Preview Newsletter
acc am june 23
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(ACC Mentioned) Anne P. Noonan Elected to Board of Directors of CF Industries Holdings, Inc.
Jun 22, 2015 | Business Wire
CF Industries Holdings, Inc. (NYSE:CF) today announced that its Board of Directors has elected Anne P. Noonan as an independent director of the company. Ms. Noonan, president, Performance Chemicals Business Segment at OMNOVA Solutions, is expected to stand for re-election by stockholders at the company's 2016 Annual Meeting. -
(ACC Mentioned) Redo of CHAP Analysis With New Data Shows Lower Phthalate Hazards for Women
Jun 23, 2015 | BNA Daily Environment Report
By Martina S. Barash
Overall hazards associated with the intake of several phthalates by women of reproductive age have declined, Consumer Product Safety Commission (CPSC) scientists concluded in a new analysis that could affect rulemaking over the chemicals' use in consumer products. Also among the new study's findings is that daily... -
(ACC Mentioned) Animal Welfare Groups Poised For TSCA Reform Policy Win -- Despite Greens' Misgivings
Jun 23, 2015 | E&E Daily News
By Sam Pearson
Animal welfare groups stand to win significant changes to how U.S. EPA handles the use of animals as test subjects in studies of potentially hazardous chemicals -- even though the broader environmental community continues to have misgivings about pending legislative proposals for reform. For the first time, language in the Senate chemical ... -
(ACC Mentioned) Industry’s Response to EPA Proposed Nano Rule
Jun 22, 2015 | The National Law Review
By Katy E. Ward
EPA held a public meeting on June 11, 2015 on EPA’s Proposed Rule imposing one-time electronic reporting and recordkeeping requirements on manufacturers and processors of certain nanoscale materials under Section 8(a) of the Toxic Substances Control Act (TSCA). EPA began the meeting by clarifying that the Proposed Rule... -
US EPA Consults On Endocrine Disruptor Test Guidelines
Jun 23, 2015 | Chemical Watch
The US EPA is seeking public comments on three draft test guidelines for its Endocrine Disruptor Screening Program (EDSP). The tests are part of the program's tier 2, which will be used for substances that show endocrine-disrupting properties in tier 1. The deadline for responses is 31 March. -
(ACC Mentioned) After Elk River Spill, Congress Will Vote on Bill Regulating Toxic Chemicals
Jun 22, 2015 | The New York Times
By Coral Davenport
James Lewis still remembers the licorice smell of the water and how his skin itched when he showered. After 7,500 gallons of a coal processing chemical leaked into the Elk River in January 2014, Mr. Lewis was one of 300,000 people in the Charleston area who were ordered to stop using tap water for several days. But like many... -
Underground Storage Tank Rules Revised With Costs Projected to Be Lower, EPA Says
Jun 23, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency completed revisions to the rules governing more than half a million underground storage tanks in a move the agency said will protect groundwater and prevent releases of hazardous compounds. The final rule, released June 19 and the first update to underground storage tank rules since 1988... -
EPA Says Final UST Rule Revisions Should Alleviate Some Cost Concerns
Jun 22, 2015 | InsideEPA
By Lara Beaven
EPA says it has made several “significant” changes to its final rule on training, testing and inspection requirements for underground storage tanks (USTs) that may lessen or negate industry concerns about some regulatory compliance costs, but the agency is defending its prior claim that the rule will not disproportionately affect small businesses. -
EPA Looks To Strengthen Storage Tank Safety
Jun 22, 2015 | The Hill - E2 Wire
By Devin Henry
The Environmental Protection Agency (EPA) issued new safety requirements for underground storage tanks on Monday, a move it says will protect water sources by preventing potential petroleum leaks. The rules expand secondary containment requirements — which call for more advanced containment measures at ... -
Hurricanes' Threat to Gas, Other Pipelines Requires Preparation, Agency Advisory Says
Jun 23, 2015 | BNA Daily Environment Report
By Rachel Leven
Hurricanes can pose unique threats to gas and hazardous liquid pipelines, including those in the Gulf of Mexico and its inlets, and pipeline operators should address these concerns, a federal safety regulator will announce in an advisory bulletin June 23. Hurricanes may damage pipelines and related infrastructure such as compressor stations... -
Dominguez Becomes PHMSA Deputy Chief
Jun 22, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Marie Therese Dominguez, President Barack Obama's nominee to become the nation's top pipeline cop, today joined the federal agency in charge of fuel transportation safety as its No. 2. Dominguez is the Pipeline and Hazardous Materials Safety Administration's new deputy administrator, according to an... -
States Act to Regulate Gathering Lines As Oil, Gas Exploration, Production Ramp Up
Jun 23, 2015 | BNA Daily Environment Report
By Tripp Baltz
As the U.S. energy boom continues, states are tightening their regulation of oil and gas gathering lines, pipelines that can fall into a regulatory limbo. The Transportation Department has acknowledged the current framework of regulating gathering lines—pipe systems that carry oil, gas and natural gas liquids from production facilities... -
North Dakota, Ohio, Pennsylvania, Texas Tackle Gathering Line Rules Their Own Ways
Jun 23, 2015 | BNA Daily Environment Report
By Nushin Huq, Leslie Pappas, Bebe Raupe, and Mark Wolski
Spurred by an increase in gathering lines driven by the oil and gas boom, states are increasing their oversight of gathering lines that are not subject to federal regulation. To ensure safety and reliability in the industry, North Dakota, Ohio, Pennsylvania and Texas have recently acted to tighten their rules covering gathering lines, approving... -
Oil, Gas Industry Warns of Risks in Raising Royalties, Fees for Work on Federal Lands
Jun 23, 2015 | BNA Daily Environment Report
By Alan Kovski
If the Bureau of Land Management proceeds with royalty overhaul and related financial changes for oil and natural gas operations on onshore federal lands, it could easily shrink federal revenues and snuff out many energy production opportunities by misunderstanding the economics of the business, industry officials have told the BLM. -
Frontier Fracking Showdown Pits Feds Against Western Boom States
Jun 23, 2015 | Bloomberg Politics
By Andrew M Harris and Mark Drajem
High noon for the Obama administration’s stricter rules for fracking on public lands has arrived on the Wyoming range. Four western states at the center of the shale oil boom are headed for a courtroom showdown Tuesday over who should have the last word on rules for extracting oil and natural gas from federal property within their borders. -
Fracking and the Franciscans
Jun 23, 2015 | The New York Times - Opinion Pages
By David Brooks
Pope Francis is one of the world’s most inspiring figures. There are passages in his new encyclical on the environment that beautifully place human beings within the seamless garment of life. And yet over all the encyclical is surprisingly disappointing. Legitimate warnings about the perils of global warming morph into 1970s-style... -
Hub Adds Sections On Compliance Tools, Grid Reliability
Jun 22, 2015 | E&E News PM
By Rod Kuckro
Today, E&E Publishing is adding a robust section to the Power Plan Hub, a curated, singular place for resources that assist stakeholders wrestling with compliance issues associated with U.S. EPA's proposed Clean Power Plan. The "Power Plan Toolbox" contains more than 90 prominent documents, information portals and compliance... -
Immediate Action on Climate Will Yield Economic, Health Benefits, McCarthy Say
Jun 23, 2015 | BNA Daily Environment Report
By Andrew M. Ballard
While immediate global climate action would protect human health and the environment, the economic impact would be “staggering,” the head of the Environmental Protection Agency said June 22. EPA Administrator Gina McCarthy said her agency has taken a sector-by-sector look at the economic impacts of acting or not acting on climate... -
Court Should Deny OSM Interpretation Of Mine Laws on Permitting, Advocates Say
| BNA Daily Environment Report
By Rachel Leven
The Interior Department's finding that inactivity at a mine site for a certain period after receiving a permit doesn't automatically terminate the permit—a finding that was the basis for its decision that the state of Alaska didn't have to address related violations of a Sutton, Alaska, mine—should be denied and the Alaska decision should be vacated... -
Appalachian Democrats Attempt to Obama-Proof Their Coal Credentials
Jun 22, 2015 | National Journal
By Karyn Bruggeman
How do you convince coal-state voters that you support your state's energy industry while the national party hits it with a host of new regulations? It's a question for which many Appalachian Democrats have failed to find an adequate answer during President Obama's time in office, and for many, that has gone a long way toward getting... -
White House Climate Strategy Hits Its Stride
Jun 22, 2015 | PoliticoPro
By Andrew Restuccia
Critics of the EPA’s climate change agenda should brace themselves — the Obama administration isn’t letting up. President Barack Obama has launched an unprecedented regulatory assault on greenhouse gas emissions, putting the White House’s executive branch power on display and enraging conservative opponents as the president... -
EPA Report Highlights Costs Of Inaction As Part Of New Obama Climate Push
Jun 22, 2015 | InsideEPA
By Dawn Reeves
Two years after President Obama announced his Climate Action Plan, his administration is launching a week-long series of events to highlight ongoing efforts, starting with a new peer-reviewed EPA report that seeks to demonstrate the high costs of not reducing greenhouse gases (GHGs) and that global action to cut emissions would have ... -
The EPA’s Unrealistic Climate Report
Jun 23, 2015 | The Washington Post
By Stephen Stromberg
The Environmental Protection Agency released a report Monday predicting a range of expensive, even deadly consequences if the world’s governments do nothing to combat climate change. If the world twiddles its thumbs, instead of restraining the rise in average global temperature to no more than 2... -
California Climate Plan Has Inland Areas Condemning Costs to Citizens, Industry
Jun 23, 2015 | BNA Daily Environment Report
By Esmé E. Deprez and James Nash
The way inland California lawmakers see it, the only benefit to their constituents from Gov. Jerry Brown's expansion of carbon pollution laws will be cleaner air to breathe as they wait at the unemployment office. Brown and other Democrats are pushing legislation to reduce greenhouse gases caused by burning fossil fuels to a... -
Pollution May Age the Brain
Jun 22, 2015 | The New York Times
By Nicholas Bakalar
Exposure to air pollution may hasten brain aging, a new study has found. Researchers studied 1,403 women without dementia who were initially enrolled in a large health study from 1996 to 1998. They measured their brain volume with M.R.I. scans in 2005 and 2006, when the women were 71 to 89 years old. -
Five Democratic Governors Urge EPA To Follow Science on Ozone Standards
Jun 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Five Democratic governors urged the Environmental Protection Agency to follow through on the agency's proposal to revise national standards for ground-level ozone. Govs. Jerry Brown (Calif.), Maggie Hassan (N.H.), Jay Inslee (Wash.), Dannel Malloy (Conn.) and Peter Shumlin (Vt.) sent a June 19 letter to EPA Administrator Gina McCarthy... -
EPA Bolsters Argument for Global Action On Climate Change in Report on Costs, Benefits
Jun 23, 2015 | BNA Daily Environment Report
By Anthony Adragna and Andrew Childers
The Environmental Protection Agency bolstered its case for global action to address climate change in a June 22 report that details the benefits of reducing greenhouse gas emissions. The report, “Climate Change in the United States: Benefits of Global Action,” looks at the benefits of global greenhouse gas mitigation across water resources... -
Environmentalists' Lawsuit Over West Virginia NPDES Authority Partially Dismissed
Jun 23, 2015 | BNA Daily Environment Report
By Bebe Raupe
A citizens' lawsuit against the Environmental Protection Agency asking that West Virginia be stripped of its National Pollutant Discharge Elimination System program authority has been partially dismissed by a federal judge (Ohio Valley Envtl. Coal. v. McCarthy, S.D. W.Va., No. 3:15-0277, 6/19/2015). -
EPA, Agriculture Industry Spar Over CWA Rule's Potential Impacts On Sector
Jun 23, 2015 | InsideEPA
By Bridget DiCosmo
EPA and the agriculture industry are sparring over the potential impacts that the agency's Clean Water Act (CWA) jurisdiction rule could have on permitting for the sector and other regulatory requirements, suggesting competing claims that could add to what are expected to be a host of industry groups' legal challenges to the final rule. -
(ACC Mentioned) Senate Passes Legislation to Reform Freight Rail Policies
Jun 22, 2015 | Global Trade
By Michael White
The U.S. Senate has approved S.B.808, the Surface Transportation Board Reauthorization Act of 2015, by unanimous consent. Sponsored by Senators John Thune (R-South Dakota) and Bill Nelson (D-Florida), the bill will make substantial changes to the Surface Transportation Board (STB). The first substantive changes to the panel will have... -
Public Interest Crude-by-Rail Rule Suits To Move to D.C. Circuit Partially Due to DOT
Jun 23, 2015 | BNA Daily Environment Report
By Rachel Leven
Environmental and public interest groups are moving their challenges to a recently finalized Transportation Department rule governing crude-by-rail shipments to the U.S. Court of Appeals for the District of Columbia Circuit (Sierra Club v. Foxx, 9th Cir., No. 15-71461, motion to dismiss filed, 6/18/15; Riverkeeper Inc. v. DOT, 2nd Cir., No... -
Elliott Confirmed To New Term On Surface Transportation Board
Jun 23, 2015 | E&E Daily News
By Sean Reilly
Daniel Elliott won confirmation to a new term on the Surface Transportation Board yesterday on a Senate voice vote. The vote returns Elliott, a one-time labor lawyer, to the railroad regulatory agency, where he served as chairman from 2009 until his term expired last December. Before that point, President Obama had nominated Elliott for another...
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(ACC Mentioned) Anne P. Noonan Elected to Board of Directors of CF Industries Holdings, Inc.
Jun 22, 2015 | Business Wire
CF Industries Holdings, Inc. (NYSE:CF) today announced that its Board of Directors has elected Anne P. Noonan as an independent director of the company. Ms. Noonan, president, Performance Chemicals Business Segment at OMNOVA Solutions, is expected to stand for re-election by stockholders at the company's 2016 Annual Meeting. Her election brings membership of the CF Industries Holdings, Inc. Board of Directors to ten.
“We welcome Anne to the CF Industries’ Board and look forward to her contributions. Her proven record of leadership, customer focus, and value creation in the chemicals industry will be of great value to our Board, management team and shareholders,” commented Stephen A. Furbacher, chairman of the board.
Ms. Noonan, 51, has led OMNOVA Solutions’ Performance Chemicals business segment since September 2014, overseeing the development and production of emulsion polymers and specialty chemicals that account for approximately 80 percent of the company’s annual sales. She joined OMNOVA from Chemtura Corporation, which was formed in the 2005 merger of Great Lakes Chemical Corporation and Crompton Corporation. Ms. Noonan held several leadership positions at Chemtura and Great Lakes Chemical, most recently serving as senior vice president and president of Chemtura's Industrial Engineered Products business. Her career at Great Lakes Chemical and Chemtura spanned 27 years.
Ms. Noonan was recently elected to the Board of Directors for the American Chemistry Council for a two-year term starting January 1, 2016. She earned her M.S. in organometallic chemistry and her B.S. Honors degree in chemistry from University College in Dublin, Ireland.
About CF Industries Holdings, Inc.
CF Industries Holdings, Inc., headquartered in Deerfield, Illinois, through its subsidiaries is a global leader in the manufacturing and distribution of nitrogen products, serving both agricultural and industrial customers. CF Industries operates world-class nitrogen manufacturing complexes in the central United States and Canada and distributes plant nutrients through a system of terminals, warehouses, and associated transportation equipment located primarily in the Midwestern United States. The company also owns 50 percent interests in GrowHow UK Limited, a plant nutrient manufacturer in the United Kingdom; an ammonia facility in The Republic of Trinidad and Tobago; and KEYTRADE AG, a global plant nutrient trading organization headquartered near Zurich, Switzerland. CF Industries routinely posts investor announcements and additional information on the company’s website at www.cfindustries.com and encourages those interested in the company to check there frequently.
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(ACC Mentioned) Redo of CHAP Analysis With New Data Shows Lower Phthalate Hazards for Women
Jun 23, 2015 | BNA Daily Environment Report
By Martina S. Barash
Overall hazards associated with the intake of several phthalates by women of reproductive age have declined, Consumer Product Safety Commission (CPSC) scientists concluded in a new analysis that could affect rulemaking over the chemicals' use in consumer products.
Also among the new study's findings is that daily intake of one particular replacement phthalate has been increasing in that population as intake of a banned phthalate has dropped. But the substitute, diisononyl phthalate (DINP), is less potent, the scientists said.
The report, which doesn't make policy recommendations, came about after the American Chemistry Council and other trade groups criticized the CPSC's Chronic Hazard Advisory Panel (CHAP) for using old data in a July 2014 report.
In general, the new report shows lower overall hazards to women of reproductive age than the 2014 study.
Same Methodology
The CPSC staff scientists' follow-up report, a notice of which is scheduled for publication in the Federal Register June 23, uses three sets of newer National Health and Nutrition Examination Survey (NHANES) data and says it applies the same methodology as the CHAP. A 45-day comment period will follow publication in the Federal Register.
Phthalates are used to increase the softness and flexibility of plastics and to improve their processing.
The Consumer Product Safety Improvement Act of 2008 permanently banned three phthalates in concentrations above 0.1 percent in children's toys or child-care articles and created interim bans on three others, pending a final rule.
One of the permanently banned phthalates is di(2-ethylhexyl) phthalate (DEHP), which the new report compared with its common substitute, DINP.
But DINP is subject to an interim ban in children's toys and child-care products under the CPSIA. The Consumer Product Safety Commission is proposing to extend the ban permanently.
“This particular report is not evaluating whether DINP meets those legal criteria so that it should stay on the list of things that shouldn't be in children's products,” Caroline Cox of the Center for Environmental Health told Bloomberg BNA June 22.
The Center for Environmental Health was among the consumer, health and environmental groups that submitted comments about the CHAP report to the CPSC (89 DEN A-13, 5/8/15).
“In the big picture, you could say it's looking to see if the effect of the CPSIA and other changes in the market for products that contain phthalates have had an effect on how women are being exposed,” Cox said.
“I think you would answer yes and that's good. The steps we've taken to reduce people's exposure to phthalates are having the desired effect,” she said.
But people are still being exposed and “a small number of women are being exposed to a lot of phthalates,” she said.
In an ideal world, “we'd find the least hazardous plasticizers” and use those from the start, she said.
The previous hitAmerican Chemistry Councilnext hit and Toy Industry Association didn't immediately respond to requests for comment.
The report looked at the effects on women of reproductive age, rather than pregnant women, because the sample size of pregnant women in the later data sets was too small, the authors said.
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Jun 23, 2015 | E&E Daily News
By Sam Pearson
Animal welfare groups stand to win significant changes to how U.S. EPA handles the use of animals as test subjects in studies of potentially hazardous chemicals -- even though the broader environmental community continues to have misgivings about pending legislative proposals for reform.
For the first time, language in the Senate chemical reform bill -- S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" -- would aim to steer EPA and chemical companies away from animal testing over time, with the potential to eventually reduce the use of tens of thousands of laboratory animals each year.
But the language is the product of a sometimes bitter split between the animal protection movement and many environmental groups, which often balk at efforts to use uncertain safety standards or limit EPA discretion for testing chemicals -- for fear such moves would be exploited by the industry. Animal welfare advocates are also frustrated by what some say is EPA's slow pace of implementing changes to the traditional testing methods.
The Senate bill is an attempt to expand EPA's authority to require chemical testing to learn more about substances of concern, while also setting a policy that will reduce the use of animals over time. According to the Humane Society of the United States, tens of thousands of animals are killed each year to test industrial chemicals, but some scientists and advocates warn that the tests are necessary to protect human health -- and to spare wild animals from substances whose harmful properties could otherwise go undetected.
Animals are thankful to Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) in this image shared on social media by animal welfare supporters. Photo courtesy of Twitter.
Replacement of animal testing is also needed because the tests take too long, critics say. Without changes, "you'll be here until the end of the next century trying to generate all the data on all the chemicals out in the environment," said Kristie Sullivan, director of regulatory testing issues at the Physicians Committee for Responsible Medicine.
Average Americans may not grasp the nuances of federal chemical regulation, but polls show many view reducing harm to animals as an important moral issue. According to a survey by Gallup Inc. conducted last month, the percentage of Americans who view medical testing on animals as morally acceptable has dropped by 9 percent since 2001, to 56 percent.
Some of the animal groups' goals are shared by the chemical industry, which also wants to reduce excess tests, avoid burdensome requirements such as minimum data sets for chemicals and set a looser safety standard for evaluating their risks than what EPA already employs for pesticides.
"The language isn't perfect," said Jessica Sandler, director of regulatory testing at People for the Ethical Treatment of Animals. "We would like to see an end to all toxic testing on animals. But the language certainly goes further than any other legislation has to date to help spur the development and the use of non-animal methods to meet U.S. regulations."
Whether that's truly a win for the green movement, though, isn't so simple. Report spurred calls for reform
For years, animal welfare groups and the chemical industry have pointed to the findings of a 2007 National Research Council report that called for scientists to shift to a new paradigm of in-vitro testing, in which researchers would study ways in which human cells are exposed to potential toxins to quickly determine how a chemical affected the human body.
While traditional animal studies seek to establish the lowest dose at which a chemical will cause an effect, such as cancer development, these in-vitro tests require a different approach, said Paul Locke, an associate professor and member of the Johns Hopkins University Center for Alternatives to Animal Testing.
Scientists using non-animal methods "ask ourselves different questions," Locke said. "Can we identify the events leading to cancer? Let's study those."
The 2007 report, "Toxicity Testing in the 21st Century: A Vision and a Strategy," advocated for the shift, citing its potential to spur faster and more relevant research. This could prevent some of the ambiguities of basing human health decisions on responses that occur in animals, the report said.
"Using the results of animal tests to predict human health effects involves a number of assumptions and extrapolations that remain controversial," it said.
For example, if test animals are exposed to chemicals at higher dosages than typical human exposures, it gives rise to criticism by industry opponents that subsequent findings that the chemical poses a health risk are unfounded.
A reliance on animal tests "does make it easy for industry to argue both sides of the coin," Sandler said. "If the substance doesn't harm animals, then it's safe for humans -- but if the animals get cancer, that tumor doesn't apply to humans because, pick your reason."
EPA has worked to implement the report's recommendations by funding research in the Office of Research and Development on in-vitro testing, including its Tox21 program and a toxicity forecaster, called ToxCast, which use automated, robotic-assisted processes to expose living cells or isolated proteins to chemicals and analyze their effects. But officials have described the program as developing and most useful in the early phases of screening new chemicals, rather than existing ones.
Meanwhile, the industry has hedged on how to view the modernized tests.
The American Chemistry Council has described EPA's ToxCast results as a promising work in progress, but not necessarily credible enough to be used to make regulatory decisions.
The tests "reflect only biochemical interactions, responses in isolated cells or novel lower animal models and do not provide actual hazard or risk information. More rigorous science is needed to establish the degree of scientific confidence required before ToxCast can be relied upon to support product safety determinations for specific regulatory purposes," the group said in 2013.
ACC instead has urged regulators to rely on the trade group's own "Long-Range Research Initiative to enable ToxCast and similar data to be interpreted in the context of human exposures."
The Senate language struck an appropriate balance, the industry group said in a statement, by asking EPA to designate specifically which non-animal tests would be suitable, and for what regulatory purposes. Booker pushes for changes
Animal testing reduction language was first put in place as Europe implemented its new chemical management program in 2006. At the time, because the program required the registration and testing of chemicals, advocates worried it would prompt a surge in animal testing, with dire consequences for captive species.
Seeking to prevent a similar problem, legislative drafters included a section encouraging the reduction of animal testing in S. 697.
Sen. David Vitter (R-La.), a prime sponsor of the chemical reform legislation, has for years been considered an ally both of animal welfare groups and of the chemical industry. But it was Sen. Cory Booker (D-N.J.) who took the lead on winning the animal testing language, a Senate Environment and Public Works Committee aide said.
Booker "deserves the credit for these changes," Sen. Tom Udall (D-N.M.), the TSCA bill's chief sponsor, said in a statement. "His interest in this issue was personal and not at the behest of any groups."
Booker, who has spoken often in public and on social media of his concern for animals, worked behind the scenes with staff to add the language -- including pushing for the provision to be strengthened after the initial hearing before signing onto the bill as a co-sponsor. Among the changes Booker secured include language clarifying that when industry submits data to EPA for purposes of Toxic Substances Control Act compliance, it must first look to non-animal methods of conducting the research if doing so is feasible.
The Senate bill would require EPA, if it orders testing of a chemical, to explain "the basis for any decision that requires the use of vertebrate animals." In addition, the agency would be required to "minimize, to the extent practicable, the use of vertebrate animals in testing of chemical substances or mixtures" by using alternatives when possible.
Within two years, EPA officials would have to propose a plan to promote the development and implementation of non-animal testing methods.
Complying with these standards shouldn't be burdensome for businesses, lawmakers said. Even if EPA for some reason prematurely certified non-animal methods, the law has provisions to provide for regulatory transparency, the Senate aide said. That means EPA scientists have to show "how they got to their decision and show their work along the way," the aide said.
The bill "grants EPA all the tools it needs, and I certainly believe that reducing animal testing will not affect the quality of reliable scientific testing," Vitter said in a statement. "Additionally, in many cases, alternative tests can be safer, as accurate and cheaper."
Udall noted the bill struck a balance between the status quo and allowing animal testing only as a last resort, regardless of the feasibility.
Booker's office didn't respond to several requests for comment about his work on the issue.
At an EPW Committee hearing this year, Booker, who became a vegan in December, said he was "concerned" about "unnecessary animal testing, cruel animal testing, inhumane animal testing."
"I am doing everything I can do make sure the bill minimizes that to the extent possible," Booker said. "Specifically, I believe there are alternative testing methods and strategies that exist that the EPA administrator has determined are scientifically reliable and would generate equivalent information."
At the hearing, Jim Jones, U.S. EPA's assistant administrator for chemical safety and pollution prevention, said EPA was "very invested" in non-animal testing and that his office "has been very aggressive in working ... to see that those tests are deployed when they are scientifically robust and ready to be deployed." 'We thought of ourselves on the same side'
The National Academies report noted that failing to update existing animal test procedures will only burden EPA with added cost and delays. But despite the findings, mainstream environmental groups have not lined up behind a drive to reduce animal testing.
Instead, the groups have sometimes publicly clashed with animal welfare groups. In 2002, PETA ran a "Mean Greenies" campaign against the World Wildlife Fund, the Natural Resources Defense Council and the Environmental Defense Fund, which was then known as Environmental Defense. PETA has in the past sued EPA to delay completing tests on endocrine-disrupting chemicals, though the case was dismissed.
The split was distressing to NRDC, one of its officials said at the time.
"We thought of ourselves on the same side," Gina Solomon, then a senior scientist at NRDC, who is now the deputy secretary for science and health at the California EPA, told the San Francisco Chronicle in 2002.
Solomon added at the time that PETA "is working directly against environmental and human health goals."
The result would be "ignorance of toxic chemicals or the de facto testing of those chemicals in the real world environment," Solomon told the newspaper.
Environmental Defense Fund President Fred Krupp had to post an open letter on the group's website in 2010 after EDF was deluged with letters from PETA supporters about animal testing. Krupp explained that EDF thought animal testing was needed "to prevent additional harm to the health of all creatures resulting from exposure to dangerous or inadequately studied chemicals."
EDF has since emerged as one of the top supporters of the Senate bill, though it hasn't featured the role of animal testing prominently in its advocacy.
While groups like the Environmental Working Group have called for forcing chemical makers to prove that their substances pose a "reasonable certainty of no harm" to consumers, PETA and other animal protection groups, like the industry, view the goal as absurd.
"You're not going to be able to have a bucket of water if you want certainty of no harm," Sandler said. "You have to have a standard that is reasonable and can be attained. There are not enough animals in the world to go through the numbers that would be needed for some of the aspects that some groups think are necessary." Animal researchers skeptical
Researchers at laboratories that test chemicals on animals have heard these arguments before.
They're used to taking heat from welfare groups -- over their methods -- and the industry, when they publish findings that widely used substances may cause health problems.
But many of these findings would not be possible, especially when looking at a chemical's impact on the developing fetus, these scientists contend, without animal testing.
It's becoming possible to replicate some tests without using laboratory animals, but it misses the full picture, said Patricia Hunt, a professor at the Center for Reproductive Biology at Washington State University.
Hunt, who was one of the first scientists to identify possible adverse health effects of bisphenol-A, or BPA, when a temporary worker in her laboratory accidentally exposed laboratory rats to the chemical by using the wrong laundry detergent, said it's these kind of unexpected outcomes that don't happen in non-traditional research.
"The things that we can't see are some of the effects that we don't expect from these chemicals," Hunt said.
Catherine VandeVoort, a professor-in-residence at the National Primate Center at the University of California, Davis, agreed.
VandeVoort's research, like one study that found bisphenol-A exposure may be linked with a higher risk of developing asthma, was disputed by the chemical industry. Animal rights groups also take issue with the chemical tests the lab performs on what are some of the more intelligent and human-like animals used in science. This has led to bomb and death threats against the lab and its researchers over the years.
While Harvard University announced last year it would shut down the New England Primate Research Center by the end of 2015, UC Davis officials instead vowed to continue with a planned expansion, News10/KXTV reported.
VandeVoort, who is a member of California's Developmental and Reproductive Toxicant Identification Committee, which reviews the science used to justify listing a chemical as known to the state to cause cancer or reproductive harm, said the effort to restrict her research methods is misguided.
Even if changes to EPA policy did not occur immediately, they could eventually prevent scientists from evaluating "many of the complex reactions that occur in the whole body," VandeVoort said.
"I worry that this bill will actually benefit the chemical industry in that it will make it more difficult to identify toxicants," she said.
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(ACC Mentioned) Industry’s Response to EPA Proposed Nano Rule
Jun 22, 2015 | The National Law Review
By Katy E. Ward
EPA held a public meeting on June 11, 2015 on EPA’s Proposed Rule imposing one-time electronic reporting and recordkeeping requirements on manufacturers and processors of certain nanoscale materials under Section 8(a) of the Toxic Substances Control Act (TSCA).
EPA began the meeting by clarifying that the Proposed Rule targets nanoscale versions of substances that had previously been exempt from reporting requirements. New nanoscale materials are already subject to TSCA and over 170 premanufacturing notices have been filed for those new materials, including many for carbon nanotubes. EPA’s goal for the rule is to provide missing information on nanoscale versions of existing substances to evaluate whether further regulation is needed. Commenters
Five individuals made comments: Steven Gordon of 3M speaking on behalf of the American Chemistry Council; Dan Russell of Pixelligent New Technologies; Jo Anne Shatkin of Vireo Advisors; Martha Marrapese of Keller and Heckman LLP speaking on behalf of the NanoManufacturing Association; and Vincent Caprio of the NanoBusiness Commercialization Association. Issues Raised
Definition of Reportable Chemical Substances. The definition of “reportable chemical substances” uses vague terms like “unique,” “novel,” and “trace,” which will make it difficult to determine whether something is a “reportable chemical substance.” The terms should be better defined and justified.
Discrete Forms of Nanomaterials. EPA should provide better guidance on how to measure discrete forms of nanoscale materials because the model used will affect the resulting measurements. One commenter objected to certain properties chosen by EPA to determine whether a discrete form exists, such as dispersion stability and surface reactivity, because they are not sufficiently linked to risk to human health and environment.
135-Day Review Period. Most of the commenters objected to the 135-day review period, which is longer than the 90-day review of reports for new substances, including because of the adverse economic effects of the additional delay.
Harmonizing U.S. and Canadian Approaches. EPA should reduce the burden on industry by aligning the forthcoming rule with the Canadian process announced earlier this year.
Availability of Required Information. Companies will not have certain of the required information readily available, burdening industry and violating TSCA 8(a), which only authorizes EPA to require information that companies already have or can reasonably ascertain. What Next?
Public comments are due on July 6, 2015, but EPA did not specify when it will respond to the comments and what that response will be. One commenter suggested that EPA re-propose the rule for additional comments after it has been revised. During Nanotech 2015, a nanotechnology conference and exposition that occurred the week following the public meeting, it was suggested that the Proposed Rule would likely be finalized in late 2016, requiring reporting in 2017. In the meantime, those potentially subject to the rule can review the proposed form companies would be required to submit under the new rule.
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US EPA Consults On Endocrine Disruptor Test Guidelines
Jun 23, 2015 | Chemical Watch
The US EPA is seeking public comments on three draft test guidelines for its Endocrine Disruptor Screening Program (EDSP). The tests are part of the program's tier 2, which will be used for substances that show endocrine-disrupting properties in tier 1. The deadline for responses is 31 March.
The tests - the Japanese quail two-generation reproduction test, the Medaka fish extended one-generation reproduction test, and the larval amphibian growth and development assay - are designed to identify any adverse endocrine-related effects, caused by a chemical, and to establish a dose-response relationship.
The draft test guidelines form part of a series, established by the Office of Chemical Safety and Pollution Prevention (OCSPP), for use in testing pesticides, plastic ingredients and other industrial chemicals. The first list of substances is now undergoing tier 1 testing. A second list was announced in 2013 (CW 14 June 2013), and a third is due to be announced in 2016 (CW 24 February 2014).
The guidelines give instructions on how to conduct the tests to provide data for submission under the requirements of the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act or the Federal Food, Drug and Cosmetic Act. However, they are not binding on either the EPA or outside parties, and the agency may depart from them where circumstances require it.
Respondents may propose alternatives to guideline recommendations, and the EPA will assess them on a case-by-case basis.
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(ACC Mentioned) After Elk River Spill, Congress Will Vote on Bill Regulating Toxic Chemicals
Jun 22, 2015 | The New York Times
By Coral Davenport
James Lewis still remembers the licorice smell of the water and how his skin itched when he showered.
After 7,500 gallons of a coal processing chemical leaked into the Elk River in January 2014, Mr. Lewis was one of 300,000 people in the Charleston area who were ordered to stop using tap water for several days. But like many people, Mr. Lewis, a construction worker and former chemical plant employee, and his girlfriend, a nurse, spent hundreds of dollars so they could use bottled water for several more months, just to be safe.
“We were worried to death about our children,” Mr. Lewis said. He would like to see the government implement regulations that would prevent disasters like the Elk River spill, he said, but nothing that would harm the chemical companies that are central to the economy here. “It’s a Catch-22,” he said.
On Tuesday, the United States House of Representatives is scheduled to vote on a bill, prompted in part by the 2014 spill, that would update the Toxic Substances Control Act, a 39-year-old law governing the use of toxic chemicals in industry. The Senate is expected to vote on a similar bill next month, and the measure, which has bipartisan support, could reach President Obama’s desk before the end of the summer.
But public health advocates and environmental groups say the bills offer only a slight improvement to the current law, and fall far short of what is needed to prevent accidents like the Elk River spill.
“Something is better than nothing, but this isn’t much,” said Maya Nye, the director of People Concerned About Chemical Safety, an organization based in West Virginia. “The Elk River incident shined a spotlight on the gaping holes” in the Toxic Substances Control Act. “And these bills don’t do much to address those holes.”
While the Republican-controlled Congress is often hostile to new regulations, both the House and the Senate appear poised to pass the new measures, in part because they have the blessing of the American Chemistry Council, the powerful chemical lobby. Supporters of the bills say they are a politically pragmatic compromise that will offer some new safety protections on dangerous chemicals.
But advocates like Ms. Nye complain that the chemical industry had too heavy a hand in shaping the bills, and that previously unregulated chemicals would be reviewed far too slowly.
Before the Elk River spill, efforts to improve chemical safety had foundered for years. The main champion of those efforts was Senator Frank R. Lautenberg of New Jersey, a liberal Democrat who sought to improve what he saw as an outdated law that put people in harm’s way.
Under the 1976 law, the Environmental Protection Agency is required to evaluate the safety of new chemicals introduced in the marketplace. But the agency was not required to evaluate the roughly 64,000 chemicals already being used in American commerce.
Since then, about 22,000 new chemicals have been introduced and evaluated, and those that the agency designates as toxic and hazardous are subject to regulation. But the vast majority of chemicals — including the one that fouled the Elk River, 4-methylcylcohexane methanol, or MCHM — are unregulated, and little information about many of them is publicly available. Under current law, even asbestos, a known carcinogen, is exempt from regulation. About 10 years ago, Mr. Lautenberg began working on a bill to overhaul the chemical law. His measure would have required the E.P.A. to begin regulating extremely harmful substances, like asbestos, and to start testing the toxicity of hundreds of additional chemicals annually. It would also have allowed states to enact even stronger regulations.
While environmentalists cheered the proposals, they went nowhere in Congress, blocked by the chemical lobby and lawmakers from states with large chemical industries. Mr. Lautenberg died in 2013, never realizing his dream of enacting a chemical safety law.
The Elk River spill brought Mr. Lautenberg’s measure back to life. He had worked with Senator Joe Manchin III of West Virginia, a Democrat, and Senator David Vitter of Louisiana, a Republican — both from states where the chemical industry is a cornerstone of the economy — on ways to advance a compromise bill. Mr. Manchin and Mr. Vitter, joined by Senator Tom Udall, Democrat of New Mexico, made changes to the bill to make it more friendly to industry. Many of the changes were proposed by the American Chemistry Council.
The senators named their bill for their former colleague, saying its passage would seal his legacy. The measure would require the E.P.A. to start reviewing the toxicity of 64,000 unregulated chemicals, but at a pace of about 10 chemicals per year, rather than the hundreds per year required by Mr. Lautenberg’s bill. And it would not allow states to enact tougher rules.
Senator Barbara Boxer of California, the ranking Democrat on the Senate Environment Committee, called the bill a disgrace.
“I loved Frank Lautenberg so much, and it’s with deep respect and a very heavy heart that I make these statements about a bill that has been named after him,” she said soon after the measure was introduced. “The bill, while having a beautiful name, is the product of chemical companies.”
But Mr. Manchin said the bill represented what Mr. Lautenberg would have wanted: a politically viable improvement over existing law. “Frank Lautenberg gave me his blessing to get people together to get something that can get through,” he said. “You look for the balance.”
Responding to criticism over the rate at which chemicals would be reviewed, Michael Walls, a vice president at the American Chemistry Council, said: “Today there’s no requirement. So the number of chemicals ultimately reviewed by E.P.A. will be increased.”
The chemical industry has spent heavily on lobbying lawmakers. Between January 2013 and March 2015, the nation’s 10 largest chemical companies and organizations spent $171.4 million lobbying Congress and the federal government, and during the 2014 election cycle and the first three months of 2015, they contributed more than $1.2 million to current members of the Senate, according to MapLight, a nonprofit group.
The bill’s 41 sponsors and co-sponsors received, on average, 66 percent more money from those companies and organizations than senators who are not sponsors. The chemical industry contends that it is simply doing what is necessary to influence a measure that could have a huge impact on its bottom line.
In West Virginia, some people remain skeptical of the legislative efforts. Chris Walters, a Republican state senator, recalled that he had just finished boiling peas for his 3-year-old daughter when he learned that the tap water had been contaminated. “I thought, I never heard of anything that can’t be boiled away — but later it turns out this stuff can’t be boiled away.”
“I’m glad they have legislation to move this thing forward, and we want to have a competitive business environment,” he said. “But just 10 chemicals a year, given how many chemicals are out there, seems like a drop in the bucket.”
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Underground Storage Tank Rules Revised With Costs Projected to Be Lower, EPA Says
Jun 23, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency completed revisions to the rules governing more than half a million underground storage tanks in a move the agency said will protect groundwater and prevent releases of hazardous compounds.
The final rule, released June 19 and the first update to underground storage tank rules since 1988, will cost owners and operators of tanks at sites such as gas stations, convenience stores and airports an estimated $715 per year per facility, according to the EPA. That is substantially less than the $900 agency estimate in its 2011 proposed rule. Cumulatively, the final rule would impose annual compliance costs of $160 million, according to the agency.
“Leaks from underground storage tanks can very easily reach groundwater,” Carolyn Hoskinson, director of the EPA's Office of Underground Storage Tanks, told Bloomberg BNA June 21. “Our primary goal is to continue to decrease the number of new releases that are getting out into the environment.”
The revisions:
• require operators to incorporate secondary containment mechanisms for new and replaced tanks and piping;
• add new periodic operation and maintenance requirements;
• mandate new operator training requirements;
• remove previous deferrals for airport hydrant systems, field-constructed tanks and emergency generator tanks;
• add new release prevention and detection technologies; and
• update codes of practice.
The revised regulations (RIN 2050-AG46) apply to underground storage tanks regulated under Subtitle I of the Resource Conservation and Recovery Act (40 CFR part 280). Those tanks mainly contain petroleum products.
The final rule takes effect 90 days after its publication in the Federal Register. The White House Office of Management and Budget completed its review of the regulation in late April (84 DEN A-17, 5/1/15).
Mathy Stanislaus, the EPA's assistant administrator for solid waste and emergency response, told Bloomberg BNA underground storage tanks “typically do not get much attention” but are a “really critical infrastructure that drive the economy.” He said the agency had sought to develop a “very streamlined process” for implementing requirements in the rule that “minimized the costs of compliance.”
Significant Outreach Touted
Hoskinson said the EPA conducted more than 100 meetings with regulated entities during the rulemaking process and worked deliberatively to reduce compliance costs and align implementation requirements in the final rule.
The Petroleum Marketers Association of America (PMAA) previously presented OMB with an alternative proposal that it said would reduce compliance costs significantly while still providing the same level of environmental protection. Hoskinson said the agency accepted many of those changes in its final rule (237 DEN A-12, 12/10/14).
“I think that they will see very significant similarities between their alternative proposal and what we ended up with in the final rule,” Hoskinson said. “We think the final rule is much improved.”
A key component of the new rule is that tanks in Indian country will now, for the first time, have to comply with the minimum standards. States are responsible for primary implementation of underground storage tank regulatory programs and may elect to develop more stringent requirements than the federal regulations.
According to the EPA, there are approximately 571,000 tanks across the U.S. at more than 205,000 sites. There have been 525,095 releases reported since the beginning of the program but 452,847 of those have since been cleaned up.
Industry Group ‘Pleased.'
Rob Underwood, director of congressional relations at PMAA, said his group was happy the EPA had incorporated many changes into the final rule but said it needed additional time to review it.
“We're pleased with EPA accepting most of our recommendations to improve the underground storage tank proposal,” Underwood told Bloomberg BNA. “Our main goal from the start was to lower compliance cost while still achieving the same level of environmental gain.”
Other groups closely watching the rulemaking—the Society of Independent Gasoline Marketers of America and Airlines for America—told Bloomberg BNA they were reviewing the final rule and declined additional comment.
As the agency prepared its final rule, lawmakers from both chambers of Congress expressed concerns the agency had significantly underestimated the costs of the regulation and urged the EPA to convene a panel to solicit small business information (144 DEN A-5, 7/26/13).
Hoskinson said the EPA worked with the Small Business Administration throughout the process and found its projected costs did not cross the threshold necessary to force a small business panel.
“We did take those costs very, very seriously,” Hoskinson said. “We were very careful to minimize the costs. We believe the cost is very reasonable compared to the environmental protection that we hope will be gained from this.”
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EPA Says Final UST Rule Revisions Should Alleviate Some Cost Concerns
Jun 22, 2015 | InsideEPA
By Lara Beaven
EPA says it has made several “significant” changes to its final rule on training, testing and inspection requirements for underground storage tanks (USTs) that may lessen or negate industry concerns about some regulatory compliance costs, but the agency is defending its prior claim that the rule will not disproportionately affect small businesses.
“These changes will better protect people’s health and benefit the environment in communities across the country by improving prevention and detection of underground storage tank releases,” EPA waste chief Mathy Stanislaus said in a June 22 statement on issuance of the rule. “Extensive and meaningful collaboration with our underground storage tank partners and stakeholders was vital to the development of the new regulations. The revised requirements will also help ensure consistency in implementing the tanks program among states and on tribal lands.”
The final rule is the first major revision to federal UST regulations since 1988 and will help prevent and detect UST releases, which are a leading source of groundwater contamination, according to EPA.
EPA Administrator Gina McCarthy signed the rule June 19, and the agency released it June 22 ahead of its pending publication in the Federal Register. The agency also issued a regulatory impact analysis and response to comments document for the rule.
EPA proposed the rule in 2011, outlining new requirements for maintenance and spill prevention and seeking to extend requirements passed under the 2005 Energy Policy Act to all tanks.
The proposed rule drew mixed reactions from states, and criticism from multiple industry groups that EPA had underestimated compliance costs in the requirements.
For example, the Petroleum Marketers Association of America, which includes 48 trade organizations representing petroleum marketers, repeatedly asked EPA to withdraw the proposed revisions and convene a Small Business Advocacy Review (SBAR) panel to consider the regulatory costs of the proposed changes to small businesses.
EPA notes in the rule's preamble that “several commenters” were concerned about potential costs on owners, especially small businesses, and that “a few commenters” requested the agency to withdraw the proposed rule and convene a SBAR panel.
“EPA carefully considered the potential impacts of the proposal on small businesses and determined that a small business panel was not required,” the agency says in the preamble. “EPA also considered all of the comments submitted during the public comment period, including those concerns regarding the potential costs on small businesses, and worked to minimize those costs by making certain changes to the final regulations.”
Compliance Costs
The estimated annual regulatory compliance costs of the final rule are $160 million, EPA says, lower than the $290 million of the proposed rule.
The expected annual cost savings of the rule is $310 million, primarily coming from avoided cleanup costs as a result of preventing releases and reducing the severity of releases, EPA says.
“Due to data and resource constraints, EPA was unable to quantify some of the final UST regulation’s benefits, including avoidance of human health risks, ecological benefits, and mitigation of acute exposure events and large-scale releases, such as those from airport hydrant systems and field-constructed tanks,” the agency says in the rule. “EPA was also unable to place a monetary value on the groundwater protected by the final UST regulation, but estimates that today’s final UST regulation could potentially protect 50 billion to 240 billion gallons of groundwater each year.”
The agency explains in its response to comments document that, where appropriate, it incorporated information from commenters into the cost analysis for the final rule.
“For example, while EPA originally assumed that water disposal was captured in the cost of a spill bucket or sump test, based on comments received, EPA further refined cost estimates for spill bucket testing and sump testing to assume a certain percentage of owners and operators will have to pay separately for the cost of water disposal,” the agency says. “EPA also refined its universe of UST systems that use groundwater and vapor monitoring as release detection methods based on public comments submitted by several states.”
Additionally, the agency notes in the rule's preamble that it is now requiring testing of spill prevention equipment every three years instead of annually.
But EPA also says that in other instances the agency disagrees with commenters, citing the example of the cost of conducting walkthrough inspections.
EPA says that while owners and operators can choose to hire a third-party contractor to do the inspections, the agency is not requiring tank owners and operators to do so, although the agency says it has reduced the components that need to be reviewed during monthly walkthrough inspections, making it even less likely that tank owners and operators may need to use a third-party contractor.
Additionally, EPA says that based on conversations with equipment vendors, the agency “does not think that spill prevention testing and overfill prevention equipment inspections would cause excessive damage to equipment that commenters suggested are not designed to be removed (e.g., drop tubes). Lastly, contrary to some commenters’ statements, EPA did, where appropriate, factor in costs associated with capital expenses associated with release detection and costs associated with replacing components earlier as a result of the proposed testing requirements.”
“Nevertheless, based on all public comments received, EPA is making several significant modifications to the 2011 proposed UST regulation,” the agency says in the response to comments. “As a result of these modifications, many of the comments associated with the costs of the 2011 proposed UST regulation may no longer be relevant.”
Detection Methods
In addition to reducing the components that need to be reviewed monthly, the agency is also continuing to allow groundwater and vapor monitoring release detection methods with certain restrictions.
EPA is also “no longer requiring periodic interstitial integrity testing for tanks and piping, no longer fully regulating wastewater treatment tanks, and no longer prohibiting in-house operator training,” the agency says.
Another change EPA made to the final rule relates to large USTs known as field constructed tanks (FCTs), which are used primarily by the Defense Department (DOD).
EPA says based on discussions with DOD and release detection vendors, the agency learned that existing release detection options for other USTs are generally not applicable for UST systems greater than 50,000 gallons because most methods are limited by tank capacity.
Using current release detection methods would require taking FCTs out of service for multiple days which “would, in some cases, impede DOD’s mission, be impractical to sustain, and result in significant costs,” EPA says. Therefore the agency includes three additional options in the final rule “that provide flexibility for owners and operators of FCTs greater than 50,000 gallons to meet the release detection requirement.”
States were split on whether EPA should phase in compliance dates for some requirements, with Pennsylvania, for example, saying EPA should set one deadline for all USTs to meet for secondary containment testing requirements and Delaware saying it supported a three-year, phase-in schedule for secondary containment, based on UST installation dates.
In the final rule, EPA says it is not using the phased in approach and instead is requiring owners and operators to meet the requirements by the same date. Some requirements, such as those that either do not require significant education and outreach or apply to new installations, repairs or releases, must be implemented on the effective date of the final rule, which is 90 days after it is published in the Federal Register.
For other requirements, EPA is allowing up to three years to meet, which the agency says “allows ample time for implementing agencies to educate owners and operators about today’s new requirements and allows owners and operators to schedule testing.” The one exception to these two compliance dates is the 180-day timeline for implementing the secondary containment requirement. EPA says this time frame “allows flexibility for those owners and operators who have concrete plans but have not yet applied for or obtained approvals or permits for a new UST system installation.”
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EPA Looks To Strengthen Storage Tank Safety
Jun 22, 2015 | The Hill - E2 Wire
By Devin Henry
The Environmental Protection Agency (EPA) issued new safety requirements for underground storage tanks on Monday, a move it says will protect water sources by preventing potential petroleum leaks.
The rules expand secondary containment requirements — which call for more advanced containment measures at tanks near water sources — for new and replacement tanks. The new rules expand operator training, call for more periodic maintenance on tanks and add more leak prevention and detection technologies, among other measures.
“These changes will better protect people’s health and benefit the environment in communities across the country by improving prevention and detection of underground storage tank releases,” said Mathy Stanislaus, the assistant administrator of the EPA’s Office of Solid Waste and Emergency Response.
The EPA’s rules apply to storage tanks for both marketers — retail facilities like gas stations — and “nonretail facilities” that hold petroleum products for private use, such as cars, trucks or boats. The new rules extend containment and training regulations to storage tanks on tribal lands, as well.
States typically implement storage tank rules, according to the EPA, and many already have the new requirements in place.
The agency said it worked with storage tank owners and operators to write the new rules and that it “carefully considered the environmental benefits of the [storage tank] requirements, while balancing those with the potential future costs of compliance for ... owners and operators.”
"Extensive and meaningful collaboration with our underground storage tank partners and stakeholders was vital to the development of the new regulations," Stanislaus said.
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Hurricanes' Threat to Gas, Other Pipelines Requires Preparation, Agency Advisory Says
Jun 23, 2015 | BNA Daily Environment Report
By Rachel Leven
Hurricanes can pose unique threats to gas and hazardous liquid pipelines, including those in the Gulf of Mexico and its inlets, and pipeline operators should address these concerns, a federal safety regulator will announce in an advisory bulletin June 23.
Hurricanes may damage pipelines and related infrastructure such as compressor stations, but in some past instances this has been made worse by operators' restricted response abilities—lack of personnel or resources—resulting from separate onshore damages, the bulletin said. Operators should prepare for hurricanes by notifying individuals whose activities could affect the pipes of the risks and should be ready to conduct inspections and mitigation actions if one occurs, it said.
“The concentration of U.S. oil and gas production, processing, and transportation facilities in the Gulf of Mexico and onshore Gulf Coast means that a significant percentage of domestic oil and gas production and processing is prone to disruption by hurricanes,” the soon-to-be-published Pipeline and Hazardous Materials Safety Administration bulletin said.
Companies such as Shell Pipeline Company LP and Colonial Pipeline Co. have pipelines that may be affected by this bulletin.
PHMSA Recommendations
Infrastructure including offshore platforms and pipelines, onshore pumping stations, compressor stations and terminals could be damaged by these weather events, the bulletin said.
In preparation for hurricanes, pipeline operators should identify and notify marine vessel operators who work in shallow waters and in offshore areas of the locations of the underwater pipelines and the potential risks associated with regular operations such as use of fishing nets for the pipe, the vessel and the crew.
After a hurricane or disturbance, pipeline operators should be prepared to bring inland and offshore transmission facilities back online, conduct structural damage checks and aerial inspections of pipeline routes and evaluate potential damage from floating or jack-up rigs that could have moved, the bulletin said.
Operators should minimize and mitigate gas distribution systems' flooding-caused damage and notify PHMSA of any damage to pipeline facilities, the bulletin said.
The bulletin was signed June 18 by Jeffrey Wiese, PHMSA's associate administrator for pipeline safety, and will be published in the Federal Register June 23.
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Dominguez Becomes PHMSA Deputy Chief
Jun 22, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Marie Therese Dominguez, President Barack Obama's nominee to become the nation's top pipeline cop, today joined the federal agency in charge of fuel transportation safety as its No. 2.
Dominguez is the Pipeline and Hazardous Materials Safety Administration's new deputy administrator, according to an agency spokeswoman. She replaces Timothy Butters, who stepped down last month, ahead of her Senate confirmation hearings to become the permanent leader of the agency in charge of oil and gas pipeline safety.
PHMSA also shares jurisdiction with the Federal Railroad Administration over high-profile oil train safety regulations that are currently being challenged in court by the industry.
"Ms. Dominguez is an accomplished public sector manager with transportation infrastructure, safety and regulatory experience, and has managed successful organizational change in the public sector," PHMSA spokeswoman Artealia Gillard said by email.
Stacy Cummings, the agency's executive director, has been delegated the PHMSA administrator's duties by Transportation Secretary Anthony Foxx. -
States Act to Regulate Gathering Lines As Oil, Gas Exploration, Production Ramp Up
Jun 23, 2015 | BNA Daily Environment Report
By Tripp Baltz
As the U.S. energy boom continues, states are tightening their regulation of oil and gas gathering lines, pipelines that can fall into a regulatory limbo.
The Transportation Department has acknowledged the current framework of regulating gathering lines—pipe systems that carry oil, gas and natural gas liquids from production facilities to a processing facility, transmission line, storage facility or refinery—may not be appropriate given recent developments in oil exploration and production.
Advances in drilling technology, including the widespread use of horizontal drilling and hydraulic fracturing, have resulted in a significant number of new gathering systems being built, according to the National Association of Pipeline Safety Representatives, an organization of state regulators.
In the past, most gathering lines appeared to pose a much lower risk than other types of pipelines, according to the Pipeline and Hazardous Materials Safety Administration. PHMSA, which is part of the Transportation Department, is the agency that oversees most of the nation's 2.6 million miles of underground pipelines. Gathering lines were located in low population areas, used smaller-diameter pipe and operated at lower pressures, PHMSA said on a frequently asked questions website on the subject.
Currently, PHMSA regulates only about 17,437 miles of an estimated 240,000 miles of such lines in the U.S. Nonrural gathering pipelines are subject to some federal requirements for transmission pipelines.
Increasing Safety Concerns
Gathering lines now run across such prolific shale plays as the Bakken in North Dakota, the Denver-Julesburg Basin in Colorado, the Barnett in Texas and the Marcellus in Pennsylvania, Ohio and other Eastern states, the agency said.
A BNA Graphic/pipe19g1
As the population spreads into once-rural locations, more homes, schools and other occupied structures are being built near areas where gathering lines are being laid, often just three to four feet beneath the surface.
The lines being put into service in these various shale plays are “generally of much larger diameter and operating at higher pressure than traditional rural gas gathering lines, increasing the concern for safety of the environment and people near operations,” PHMSA said in the FAQ.
Given the boom in shale oil and gas production, the agency now is considering regulating rural gathering pipelines. PHMSA published an advance notice of proposed rulemaking in August 2011, and the comment period ended in January 2012. The agency's subsequent proposed rule has only recently made its way to the White House Office of Management and Budget for review (82 DEN A-6, 4/29/15).
Risk-Based Standards
Gathering lines are subject to PHMSA's pipeline safety standards at 49 C.F.R. 192 and 195. The rules establish two-tiered, risk-based safety standards for onshore gathering lines based on their location, maximum allowable operating pressure and pipe type.
While the PHMSA pipeline rules address gathering lines, the industry, several state regulators, and congressional representatives have highlighted the agency's failures to address long-standing pipeline and hazardous materials safety issues.
In 2011, the agency was directed by the Pipeline Safety, Regulatory Certainty and Job Creation Act (Pub. L. No. 112-90) to review gas and hazardous liquid gathering lines and report to Congress on the sufficiency of existing federal and state laws and rules on safety, the technical and economic challenges of applying existing federal rules to gathering lines not covered and to use a risk-based assessment to determine the need to modify or revoke existing federal exemptions for gathering lines.
“PHMSA hasn't implemented a lot of the regulations Congress directed it to do during the last re-authorization,” Matt Hite, vice president of government affairs for the Gas Processors Association in Washington, D.C., told Bloomberg BNA.
As the federal government moves slowly, states such as Ohio, North Dakota, Pennsylvania and Texas are now acting to address these lines as they answer public concerns about the potential for leaks and spills, or even blowouts and explosions (see related story).
Closer Look Needed
Environmental groups in Colorado are urging state regulators to take a closer look at gathering lines.
“The reality is there seems to be some regulatory uncertainty about how these pipelines are managed and regulated,” Jon Goldin-Dubois, president of Western Resources Advocates, an environmental group in Boulder, Colo., told Bloomberg BNA.
“More and more oil and gas products are being moved by pipelines,” he said. “It reduces accidents and truck traffic, but how are they being regulated? Is that process going to be robust enough to deal with the threats posed to groundwater, surface waters and wildlife habitat, as well as adequately address the public health concerns?” Goldin-Dubois asked.
Operators, facing homeowner complaints about increased truck traffic in neighborhoods near oil and gas production areas, describe pipelines “as a positive way forward,” said Sara Barwinski, a homeowner in Weld County, Colo., and a member of Weld Air & Water, a local environmental group.
“But we're struggling with what this means,” she told Bloomberg BNA. “Pipes leak. Would you rather live next to a tank that explodes or has fugitive emissions, or would you rather be near a pipeline that is not being monitored but which leaks? Who's minding the store?”
Trenching Machine Severed Pipeline
On Nov. 7, 2014, a construction company working for a midstream company in Weld County struck and ruptured a pipeline operated by DCP Midstream LP of Denver, according to a report filed with the state. The construction company was in the process of trenching a right of way to install a field gathering pipeline. Midstream operators manage a variety of tasks in getting hydrocarbons from the wellhead to storage or transmission, including gathering lines.
The trenching equipment struck an eight-inch, low-pressure field gathering line that contained natural gas, natural gas liquids and water. The rupture released about five barrels (240 gallons) of a condensate and water mixture into the pipeline trench and surrounding area.
While older gathering line systems generally used small diameter piping, in newer gathering line systems it is not unusual to find rural gas lines up to 30 inches in diameter and operating at a maximum allowable operating pressure of 1,480 pounds per square inch, much bigger and at higher pressures than in the past, the National Association of Pipeline Safety Representatives (NAPSR) said.
Pipelines are still the safest means of transporting hazardous liquids and natural gas, according to PHMSA.
Jurisdiction Delegated to States
For intrastate natural gas or hazardous liquids transmission and gathering pipelines, jurisdiction may be delegated to the states pursuant to a certification agreement between the Transportation Department and the state.
For example, in Colorado, PHMSA regulates all intrastate hazardous liquid pipelines—including regulated rural gathering lines—and all interstate natural gas and hazardous liquid pipelines, according to a December 2014 white paper by the Colorado Oil and Gas Conservation Commission (COGCC).
The Colorado Public Utilities Commission regulates all intrastate natural gas transmission, distribution and gathering pipelines, according to comprehensive pipeline safety standards established by PHMSA and incorporated by reference in Colorado. The COGCC only regulates exploration and production flowlines operated by oil and gas companies on the wellpad.
Rural Lines Unregulated
While PHMSA has established minimum federal safety standards for specific gas gathering lines, most rural gas lines—those in Class 1 areas with fewer than 10 human-occupied buildings located within 220 yards for every mile of pipeline—are not regulated, NAPSR said.
Again using Colorado as an example, the state and PHSMA do not regulate the rural gathering lines under the federal standards, although the lines are subject to the incident-reporting and pipeline marking requirements under Colorado Public Utilities Commission regulations.
Midstream gathering companies such as DCP Midstream, Kinder-Morgan Energy Partners LP, Dominion Midstream Partners LP, Plains All America Pipeline LP and Enterprise Products Partners LP are frustrated by the uncertainty associated with the regulation of gathering lines and pipelines more broadly, Hite said.
He added that the midstream companies are skeptical that more rules are needed for gathering lines. “Right now, we are in a tough economic time with the price of gas and the price of oil, while we are trying to take advantage of these amazing shale plays,” he said.
‘Got to Have Balance.’
Any proposed rule “should be risk-based,” he said. “You've got to have a balance. Most of the big incidents have been with transmission lines, not gathering lines. When we put them in the ground, we follow the highest industry standards.
“A lot of these incidents happen because someone didn't call before they started digging,” Hite said. “They are ignoring signs saying there is an underground pipeline. These lines are a lot safer than having trucks on the road and barges on the river.
“We don't believe regulation is the answer to everything,” he added.
“Industry says to the feds, ‘We think the states ought to do it,’ ” Bruce Baizel, Earthworks oil and gas accountability project coordinator in Durango, Colo., told Bloomberg BNA. “But the states aren't doing it. And the spill numbers? Nobody knows. There's no way of knowing how many spills are happening. If you don't measure, you don't know the answer to your question.”
‘Gathering’ Difficult to Define
As an oil and gas term, “gathering” can be difficult to define. Generally, a gathering pipeline begins after production—once the product has left the wellpad—and ends at a processing facility, storage tank, transmission line, refinery or distribution network.
Gathering lines typically run about three to four feet underground and are regulated in most states by the public utilities commission. They differ from flowlines, which contain produced wellhead fluids from individual wells and feed production facilities in or near the wellhead, and from transmission pipelines, which transport pure natural gas and hydrocarbon liquids—refined or unrefined—across long distances.
Flowlines tend to be regulated by state oil and gas commissions, while interstate transmission lines fall under PHMSA's purview.
Focus on Protecting Environment
As PHMSA considers expanding its purview, it remains focused on making sure “operators are doing all they can to protect the environment and the safety of the public that may live near these pipelines,” Damon Hill, spokesman for the agency, told Bloomberg BNA.
Much of the nation's oil and gas development, and the pipeline networks supporting it, are in “rural areas that are no longer rural,” Hill said. “There's a lot of development in the country where pipelines that were once in rural areas that are no longer as rural. We want to make sure operators are indeed making sure the unregulated pipelines are safe.”
PHMSA made several recommendations for change to address shortcomings in the regulatory structure when it issued the advance notice of proposed rulemaking four years ago. Since then, the proposed rule—mandated by Congress under the Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011—has sat for 10 months in the department's Office of the Secretary before it was finally sent to the White House Office of Management and Budget for review. OMB received the proposal (RIN 2137-AE72) on April 27 (82 DEN A-6, 4/29/15).
Updating Safety Requirements
The proposed rule would update safety requirements for gathering lines and other gas pipelines, including addressing repair criteria, assessment methods, certain pipeline data, risk assessments and potential integrity management program applicability expansion, according to the Transportation Department.
Because the proposed rule is now undergoing OMB review, PHMSA could not provide any additional information about how it will affect gathering lines, Hill said.
NAPSR is about to release a model set of regulations for states to use when developing their rules to deal with rural gathering lines, Paul Metro, manager of pipeline safety for the Pennsylvania Public Utility Commission, told BNA.
Metro, former chairman of the association, formed a task force to examine gathering lines regulation. The task force recently completed its work and the proposed model regulation is awaiting consideration by the association's legislative committee, he said.
White Paper on Best Practices
“We were concerned about the lack of regulations for gathering lines,” he said. “We believe regulation should contain such things as threshold pressure and diameter.”
Metro said the association also is working on a white paper to guide industry best practices.
Environmental groups and landowners acknowledge that underground pipelines are safer and less obtrusive than the transportation of oil and gas by truck.
Donn Boyle, a homeowner near Gill, Colo., told Bloomberg BNA a new gathering pipeline was laid just to the west of his land last summer, running several miles to the north and south. A new gathering facility lies along the line to the south, he said.
“Pipelines make sense logistically,” he said. “But they need to regulate this. It needs to be safe and clean. That's our main thing, make the industry safe and clean.”
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North Dakota, Ohio, Pennsylvania, Texas Tackle Gathering Line Rules Their Own Ways
Jun 23, 2015 | BNA Daily Environment Report
By Nushin Huq, Leslie Pappas, Bebe Raupe, and Mark Wolski
Spurred by an increase in gathering lines driven by the oil and gas boom, states are increasing their oversight of gathering lines that are not subject to federal regulation.
To ensure safety and reliability in the industry, North Dakota, Ohio, Pennsylvania and Texas have recently acted to tighten their rules covering gathering lines, approving requirements in areas of leak detection, construction standards, reporting, siting and other areas.
North Dakota
For example, North Dakota expects to increase its monitoring of gathering pipelines in 2016, as the state Legislature recently passed a bill giving the University of North Dakota the go-ahead to study monitoring and leak detection systems for the pipelines.
The school's Energy and Environmental Research Center (EERC) will study the systems and present a final report to the North Dakota Industrial Commission by Dec. 1. Rulemaking for monitoring systems and construction standards will then begin.
Alison Ritter, spokeswoman for the North Dakota Department of Mineral Resources, told Bloomberg BNA it hopes the rules will outline best practices for leak detection and monitoring for the state's 20,000 miles of gathering pipelines. She noted that H.B. 1358, sponsored by Rep. Dick Anderson (R) and signed by Gov. Jack Dalrymple (R), also gave the DMR authority to hire eight employees to set up and operate a pipeline program for the state.
According to Ritter, H.B. 1358 is North Dakota's second stab at regulating gathering pipelines. She said legislation enacted in 2013 required pipeline operators to report what fluids were being sent through their lines and the pressure at which they were operating.
Expands Requirements
The 2015 legislation expands on the information required from operators, Ritter said. She said pipeline operators will be required to detail to the state their plans for leak protection and monitoring. They must also submit independent pipeline inspection results, engineering specifications and drawings for all their pipelines.
The EERC study must not only examine monitoring of gathering lines, it also must analyze the spills and leaks that have occurred in North Dakota and compare them with those that have occurred in other large oil and gas producing states that have substantial volumes of produced water, which returns from the well.
H.B. 1358 also will require the Industrial Commission, which includes the state governor, attorney general and commissioner of agriculture, to work with the DMR to examine the feasibility and cost effectiveness of requiring leak detection and monitoring technology on new and existing lines.
Ritter said most pipeline operators in the state have their own leak detection systems, since it is in their best interests to deliver their product. The state wants such systems examined, and perhaps implemented, as a safety issue so that the affects of any leaks are minimized, she said.
Ohio Extends Safety Rules to Gathering Lines
Ohio recently extended gas pipeline safety rules to gathering lines used to collect gas from drill sites that are not subject to federal safety rules, according to the Public Utilities Commission of Ohio.
Prior to legislation adopted in 2012 (Sub. S.B. 315), spurred by drilling in the state's Utica and Marcellus shale plays, gathering lines were basically unregulated, according to state officials.
That oversight was addressed under the law establishing a new regulatory framework for oil and gas development in the state, PUCO spokesman Matt Schilling told Bloomberg BNA.
Now the PUCO, the Ohio Department of Natural Resources and the Ohio Power Siting Board oversee various aspects of the state's natural gas pipeline system to ensure operations are safe, reliable and environmentally sound, Schilling said.
Local zoning authorities have jurisdiction over the siting of gathering lines, he said, but operators must notify the PUCO before constructing new pipelines and again before placing these lines into service.
Pre-Construction Notice Required
While the Ohio Power Siting Board does not have jurisdiction over gathering lines, operators are required to submit a pre-construction notice to the board at least 21 days before any gathering pipeline is operational so that its inspectors can ensure the line is following state and federal regulations.
Shawn Bennett, executive vice president of the Ohio Oil and Gas Association, told Bloomberg BNA that the industry has no objections to the pipeline safety requirements put in place by Sub. S.B. 315.
“These requirements mirror federal standards already in place for the transportation of natural gas,” said Bennett. “All new horizontal well gathering lines must be designed, installed, constructed, initially inspected and tested in accordance with the requirements of Part 192 as well as implement measures to include corrosion control, damage prevention programs, maximum allowable pressure programs.”
Recently an eastern Ohio property owner publicly questioned the state's definition of pipeline safety, telling a local newspaper that gathering lines were snaking along her land and even hanging from trees.
According to a Department of Natural Resources statement, pipelines ideally should be buried two feet below the surface, but exemptions may be granted in cases where the terrain and the presence of shallow bedrock make line burial difficult as well as impractical for timely pipeline repairs.
A follow-up inspection of the site determined that the lines comply with Ohio law, the department said.
Registry of Pipeline Operators in Pennsylvania
The Pennsylvania Department of Environmental Protection does not have specific regulations to address gathering lines, PA DEP spokeswoman Amanda Witman told Bloomberg BNA in an e-mail.
In Pennsylvania, the Public Utility Commission directs and enforces safety standards that apply to pipeline facilities and is authorized to enforce federal safety standards established by the Pipeline and Hazardous Materials Safety Administration (PHMSA).
Under Pennsylvania Act 127 of 2011, the Gas and Hazardous Liquids Pipelines Act, also known as “the Pipeline Act,” the PUC's authority was expanded to enforce federal pipeline safety laws as they relate to gas and hazardous liquids pipeline equipment and facilities in Pennsylvania, according to Robin Tilley, the PUC's deputy press secretary.
According to an FAQ on the PUC website, the Pipeline Act requires the commission to maintain a registry of pipeline operators in Pennsylvania, including gathering companies, midstream companies, pipeline companies, gas distribution systems that are not public utilities and other distribution systems subject to federal pipeline safety laws.
Safety Jurisdiction
In an e-mail exchange, Tilley told Bloomberg BNA that the PUC has safety jurisdiction over all intrastate distribution pipelines, all classes of intrastate transmission pipelines, Classes 2, 3 and 4 intrastate gathering pipelines, nonpublic utility distribution lines, and Class 1 unconventional pipelines, which are those used to transport Marcellus Shale gas.
Under Act 127, approximately 13,000 miles of gathering lines have been registered with the PUC since 2011, Tilley said.
“The registration process is simply to inform the PUC that the system exists—the pipeline mileage, material and country of origin of the material used to build the pipeline,” Tilley told Bloomberg BNA. “Each operator, however, is required to continuously inspect their own systems, and PUC inspectors regularly inspect them as well for compliance to PHMSA regulations.”
The PUC currently has 13 inspectors, and two additional positions have been approved and are in the process of being filled, Tilley said. The PUC enforces PHMSA reporting requirements on leaks and spills, and it signs an agreement each year to enforce the federal agency's regulations. Inspectors primarily look at facility damages, corrosion and operator qualification, she said.
Pennsylvania hasn't passed any new rules since Act 127 that would change or increase the monitoring of gathering lines, and “there is nothing currently on the horizon,” Tilley said.
Texas Railroad Commission Drafting Rules
The Texas Railroad Commission staff is in the process of drafting a rule that would give the commission's pipeline safety section the authority to investigate gathering pipelines in the event of an accident, incident or threat to public safety, Ramona Nye, TRRC spokeswoman, told Bloomberg BNA.
The rule also would give the commission authority to investigate the pipelines should a complaint be received about a gathering line's operational safety.
House Bill 2982, enacted in 2013 and effective Sept. 1, 2013, amended state laws giving the Texas Railroad Commission authority, after Sept. 1, 2015, to regulate pipeline safety for intrastate pipelines to include transportation and gathering facilities for gas in Class 1 locations and hazardous liquids and carbon dioxide in rural locations.
“While a lot of people in Texas didn't believe there was a gap under the railroad commission's interpretation, this makes it absolutely clear there is no gap between the point of production and effectively the transmission lines that they connect to, either in the federal rules or the state rules,” Charles Yarbrough II, vice president of rates and regulatory affairs at Atmos Pipeline-Texas, told Bloomberg BNA. Yarbrough is also the Texas Pipeline Association's committee chairman for pipeline safety.
Authority to Impose New Regulations
The new law not only gives the commission the authority to investigate incidents concerning Class 1 lines, it also gives it the power to impose new regulations, which must be based on the risk to public safety, he said.
“That's so we don't need to necessarily impose all the federal regulations that apply to transmission lines but [the commission] could look at what are the risks of these lines to the public and craft appropriate regulations based on the risk,” Yarbrough said.
In October 2014, the commission conducted a survey of pipeline operators of rural gathering pipelines and pipeline facilities to gain additional information on the risk these transportation activities and facilities present to the public in order to implement H.B. 2982, the commission said in a notice.
The survey requested information such as pipe material, outer diameter, wall thickness, pipe grade, fluid being transported, proximity to structures and populated areas and other risk factors, such as prior incident or accidents.
As of 2014, there are about 4,004 miles of natural gas gathering pipelines in Texas, according to the Texas Railroad Commission website.
While the proposed rules have not been released yet, Yarbrough said operators are expecting that the new regulations will require some actions to be taken by operators in Texas going forward.
“There may be some changes in some design and construction requirements,” Yarbrough said. “If they do so, that would mean on a going forward basis.”
“But something like line markers or participation in damage prevention programs, those are the kind of requirements that can be layered in existing lines as well as new lines,” Yarbrough said. “It kind of depends on what type of regulation you are talking about.”
Yarbrough said the delay from PHMSA was a little frustrating for operators, who would like to know what the new regulations will be so they can prepare. He said it's understandable given the full plate of directives given to PHMSA by Congress.
“Safety is a number one priority,” Yarbrough said. “But we want regulations that will actually make things safer, not just cause money to be spent.”
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Oil, Gas Industry Warns of Risks in Raising Royalties, Fees for Work on Federal Lands
Jun 23, 2015 | BNA Daily Environment Report
By Alan Kovski
If the Bureau of Land Management proceeds with royalty overhaul and related financial changes for oil and natural gas operations on onshore federal lands, it could easily shrink federal revenues and snuff out many energy production opportunities by misunderstanding the economics of the business, industry officials have told the BLM.
The government needs to look at total investment returns, not royalties or fees in isolation, to understand what is workable, oil and gas associations said.
The warning comments came in response to an advance notice of proposed rulemaking published in April: Oil and Gas Leasing; Royalty on Production, Rental Payments, Minimum Acceptable Bids, Bonding Requirements and Civil Penalty Assessments. (80 Fed. Reg. 22,148; RIN 1004-AE41) (75 DEN A-6, 4/20/15).
By contrast, environmental activists enthusiastically endorsed the idea of raising all costs considered by the BLM.
“BLM has an opportunity to demonstrate a commitment to conservation in developing a fiscally responsible oil and gas program,” the Wilderness Society said. “This should include raising royalty rates, annual rental fees, minimum bids, bonds and civil penalty caps.”
Many More Costs Cited
Oil and gas companies listed an array of additional costs beyond those cited by the BLM to explain why it could be unreasonable to raise royalties and rents.
“Other features of a lease that affect the lease's value include, but are not limited to, operational costs, regulatory costs, taxes, transportation, and distribution costs,” said a joint filing from two trade groups, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance.
The New Mexico Oil and Gas Association listed a number of risks, expenses and operational uncertainties that make federal lands less attractive and less profitable than a private or state lease:
• restrictions on timing, occupancy and siting;
• extensive environmental reviews, often at company expense;
• application processing fees;
• uncertainty of when and even if a lease can be developed;
• ever-increasing litigation costs;
• risks associated with regulatory changes.
Companies Often Avoid Federal Lands
“It is no secret that under present circumstances, and other conditions being equal, oil and natural gas producers already work to avoid projects on federal lands,” said the IPAA and the Western Energy Alliance.
The two groups cited statistics on rising nonfederal oil and gas production and compared them with a stagnation in production from federal lands.
“The reasons for this divergence are not difficult to understand,” the two groups said. “A complex network of regulatory requirements—both existing and proposed—as well as logistical inefficiencies inherent in the management of federal lands represents an enormous incentive for operators to focus their efforts on state and private lands.”
Similarly, the American Petroleum Institute (API) cited a decline in lease acquisition, permitting and drilling on federal land relative to state and private land and attributed it to the speed with which a lease can be developed and the ultimate cost of compliance.
Among many factors, the API noted logistics, explaining that federal leases often are in frontier or undeveloped areas “that carry substantially increased geologic and business risk, greater distance from infrastructure, and likely much greater costs.”
Royalty Increase Discussed
The BLM in its advance notice of proposed rulemaking asked whether federal royalties were giving taxpayers a fair return. The rate is fixed at 12.5 percent for noncompetitive leases and a set at a minimum of 12.5 percent for leases drawing competitive bids.
State royalties often are 16.67 percent or 18.75 percent and sometimes higher. Royalties on private lands also can be higher.
Environmental activists urged the BLM to raise the minimum wherever it is not fixed by statute. Form letters gathered and submitted by the Sierra Club advocated raising federal onshore rates to the levels of state rates.
The API told the BLM that any change in royalty rates should take into account other factors, such as the bonus bids used to win competitive leases.
“Indeed on a discounted basis, the BLM has extracted more value in recent decades from bonus payments than from royalty payments,” the API said.
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Frontier Fracking Showdown Pits Feds Against Western Boom States
Jun 23, 2015 | Bloomberg Politics
By Andrew M Harris and Mark Drajem
High noon for the Obama administration’s stricter rules for fracking on public lands has arrived on the Wyoming range.
Four western states at the center of the shale oil boom are headed for a courtroom showdown Tuesday over who should have the last word on rules for extracting oil and natural gas from federal property within their borders.
The U.S. government says it can set standards for more than 100,000 wells that make up 11 percent of the nation’s natural gas output and 5 percent of its oil. The states argue they’re doing plenty to make sure fracking is done safely, so oversight should be left to them. With the new rules set to take effect Wednesday, U.S. District Judge Scott Skavdahl in Casper, Wyoming, may decide in court who is right.
Producers say they can’t afford the increased costs and lengthy delays they fear will accompany the new federal rules. Drillers are already struggling because of falling oil prices, which has led to a spate of bankruptcies and missed bond payments. Oil dropped from more than $100 a barrel to as low as $44 in March, undercutting the “shale gale” that drove U.S. production to near record levels.
“This is far more driven by the Obama administration saying it wants to do something on hydraulic fracturing,” Dan Naatz, vice president of the Independent Petroleum Association of America, said in an interview. “The process in place now does a great job.”
Federal officials say they’ll yield to existing state regulations when they’re as good or better than U.S. standards. Public Confidence
“As we continue to offer millions of acres of public lands for conventional and renewable energy production, it is absolutely critical the public have confidence that transparent and effective safety and environmental protections are in place,” U.S. Secretary of the Interior Sally Jewell said in March.
About 90 percent of the wells on federal land rely on hydraulic fracturing, or fracking, the pumping of sand, water and chemicals to free natural gas and oil within subterranean rock. While fracking has catapulted the U.S. to world leadership in oil production, it’s also been blamed for air pollution, tainted groundwater and even earthquakes.
The new rules, announced in March by the Bureau of Land Management, require drillers to ensure the structural integrity of wells and disclose the chemicals injected into them. The bureau, the biggest U.S. landowner, oversees about 700 million acres of underground mineral rights. Federal Stewardship
The rules are “premised on the unexceptional notion that the BLM, the federal agency charged with management and stewardship of those lands, would be able to set terms and conditions for their use,” federal officials argue in court filings.
The petroleum association and the Western Energy Alliance sued in March to block the federal rules. Wyoming followed with its own lawsuit, which was soon joined by Colorado, North Dakota and most recently Utah.
Each sits atop oil-rich shale: the Green River Basin in Wyoming, the Uinta Basin in Utah, the Piceance Creek Basin in Colorado and the Bakken Formation that has made North Dakota the second-biggest U.S. producer behind Texas.
A study prepared for the Western Energy Alliance estimated the federal rules will add $97,000 to the cost of each well. Federal officials estimate the additional cost at $5,500 per well.
The case is State of Wyoming v. U.S. Department of the Interior, 15-cv-00043, U.S. District Court, District of Wyoming (Casper).
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Jun 23, 2015 | The New York Times - Opinion Pages
By David Brooks
Pope Francis is one of the world’s most inspiring figures. There are passages in his new encyclical on the environment that beautifully place human beings within the seamless garment of life. And yet over all the encyclical is surprisingly disappointing.
Legitimate warnings about the perils of global warming morph into 1970s-style doom-mongering about technological civilization. There are too many overdrawn statements like “The earth, our home, is beginning to look more and more like an immense pile of filth.”
Hardest to accept, though, is the moral premise implied throughout the encyclical: that the only legitimate human relationships are based on compassion, harmony and love, and that arrangements based on self-interest and competition are inherently destructive.
The pope has a section on work in the encyclical. The section’s heroes are St. Francis of Assisi and monks — emblems of selfless love who seek to return, the pope says, to a state of “original innocence.”
He is relentlessly negative, on the other hand, when describing institutions in which people compete for political power or economic gain. At one point he links self-interest with violence. He comes out against technological advances that will improve productivity by replacing human work. He specifically condemns market-based mechanisms to solve environmental problems, even though these cap-and-trade programs are up and running in places like California.
Moral realists, including Catholic ones, should be able to worship and emulate a God of perfect love and still appreciate systems, like democracy and capitalism, that harness self-interest. But Francis doesn’t seem to have practical strategies for a fallen world. He neglects the obvious truth that the qualities that do harm can often, when carefully directed, do enormous good. Within marriage, lust can lead to childbearing. Within a regulated market, greed can lead to entrepreneurship and economic innovation. Within a constitution, the desire for fame can lead to political greatness.
You would never know from the encyclical that we are living through the greatest reduction in poverty in human history. A raw and rugged capitalism in Asia has led, ironically, to a great expansion of the middle class and great gains in human dignity.
You would never know that in many parts of the world, like the United States, the rivers and skies are getting cleaner. The race for riches, ironically, produces the wealth that can be used to clean the environment.
A few years ago, a team of researchers led by Daniel Esty of Yale looked at the environmental health of 150 countries. The nations with higher income per capita had better environmental ratings. As countries get richer they invest to tackle environmental problems that directly kill human beings (though they don’t necessarily tackle problems that despoil the natural commons).
You would never suspect, from this encyclical, that over the last decade, one of the most castigated industries has, ironically, produced some of the most important economic and environmental gains. I’m talking of course about fracking.
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There was recently a vogue for polemical antifracking documentaries like “Gasland” that purport to show that fracking is causing flammable tap water and other horrors. Continue reading the main story Recent Comments Bruce Just now
And let us not forget that in 2110, our inheritors will cluck and lament "how incredible, unbelievable that during the 21st century they... Jude Ryan 1 minute ago
Only an intelligent conservative could be as disingenuous as Mr. Brooks is in this sad essay. His attempts to rationalize the fouling of all... Steve Goldberg 3 minutes ago
Mr. Brooks picks and chooses to try to make his point. No mention of the proven link between fracking and earthquakes. No mention of the... See All Comments Write a comment
But a recent Environmental Protection Agency study found that there was no evidence that fracking was causing widespread harm to the nation’s water supply. On the contrary, there’s some evidence that fracking is a net environmental plus.
That’s because cheap natural gas from fracking displaces coal. A study by the Breakthrough Institute found coal-powered electricity declined to 37 percent from 50 percent of the generation mix between 2007 and 2012. Because natural gas has just half as much global-warming potential as coal, energy-related carbon emissions have declined more in the U.S. than in any other country over that time.
Fracking has also been an enormous boon to the nation’s wealth and the well-being of its people. In a new report called “America’s Unconventional Energy Opportunity,” Michael E. Porter, David S. Gee and Gregory J. Pope conclude that gas and oil resources extracted through fracking have already added more than $430 billion to annual gross domestic product and supported more than 2.7 million jobs that pay, on average, twice the median U.S. salary.
Pope Francis is a wonderful example of how to be a truly good person. But if we had followed his line of analysis, neither the Asian economic miracle nor the technology-based American energy revolution would have happened. There’d be no awareness that though industrialization can lead to catastrophic pollution in the short term (China), over the long haul both people and nature are better off with technological progress, growth and regulated affluence.
The innocence of the dove has to be accompanied by the wisdom of the serpent — the awareness that programs based on the purity of the heart backfire; the irony that the best social programs harvest the low but steady motivations of people as they actually are.
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Hub Adds Sections On Compliance Tools, Grid Reliability
Jun 22, 2015 | E&E News PM
By Rod Kuckro
Today, E&E Publishing is adding a robust section to the Power Plan Hub, a curated, singular place for resources that assist stakeholders wrestling with compliance issues associated with U.S. EPA's proposed Clean Power Plan.
The "Power Plan Toolbox" contains more than 90 prominent documents, information portals and compliance calculators prepared by regulators, consultants, think tanks and industry associations. They are organized by topic and date.
These resources -- offered by a wide range of interests supporting and opposing the regulation -- explain how the rule works, highlight carbon-cutting options for states to consider, and try to predict how changes to the electric sector might affect costs and grid reliability.
If you think there is a resource missing that should be included, email it to powerplanhub@eenews.net for consideration.
Go to E&E's Power Plan Hub to read more and to see the latest news, state summaries and developments.
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Immediate Action on Climate Will Yield Economic, Health Benefits, McCarthy Say
Jun 23, 2015 | BNA Daily Environment Report
By Andrew M. Ballard
While immediate global climate action would protect human health and the environment, the economic impact would be “staggering,” the head of the Environmental Protection Agency said June 22.
EPA Administrator Gina McCarthy said her agency has taken a sector-by-sector look at the economic impacts of acting or not acting on climate change and the differences are significant. By taking immediate action, the U.S. can “turn the challenge of climate change into an opportunity,” she said.
McCarthy made her comments at the Air & Waste Management Association's annual conference, which runs from June 22 to June 25 in Raleigh, North Carolina.
According to McCarthy, the EPA's evaluation “looked at what we could do to preserve our landscapes, to preserve our industries and our jobs,” while also yielding health and environmental benefits. The report McCarthy cited, “Climate Change in the United States: Benefits of Global Action,” was released by the agency earlier June 22 (see related story).
Pending Carbon Rules
Regarding the finalization of the administration's Clean Power Plan (RIN 2060-AR33), McCarthy told meeting participants that “we are getting near the finish line.”
In the rulemaking, the EPA “didn't tell the states how to get there, but we did tell them that they could get there,” she added. Certain improvements will be made to the final version of the rule, McCarthy said, but states should take the opportunity provided to “chart their own destiny” and work collaboratively with the federal government and industry to effectively and cost-effectively address greenhouse gas emissions.
Responding to a question from the audience, McCarthy said the EPA chose to regulate greenhouse gas emissions under Section 111(d) of the Clean Air Act because “it was the right section to regulate carbon” under the act. The section also provides important flexibility and fosters collaboration between the states and federal government, she said.
McCarthy also told meeting participants that the EPA was not trying to create incentives for the use of one type of fuel over another in its efforts to address carbon emissions.
“EPA is not an energy policy agency; we are a pollution-reduction agency, and we want to stick with that,” she said.
In addition, the administrator said EPA plans to issue model rules and a federal implementation plan for states to consider when it releases its final carbon dioxide control rules.
States, Utilities, Advocates Comment
Also at the meeting, Donald van der Vaart, the North Carolina secretary of environment and natural resources, said the EPA should let litigation about the authority for federal carbon rulemaking be resolved before requiring states to write their rules. “We are always chasing that rabbit,” he said, among other comments.
Cari Boyce, vice president of environmental and energy policy for Duke Energy, said the utility supports lowering carbon emissions but considers the proposed timelines too aggressive. Duke Energy expressed concerns that the reductions were “too much too soon” and “believe that [EPA has] heard us.
Vickie Patton, general counsel for the Environmental Defense Fund, called on the meeting participants to support efforts to control methane emissions. “We need your help in addressing this super-pollutant,” she said.
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Court Should Deny OSM Interpretation Of Mine Laws on Permitting, Advocates Say
| BNA Daily Environment Report
By Rachel Leven
The Interior Department's finding that inactivity at a mine site for a certain period after receiving a permit doesn't automatically terminate the permit—a finding that was the basis for its decision that the state of Alaska didn't have to address related violations of a Sutton, Alaska, mine—should be denied and the Alaska decision should be vacated, environmental and public interest groups said (Castle Mountain Coal. v. OSM, D. Alaska, No. 3:15-CV-00043, amended complaint filed, 6/17/15).
The Office of Surface Mining Reclamation and Enforcement violated the Surface Mining Control and Reclamation Act, the state version of surface mining law and the Administrative Procedure Act, by misinterpreting surface mining law, the Sierra Club and others told the U.S. District Court for the District of Alaska in a June 17 amended complaint.
The case centers on complaints filed with OSM for the Alaska Department of Natural Resources in November 2011 that stated mining activities at Usibelli Coal Mine Inc.'s Wishbone Hill Mine were being conducted in violation of Alaska Surface Coal Mining Control and Reclamation Act.
Valid Mining Permit
In addition, the Castle Mountain Coalition and other groups alleged that Usibelli's road-building and clearing operations pertaining to the mine were being conducted without a mining valid permit, because the company's initial permit—approved in 1991—had expired.
The permits had expired, in part, because of the surface mining law's provision that automatically terminates permits three years after they are issued—barring valid extensions—if there is no activity at the mine site.
The Alaska department declined in December 2011 to inspect the mine and issue a cessation order because it claimed there was no violation of law, saying the permits had not expired.
At the additional request of public interest groups, in November 2014, the Office of Surface Mining made final a decision on the case, but it backed the Alaska department. The state department had good cause to decline citizens' requests and said it believed there was no violation because federal and state law can be interpreted to not require automatic permit termination, OSM said.
The Sierra Club, Castle Mountain Coalition, Cook Inlet Keeper, Alaska Center for the Environment, Alaska Community Action on Toxics and Chickaloon Village Traditional Council said this decision was arbitrary and capricious. In addition to other requests, the groups are asking for injunctive relief and all other reasonable laws, fees and relief.
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Appalachian Democrats Attempt to Obama-Proof Their Coal Credentials
Jun 22, 2015 | National Journal
By Karyn Bruggeman
How do you convince coal-state voters that you support your state's energy industry while the national party hits it with a host of new regulations?
It's a question for which many Appalachian Democrats have failed to find an adequate answer during President Obama's time in office, and for many, that has gone a long way toward getting them ousted from office.
Clearly, simply opposing Obama's agenda isn't enough, as many Democrats who fought Obama's coal agenda at every turn found themselves ousted from office all the same. Take former Democratic Rep. Nick Rahall of West Virginia, who voted against the Democrats' landmark cap-and-trade climate bill, held tremendous sway over much of Democrats' legislation on the regulation of coal mining via his committee chairmanships in the House, and in 2009 jumped out of a plane as a testament to his support for the coal industry. Five years later, Rahall was solidly defeated by Evan Jenkins, who spent much of the campaign tying Rahall to Obama's regulatory campaign.
But in two governor's races, Democratic candidates again are trying to position themselves as being pro-coal enough for voter support. And if these two candidates can't inoculate themselves from connections to Obama's—and the national Democratic Party's—coal agenda, it's difficult to see other Appalachian Democrats doing so anytime soon.
In Kentucky, the country's third-largest coal-producing state, voters this fall will pick between Democratic Attorney General Jack Conway and surprise Republican gubernatorial primary winner Matt Bevin. Conway is part of a legal challenge to the Environmental Protection Agency's proposed Clean Power Plan, which, in the pursuit of reducing the carbon dioxide emissions driving climate change, would impose new restrictions on emissions from coal-fired power plants. The challenge was recently dismissed by a federal court, which said it does not hear challenges to rules that are still in draft form. Conway pledged to move forward with a new legal challenge once the rule is finalized, which is scheduled to happen this summer (though with large-scale rules, rules often run behind schedule).
Conway suggested that, as governor, he would not implement a plan for Kentucky—a step that Senate Majority Leader Mitch McConnell has urged all governors to take. In policy terms, bucking the plan would not only separate Conway from national Democrats, but also from his Democratic would-be predecessor, outgoing Kentucky Gov. Steve Beshear, who has been critical of the proposed standards but also is working to comply with them.
"Jack's work as the only Democratic attorney general to sue President Obama's administration to stop the new EPA coal rules is a clear example of how he always puts Kentucky values first, even if that means breaking with the national party," Conway spokesman Daniel Kemp said.
In West Virginia, where annual coal production trails only Wyoming, the Democrats' pick for governor is Jim Justice, a wealthy businessman who has a long history of owning and operating coal mines throughout the region. Justice told National Journal that he opposes the EPA plan: "The EPA overreach must come to an end. It is not fair to keep changing the rules for our hardworking coal miners. As governor, I would join the bipartisan opposition to these rules and work tirelessly to get our miners back to work by finding alternative uses for coal and diversifying our economy."
Justice cuts an atypical profile for a Democrat. He owns a handful of coal mine operations in West Virginia, and his biggest liability is likely to be a business record so long in the coal industry that it will be picked apart by his opponents. Though Justice is running as a Democrat, he hopes to inoculate himself from traditional partisan attacks by focusing on his individual merits, absent strong attachments to either party. Justice previously identified as a Republican.
All the same, West Virginia State Sen. Bill Cole, who appears to be the likely Republican nominee in the gubernatorial race, already is including coal as a central pillar of his candidacy.
But while Conway and Justice attempt to burnish their pro-coal credentials, it appears that Democratic 2016 presidential front-runner Hillary Clinton will continue advocating Obama's climate and energy policies. In a December speech to the League of Conservation Voters, Clinton said the carbon emissions regulations "must be protected at all costs" and described President Obama's actions to combat climate change as "just the beginning of what is needed."
And barring a stunning reversal of fortune, the difficult economic environment for Appalachian coal will continue, both because of new regulations on coal-fired power plants and mountaintop-removal coal mining, and because of an influx of cheap natural gas that is convincing many utilities to make that their fuel of choice for future plants.
Still, there are signs that Conway's aggressive record may allow him to inoculate himself from some attacks that have sunk other Democrats. So far, national groups such as the Republican Governors Association have focused their efforts on tying Conway to Obama not on coal, but on Conway's support for the Affordable Care Act and the state's ACA-facilitated health exchange, Kynect. But it doesn't take much to draw a connection. In the 2014 Kentucky Senate race, Democrat Alison Lundergan Grimes was attacked for coal-related comments made by donors to her campaign.What makes Conway different, however, is that he's running for state office, and that—according to Kentucky Coal Association president Bill Bissett—is an asset, as it allows him to act independently of Obama and a Democratic Senate agenda led by Sen. Harry Reid.
"First and foremost will be the fact that he'll have no need at all to interact with a gentleman named Harry Reid," Bissett said. "And the fact that Reid is not part of this picture at all helps a lot, because that was of grave concern to us—was any connection to Harry Reid, which [to] some was possibly worse than any connection to President Obama."
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White House Climate Strategy Hits Its Stride
Jun 22, 2015 | PoliticoPro
By Andrew Restuccia
Critics of the EPA’s climate change agenda should brace themselves — the Obama administration isn’t letting up.
President Barack Obama has launched an unprecedented regulatory assault on greenhouse gas emissions, putting the White House’s executive branch power on display and enraging conservative opponents as the president works to cement his environmental legacy.
It’s the result of 24 months of heavy lifting by EPA that started when Obama unveiled a sweeping climate plan on a sweltering day at Georgetown University two years ago this week, telling students there he refused “to condemn your generation and future generations to a planet that’s beyond fixing.”
Now, the administration is in full swing: The EPA on Friday proposed new fuel efficiency rules for heavy-duty trucks, the agency recently took the first step toward cutting airplane emissions, and its planning to curb methane emissions from new oil and gas operations.
That’s on top of the Interior Department’s plans to regulate hydraulic fracturing on federal lands, EPA’s proposal to veer the country’s ethanol trajectory away from Congress’ goals, and new water rules that have enraged agricultural groups.
It’s all building to August, when the EPA is expected to finalize first-ever greenhouse gas rules for the nation’s massive fleet of power plants, a plan that’s set to pummel an already-ailing coal industry.
Environmentalists, who for years have complained about the failure of the U.S. to take on climate change, are now hailing Obama’s vigor in trying to cut the emissions blamed for the warming planet.
“The president’s climate action plan identified the biggest opportunities to cut carbon pollution using the authority of existing laws. His agencies are now delivering, as promised,” said David Doniger, director of the Natural Resources Defense Council’s climate and clean air program.
But Republicans are furious, deriding the strategy as executive overreach for a policy that Obama couldn’t get passed in Congress.
“EPA’s overreach comes at a significant cost to American taxpayers and energy consumers,” Senate Environment and Public Works Committee Chairman Jim Inhofe (R-Okla.), the most vocal climate change skeptic in Congress, said through a spokeswoman. “The administration’s extremist agenda on global warming will reduce grid reliability, raise the cost of energy, undermine the Clean Air Act, move jobs overseas and ignores the will of Congress.”
Obama’s climate agenda hasn’t won him many friends in the fossil fuel industry either.
“What started out as an academic speech two years ago will long be remembered for its role in leading us down a path away from the intent of Congress and the people and towards governance through executive fiat,” Laura Sheehan, a spokeswoman for the American Coalition for Clean Coal Electricity, a coal industry group. “So far-reaching are the administration’s environmental missives that they will undermine our nation’s energy security and wreak havoc on families’ budgets; all for negligible climate impact.”
Obama jaunted into his second term with a renewed desire to take action on climate change. But, having been burned by a first-term push to pass cap-and-trade legislation, he knew Congress had no appetite for the issue. In a much-heralded speech at Georgetown University in June 2013, the president unveiled a 21-page plan that outlined his agenda.
The takeaway from the speech was clear: The administration would go it alone, abandoning its years-long push for a climate bill in favor of dozens of new regulations and initiatives that touch on most major sectors of the economy.
Two years later, scarcely a week goes by without the administration unveiling a new climate change initiative.
The EPA last week proposed a new regulation that would require makers of heavy-duty trucks to hike fuel efficiency by up to 24 percent. The rule, the agency said, would save 1 billion metric tons of carbon dioxide over the life of the vehicles sold during the program.
Administration officials hope the domestic climate push will help build momentum toward a new international climate change deal. Negotiators are meeting in Paris later this year with hopes of reaching an agreement that would for the first time commit every country to domestic plans to curb emissions.
The administration has made rehabilitating the United States’ image abroad a priority after almost two decades of half-hearted attempts to reach significant climate treaties.
“They really are putting the United States on the map as a global leader in tackling this problem,” said Bob Perciasepe, who served as deputy administrator of the EPA before becoming president of the Center for Climate and Energy Solutions last year. ”A lot of work is going to need to be done over the next decades, but the work they’re doing now is setting the stage.”
William Reilly, the EPA administrator under George H. W. Bush, said the clock ticking down on Obama’s second term was also likely driving EPA’s productivity.
“I think there might be some element of clearing the decks and setting things in motion before a new administration comes in and starts changing things,” he said.
Still, EPA has spent decades crafting rules that are designed to stand to legal challenges — which are already lining up against the upcoming rule for power plants.
“The EPA has had a lot of animosity to deal with and it’s gotten good,” he said. “You’ve got to be the best because everybody is all over you.”
In tandem with the summertime push, the Obama administration has launched a sophisticated media campaign aimed at promoting its climate agenda, touting its efforts to cut emissions everywhere from Twitter to the Coast Guard.
Reporters from major news outlets were invited to the White House on Monday for a briefing on a new EPA report outlining the long-term benefits of global crackdown on emissions. The peer-reviewed report found that limiting the global temperature increase to about 2 degrees above pre-industrial levels would prevent thousands of U.S. deaths and boost the economy by billions of dollars.
“In every part of our economy … we see major benefits to the U.S. from global action on climate change,” EPA Administrator Gina McCarthy said.
The administration will mark the two-year anniversary of Obama’s Georgetown climate change speech with a series of events, including at a White House climate change and public health summit on Tuesday.
Meanwhile Republicans are pushing back hard, challenging the president’s climate agenda at every turn. EPA has long been a favorite punching bag of the right and Republicans in Congress haven’t missed an opportunity to warn about its climate regulations.
“The president is harming our economy with his approach to these things, which makes our energy costlier at home and allows the rest of the world to continue increasing emissions,” Sen. John Barrasso (R-Wyo.) told POLITICO recently.
Senate Majority Leader Mitch McConnell has launched a “just say no” campaign in which he encourages states to refuse to comply with EPA’s not-yet-finalized climate regulations. Congressional appropriators have also taken a hatchet to the agency’s budget.
Lawmakers are pushing a series of bills that would effectively block EPA rules. The Senate Environment and Public Works Committee will hold a hearing Tuesday on legislation written by Sen. Shelley Moore Capito (R-W.Va.) that would cripple EPA’s proposed power plant regulations, and the House is expected to approve legislation this week that would exempt states from EPA’s climate regulations if a governor determines they will harm the economy or threaten electric reliability.
But Obama administration officials say they aren’t worried.
“The president has made it pretty clear that he’s not going to accept efforts [by Congress] to undermine this critically important work,” Brian Deese, Obama’s senior adviser, told reporters Monday.
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EPA Report Highlights Costs Of Inaction As Part Of New Obama Climate Push
Jun 22, 2015 | InsideEPA
By Dawn Reeves
Two years after President Obama announced his Climate Action Plan, his administration is launching a week-long series of events to highlight ongoing efforts, starting with a new peer-reviewed EPA report that seeks to demonstrate the high costs of not reducing greenhouse gases (GHGs) and that global action to cut emissions would have enormous domestic benefits.
The June 22 report, “Climate Change in the United States: Benefits of Global Action,” compares two future scenarios: one with unspecified global action on climate change significant enough to keep temperature increases at 2 degrees Celsius in 2100 and a future without climate action.
It then quantifies differences in health, infrastructure and ecosystem impacts, and estimates the domestic benefits of reducing GHGs across 20 sectors. While the report does not provide an overall estimate of climate action, it provides estimates by each of the sectors it considers.
For example, it finds that significantly reducing global GHG emissions by 2100 will also reduce conventional air pollutants and improve air quality, resulting in 57,000 fewer premature deaths valued at $930 billion. Limiting extreme temperatures is expected to result in 12,000 fewer deaths, valued at $200 billion.
Such findings appear likely to push back against critics who have faulted the administration for calculating climate-related damages on a global scale rather than attempting to calculate damages in the United States. The critics, including Sen. David Vitter (R-LA), have charged that by globalizing the damages, it allows the administration to generate significantly higher estimates of the benefits of domestic regulations, even though the costs are borne locally.
For example, Vitter complained at an early congressional hearing on EPA's power plant rule last summer that its “benefits are largely enjoyed by other countries while all of the costs are borne by the U.S.”
Coming just days after Pope Francis' encyclical provided a high-profile moral argument to address climate change, the report appears to further bolster the administration.
Brian Deese, a senior advisor to Obama, told reporters during a June 22 briefing that the report underscores the president's “argument that we not only have a moral obligation to act but we also have an economic opportunity.”
Deese and other administration officials touted a host of recent climate-related actions the administration is taking as part of its broader push to focus attention to the issue this week and to convince other countries to commit to significant international action at the United Nations Framework Convention on Climate Change meeting in Paris late this year, though there is no commitment that Obama will attend.
For example, officials are also planning a June 23 White House climate and public health summit, and a June 23 briefing with administration officials on climate action as part of a strategic U.S.-China dialogue.
Domestic Benefits
Obama climate and energy advisor Dan Utech ticked off a slew of climate actions taken just in the past month, including EPA and the Transportation Department's June 19 proposal for phase 2 truck GHG and fuel economy rules; EPA's recent proposed aircraft GHG engagement finding; U.S. Department of Agriculture's (USDA) announcement of $110 million in investments for farmers and rural workers to address climate impacts such as droughts and wildfires; an agreement with major companies to reduce GHGs and improve water efficiency in rural areas; and a summit of youth leaders. He also touted huge Energy Department budget requests to increase energy efficiency and renewable energy research.
Most are part of the administration's broad Climate Action Plan, which the president unveiled during a June 25, 2013, event at Georgetown University, though EPA's upcoming power plant GHG rules -- slated for release late this summer -- are the centerpiece of the agenda.
EPA Administrator Gina McCarthy told reporters at the White House briefing that the peer-reviewed report quantifies for the first time the benefits the United States will achieve if there is significant global action to cut emissions.
The report shows that climate impacts are happening now “but we do have a choice on how we move forward and what we want our future to look like. The report shows that it's really not too late to avoid the worst impacts of climate change, which is a very hopeful sign,” she said. But she added, “These decisions are not going to wait for 50 years. They are today's decisions.”
The report estimates the benefits that would be felt in 20 U.S. sectors across the economy, including the 57,000 reduced preventable deaths from exposure to conventional air pollutants that are expected to rise with climate impacts.
The report also breaks down impacts into regions, noting for example that without action, summer in Illinois will feel more like Louisiana, South Dakota will feel more like Arkansas and Maryland will feel like Northern Florida, McCarthy said.
Stringent action now could in 2100 save tens of millions of Western acres from wildfires, an area equivalent to the size of the state of Maryland, and could save most of Hawaii's coral reefs projected to be lost to climate impacts. Further, it could save an estimated $7 billion in road maintenance expense and recover an estimated $110 in wages lost due to extreme temperatures.
Those are “really big numbers, folks,” McCarthy said, noting the estimated benefits are conservative because the report is limited to U.S. sectors and does not consider international benefits.
Another key finding of the report includes that global action now leads to greater benefits over time, and that delaying action will likely reduce those benefits. It also finds that climate impacts are not equally distributed in the United States. California could face increasing drought risks, the Rocky Mountains could see significant increases in wildfires, and the mid-Atlantic and Southeast may experience more extreme temperatures, heavy rainfall, sea level rise and storm surge.
The report does not analyze any specific policy, including the administration's announced climate actions, but only looks at the two broad scenarios: stringent action and no action.
Other Steps
Deese explained that the steps the administration is pursuing under the Climate Action Plan -- including EPA's proposed rules to cut power sector GHGs, its vehicle and truck rules, its methane strategy, Department of Energy efficiency rules and USDA voluntary strategies -- will achieve the 26 to 28 percent cut in emissions from 2005 levels by 2025, which is the target the president has put forward to the UN.
“And that's what we are going to use to try to help push other countries to join in the kind of global action that this report reinforces,” he said. He added that there is no assumption that future actions would be required beyond what has already been identified.
McCarthy added that the stringent global scenario in the report is “aggressive . . . but one we believe is still achievable.”
And Deese expressed optimism that other countries will commit to take the lofty steps required, noting a recent G7 statement on a low-carbon economic transition as well as last November's widely publicized climate agreement where China committed to peaking emissions by 2030.
Achieving stringent international commitments is “one of the most important and significant things we can achieve this year,” he said. He also downplayed concerns about Congress blocking the climate action, warning that Obama will “not accept efforts to undermine this critically important work.” And he said the administration is “very comfortable” in its authority to negotiate internationally.
McCarthy acknowledged that, “We cannot know yet whether the president's strategy will be successful in showing U.S. leadership [globally] . . . [but] we're going to deliver the president's Climate Action Plan and we hope that this very visible effort to show what the world will look like in the U.S. and the tremendous benefits that could accrue provide a wake-up call.”
She also stressed the scientific underpinnings to the report, which began with looking at already-peer-reviewed science, modeled those findings and had those results peer-reviewed as well. The report is a product of the Climate Change Impacts & Risk Analysis project, which is led by EPA with partners such as the Massachusetts Institute of Technology, the Pacific Northwest National Lab and the National Renewable Energy Laboratory.
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The EPA’s Unrealistic Climate Report
Jun 23, 2015 | The Washington Post
By Stephen Stromberg
The Environmental Protection Agency released a report Monday predicting a range of expensive, even deadly consequences if the world’s governments do nothing to combat climate change.
If the world twiddles its thumbs, instead of restraining the rise in average global temperature to no more than 2 degrees Celsius, 12,000 more Americans would die every year from temperature extremes by 2100, and the country’s annual economic toll in road and bridge maintenance, lost labor, water quality degradation, energy use and crop damage would surpass $100 billion, according to the EPA report. Some 35 percent of Hawaiian coral and 34 percent of the nation’s oysters would die off, and hundreds of thousands of acres of cold-water fish habitat would disappear. If, on the other hand, the world keeps average warming to 2 degrees, the United States would avoid all of these consequences.
Here’s the problem: Though several major new international commitments will move the planet in the right direction, the world is almost certainly not going to hit its 2 degree target. An International Energy Agency (IEA) analysis released last week found that governments are still falling far short. The IEA mapped out a path to keeping the world at or below 2 degrees, showing that it’s technically doable at a reasonable cost, but the politics of achieving the required emissions reductions are extremely difficult.
What would the EPA’s figures look like in a world in which humanity misses the 2 degree target but still does a lot more than nothing? It’s unclear; the EPA did not feature results from intermediate warming pathways — in other words, the agency did not publicly game out what’s most likely to happen. The EPA might be wary of giving legitimacy to any warming goal beyond 2 degrees or of making the potential benefits of constraining emissions seem smaller. But an analysis that compares only the best-case and worst-case scenarios, leaving out more realistic ones, provides only a sense of the maximum possible benefits to cutting emissions, not what the country’s climate policies are likely to accomplish.
EPA Administrator Gina McCarthy argued Monday that her agency’s report isn’t supposed to be comprehensive; it’s supposed to give ordinary Americans who care about fisheries or forests or who work outside a sense of what’s at stake for their children and grandchildren. “This future will be personal to them,” she said in an interview with me. “The mistake that people make is to fight the climate deniers,” she elaborated. “The real challenge in a democracy is to get the people who are sitting on the sidelines.”
Yet Americans should have a sense of the benefits of constraining emissions — and the risks of not doing so — even if government policies fail to prevent the world from surpassing the 2 degree threshold. A brief section of the report suggests that the country could still avoid substantial negative consequences even if the world passes the 2 degree mark. Among other things, that sort of finding would help shut down Republicans who criticize climate programs on the grounds that emissions cuts would be expensive yet too small to do much good. McCarthy might not expect to change their minds. But she should be trying to make their arguments less persuasive to those on the sidelines.
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California Climate Plan Has Inland Areas Condemning Costs to Citizens, Industry
Jun 23, 2015 | BNA Daily Environment Report
By Esmé E. Deprez and James Nash
The way inland California lawmakers see it, the only benefit to their constituents from Gov. Jerry Brown's expansion of carbon pollution laws will be cleaner air to breathe as they wait at the unemployment office.
Brown and other Democrats are pushing legislation to reduce greenhouse gases caused by burning fossil fuels to a fraction of what they were a quarter-century ago. The state would make utilities get a greater share of electricity from low-pollution sources, compel industries to cut smokestack emissions further and encourage cleaner cars on roads.
In a state of 39 million dominated by Democrats, politics falls along regional rather than partisan lines. Just as California's north and south fight over water amid a record drought, the climate legislation has widened longstanding rifts between more affluent, Democratic-leaning cities along the coast and poorer, more conservative towns in the interior.
“Families losing their jobs cannot afford solar panels on their homes when they can no longer afford their homes because they have no job,” state Sen. Jeff Stone (R) from Riverside County, told colleagues during a debate on S.B. 350 this month. He called it “coastal elitism at the worst, an act that will cut jobs in Central Valley communities and benefit rich urban areas that already have more jobs and economic diversity.”
Opponents such as Stone praise the goals of climate-change regulations but say private-sector innovation should drive clean technology, not government mandates.
They warn that tightening California's rules, already the nation's toughest, will increase gas and electricity costs for companies, farmers and the poor, eliminating jobs and driving business to less-expensive states. Rural residents traveling long distances to work, school and medical care will be disproportionately hurt, they say.
Spur Growth
Proponents says the rules could bolster California's $2.3 trillion economy—already the world's seventh largest—by stabilizing energy costs, creating jobs that can't be outsourced and lowering emissions from oil refineries, automobiles, power plants and factories. Absent action, they warn, the effects of climate change—long droughts, hotter temperatures and rising seas—would overwhelm the state's economy.
The bills call for California to get at least half its electricity from renewable sources such as solar and wind by 2030 and to lower carbon air pollution to 80 percent below 1990 levels within 35 years. New rules would seek to halve the petroleum Californians burn and require a 50 percent increase in energy efficiency in buildings.
The bills have passed the Senate and await hearings in the Assembly, where they also are expected to win approval. Democrats control both houses.
“The world is watching what California does,” Senate President pro Tem Kevin de Leon (D) from Los Angeles, said in an interview. “If we can prove that we can move forward with far-reaching carbon-reduction policies while at the same time reducing harmful pollutants that our children breathe into their lungs and grow the economy, then we know that the Chinese, the Mexicans, the Canadians, the Indians will follow.”
Jobs created to install solar panels or retrofit buildings for energy efficiency don't require advanced degrees, de Leon said. Subsidized solar panels for low-income families in Fresno lower electricity bills, and more fuel-efficient hybrids in East Sacramento cost less at the pump.
Utopian Society
That is scant consolation to Chad Hathaway, who owns a 27-person oil-drilling operation in Kern County, about 110 miles (180 kilometers) northeast of Los Angeles. That is where more than 70 percent of oil is drilled in California, which trails only Texas and North Dakota in production, according to the U.S. Energy Information Administration.
Hathaway said the governor and his allies don't appreciate the harm their campaign would cause Central Valley farming counties, which have been ravaged by unemployment rates as high as 11.1 percent, a four-year drought and declining oil prices that sent drilling to a record low.
“They live in a utopian society,” Hathaway said. “People who are truly struggling in the San Joaquin Valley are poor Hispanic people or poor people in general. They can't afford to turn on the air conditioning or drive their cars.”
Manufacturers in California already pay more for electricity. In March, such users paid an average of 10.63 cents per kilowatt-hour, 57 percent higher than the national average, according to the U.S. Energy Information Administration.
Past Dissent
Past climate-change legislation in California has drawn concern even from Democrats. A June 2014 letter signed by 16 Assembly Democrats warned that an expansion of the state's cap-and-trade program to cover transportation fuels would hurt the poor the most.
This year's legislation is backed by a coalition of organizations including the Sierra Club and the Environmental Defense Fund, companies including EBay Inc. and KB Home, and billionaire environmentalist Tom Steyer.
Steyer says mandates for more renewable energy will drive innovation. That will decrease costs in the long run, while the scarcity of some fossil fuels will cause prices to rise.
“The idea that the curves aren't going to cross in 15 years is not something that I lie awake worrying about,” Steyer, founder of San Francisco-based Farallon Capital Management LLC, said in an interview. “This is going to turn out much better from an innovation standpoint than anyone understands now.” Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:8.0pt; mso-para-margin-left:0in; line-height:107%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}
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Jun 22, 2015 | The New York Times
By Nicholas Bakalar
Exposure to air pollution may hasten brain aging, a new study has found.
Researchers studied 1,403 women without dementia who were initially enrolled in a large health study from 1996 to 1998. They measured their brain volume with M.R.I. scans in 2005 and 2006, when the women were 71 to 89 years old.
Using residential histories and air pollution data, they estimated their exposure to air pollution from 1999 to 2006. They used data recorded at monitoring sites on exposure to PM 2.5 — tiny particulate matter that easily penetrates the lungs.
Each increase of 3.49 micrograms per cubic centimeter cumulative exposure to pollutants was associated with a 6.23 cubic centimeter decrease in white matter, the equivalent of one to two years of brain aging.
The association remained after adjusting for many variables, including age, smoking, physical activity, blood pressure, body mass index, education and income.
Previous studies have shown that air pollution can cause inflammation and damage to the vascular system, but this study, in The Annals of Neurology, showed damage to the brain itself.
“This tells us that the damage air pollution can impart goes beyond the circulatory system,” said the lead author, Dr. Jiu-Chiuan Chen, an associate professor of preventive medicine at the Keck School of Medicine at the University of Southern California. “Particles in the ambient air are an environmental neurotoxin to the aging brain.”
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Five Democratic Governors Urge EPA To Follow Science on Ozone Standards
Jun 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Five Democratic governors urged the Environmental Protection Agency to follow through on the agency's proposal to revise national standards for ground-level ozone.
Govs. Jerry Brown (Calif.), Maggie Hassan (N.H.), Jay Inslee (Wash.), Dannel Malloy (Conn.) and Peter Shumlin (Vt.) sent a June 19 letter to EPA Administrator Gina McCarthy in support of tighter ozone standards. The governors said the current 75 parts per billion standards, set in 2008 under President George W. Bush, are inadequate to protect public health.
The EPA in November proposed (RIN 2060-AP38) to revise the Bush-era ozone standards to somewhere in the range of 65 ppb to 70 ppb. The agency is under a court-ordered deadline of Oct. 1 to issue a final decision on whether to revise or retain the standards.
The governors said that while air quality has improved under current regulations, the science “clearly demonstrates” that adverse health effects can occur at levels of exposure permitted under the current standards.
“We urge you to finalize the proposed ozone standards in a timely manner that reflects sound science and settled law,” the governors wrote.
The five Democratic governors became the latest to voice their opinion on the ozone proposal, which is supported by various public health and environmental groups and opposed by various industries. Eleven other governors, including Gov. Scott Walker (R-Wis.), sent a March letter requesting that the EPA retain the current standards.
Organizations on both sides of the ozone issue have increased lobbying and other advocacy efforts since the release of the EPA's proposed rule on ozone (84 DEN A-5, 5/1/15).
A coalition of 99 trade organizations, including leading critics of the ozone proposal such as the National Association of Manufacturers and the American Petroleum Institute, sent a June 19 letter to President Barack Obama requesting that the president instruct the EPA not move ahead with the ozone regulation. Those groups said a tighter ozone standard will negatively effect the U.S. economy and the competitiveness of U.S. businesses in the global marketplace.
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EPA Bolsters Argument for Global Action On Climate Change in Report on Costs, Benefits
Jun 23, 2015 | BNA Daily Environment Report
By Anthony Adragna and Andrew Childers
The Environmental Protection Agency bolstered its case for global action to address climate change in a June 22 report that details the benefits of reducing greenhouse gas emissions.
The report, “Climate Change in the United States: Benefits of Global Action,” looks at the benefits of global greenhouse gas mitigation across water resources, electricity, infrastructure, public health, agriculture and forestry and ecosystems, and details the risks of failure to act. The data were collected as part of the EPA's ongoing Climate Change Impacts and Risk Analysis project.
“Left unchecked, climate change threatens our health, our infrastructure and the outdoors we love, but more importantly the report shows that global climate action to cut carbon pollution will save lives, it will reduce the damages and it will avoid costs,” EPA Administrator Gina McCarthy told reporters at a White House briefing. “It's really not too late to avoid the worst impacts of climate—which is a very hopeful sign—but it really relies on us taking action soon and making that action significant.”
Both the report methodology and the scientific underpinnings were peer-reviewed, officials said. The EPA developed the report in collaboration with the Massachusetts Institute of Technology, Pacific Northwest National Lab, National Renewable Energy Laboratory and other organizations.
Taking action to keep global temperature increases below 2 degrees Celsius would prevent 57,000 deaths from poor air quality in 2100, the report said. Taking action on climate change could also avoid $110 billion in lost labor due to rising temperatures in 2100.
Reducing greenhouse gas emissions could also benefit the power sector, the report said, saving the industry between $10 billion and $34 billion in costs by 2050. Climate mitigation could also reduce coastal property damage from sea level rise from $5 trillion through 2100 to $810 billion.
The report comes on the second anniversary of President Barack Obama's climate action plan, which directed federal agencies to take action to reduce greenhouse gas emissions. As the centerpiece of that plan, the EPA in August will finalize carbon dioxide emissions standards for both new (RIN 2060–AQ91) and existing (RIN 2060-AR33) power plants (106 DEN A-4, 6/3/15).
The report does not evaluate the benefits and costs of any specific greenhouse gas mitigation strategy or adaptation policies.
Administration Focuses on Paris
Brian Deese, senior adviser to the president, said the White House would host a summit June 23 and events throughout this week on the impact of climate change on public health.
The Obama administration has been ratcheting up its calls for international action ahead of formal high-level negotiations in Paris from Nov. 30 to Dec. 11 where countries are expected to reach an international agreement to address climate change. The product of those talks is not expected to be a treaty, which would be subject to Senate ratification, and Deese defended the administration's approach.
“We feel comfortable and confident that we have the authority that we need to get this done,” Deese said.
The U.S. has pledged to cut its greenhouse gas emissions by between 26 percent to 28 percent by 2025 from 2005 levels (62 DEN A-1, 4/1/15).
Deese said those types of reductions were possible through the executive actions already announced under Obama's climate action plan.
“The 26 to 28 percent [goal] is predicated on implementing the president's climate action plan and we believe that is achievable with the existing authorities and the existing tools that we have,” Deese said. “So there is a not an assumption of some future action beyond those actions that we've identified but it assumes that we execute the slate of actions that we've laid out.”
Critics of the Obama administration's plan for tackling climate change have said the 26 percent to 28 percent reduction goal is not realistic and doubt the U.S. can achieve such reductions within such a short time period.
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Environmentalists' Lawsuit Over West Virginia NPDES Authority Partially Dismissed
Jun 23, 2015 | BNA Daily Environment Report
By Bebe Raupe
A citizens' lawsuit against the Environmental Protection Agency asking that West Virginia be stripped of its National Pollutant Discharge Elimination System program authority has been partially dismissed by a federal judge (Ohio Valley Envtl. Coal. v. McCarthy, S.D. W.Va., No. 3:15-0277, 6/19/2015).
However, the U.S. District Court for the Southern District of West Virginia didn't dismiss the lawsuit entirely, allowing environmentalist litigants the chance have an appellate court review whether the EPA's failure to respond to the petition over the shortcomings of the West Virginia Department of Environmental Protection constitutes “agency action unlawfully withheld or unreasonably delayed.”
In his June 19 decision, Judge Robert Chambers said the advocacy groups behind the lawsuit asked the EPA in 2009 to evaluate West Virginia's handling of the NPDES program, but the agency has failed to do so.
The Clean Water Act allows the EPA to delegate NPDES authority to states whose permit programs meet or exceed federal standards.
According to the Sierra Club, the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition—the groups bringing this lawsuit—West Virginia falls far below that standard, having allowed coal industry concerns to undermine its mission to prevent water pollution, especially from mine runoff.
Duty to Respond?
In January the groups filed a two-count federal complaint charging the EPA violated the Clean Water Act because it failed to perform its nondiscretionary duty to respond in writing to petitions submitted pursuant to Section 402(c)(3), 33 U.S.C. §1342(c)(3) of the act and had committed “unreasonable delay” under the Administrative Procedure Act.
According to the groups' complaint, submission of the 2009 petition challenging West Virginia's NPDES authority triggered the EPA's duty under the Administrative Procedure Act “to respond and proceed to conclude the matters presented in Plaintiffs' Petition within a reasonable time.”
The EPA's inaction over this prolonged period “is patently unreasonable,” the complaint said.
Judge Chambers dismissed the first count, agreeing with the EPA's argument that, “based on the plain terms of the statute,” the Clean Water Act doesn't impose a mandatory duty on the agency to respond to a petition brought pursuant to Section 402(c)(3).
Moreover, he said, “The statute makes no attempt to specify when, if ever, the EPA must hold a public hearing or when, if ever, the EPA must make a determination regarding the adequacy of a state NPDES permit program.”
Chambers stayed the groups' complaint of inaction by the EPA in violation of the Administrative Procedure Act, contingent upon them bringing an appropriate action directly before the Fourth District Court of Appeals within 30 days.
Jurisdiction for ultimate review of an agency's alleged inaction is exclusively held by the Court of Appeals, he said, under 33 U.S.C. Section 1369(b)(1)(D).
In January, when the environmentalists filed suit to force the EPA to respond to their West Virginia petition, the Sierra Club and Kentuckians for the Commonwealth filed an identical lawsuit regarding Kentucky's NPDES program (05 DEN A-16, 1/8/15).
Both suits name EPA Administrator Gina McCarthy as lead defendant.
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EPA, Agriculture Industry Spar Over CWA Rule's Potential Impacts On Sector
Jun 23, 2015 | InsideEPA
By Bridget DiCosmo
EPA and the agriculture industry are sparring over the potential impacts that the agency's Clean Water Act (CWA) jurisdiction rule could have on permitting for the sector and other regulatory requirements, suggesting competing claims that could add to what are expected to be a host of industry groups' legal challenges to the final rule.
"Ag got some pretty good exclusions" in the final rule, one industry source says, noting the language preserving regulatory exclusions for prior converted cropland and codifying for the first time the practice of excluding farm and feedstock ponds. The source compares this to sectors involving linear projects or land disturbances, such as mining, oil and gas development, or housebuilding, which under the new rule could face increased CWA section 404 permitting.
One environmentalist says that agriculture is "treated disproportionately leniently in the rule" because of the number of exclusions provided for the sector. "Specifically, the rule provides that 'waters being used for established normal farming, ranching and silvicultural activities are not adjacent,' even when similar waters elsewhere would be considered 'adjacent,' and be guaranteed protection," the environmentalist says.
In general, section 404 of the CWA requires permits issued by the Army Corps of Engineers to authorize the discharge of dredge-and-fill material into jurisdictional waters, but section 404(f) exempts established or ongoing "normal farming, ranching, and silviculture activities," including seeding, plowing, cultivating, and others from permitting.
In the final rule, EPA and the Corps say that the definition of "adjacent" in the rule -- which describes waters automatically considered jurisdictional -- does not include those waters in which established, normal farming, silviculture, and ranching activities occur. "Wetlands and farm ponds in which normal farming activities occur, as those terms are used in Section 404(f) of the Clean Water Act and its implementing regulations, are not jurisdictional under the Act as an 'adjacent' water," the rule says.
But the American Farm Bureau Federation says in an analysis of the final rule that EPA has narrowly construed the exemption. The Farm Bureau released the analysis June 11 in a package of documents it says outline how the rule will "give the agency sweeping powers to regulate land use despite a body of law clearly prohibiting such overreach.”
In its "Fact or Fiction? Shedding the Light on EPA's Facts About the New Waters of the U.S. Rule," document, the Farm Bureau says that the "exemption only applies to moving dirt (not applying fertilizer or crop protection products), and it has been interpreted very narrowly by the agencies."
Agricultural Exemptions
An EPA spokesman says, "Neither the states nor EPA have required a CWA permit for farmers applying fertilizer to their crops," noting that a CWA general permit allows use of pesticide or herbicides when applied in a manner consistent with the label.
But the analysis document says, "Under EPA's interpretation of the agricultural exemptions, many farmers will not qualify for an exemption and will face permitting requirements and potentially devastating enforcement liability as a result of this rule."
The agencies previously sought to use an interpretive rule issued alongside the proposed version of the jurisdiction rule to spell out what farming procedures are exempt, but withdrew the rule in response to a congressional mandate spurred by broad push-back on the policy.
The Farm Bureau analysis says the agencies have historically taken the position that "normal" farming only refers to activities at established operations "ongoing at the same location since the 1977 exemption was created." The document says that during the comment period, EPA officials in meetings with industry "admitted their position that farming that started after 1977 in a jurisdictional feature, and new farming today in a jurisdictional feature, does require a section 404 permit -- but 'only for the first year'" beyond which it would be "established."
As recently as June 3, EPA officials have stated in meetings that their position is that farmers who started farming after 1977 without a CWA section 404 permit, in "wetlands or ephemeral stormwater paths that the rule now defines as 'waters of the U.S.,' were not 'established' and therefore violated the Clean Water Act by farming without a permit," the Farm Bureau says.
However, the EPA spokesman refutes the claim, saying that "EPA officials have consistently said that farming operations started after 1977 remain covered by the exemption."
Additionally, the document reiterates industry's concerns with the rule's definition of "tributary," as "characterized by the presence of physical indicators of a bed and banks and ordinary high water mark (OHWM)" saying that using "indications" to show existence of a tributary would allow use of "remote sensing or mapping information" or other "desktop tools." "There does not need to be any actual or visible bed, bank and OHWM," to identify a tributary, which are automatically subject to jurisdiction under the rule.
In a June 12 blog post by EPA de facto water chief Ken Kopocis, entitled "The Facts about the Clean Water Act Rule and Agriculture," Kopocis writes that the terms included in the definition are "exactly the same features used today by the agencies to determine the presence of a tributary" and that by codifying the terms in the rule, it "will ensure the result will not be an expansion of jurisdiction but instead more predictability and consistency."
The rule, which EPA and the Corps issued May 27, aims to clarify which waters are protected under the CWA following confusion resulting from competing tests that emerged as a result of the Supreme Court's 2006 ruling in Rapanos v. United States in 2006.
Jurisdiction Tests
One test, outlined by Justice Anthony Kennedy in a concurring opinion, said that wetlands, whether "alone or in combination with similarly situated lands in the region," pose a "significant nexus" and are therefore jurisdictional when they "significantly affect the chemical, physical, and biological integrity" of downstream, traditionally navigable waters.
By contrast, the plurality opinion in Rapanos written by Justice Antonin Scalia held that only "relatively permanent" waterbodies that connect to traditional navigable waters, and wetlands that have a "continuous surface connection" to such relatively permanent water bodies, are jurisdictional under the water law.
The final rule adopts the language from the Kennedy test, finding that tributaries and "adjacent waters" share a significant nexus with downstream waters and are jurisdictional, identifying specific types of other waters, such as prairie potholes, that could share a significant nexus to be assessed on a case-by-case basis.
A second industry source says that the rule is a "large expansion of jurisdiction," in particular wetlands, and "any industry that had a problem with the CWA's regulation of wetlands pre-rule will have an even bigger problem post-rule, e.g., homebuilders, natural resource extraction, agriculture."
One energy source says the rule could potentially impact both the number of CWA 404 permits natural gas drillers might have to obtain because the rule would "sweep in large parts of the country" and could trigger an increase oil spill response plans where oil is stored onsite over a certain volume.
But the environmentalist notes that industry groups pushed the Bush EPA to develop a process for getting an approved jurisdictional determination to allow project proponents to avoid case-by-case review, which is often "time-consuming and resource-intensive," and that the rule also excludes roughly a dozen kinds of features, "providing a legal shield that didn't previously exist." Moreover, businesses that depend on clean water for their product or manufacturing or because it is vital to the services they offer, such as recreational boating or fishing, will benefit from the enhanced protection against pollution form the rule, that source adds.
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(ACC Mentioned) Senate Passes Legislation to Reform Freight Rail Policies
Jun 22, 2015 | Global Trade
By Michael White
The U.S. Senate has approved S.B.808, the Surface Transportation Board Reauthorization Act of 2015, by unanimous consent.
Sponsored by Senators John Thune (R-South Dakota) and Bill Nelson (D-Florida), the bill will make substantial changes to the Surface Transportation Board (STB). The first substantive changes to the panel will have a significant impact on how freight moves by rail through the U.S. supply chain.
In addition to winning the support of the full Senate, the legislation was supported by the 45-plus trade associations that form the Rail Customer Coalition. Members include the American Farm Bureau federation, the Alliance of Automobile Manufacturers, the Steel Manufacturers Council, and the American Chemical Council (ACC).
“Over the past few years, a growing number of policymakers have learned what so many manufacturers, farmers and energy producers know all too well: the Surface Transportation Board and the nation’s freight rail polices are in desperate need of modernization,” says ACC President and CEO, Cal Dooley.
The legislation calls for the STB—which was created in 1995 as the successor to the old Interstate Commerce Commission—to be expanded from three members to five members, which will reduce the need to rely heavily on staff.
According to the bill, the expansion “will allow two members to speak directly to each other without violating Sunshine Laws, reducing the need for communicating between staff.”
LEGISLATION CALLS FOR EXPEDITED HANDLING OF RAIL RATE CASES
The bill also establishes the STB as an independent agency, removing it from under the Department of Transportation and putting it on the same level of independence as its predecessor, the Interstate Commerce Commission. It also requires the Board to provide quarterly reports describing the progress it has made in all unfinished regulatory proceedings.
Rate cases should be expedited under the new bill which will also require reporting to allow for tracking of compliance with the new rate case deadlines. Current rate cases average three years for the most complex cases.
The STB will also be given the authority to initiate investigations on its own initiative. Currently the STB can only exercise its authority upon a formal complaint which many shippers are reluctant to do.
The Board’s arbitration procedures will be expanded to apply to rail rate cases, raising the relief cap for non-rate case arbitration from $200,000 to $2,000,000. For rate case arbitrations the cap is established at $25,000,000 over five years.
The STB’s Comptroller General is directed to commence a study of rate bundling which precludes many shippers from challenging just those rates that they deem unreasonable. The bill intends for this to be the first step in finding a solution to this very complex problem.
The bill also helps to keep the search for rate case alternatives at the forefront by requiring that the Board reports—within one year of the its passage—on rate case methodologies addressing the sufficiency, complexity and cost effectiveness of the current large case methodology and indicating whether alternative methodologies exist.
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Public Interest Crude-by-Rail Rule Suits To Move to D.C. Circuit Partially Due to DOT
Jun 23, 2015 | BNA Daily Environment Report
By Rachel Leven
Environmental and public interest groups are moving their challenges to a recently finalized Transportation Department rule governing crude-by-rail shipments to the U.S. Court of Appeals for the District of Columbia Circuit (Sierra Club v. Foxx, 9th Cir., No. 15-71461, motion to dismiss filed, 6/18/15; Riverkeeper Inc. v. DOT, 2nd Cir., No. 15-01609, motion to dismiss filed, 6/19/15).
At least two groups—Riverkeeper Inc. and a coalition led by Earthjustice—have stated in motions to dismiss that they will sue the federal agency in the D.C. Circuit rather than through the circuits they had initially sued in, and Riverkeeper attributed the change to the Transportation Department. An attorney for the Illinois village of Barrington and city of Aurora told Bloomberg BNA his lawsuit will likely move to the D.C. Circuit, too.
“While Riverkeeper does not concur with USDOT's conclusions regarding selection of the appropriate venue, Riverkeeper has decided not to contest UDOT's position,” Riverkeeper, an environmental group, wrote to the U.S. Court of Appeals for the Second Circuit in its June 19 motion to dismiss.
At least two railroad and oil industry challenges have already been filed in the D.C. Circuit. The Transportation Department's Pipeline and Hazardous Materials Safety Administration declined to comment to Bloomberg BNA on the change of venue or on whether it would seek to consolidate the cases into one lawsuit.
The lawsuits center on a final PHMSA rule published in the Federal Register May 8 that lays out tank car and operational control standards for transportation of large shipments of flammable liquids, including crude oil, by rail. Groups have taken issue with several provisions of the final rule, from brake requirements to speed restrictions, and many challenges are at odds with one another.
Circuit to Circuit
Richard Henry Streeter, an attorney representing the Illinois communities, told Bloomberg BNA he is likely to file by June 29 his case in the D.C. Circuit. Streeter hasn't filed his motion to dismiss in the U.S. Court of Appeals for the Seventh Circuit yet (Village of Barrington v. DOT, 7th Cir., No. 15-02040, complaint filed, 5/13/15).
Dan Estrin, Pace Environmental Litigation Clinic Inc. attorney on behalf of Riverkeepeer, told Bloomberg BNA Riverkeeper is likely to join the larger environmental coalition in filing suit in the D.C. Circuit, rather than remaining separate. Estrin filed his motion to dismiss in the U.S. Court of Appeals for the Second Circuit on June 19.
The Sierra Club didn't respond to Bloomberg BNA's message asking when its coalition that is made up of Earthjustice, ForestEthics, Washington Environmental Council, Waterkeeper Alliance, Friends of the Columbia Gorge, Spokane Riverkeeper and Center for Biological Diversity will move to the D.C. Circuit.
The group filed its motion to dismiss in the U.S. Court of Appeals for the Ninth Circuit on June 18.
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Elliott Confirmed To New Term On Surface Transportation Board
Jun 23, 2015 | E&E Daily News
By Sean Reilly
Daniel Elliott won confirmation to a new term on the Surface Transportation Board yesterday on a Senate voice vote. The vote returns Elliott, a one-time labor lawyer, to the railroad regulatory agency, where he served as chairman from 2009 until his term expired last December.
Before that point, President Obama had nominated Elliott for another five-year term, but the Senate did not act before adjourning for the year. Obama then renominated him in January.
The board, which is charged with settling rate disputes between freight railroads and shippers, has three governing members. Its decisions have a "long-lasting impact on our nation's economic competitiveness," Sen. Bill Nelson (D-Fla.), the ranking member of the Senate Commerce, Science and Transportation Committee, said before the vote. "We need individuals who are qualified to serve, and Daniel Elliott is such an individual."
At a confirmation hearing last month, Elliott called the current system for handling disputes expensive and time-consuming and underscored his commitment to changing it (E&E Daily, May 7).
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