
Leaders at the Chemical Safety and Hazard Investigation Board are split over the appointment of a new interim chairman and the temporary removal of two top staffers tied to the agency's previous regime.
Board member Manuel Ehrlich Jr. told Bloomberg BNA June 18 that he considers invalid the June 11 vote to temporarily give member Richard Engler executive and administrative authority in the absence of a Senate-confirmed chairman.
The vote was invalid, Ehrlich said, because he suspended action on agenda items from the beginning of his medical leave on June 9 to the date of his return.
“I don't know what the next step would be,” Ehrlich said. “I hope to be back to work next week and figure out what the next steps would be.”
A standoff between Engler and Ehrlich could hamper the Chemical Safety Board's ability to function. Member Mark Griffon's five-year term expires June 24, and no CSB nominee is ready for a Senate vote, meaning Engler and Ehrlich could be deadlocked on important matters for the foreseeable future.
The White House has nominated Vanessa Allen Sutherland, acting deputy administrator at the Pipeline and Hazardous Materials Safety Administration, to become the agency's chairwoman. Sutherland appeared before the Senate Committee on Environment and Public Works April 22 but still needs to clear that committee and win a confirmation vote in the full Senate before she can join the CSB (78 DEN A-4, 4/23/15).
In addition, CSB nominee Kristen Kulinowski is waiting for her hearing before the Senate Environment Committee. The White House tapped Kulinowski, a researcher at the Science and Technology Policy Institute, Jan. 8.
Delegating Authority
Engler said he and Griffon believe the vote to delegate authority was valid and consistent with the board's internal governance order for protocols during the absence of a Senate-confirmed chairman. Moreover, failing to delegate authority would have violated board policies, Engler said.
The board handled the matter through an urgent notation item, which allows for the vote to be taken on paper and not in a public meeting. The notation item cited a 2002 Justice Department memo saying the lack of a chairman could put continued agency operations in danger, as well as a 2002 CSB Inspector General report saying the absence of a chairman created an “untenable governance situation.”
The board had intended to take up executive and administrative authority in the absence of a chairman during the CSB's June 10 public meeting. But Ehrlich went on medical leave June 9, which denied the board a quorum and prevented any votes at the public meetings held June 10 and June 18.
Holding the Board's Work ‘Hostage.'
“We were blind-sided at the last minute by Mr. Ehrlich that he would not be attending the public meeting,” Engler told Bloomberg BNA June 18. “By his deciding not to show up to two previously scheduled public meetings on dates he had agreed to, he effectively held the work of the board hostage.”
Engler said Ehrlich turned down options that would have allowed him to participate in the meetings remotely. Ehrlich's attempt to block votes on agenda items by calendaring them while he is out on medical leave is “unprecedented in the history of the agency,” Engler said.
With Griffon, who had been acting as chairman, set to leave the CSB and Ehrlich out on medical leave, Engler said he and Griffon believed there was no alternative but to vote on delegating the authority through a notation vote.
Staffers on Leave
In addition to disputing the validity of the notation vote, Ehrlich said he wasn't involved in any board discussions about putting Managing Director Daniel Horowitz or General Counsel Richard Loeb on leave. Ehrlich said putting the two staffers on leave seems inappropriate.
“They make a valuable contribution to the agency,” Ehrlich said. “I think it's a devastating blow when something like that happens.”
Horowitz and Loeb were aligned with former Chairman Rafael Moure-Eraso, who resigned his leadership post under White House pressure March 26 and left the agency April 10. The House Committee on Oversight and Government Reform asked the Obama administration to remove Horowitz and Loeb along with Moure-Eraso in a March 18 letter (55 DEN A-8, 3/23/15).
They went on leave this week, according to an internal CSB e-mail obtained by Bloomberg BNA. The e-mail doesn't say when they might return.
Engler declined to discuss internal CSB personnel actions involving Horowitz or Loeb.
House Chairman Lauds Move
The chairman of the House Oversight Committee lauded the move in a June 18 statement, calling it a positive step toward improving management of the agency.
“Hopefully the process of removal will move forward quickly to spare the American taxpayer further expense for their failed leadership,” Rep. Jason Chaffetz (R-Utah) said. “Interim-Chairman Richard Engler has begun the process of rebuilding confidence in the CSB and we look forward to working with him on additional reforms.”
With the absence of a quorum preventing the board from taking substantive action, the agency's June 18 public meeting lasted less than 15 minutes.
Engler and Griffon heard from industry and labor representatives who supported a proposal to increase transparency and accountability at the CSB.
Three Support Proposal
Karen Haase of the American Chemistry Council, Anna Fendley of the United Steelworkers and John Morawetz of the International Chemical Workers Union Council all spoke in favor of the proposal, which would require quarterly public meetings and guarantee that agenda items blocked by a board member would be discussed at a public meeting within 30 days.
The CSB's next public meeting is scheduled for July 22.
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Senate Bill Cuts Funds For EPA Fracking Research
Jun 18, 2015 | E&E News PM
By Geof Koss
Senate appropriators have rejected the Obama administration's request for additional funds for U.S. EPA to research the safety of hydraulic fracturing -- including for its long-awaited report on the link between fracking and groundwater supplies.
The instructions are contained in the committee report accompanying the $30 billion fiscal 2016 Interior, Environment and Related Agencies spending bill approved by the panel today (Greenwire, June 18).
The bill directs $90 million for air, climate and energy research to EPA in the upcoming fiscal year, a $1.5 million reduction from current levels that doesn't include money requested for additional interagency fracking research with the Interior and Energy departments. The report doesn't specify why the request was rejected, although Interior-Environment Subcommittee Chairwoman Lisa Murkowski (R-Alaska) has raised questions about interagency research on fracking dating back to when Steven Chu was Energy secretary.
The measure would fund EPA's research into "safe and sustainable water resources" at nearly $105 million in fiscal 2016, a $2.5 million cut from current levels, according to the report. That section of the report directs EPA to complete its study on the relationship between fracking and groundwater during the next fiscal year, but also bars additional research funds for the effort. In doing so, it notes that Congress has appropriated $25 million for the congressionally mandated report since 2010.
A draft of the study released this month found some groundwater impacts from fracking but no "widespread" contamination (Greenwire, June 4).
The committee also expressed concern over EPA's efforts to regulate methane emissions from oil and gas operations, citing EPA data showing major declines in methane from fracked wells. The report urges waiting to write new regulations until a January rule setting new standards for storage tanks under the Clean Air Act's New Source Performance Standards provision is fully implemented "and contains at least 1 year of data to better inform future decisions."
Additionally, the report contains a provision about a key offshore oil and gas rule: Interior's Bureau of Safety and Environmental Enforcement's April proposed rulemaking for blowout preventers and well control.
While acknowledging the proposal responds to the 2010 Gulf of Mexico oil spill -- the worst environmental disaster in U.S. history -- the committee "is concerned that given the complexity and technical nature of this proposal a number of factors should be further examined by BSEE and provided to this committee as well as the committees of policy jurisdiction before the rulemaking proceeds further."
"The committee believes any rulemaking, especially one as technical and complex as this one, benefits from robust analysis and encourages BSEE to conduct this examination to ensure the proposal addresses the intent of the regulation in a cost-effective manner," the report states.
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Oklahoma Earthquake Surge Linked to Oil, Gas Drilling, Stanford University Study Finds
Jun 19, 2015 | BNA Daily Environment Report
By Paul Stinson
Oklahoma's recent escalation in earthquakes is primarily due to dramatic increases in wastewater injections of brackish water coexisting with oil and gas beneath the ground, rather than “flowback water” generated following fracking operations, according to a new Stanford University study.
The study, published in the journal Science Advances, concluded that large volumes of highly saline water injected into the state's deepest geologic formation (Arbuckle) lead to rising pore pressure, which can penetrate already stressed basement faults and trigger earthquakes.
Saying that a pair of Stanford geophysicists “have identified the triggering mechanism responsible for the recent spike of earthquakes in parts of Oklahoma,” a release issued June 18 by the university noted that the primary culprit of the quake-triggering wastewater is the brackish water—“produced water”—that naturally coexists with oil and gas within the Earth, according to the study, co-authored by Mark Zoback, Stanford professor, and doctoral student Rall Walsh.
“What we've learned in this study is that the fluid injection responsible for most of the recent quakes in Oklahoma is due to production and subsequent injection of massive amounts of wastewater, and is unrelated to hydraulic fracturing,” said Zoback.
Stanford University researchers also authored a report that was published June 10 in the July-August 2015 issue of Seismological Research Letters designed to “help the public and regulators to understand and assess the potential for seismicity associated with fluid injection at depth,” Zoback told Bloomberg BNA June 17.
Another study released June 18 by the U.S. Geological Survey and the University of Colorado concluded high-rate injection wells—including those used for enhanced oil recovery and for wastewater disposal—are associated with the dramatic upswing in earthquakes in the central and eastern U.S. since 2009 (see related story).
Earthquake Increase
Oklahoma is projected to encounter 941 earthquakes of magnitude 3 or greater in 2015, up from revised 2014 figures of 584, according to April data released by the U.S. Geological Survey.
As part of a response to increased seismicity concerns, Oklahoma's energy and gas regulator, the Oklahoma Corporation Commission, authored a March 18 letter giving disposal well operators operating in “areas of interest” 30 days to prove that their wells aren't releasing wastewater below the Arbuckle formation, the state's deepest geologic formation (60 DEN A-13, 3/30/15).
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Oil, Gas Drilling Wastewater Blamed for Earthquakes in Oklahoma
Jun 18, 2015 | Bloomberg
By Justin Doom
Wastewater from oil and natural gas drilling that’s pumped underground for disposal is more likely to trigger earthquakes than extracting the fuel by fracking, according to a new study.
The salty byproduct of hydraulic fracturing is often injected back underground where it penetrates fault lines and triggers seismic activity, said Mark Zoback, a geophysics professor at Stanford University and lead author of the study Thursday in the journal Science Advances. Fracking, in which fluids are forced underground to shatter rock and release oil and gas, presents a much lower risk, he said.
The issue has gained attention in Oklahoma where a drilling boom has coincided with a surge in earthquakes measuring 3.0 or higher on the Richter scale. About 10 barrels of water are produced for every barrel of oil in Oklahoma where there were two dozen magnitude-4 earthquakes last year compared with one or two a decade prior to 2008, according to the study.
“It’s really important to dispel this notion that all of these earthquakes, which may be associated with the oil and gas industry, are due to fracking,” Zoback said in a telephone interview. Data from the study will benefit policy makers and drillers working to improve methods of water disposal, he said.
In March, state seismologist Austin Holland told Bloomberg News that Oklahoma was on pace to have 875 earthquakes this year of at least 3.0 in magnitude after experiencing only 62 from 1974-2009. Holland did not reply to phone or e-mail messages seeking comment on the study.
Bill Ellsworth, a U.S. Geological Survey researcher, said in April that wastewater injection “is undoubtedly responsible for the majority of these earthquakes.” Biggest Earthquake
Oklahoma’s biggest recorded earthquake, a 5.7-magnitude temblor near Prague, Oklahoma, on Nov. 6, 2011, was linked to wastewater wells by researchers from the University of Oklahoma, Columbia University and the U.S. Geological Survey. The state’s geological office initially said the connection was inconclusive.
On April 21, the state-run Oklahoma Geological Survey issued a statement declaring that the oil and gas industry is “very likely” contributing to the huge rise in earthquakes in Oklahoma.
The Oklahoma Corporation Commission, which regulates drilling in the state, is taking a closer look at about 350 wells to ensure injections don’t trigger earthquakes, Matt Skinner, a spokesman for the agency, said in a telephone interview.
“This is a constantly evolving thing,” Skinner said. “Obviously, we hope for a reduction in seismicity. There’s new data every day.”
The risk of earthquakes increases when drilling wastewater injected back into rock formations seeps down to the fault line, exacerbating plate movement, Zoback said.
“The water flows very easily, spreads out, penetrates basement faults and triggers seismicity,” Zoback said. “When you’re hydraulically fracturing you’re only pressurizing a limited volume of rock for a relatively short period of time. A typical frack stage lasts a couple hours, whereas injection can go on for years or even decades.”
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High-Rate Fluid Injection Linked to Quakes, University of Colorado, USGS Study Finds
Jun 19, 2015 | BNA Daily Environment Report
By Tripp Baltz
The U.S. Geological Survey and the University of Colorado released a broad-based study on the correlation between high-rate fluid injection wells and the dramatic increase in earthquakes in the central and eastern U.S.
The study, the focus of a paper appearing in the June 18 issue of Science, draws conclusions similar to other recent reports linking fluid injection to induced seismicity in oil and gas production regions (see related story).
High-rate injection wells pumping more than 300,000 barrels of wastewater a month into the ground were much more likely to be associated with earthquakes than lower-rate injection wells, the study said.
Injections were conducted either for enhanced oil recovery, which involves the pumping of fluid into depleted oil reservoirs to increase oil production, or for the disposal of salty fluids produced by oil and gas activity, the study said.
Two-Thirds Oil Recovery Wells
Of the wells associated with earthquakes, 66 percent were oil recovery wells, Shemin Ge, one of the study's researchers and a professor in the university's geological sciences department, said in a statement. However, active saltwater disposal wells were 1.5 times as likely as oil recovery wells to be associated with earthquakes, she said.
“Oil recovery wells involve an input of fluid to ‘sweep’ oil toward a second well for removal, while wastewater injection wells only put fluid into the system, producing a larger pressure change in the reservoir,” Ge said.
The researchers assembled a database of roughly 180,000 injection wells in the study area, which ranged from Colorado to the East Coast. More than 18,000 wells were associated with earthquakes—primarily in Oklahoma and Texas—and 77 percent of associated injection wells remain active, according to the study authors.
Enhanced oil recovery wells differ from wells that are hydraulically fractured in that they usually inject for years or decades and are operated in tandem with conventional oil production wells, said CU-Boulder doctoral student Matthew Weingarten, who led the study.
In contrast, fracking wells typically inject for just hours or days. Fracking involves high-pressure injection of water, sand and chemicals into shale formations deep underground to release natural gas and oil.
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Studies Link Quakes To Oil And Gas Wastewater Disposal
Jun 18, 2015 | E&E News PM
By Mike Soraghan
Two studies out today point to oil and gas activity, specifically deep injection of wastewater, as the cause of a surge in earthquakes in Oklahoma and the central United States.
To slow or stop the earthquakes, the studies say, oil and gas producers will need to cut the volume of waste fluid they're injecting into wells.
But the studies differ on where to focus those efforts. One from the University of Colorado and the U.S. Geological Survey, published in Science, suggests regulators look at high-volume disposal wells. The other study, from Stanford University, looking at Oklahoma, puts the focus on cumulative injection across broad areas of earthquake activity.
[+] This graphic from Stanford University shows how wastewater from oil and gas production gets injected underground. This image shows the Arbuckle Formation, which in Oklahoma sits directly above crystalline basement rocks. Rising pore pressure in the Arbuckle Formation can penetrate already-stressed basement faults and trigger earthquakes. Graphic by Steven Than, courtesy of Stanford University.
"You just can't put an arbitrary limit on how much any individual well should be injecting," said Stanford geophysicist Mark Zoback, whose study was published in Science Advances. The cause of the quakes, he found, "was this cumulative process from so many wells over such a large area injecting such large volumes in the past five to 10 years."
Seismologists have been saying for several years that disposal of oil and gas waste causes earthquakes, though not all disposal wells trigger quakes. Today's studies go deeper by digging into the injection data kept by states and comparing them broadly with earthquake locations.
The Colorado study by doctoral candidate Matthew Weingarten looked at the correlation across the central and eastern United States between earthquakes and wastewater disposal wells, sometimes called saltwater disposal wells or SWD wells. It found that earthquakes are more likely near wells that inject more than 300,000 barrels (12.6 million gallons) a month.
"High-rate SWD wells are nearly twice as likely as low-rate wells to be near an earthquake," the study says. But that's not the only factor. There are high-rate injection wells in areas such as North Dakota not associated with earthquakes.
The Stanford study focused on Oklahoma, where the number of quakes has skyrocketed since 2009. Last year, the state had 585 quakes of magnitude 3 or greater, compared with an average of about two a year before 2009. This year, it's on track for more than 600.
The study notes that the volume of wastewater getting disposed of in Oklahoma has doubled since 1997. But in one of the earthquake-prone areas of the state, around the Mississippi Lime play, it has risen tenfold.
"We really think the important concept is how much water has been injected in those areas," Zoback said.
The Stanford paper also points out that the earthquakes are not linked to hydraulic fracturing. They're not really even linked to disposal of wastewater from fracking (often called "flowback").
"Hydraulic fracturing flow-back water comprises an extremely small fraction of the injection into the SWD wells," the study states.
The paper also looks at whether the state's largest recorded earthquake, a magnitude-5.7 event in November 2011 near Prague, was caused by injection from oil production. It is something of a consensus among seismologists outside Oklahoma that the quake was linked to injection. But the Stanford study didn't back that up.
"We can't rule it out," Zoback said. But "we're sort of agnostic on whether it was an induced event."
Overall, though, the studies agree that the sharp increase in quakes in Oklahoma and the central United States is related to oil and gas wastewater disposal.
"This population of earthquakes," Weingarten said, "is associated with this population of wells."
The Stanford study's findings were a major contributing factor in the development of a position statement by the Oklahoma Geological Survey that most of the increase in the state's quakes is "very likely" the result of wastewater disposal from oil and gas production.
"The Stanford scientists' findings were carefully considered before we issued the statement, and contributed to the scientific credibility of the statement," said OGS seismologist Austin Holland, who was not involved in the study.
"We've been waiting for exactly this type of study," said Michael Teague, Oklahoma's secretary of energy and environment. "These findings help us understand the case better so that we can evaluate options that we can take to go forward in finding ways to reduce the quakes."
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Interior-EPA Spending Bill Wins Approval With Cuts for EPA, Warnings of Stalemate
Jun 19, 2015 | BNA Daily Environment Report
By Alan Kovski
Sharp cuts in spending for the Environmental Protection Agency were approved June 18 by the Senate Appropriations Committee, while the Interior Department and the U.S. Forest Service were largely spared the ax in the same bill.
The committee voted 16-14 along party lines to approve the fiscal year 2016 appropriations bill for Interior, Environment and Related Agencies.
For both Interior and the EPA, policy provisions in the bill would block, delay or revise some of the most high-profile administration initiatives connected to environmental issues.
The targeted initiatives including the EPA's Clean Power Plan to reduce greenhouse gas emissions, possible new standards for ground-level ozone, a new definition of Clean Water Act jurisdiction, new regulations for oil and gas drilling that involves hydraulic fracturing on federal lands, and the possibility of an Endangered Species Act listing for the greater sage grouse.
Both the spending restraints and the policy riders led Democrats to warn of a filibuster and possibly a conflict that would not be resolved without an appropriations package in December.
Warnings Heard on Stalemate
Sen. Barbara Mikulski (D-Md.), ranking member of the committee, said there were 11 “poison pill” policy riders that Democrats opposed and that could merit a veto.
Democrats will vote against the motion to proceed when the bill comes to the Senate floor, Mikulski said. Under Senate rules, such a motion can be filibustered.
Sen. Lamar Alexander (R-Tenn.), anticipating the possibility of a filibuster, said the Senate would be abdicating its responsibility if it refused to return to the standard procedure—prior to the last six years of appropriations stalemates—of debating and voting on an appropriations bill on the floor.
Sen. Richard Durbin (D-Ill.) warned that a government shutdown in December might be the result if the Senate did not get started now on debating possible changes to the “sequestration” spending caps set by the Budget Control Act of 2011 (Pub. L. No. 112-25).
Sen. Barbara Feinstein (D-Calif.) similarly warned that if there was not compromise on spending levels and policy riders, the government might be headed for another continuing resolution or an omnibus spending bill, as has happened repeatedly during the Obama administration.
$2.2 Billion Below Request
The bill would allow $30 billion in discretionary spending and $1 billion in emergency funding for wildfire suppression. The total would be about $2.2 billion less than the Obama administration requested.
EPA spending would be cut by $539 million, primarily through reductions in the state revolving loan programs for drinking water and wastewater systems. Some Interior agencies would get increases, while some would be cut slightly (116 DEN A-4, 6/17/15).
Sen. Tom Udall (D-N.M.) offered an amendment to boost spending beyond the spending caps, an amendment contingent on a new budget deal being reached. His proposal lost on a 16-14 vote again on party lines.
Sen. Jon Tester (D-Mont.) similarly proposed an amendment to boost spending on the Land and Water Conservation Fund to $400 million from the bill's $292 million, also contingent on a new budget deal. It was rejected on a 16-14 vote.
Sen. Susan Collins (R-Maine) proposed an amendment to add almost $14 million to the Land and Water Conservation Fund, which would bring it back up to the 2015 enacted level through offsetting cuts to other programs. It was adopted without opposition.
Riders Defended, Increased
Policy riders drew sharp criticism from Democrats and diplomatic defenses from Republicans, notably from Sen. Lisa Murkowski (R-Alaska), who took the lead in drafting the bill in the subcommittee she chairs.
Udall offered an amendment to delete the 11 policy riders most opposed by Democrats. That amendment was rejected, again on the 16-14 split between Republicans and Democrats.
Udall narrowed his efforts to one policy rider, the provision prohibiting the EPA from requiring states to submit compliance plans for the administration's Clean Power Plan, an initiative to sharply reduce greenhouse gases from existing power plants. That Udall amendment failed on a 15-15 vote, with one Republican, Collins, voting in favor.
Republicans then added another policy rider, proposed by Sen. Jerry Moran (R-Kan.), to prohibit funding for enforcement of Endangered Species Act protections for the lesser prairie chicken during fiscal year 2016. The delay would allow state conservation plans more time to prove their ability to protect the bird, listed in 2014 as threatened.
The Moran amendment was approved 16-14.
Bill Addresses Fracking, Water, Ozone
Among the policy riders, the provision on hydraulic fracturing would require the Bureau of Land Management, an Interior agency, to issue a statewide variance to any state or tribe with regulations in place regarding the well stimulation technique for oil and natural gas wells.
The BLM issued its final rule (RIN 1004-AE26) on fracking on federal and tribal lands in March (55 DEN A-14, 3/23/15).
On the issue of Clean Water Act jurisdiction, the bill would prohibit any funds in any fiscal year to be used to implement or enforce any change to the definition of the “waters of the U.S.” in effect Oct. 1, 2012. The administration's final rule (RIN 2040-AF30) to clarify the definition of jurisdictional waters was issued in late May (102 DEN A-1, 5/28/15).
The bill would bar the EPA from using funding provided in fiscal 2016 or by “any other act for any fiscal year” to implement more stringent national ozone standards until 85 percent of the counties that do not meet current standards come into compliance. (See related story in this issue.)
Two days earlier, the House Appropriations Committee included a number of similar policy riders in the House version of the Interior, Environment and related agencies funding bill, which was approved on a party-line vote (116 DEN A-2, 6/17/15).
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Interior-EPA Appropriations Bill Slated For House Floor Next Week, McCarthy Says
Jun 19, 2015 | BNA Daily Environment Report
By Ari Natter
A $30.2 billion fiscal year 2016 Interior and Environment appropriations bill will be brought to the House floor next week, House Majority Leader Kevin McCarthy (R-Calif.) said June 18.
The bill, which would provide $7.4 billion for the Environmental Protection Agency—a 9 percent reduction over current funding levels—also includes riders that would limit the federal government's ability to regulate ozone pollution and hydraulic fracturing.
The legislation, approved by the House Appropriations Committee along party lines June 16, also includes nearly $11.4 billion for programs within the Interior Department and provisions that would prohibit the EPA from spending funds to implement its Clean Power Plan or its Waters of the United States rule, among other regulations opposed by Republicans (116 DEN A-2, 6/17/15).
Other highlights of the bill include a rider that would prohibit the EPA from making changes to the definition of “fill material,” which is supported by organizations representing mining companies such as Peabody Energy Corp. and Alpha Natural Resources Inc., which fear a revised definition could force mountain top removal mining activities to be permitted under a more stringent section of the Clean Water Act.
The Senate's $30 billion version of the legislation, approved by the Senate Appropriations Committee June 18, includes similar policy measures (see related story).
The House's planned consideration of the Interior-Environment legislation marks a busy week for the legislative body, which also has scheduled consideration of the Ratepayer Protection Act (H.R. 2042) by Rep. Ed Whitfield (R-Ky.) which would allow states to defer compliance with the Clean Power Plan (RIN 2060-AR33) until after legal challenges to the rule are exhausted.
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Senate Democrats Vow To Block EPA-Interior Bill
Jun 18, 2015 | PoliticoPro
By Darren Goode
Senate Democrats are promising to kill the Republican 2016 Interior-EPA spending bill that would slash spending for the EPA and gut much of President Barack Obama’s environmental agenda.
On a 16-14 party-line vote, the Senate Appropriations Committee reported out the $30 billion bill that includes $7.6 billion for EPA, a $538.8 million cut below 2015’s enacted budget. That includes a 23-percent reduction in the agency’s revolving loan funds for states to upgrade sewage and drinking water infrastructure.
Democrats complained that Republicans have also attached 11 “poison pill” policy riders that would block all or parts of EPA’s greenhouse gas regulations for power plants, the forthcoming ozone standard, the Waters of the United States rule and the Interior Department’s hydraulic fracturing regulation.
And it would approve the construction of a 10-mile, gravel access road through the Izembek National Wildlife Refuge to the remote Alaskan community of King Cove, a project long sought by Senate Interior, Environment and Related Agencies Subcommittee Chairwoman Lisa Murkowski (R-Alaska) but which the Interior Department has rejected.
Murkowski specifically noted that the bill reduces funding for EPA’s legal office “where they’re finding some creative justifications for writing rules that go far beyond what Congress intended.”
She also said the policy riders shouldn’t overshadow the bill’s funding hikes for EPA’s Superfund toxic waste cleanup program and conservation program for areas like Puget Sound and Chesapeake Bay.
But Senate Appropriations ranking member Barbara Mikulski (D-Md.) promised Democrats would block a procedural motion to start debate on the bill on the Senate floor, drawing a rebuke from Senate Majority Leader Mitch McConnell, who sat just two seats away at the roundtable-style markup.
“All you guys are doing is just balling up the process and making the Senate look bad,” McConnell said. “When does it ever stop?”
Mikulski replied that Republicans had engaged in plenty of obstruction on spending bills when they were in the minority. “So we didn’t start this fight,” the Maryland Democrat said.
Democrats are threatening to stop Senate floor debate on all spending bills until a broader agreement is reached to raise budget sequestration caps.
That included blocking an initial procedural move on the Senate floor Thursday for a defense spending bill and will likely include blocking debate on a bill funding the Homeland Security Department that won broad and quick approval at Thursday’s markup.
With a budget impasse appearing inevitable, there’s no impetus for Republicans to remove their riders or hike spending in the Interior and EPA bill.
“So if you’re taking a blanket position that the Democrats seem to be doing, that nothing will be allowed to move to the floor. … I’m not quite sure how we’re going to be able to resolve” specific problems with the Interior-EPA bill, Murkowski told reporters afterward.
The Interior-EPA spending bill remains a particularly contentious spending plan, and Thursday marked the first time since July 2009 that one was even reported out of the Appropriations Committee.
“Somehow it’s got to dawn in the consciousness of all of us [that] you shouldn’t do these on appropriations bills if you want appropriations bills to pass in regular order,” Sen. Dianne Feinstein (D-Calif.) said of the riders in this latest version.
The committee by party line rejected amendments by interior and environment subcommittee ranking member Tom Udall (D-N.M.) that would have restored funding for items including drinking water and sewage infrastructure and stripped all riders from the program.
A Udall amendment specifically to strip out the language trumping EPA’s greenhouse gas power plant rules failed on a 15-15 tie vote, with all 14 Democrats and Sen. Susan Collins (R-Maine) supporting him. Udall called the bill’s language a “backdoor” means to “gut the Clean Air Act.”
But Murkowski defended it as “giving states a say in their own energy policy” which would prevent EPA from “trying to force its arguably unlawful greenhouse gas obligations on the states.”
The committee approved an amendment from Sen. Jerry Moran (R-Kan.) on another party-line vote that would block funds for protecting the lesser prairie chicken.
The Senate bill takes a slightly softer approach than a spending bill approved Tuesday by House Republican appropriators that outright denies funding for EPA and Interior regulations. The Senate bill doesn’t block EPA’s power plant controls, but it stops the agency from going after states that refuse to comply. It also blocks Bureau of Land Management rules on fracking in states already pursuing their own fracking controls.
The two chambers largely agreed on a bevy of other riders, such as preventing EPA from issuing a new ozone standard until 85 percent of counties not yet in compliance with a 2008 standard are in attainment, and targeting the potential Endangered Species Act listing of the sage grouse.
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Congressional Sparks Fly In Debate About Biomass In Clean Power Plan
Jun 19, 2015 | E&E Daily News
By Tiffany Stecker
As U.S. EPA nears the finalization of a rule to regulate greenhouse gas emissions from the nation's power sector, environmental groups and the biomass industry are working hard to sway the agency in their direction.
Nearly two dozen bipartisan members of Congress signed a letter led by Reps. Annie Kuster (D-N.H.) and Bruce Westerman (R-Ark.) in support of the inclusion of biomass -- wood or other plant-based energy -- as a strategy for states to cut carbon emissions under the Clean Power Plan.
"While EPA has been generally supportive of biomass power in recent documents, how the agency intends to treat biomass power continues to be ambiguous at best," the letter states. "Providing this regulatory certainty, including through full or partial exemption from these rules, could promote a diverse energy portfolio and contribute to healthy forests, farms and rural communities."
Biomass supporters, including private forest owners and the Agriculture Department, say that burning wood for energy is carbon-neutral. Although burning biomass does emit carbon dioxide, the industry helps expand forest cover, which absorbs the carbon that is released from a power plant smokestack.
But skeptics of the energy source say there's a delay in the absorption of CO2 and that using biomass is no better for averting climate change than burning fossil fuels. Several environmental and conservation groups have come out against biomass in the Clean Power Plan.
Rep. Don Beyer (D-Va.) echoed those worries in a recent letter, citing the recent biomass conversions of local utility Dominion Virginia Power.
"I share the concern of these local groups that Virginia will become known as a state that harvests forests to reduce its dependence on coal, rather than one that develops renewable technologies that clearly reduce emissions, such as solar and wind," he wrote.
Janet McCabe, acting assistant administrator of EPA's Office of Air and Radiation, sent a memo in November suggesting that states would be allowed to use biomass to reduce greenhouse gas emissions under the Clean Power Plan if the materials were "sustainably-derived." Certain sources, like the trimmed wood for forests to reduce wildfire hazards, are considered to be more sustainable than the chopping of larger trees (E&ENews PM, Nov. 19, 2014). Environmental groups are concerned that the memo signals that EPA will consider biomass carbon-neutral.
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Savings From Energy Efficiency Contracts May Be Overstated -- GAO
Jun 18, 2015 | E&E News PM
By Katherine Ling
Federal agencies may not be achieving the energy and cost savings reported by contractors from upgrading equipment and facilities, according to a Government Accountability Office report released yesterday.
The GAO report found a lack of oversight and understanding of reporting rules allowed contractors to overstate reductions in energy use under energy savings performance contracts (ESPCs). The contracts allow federal agencies to perform efficiency upgrades without incurring upfront costs by teaming with energy service companies that complete the work upfront -- guaranteeing the savings for the life of the contract -- and are paid some of the energy savings in return.
ESPCs are an important part of the federal government's role in President Obama's Climate Action Plan, and he has challenged federal agencies to pursue $4 billion in performance-based contracts by the end of 2016. The agencies are expected to meet this goal if all current contracts move forward, the report said. The House and Senate are also discussing several measures that may be part of a comprehensive energy package to facilitate and expand federal agencies' use of ESPCs.
The federal government, the nation's largest energy consumer, used ESPCs for about 23 percent of federal investments in energy efficiency and renewable energy for fiscal 2003 through 2013, according to Department of Energy data, the report said.
But contractors are allowed to continue to report savings from upgrades even if those savings are not actually achieved because of factors out of the contractors' control -- mainly if equipment is not properly maintained and operated or if it is abandoned.
Looking at 20 projects worth about $824 million, GAO said it found that contractors overstated cost and energy savings for 14 of the projects by reporting some savings that, due to agency actions, were not achieved.
For example, if an agency did not use its heating and cooling equipment in the temperature range and hours under the contract, that was not accounted for in the savings calculated, GAO said. Or contractors did not change the savings report if a decision was made to shut down part of a facility that had received energy upgrades.
The savings reported but not achieved ranged from negligible to almost half a project's reported savings for the year, GAO said.
Federal staff in charge of overseeing these contracts were not aware of the savings discrepancies because contractors generally do not provide this information in measurement and verification reports, GAO added.
"Without clearer reporting of savings that are not achieved, agencies may be unable to determine what, if any, corrective actions should be taken," GAO said.
GAO also recommended the agencies provide additional training and oversight of contractors' measurement and verification activities and develop a systematic review of their ESPCs and changing energy markets, especially utility prices, that may affect the estimated savings. For instance, DOE has not conducted an analysis of ESPC projects awarded under its contract vehicle since its 2007 report, GAO said.
"Without ensuring that training provides officials with the information needed to understand how to perform their oversight responsibilities, agencies may continue to inconsistently perform oversight," GAO said.
For the report, GAO examined seven of the largest users of ESPCs, five of which represent 80 percent of federal energy and 78 percent of the government's total floor space. The Air Force, Army, Navy, DOE, Department of Justice, Department of Veterans Affairs and General Services Administration, combined, awarded more than $12 billion for more than 500 ESPC projects to help fund energy conservation measures in federal facilities, GAO said.
The report is a follow-up to a 2005 report. The audit was requested by Reps. Barry Loudermilk (R-Ga.), chairman of the House Science, Space and Technology Subcommittee on Oversight; Don Beyer (D-Va.), ranking member; Cynthia Lummis (R-Wyo.); and Eric Swalwell (D-Calif.).
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Hypocritical Attack On EPA And Supporters Of Water Rule
Jun 19, 2015 | The Hill - Congress Blog
By Whit Fosburgh
A 5 Comments from Will Coggin of the Environmental Policy Alliance attacks the EPA’s recently released final rule to clarify protections of the Clean Water Act. Coggin also attempts to disparage the honesty and integrity of the Theodore Roosevelt Conservation Partnership (TRCP) and other sportsmen’s groups who support the clean water rule, which will help stem the tide of wetlands loss and definitively restore water quality protections to trout habitat and salmon spawning waters.
These attacks are disingenuous and blatantly hypocritical. The folks behind the Environmental Policy Alliance are lobbyists and PR spinmeisters who are paid by industry to roll back conservation, yet they presume to tell Beltway readers who the real sportsmen are and what we should support. Character assassination is easy. Working on complex policy solutions—that seek to balance the needs of fish and wildlife, and in turn America’s hunters and anglers, with the many other demands on our nation’s natural resources—is difficult.
The TRCP is beholden to no funder. The only litmus test we ever apply is what science indicates is good for fish and wildlife and, therefore, what is good for America’s sportsmen. And that is why I joined Collin O’Mara, CEO of the National Wildlife Federation, and Chris Wood, CEO of Trout Unlimited, in writing to The Hill in support of the clean water rule on June 5. Our community has celebrated the rulemaking process, which allowed sportsmen, farmers, businesses, and other stakeholders to provide feedback on initial drafts of the rule, and the EPA’s move to release more than half America’s streams and 20 million acres of wetlands from legal limbo. This process worked, and we’re pleased with the results—protection of the waters and wetlands that are the backbone of our sporting traditions and outdoor economy.
When sportsmen work together, sportsmen win. But this is something Coggin clearly does not want to see happen. I urge your readers to see through these attacks and question why he so desperately wants to weaken the voice of hunters and fishermen in Washington.
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DOJ Cites Lack Of Standing To Fight Supreme Court Review Of CWA Findings
Jun 18, 2015 | InsideEPA
By David LaRoss
The Department of Justice (DOJ) is urging the Supreme Court to again reject a case testing whether Clean Water Act (CWA) jurisdictional determinations (JDs) are subject to pre-enforcement review despite a circuit court split on the issue, arguing that the recycling firm seeking the review lacks legal standing to pursue the case.
In a June 17 brief to the high court, DOJ says that even though the federal courts of appeals have issued conflicting rulings on whether recipients of JDs can immediately challenge regulators' findings in court, the pending case, Kent Recycling v. U.S. Army Corps of Engineers, is a poor vehicle to resolve the split.
“[T]here are substantial questions concerning whether petitioner has standing to challenge the Fifth Circuit’s decision and whether the case remains live,” DOJ says, citing the U.S. Court of Appeals for the 5th Circuit's unanimous ruling from July 30 siding with the Corps that JDs are not reviewable.
The 5th Circuit's decision is at odds with a more recent 8th Circuit decision, Hawkes Co., et al. v. U.S. Army Corps of Engineers from April 10 that granted pre-enforcement review.
Kent Recycling had previously urged the Supreme Court to review the 5th Circuit's decision, but the justices without comment rejected that petition March 23. But the recycling firm says the subsequent decision in Hawkes creates an appellate court split that warrants the high court reconsidering its decision not to take the 5th Circuit case.
In its petition for rehearing by the high court, Kent argues that the circuit split can only be resolved by a definitive Supreme Court ruling. The company says the justices should take up the 5th Circuit litigation because the Corps is unlikely to appeal Hawkes due to the risk that the high court could side with industry and mandate pre-enforcement review of JDs nationwide.
“The Corps has every incentive to limit this adverse decision,” even though an ongoing circuit split would create “substantial nationwide uncertainty,” says Kent's petition asking the justices to again consider hearing its case.
But DOJ, arguing on the Corps' behalf, argues in its new response that Kent may not have standing to appeal the 5th Circuit's ruling -- which if true would bar any further proceedings in that case -- and that the 8th Circuit could soon withdraw its decision in Hawkes.
DOJ filed a petition with the Hawkes court on June 8 where it asks the 8th Circuit to rehear the case either before the same three-judge panel that unanimously sided with industry or before the entire circuit court sitting en banc, arguing that the panel erred when it found that a JD carries legal consequences rendering the finding “final agency action” subject to suit.
“If the Eighth Circuit grants rehearing and aligns itself with the Fifth and Ninth Circuits, its decision will eliminate the current conflict on the first question presented in this case. The panel decision in Hawkes therefore is an insufficient basis for reconsidering this Court’s denial of certiorari,” DOJ argues.
Legal Standing
On the standing issue, DOJ notes that in the lower courts, Kent and its co-plaintiff Belle Company, LLC, were jointly challenging the Corps' determination that property in Louisiana that Belle owns and has contracted to sell to Kent for use as a landfill is a protected wetland. If that finding stands it would likely block the Kent purchase, since the contract is contingent on the land being suitable for dumping.
But Belle has not joined Kent's petition to the high court, and DOJ says in its new brief that the company is applying to EPA for permission to use the property as a wetland mitigation bank instead of as a landfill.
“Because that use of the property appears to be incompatible with petitioner’s asserted plan to use the property as a 'solid waste landfill,' the extent of petitioner’s continuing interest in the property, and its practical ability to use the property for petitioner’s desired purpose, are unclear,” DOJ says.
If Kent no longer has a legal interest in the property it would lack standing to contest its jurisdictional status, the brief continues. DOJ's standing argument echoes claims it raised against Kent's original petition for certiorari that the high court rejected. It notes in the June 17 filing that Kent has said the mitigation-bank proposal is “a prudent back-up plan” in case the 5th Circuit's decision stands, but has not presented evidence or testimony to support that claim.
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Pope Blasts California’s Cap-And-Trade System
Jun 18, 2015 | San Francisco Gate
By David R. Baker
In its brief history, California’s cap-and-trade system to fight global warming has faced many foes, including oil-company executives and manufacturing magnates.
On Thursday, it came under fire from a new quarter: the Vatican.
Pope Francis, in his highly anticipated call to action against climate change, took an unexpected swipe at the cap-and-trade systems used in both California and Europe to control greenhouse gases. They may sound good, the pontiff argued. But they won’t work.
“The strategy of buying and selling ‘carbon credits’ can lead to a new form of speculation which would not help reduce the emission of polluting gases worldwide,” Francis wrote in his wide-ranging encyclical on the environment and global warming.
“This system seems to provide a quick and easy solution under the guise of a certain commitment to the environment, but in no way does it allow for the radical change which present circumstances require,” he wrote. “Rather, it may simply become a ploy which permits maintaining the excessive consumption of some countries and sectors.”
His comments stunned many California environmentalists. Some had expressed their own reservations about cap and trade before the system launched in 2012, and in several cases, their concerns mirrored the pope’s. But they have largely rallied around the system to defend it from political attack.
“I don’t disagree with the pope at all on this,” said Kathryn Phillips, the Sierra Club’s director for California. “The club hasn’t been shy about saying this: We don’t think cap and trade is the cat’s pajamas, and other groups do.”
The system limits the amount of greenhouse gases that companies can emit, with the restrictions tightening gradually, year by year. Businesses must buy permits, called “allowances,” to cover every ton of carbon dioxide and other heat-trapping gases that they pump into the atmosphere. In California, the current price is $12.29 per ton.
Pope’s warning on climate change
California officials have always hoped to lure other states and Canadian provinces into joining. So far, only Quebec has, although Ontario’s government is considering it.
In his encyclical, Francis forcefully argues for international agreements to tackle climate change, which he calls a threat to humanity’s “common home” and a looming disaster for the world’s poor. But the sprawling, remarkably detailed document — which has triggered furious criticism from conservatives who reject the scientific consensus on global warming — stakes out several surprising positions.
For example, he warns against the “internationalization of environmental costs,” saying they could place too heavy a burden on poor countries. That’s heresy to many energy economists, who consider an international price on greenhouse gas emissions — established either through cap and trade or through carbon taxes — an essential step.
The pope’s positions seem to reflect two overriding concerns: repairing the environment and helping the poor.
Politically, Francis’ criticism of a system that enables wealthy polluters to essentially buy their way out of reducing emissions conforms to his worldview of “comfort the afflicted and afflict the comfortable,” said the Rev. Mike Russo, who teaches communication at St. Mary’s University in Moraga and writes a blog on Francis , the Francis Factor.
“The American Catholic Church often has a problem in translating its theology into public policy,” Russo said. “But this pope is moving people to a higher ground. He’s like the parish priest of the world. How many other world leaders can speak with this kind of moral authority on this?”
Cap and trade’s critics on the left have sometimes phrased their critique in Catholic terms, saying the system allows companies to pay penance while continuing to sin.
They also note that many factories, power plants and oil refineries that produce greenhouse gases also emit the kind of air pollution that creates smog and damages lungs, and those sites tend to be located in poor communities. At least in the short term, cap and trade allows the companies that own those operations to buy allowances rather than cleaning up their act, Phillips said.
“A smarter way would be to require that all power plants meet a certain standard, create a regulation and force them to meet it, wherever they are,” she said.
‘Right to be concerned’
But supporters of California’s cap-and-trade system say the state has kept that criticism in mind. A 2012 state law requires that 10 percent of the money raised by the cap-and-trade system be spent on projects that cut greenhouse gases or improve the environment within disadvantaged communities, defined as cities or neighborhoods with low incomes, high unemployment and significant pollution.
“The pope is right to be concerned about poorly designed systems that rely only on cap and trade to reduce greenhouse gas pollution,” said California Senate President Pro Tem Kevin de León, D-Los Angeles, who wrote the 2012 law. “California’s GHG reduction system is different and is being seen as a model by other states and nations. It is a hybrid approach that covers the pope’s concerns by lowering GHGs, working toward a low-carbon economy, while fighting environmental degradation in our poorest communities and increasing their access to cleaner energy.”
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Republicans Duck Fight On Climate Encyclical
Jun 18, 2015 | PoliticoPro
By Darren Goode and Andrew Restuccia
Republicans mostly kept their heads down after Pope Francis issued his encyclical on climate change Thursday, quietly offering up praise for the pontiff while tactfully disagreeing with his call for action on global warming.
That’s a shift from earlier this week, when a leaked version of “Laudato Si” prompted statements of derision from many conservatives, who complained the pope should stay out of politics.
There’s no indication that the pope’s 184-page call for action on global warming will temper GOP lawmakers’ opposition to key Obama administration climate policies, but the Republicans’ restraint was largely a recognition that criticizing the popular pope is politically risky.
Even Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) — who has called climate change a “hoax” and never shies away from a fight on the topic — issued a relatively mild statement.
“I disagree with the pope’s philosophy on global warming. I am concerned that his encyclical will be used by global warming alarmists to advocate for policies that will equate to the largest, most regressive tax increase in our nation’s history,” Inhofe said.
House Speaker John Boehner, for his part, refrained from commenting on the substance of Pope Francis’ encyclical when pressed by reporters.
“Well, one thing we know about this pope is he’s not afraid to challenge everyone’s thinking of issues frankly, one way or another,” Boehner said during a press conference.
Boehner, who is Roman Catholic, praised the pope’s work with the poor and his pro-life position. “And frankly, I respect his right to speak out on these important issues,” he said.
When asked again whether the encyclical would change how Republicans would address climate change and the environment legislatively, he said, “There’s a lot of bills out there. I’m not sure where in the process these bills may be.”
“Pope’s the pope, he can talk about whatever he wants,” said Sen. Lisa Murkowski (R-Alaska), a Catholic who chairs both the Senate Energy and Natural Resources Committee and the spending subcommittee overseeing EPA and Interior Department funding.
Republican presidential candidates adopted a similar strategy.
“The last person on Earth I want to try to argue with will be the Pope,” former Arkansas Gov. Mike Huckabee, a Southern Baptist, told CNN.
Jeb Bush softened his tone slightly after saying on Tuesday, “I don’t get economic policy from my bishops or my cardinals or my pope.”
By Wednesday, the former Florida governor was striking a less dismissive tone: “I’m a Catholic and try to follow the teachings of the church,” he said, calling for “a consensus about how to approach this without hollowing out our industrial core.”
The measured comments appeared to be a response to more aggressive remarks from former Pennsylvania Sen. Rick Santorum earlier this month.
Santorum, a Catholic running for the GOP presidential nomination, came under criticism from liberals for saying during a radio interview, “I think that we probably are better off leaving science to the scientists and focusing on what we’re really good at, which is theology and morality.”
Fox News’ Chris Wallace pressed Santorum about his comments in an subsequent interview, noting that Pope Francis studied chemistry early in his life and asking, “So I guess the question would be, if he shouldn’t talk about it, should you?”
Marco Rubio, another Catholic candidate for president, has not spoken publicly about the pope’s encyclical, and his campaign spokesman did not respond to a request for comment.
Few of the lawmakers had actually read the document, though Murkowski and fellow Catholic Republican Sen. John Hoeven (N.D.) said they intended to, even if it doesn’t change their thinking.
“My basic approach is we have to produce more energy, and if we empower investment rather than prevent it with regulatory burden … we not only increase more energy but we get better environmental stewardship with new technologies,” Hoeven said. “That’s where I’m coming from, it’s not likely to change.”
And despite their low-key remarks about the Vatican document, Republicans plowed ahead on Thursday with their campaign to undercut the Obama administration’s climate agenda.
Senate appropriators Thursday on a party-line vote agreed to a 2016 spending plan that would essentially block EPA from issuing greenhouse gas restrictions for power plants that is the centerpiece of the Obama administration’s climate strategy.
The Senate bill allows states to still move forward with their own carbon-reduction plans if they wish, but the federal government would prohibited from taking action against states that refuse to comply.
An amendment in the Senate Appropriations Committee Thursday to strip out that language failed on a 15-15 tie vote. Maine Sen. Susan Collins — a Catholic who co-hosted a bipartisan closed-door Senate briefing from Catholic bishops in the Capitol Building last month ahead of the encyclical — was the only Republican to join all Democrats in supporting the amendment from Sen. Tom Udall (D-N.M.).
On Tuesday, House Republican appropriators approved a version of the 2016 spending bill that would bar funding for EPA to move ahead with the greenhouse gas rules for both existing and future power plants.
Democrats, for their part, lavished praise on the pope. But there were a few things in the encyclical that likely gave liberals pause, including lines about transgender people and abortions.
“Since everything is interrelated, concern for the protection of nature is also incompatible with the justification of abortion.” the encyclical said. “How can we genuinely teach the importance of concern for other vulnerable beings, however troublesome or inconvenient they may be, if we fail to protect a human embryo, even when its presence is uncomfortable and creates difficulties?”
But House Minority Leader Nancy Pelosi suggested during a press conference that there will always be areas in which liberals disagree with the church. “Any reiteration of standard policy that the church has put forth is to be expected,” she told reporters.
Outside Republican advisers appeared more willing to weigh in on the pope’s encyclical.
Republican strategist and lobbyist Michael McKenna didn’t hold back. “It is always entertaining to watch people who have hated Roman Catholicism their entire lives (primarily because of its position on actual moral issues) decide that now is the time to defend it,” he said in an email.
“His Holiness is wrong about climate change. Questions about the pause in global average temperatures, the predictive capability of the models, the hurricane and drought record, and, most importantly, the very substantial uncertainty about climate sensitivity all suggest that caution is in order,” he added.
John Feehery, former spokesman for House Speaker Dennis Hastert, said Republicans, particularly Catholics, should at least pay attention to the pope’s encyclical.
“Pope Francis is doing his job as the spiritual leader of a billion Catholics, many of whom have the ability and the resources to make a real difference to improve the world, and many others who will face the brunt of the destruction if we do nothing,” Feehery wrote on his blog.
“I get a kick out of my fellow Catholics (on both sides of the ideological debate) who pick and choose among the Papal decrees they want to follow. Either this Pope is a divinely chosen leader of our Church or he is not. … And on the environment, he has duty to share his beliefs. And for us Catholics, we have a duty to listen to him.”
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Obama Cheers Pope's Climate Change Push
Jun 18, 2015 | The Hill - E2 Wire
By Devin Henry
President Obama said he “deeply admires” Pope Francis’s encyclical on the environment and his “decision to make the case — clearly, powerfully, and with the full moral authority of his position — for action on global climate change.”
“As Pope Francis so eloquently stated this morning, we have a profound responsibility to protect our children, and our children's children, from the damaging impacts of climate change,” Obama said Thursday. “I believe the United States must be a leader in this effort, which is why I am committed to taking bold actions at home and abroad to cut carbon pollution, to increase clean energy and energy efficiency, to build resilience in vulnerable communities, and to encourage responsible stewardship of our natural resources.”
Francis’s encyclical, released Thursday morning, argues that governments and individuals need to do more to combat global warming.
Democrats, including several Obama administration officials, praised Francis on Thursday. Secretary of State John Kerry called his encyclical “powerful,” and Energy Secretary Ernest Moniz said it is “an important milestone in the global effort on this issue.”
The document comes ahead of both the pope’s inaugural trip the United States and a major climate conference this year focused on cutting global greenhouse gas emissions. Obama said he hopes Francis will inspire leaders to reach a deal.
“I look forward to discussing these issues with Pope Francis when he visits the White House in September,” the president said. “And as we prepare for global climate negotiations in Paris this December, it is my hope that all world leaders — and all God's children — will reflect on Pope Francis's call to come together to care for our common home.”
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O’Malley Pushes Aggressive Climate Change Platform
Jun 18, 2015 | The Hill - E2 Wire
By Devin Henry
Former Maryland Gov. Martin O’Malley says that if he is elected president he will phase out the use of fossil fuels by 2050 and convert the United States to clean energy only.
“I believe, within 35 years, our country can, and should, be 100 percent powered by clean energy, supported by millions of new jobs,” O’Malley, a Democratic presidential candidate, wrote in a USA Today op-ed on Thursday. “To reach this goal we must accelerate that transition starting now.”O'Malley's target on clean energy is the most aggressive aspect of a climate change platform full of policy proposals that are red meat for liberals and environmentalists.
His national renewable energy standard would call for 100 percent clean energy by 2050 and set a goal of doubling energy efficiency within 15 years.
O’Malley also promised to create a Clean Energy Jobs Corps to partner with communities to make buildings more energy efficient and form green spaces around the country. He said he would retrofit federal buildings to meet higher energy efficiency standards and purchase low- or zero-emission vehicles for the federal fleet.
The Environmental Protection Agency (EPA) would “take aggressive action to limit greenhouse gases,” O’Malley wrote, expanding emissions regulations beyond power plants and cracking down on methane leaks at oil and gas production facilities.
O’Malley said he would pursue legislation capping carbon emissions from all sources and seek more financing for energy efficiency upgrades and clean energy research. He said he would reject the Keystone XL pipeline and end offshore oil drilling.
“We cannot meet the climate challenge with an all-of-the-above energy strategy, or by drilling off our coasts, or by building pipelines that bring oil from tar sands in Canada,” he wrote.
O’Malley’s plan won plaudits from environmentalists on Thursday.
“Gov. O’Malley is presenting real, concrete solutions to climate change that will secure our country’s economic security and break with the dirty energy politics of the past,” said Tom Steyer, a billionaire climate change activist and founder of the group NextGen. “He deserves real credit for his vision, and our gratitude.”
Sierra Club Executive Director Michael Brune said his group is “pleased to see leaders like Gov. O’Malley setting their sights on a prosperous and safe clean energy economy that works for all.”
“Leaders worldwide are committing to new steps to cut carbon pollution while the marketplace and public demand are ensuring clean energy solutions rapidly replace fossil fuels to create new jobs and new prosperity,” he said.
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O'Malley Cites Clean Energy Future As No. 1 Priority If He Wins White House Bid
Jun 19, 2015 | E&E Daily News
By Jennifer Yachnin
Former Maryland Gov. Martin O'Malley yesterday vowed to make a nationwide transition to renewable energy his top priority if he wins election to the White House in 2016, asserting the country could wean itself from fossil-fuel-generated power by 2050.
O'Malley, who is seeking the Democratic presidential nomination, released a three-page plan and authored an opinion piece in USA Today, stating in both that there is a "moral obligation" to address climate change policy.
"The fact is, there is no either/or choice between our prosperity and our environment -- that we can create a future where there are more good-paying jobs, or a future with a healthy environment, but not both," O'Malley wrote in a white paper.
He later added: "As President, on day one, I would use my executive authority to declare the transition to a clean energy future the number one priority of our federal government."
Among his proposals, O'Malley -- who touted his environmentalist credentials last fall, ahead of his campaign rollout (E&E Daily, Nov. 7, 2014) -- vowed to expand on President Obama's Climate Action Plan and would pursue climate change policy with a host of executive actions.
He proposes directing U.S. EPA to limit greenhouse gasses. But unlike the pending Clean Power Plan that would further regulate those emissions from power plants, O'Malley calls for any reductions to likewise apply to large facilities like oil and gas refineries.
Those regulations would include a zero-tolerance policy for methane leaks from oil and gas production facilities. Although states like Colorado have addressed methane leaks, no federal policy currently exists.
O'Malley's plans also include a "Clean Energy Jobs Corps" that would work in conjunction with local jurisdictions to retrofit buildings for greater energy efficiency while also creating new green spaces.
An O'Malley administration would also demand retrofitting of all federal office buildings to achieve greater energy efficiency and require any new construction to meet net-zero energy consumption.
In opposition to the current administration, O'Malley also vowed to curtail new drilling in Alaska and Antarctica, as well as block new offshore drilling permits. He said he would also block the Keystone XL pipeline.
O'Malley's administration would also crack down on fossil fuel production by raising royalties and emission fees for oil and gas drilling on federal lands, and by blocking the export of oil and gas produced in the United States. He would also push Congress to end the nearly $4 billion in tax benefits given to the fossil fuel industry, while supporting expanded production and investment tax credits for renewable fuels.
"I would increase our investment in basic clean energy research so the U.S. can reclaim the lead on energy innovation, including advancing development, deployment, transmission, and storage for renewable energy and new efficiency technologies," O'Malley wrote in the op-ed.
O'Malley's plans immediately won praise from environmentalists, including the Sierra Club and California billionaire Tom Steyer, who funds the NextGen Climate Political Action Committee.
"By calling for the rejection of the Keystone XL pipeline and a transition to 100 percent clean energy by 2050, Gov. O'Malley is presenting real, concrete solutions to climate change that will secure our country's economic security -- and break with the dirty energy politics of the past," said Steyer, who has not endorsed any candidate in the Democratic primary, although he held a fundraiser for front-runner Hillary Clinton earlier this year and similarly praised Clinton's recent remarks on climate change policy.
Vermont Sen. Bernie Sanders (I) and former Rhode Island Gov. Lincoln Chafee are also competing in the Democratic primary, while former Virginia Sen. Jim Webb (D) has launched an exploratory committee.
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Riders Would Bar EPA From Implementing Ozone Rule, but Length of Delay Unknown
Jun 19, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
It is unclear how long the Environmental Protection Agency would be prohibited from implementing revised national ozone standards under legislative language proposed by congressional Republicans.
But observers told Bloomberg BNA that inclusion of the language in the House fiscal year 2016 appropriations bill covering the Interior Department and the EPA would effectively serve as a one-year ban on agency action.
The language, first included in the Clean Air, Strong Economies (CASE) Act (S. 751, H.R. 1388), would bar the EPA from setting and implementing more stringent national ambient air quality standards for ozone until at least 85 percent of counties that are in nonattainment of the current ozone standards come into compliance.
Supporters of the language say it would provide states and industry with additional time to implement the current standards of 75 parts per billion, set in 2008. But the EPA, state air officials, congressional sources and other interested parties all were unable to specify how long it would take for the 85 percent threshold to be met.
The EPA in November 2014 proposed (RIN 2060-AP38) to revise the current standards to somewhere in the range of 65 ppb to 70 ppb and is under a court-ordered deadline of Oct. 1 to issue its final decision.
Both the House and Senate appropriations committees included language in their fiscal 2016 Interior-Environment funding bills that would prohibit the EPA from spending appropriated funds for the purposes of adopting, implementing, administering and enforcing more stringent ozone standards until the 85 percent threshold is met.
House, Senate Measures
The House Appropriations Committee's bill to fund EPA in fiscal 2016 was amended June 16 to prohibit the agency from using any appropriated funds for the fiscal year to move ahead with a tighter ozone standard until 85 percent of nonattainment counties come into compliance.
The Senate Appropriations Committee's fiscal 2016 Interior-Environment funding bill, which the committee approved June 18, contains language that would restrict EPA from using any fiscal 2016 funds, as well as funds made available by “any other act for any other fiscal year,” on tighter ozone standards, until the 85 percent threshold is met (see related story).
A spokesman for Sen. John Thune (R-S.D.), who introduced the CASE Act in the Senate, told Bloomberg BNA in a June 17 e-mail that the intention of the 85 percent threshold is to focus attention on the worst nonattainment areas before the EPA can “move any goalposts” and tighten the ozone standards further.
The spokesman was unable to provide an estimate on how long it might take to achieve the 85 percent compliance threshold, a prediction he said would require “a considerable amount of time and data” to accurately assess.
227 Counties in Nonattainment
There were 227 counties in 46 nonattainment areas for the 2008 ozone standards as of Jan. 30, 2015, according to the EPA's website.
The 85 percent threshold included in the CASE Act and the fiscal 2016 appropriations bills would require 193 of those counties to comply with the 75 ppb standards before the EPA could move ahead with implementing tighter standards.
While the House appropriations bill bases the 85 percent threshold on a date of July 2, 2014, the EPA confirmed to Bloomberg BNA in an e-mail that there were still 227 counties in nonattainment as of that date.
The EPA told Bloomberg BNA in a June 17 e-mail that the agency doesn't have any projection of how long it would take for 85 percent of the 227 nonattainment counties to come into attainment.
“The Clean Air Act provides a schedule for nonattainment areas to attain; however, that does not mean that the areas will attain,” the EPA said.
Attainment Based on Three-Year Average
Attainment status for the ozone standards is based on a three-year average of the fourth-highest, daily maximum eight-hour ozone concentration measured each year.
Areas designated as marginal nonattainment for the 2008 standards have until July 20, 2015, to demonstrate compliance. Areas that fail to meet their deadline are generally “bumped up” to the next classification category, so a marginal area that fails to meets its deadline would be reclassified as a moderate nonattainment area, which triggers additional pollution-control planning requirements.
The EPA said it was too soon to speculate on whether specific areas would be able to attain the ozone standards in 2016, but one state air official indicated the House's fiscal 2016 ozone rider would effectively prohibit the EPA from moving ahead with revised standards for one year because there is no possibility that the 85 percent threshold will be reached in that time frame.
Violations Seen as Widespread
Paul Miller, deputy director and chief scientist at the Northeast States for Coordinated Air Use Management, said preliminary 2015 data already suggest that at least some monitoring sites in marginal nonattainment areas won't be able to attain the 2008 ozone standards.
“Preliminary 2015 monitoring data already suggest too many counties will continue to violate the 75 ppb NAAQS [national ambient air quality standards] to reach the 85 percent threshold,” Miller told Bloomberg BNA in a June 17 e-mail.
An industry source agreed with Miller's assessment, telling Bloomberg BNA June 18 that the 85 percent threshold could not be met in 2016.
Miller noted that NESCAUM, which represents eight air pollution control agencies in the Northeast, opposes the “apparent premise” of the language, which is to provide more time for implementation before the standards are revised.
Miller was critical of a frequently used analogy that the EPA's ozone proposal would represent moving the goal posts in the middle of a football game.
“Rather than moving the goal posts, the more apt football metaphor is that back in 2008, EPA got to the 35-yard line, then punted,” he said, referring to the 2008 decision to set the standards at 75 ppb, rather than in the range of 60 ppb to 70 ppb as recommended by the Clean Air Scientific Advisory Committee.
No Precise Estimates for Delay
While Miller said there was no way the 85 percent threshold would be met by Oct. 1, 2017, he had no guess of how long the restriction included in the CASE Act and Senate fiscal 2016 bill could last.
“Ozone formation is variable from year to year and can go up or down depending on what kinds of weather patterns predominate during any given year, so it's difficult to say with any degree of certainty over the short term,” Miller said.
Although ozone levels have been declining over the long term, the next control program that has the potential to drive a significant decrease in ozone over a short period is the EPA's Tier 3 gasoline sulfur standards, Miller said.
The EPA, beginning in 2017, will require refiners to reduce the annual average amount of sulfur in gasoline from 30 parts per million to 10 parts per million.
Would Take Long Time to Meet Threshold
Bill Becker, executive director of the National Association of Clean Air Agencies, and John Walke, clean air director at the Natural Resources Defense Council, both agreed there is no precise answer to how long it would take for the 85 percent threshold to be reached, although Walke said it would clearly take “a very long time.”
Becker said it would be imprudent to arbitrarily base the EPA's ability to enact more protective ozone standards on when areas attain an outdated standard, while Walke criticized Republicans for failing to quantify how long the ban on EPA action would last.
“They know they want this prohibition to be destructive, but they don't even know themselves how long the destruction would last,” Walke told Bloomberg BNA June 18.
The National Association of Manufacturers, a leading industry voice in opposition to the proposed new ozone standards, was unavailable to comment on how long the legislative language would delay EPA action.
The association has voiced support for the CASE Act and urged the EPA to retain the current standards in order to provide industry with more time to achieve air quality improvements under the current standards.
House Floor Consideration Planned
The House will be the first to consider the ozone language on the floor. House Majority Leader Kevin McCarthy (R-Calif.) announced June 18 that the fiscal 2016 Interior-Environment bill, which contains the ozone rider, will be brought to the floor during the week of June 22.
Senate leadership hasn't yet announced when it will bring its fiscal 2016 funding bill to the floor.
Differences between the two bills, including on whether the ozone restriction would be limited to fiscal 2016 funding, would need to be addressed during a conference committee if the two chambers were to pass different Interior-Environment appropriations bills.
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(ACC Mentioned) Surface Transportation Board Revamp Advances
Jun 19, 2015 | E&E Daily News
By Sean Reilly
The Senate has approved S. 808, a reauthorization bill that would expand the leadership of the Surface Transportation Board and give the tiny regulatory agency new authority to investigate freight-rail industry problems.
The measure, which passed late yesterday by unanimous consent, now goes to the House. Sponsored by Senate Commerce, Science and Transportation Chairman John Thune (R-S.D.), the bipartisan bill would increase the number of board members from three to five, require the agency to report to Congress every three months on each "unfinished regulatory proceeding" and encourage greater use of voluntary arbitration in hopes of settling disputes between freight railroads and shippers more quickly.
The bill was backed by industrial and agricultural shippers, which view the current process as costly and cumbersome, particularly in an era when the freight rail industry is dominated by a handful of large carriers. Although rate cases would still require the filing of a complaint, the legislation would allow the agency to launch inquiries on its own in some circumstances.
The Senate vote "marks another important step forward to help address long-standing rate and service issues," Cal Dooley, president and CEO of the American Chemistry Council, said in a statement last night.
Congress created the board in the mid-1990s as the successor to the Interstate Commerce Commission; it has not been reauthorized since. In a report released last week, an advisory panel also urged an overhaul of the government framework for regulating freight rail rates (Greenwire, June 10).
While the Association of American Railroads, an influential trade group, had objected to a similar bill introduced last year by the Commerce committee's then-chairman, Sen. Jay Rockefeller (D-W.Va.), it chose not to oppose Thune's measure.
On Monday, the Senate is tentatively set to vote on the nomination of Daniel Elliott to rejoin the board. Elliott, a one-time labor lawyer, served as the agency's chairman from 2009 through last year. President Obama renominated him for the post in January; his candidacy cleared the Commerce Committee last month with no opposition.
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FMCSA Changes Hazmat Permit Enforcement; Industry Reaction Mixed, Potential for Appeal
Jun 19, 2015 | BNA Daily Environment Report
By Rachel Leven
The Federal Motor Carrier Safety Administration is changing how it identifies hazardous materials safety permits for safety reviews and how it decides whether to renew individual permits, the agency will announce June 19.
The rule, which incorporates continual monitoring of these permits through a safety management system, implements part of a policy rider that has found its way into a number of appropriations funding bills and laws moving through Congress.
It drew negative and positive reactions from industry, one of which told Bloomberg BNA it would consider appealing the changes.
“At the end of the day, I think we're headed to the right destination, but we stepped on the wrong path,” Boyd Stephenson, vice president of international supply chain operations for the American Trucking Associations, told Bloomberg BNA.
The amendment, classified as a rule, will take effect Aug. 18 and will affect the roughly 1,500 motor carriers that hold FMCSA hazmat permits.
The agency said it was considering making these changes, among others, in a March 2014 report submitted to Congress.
Congress required the agency to conduct the report under the Moving Ahead for Progress in the 21st Century Act (Pub. L. No. 112-141) surface transportation law, asking FMCSA to identify areas for improvement in its hazmat safety permit program (55 DEN A-5, 3/21/14).
Change to Review, Renewals
Permit holders will be continually monitored through the agency's Compliance, Safety, Accountability safety measurement system (SMS) to identify permits for review referrals or proposed permit revocation or suspension, the agency said in a notice.
These non-temporary permit holders' safety system scores will be reviewed monthly to determine if a permit holder has met or exceeded the threshold for “intervention” related to hazmat compliance, driver fitness or the other Behavior Analysis and Safety Improvement Categories. For hazmat compliance, the threshold for intervention is the 80th percentile.
The agency also will conduct compliance reviews of permit holders that don't currently have enough data to be reviewed using the safety system, a system that aggregates information such as roadside inspection data and federal and state investigation results.
Both of these processes—permits reviewed und'er and outside of the safety measurement system—will offer FMCSA hazmat permit holders an opportunity for administrative review and to present corrective actions, the notice said.
Strengthens Monitoring Process
“The SMS approach provides a strengthened, continuous monitoring process for HMSP holders, which merit heightened oversight and monitoring due to the dangerous nature of the materials they transport,” the notice said. “SMS further allows the agency to expeditiously identify carrier problems and better focus on specific areas that the carrier must address immediately, in order to avoid potential suspension or revocation of its [safety permit] under 49 CFR 385.421(a).”
New applicants for these hazmat permits will continue to be subject to out-of-service rate threshold rate requirements. This means the agency will compile a crash rate or an out-of-service rate based off of crash rates and vehicle, hazardous material and driver violation rates. Based on the rate, the agency will determine whether a carrier's new permit application should be approved or denied.
Partially Adopts Rider
This move by the FMCSA carries significant victories for many in the hazmat industry, some of which have been addressed as policy riders in the 2015 omnibus appropriations law (Pub. L. No. 113-235) and in the House's transportation appropriations bill for fiscal year 2016 (H.R. 2577) (112 DEN A-5, 6/11/15).
For example, the agency won't base decisions to deny permit renewals on out-of-service rates, rates many said weren't indicative of the permit holder's actual safety record (82 DEN A-5, 4/29/15).
Cynthia Hilton, executive vice president for the Institute of Makers of Explosives, said her group is “cautiously optimistic” about the FMCSA's action.
The largest priority was ensuring that hazmat permit holders had due process rights, a step taken by the agency in this action, she said. Additionally, the agency's decision to direct its resources to review permit holders without a safety track record is a good move, she said.
Data Collection, Interpretation
Both Hilton and the trucking group's Stephenson said the decision to continually monitor hazmat permit holders is a step forward; however, both highlighted significant issues with the data collection and interpretation of the safety measurement system numbers.
Stephenson also expressed concerns regarding the end result of the appeals process for renewing permits. Corrective action plans should result in the hazmat permit holder meeting requirements that it initially had to meet to obtain its permit for the first time, including minimum crash rate or out-of-service rates that are needed, he said.
The option to appeal administratively or through the courts is on the table for Stephenson's group, but first the association will draft a letter to Paul Bomgardner, FMCSA's hazardous materials division chief, Stephenson said. The letter will identify the positive steps taken by FMCSA in the rule and what other steps the agency could take, he said.
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