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(ACC Mentioned) Safer Chemicals in Plastics May be Hazardous to Kids
Jul 9, 2015 | CBS News
By Ashley Welch
Two chemicals used to strengthen common household items like plastic wrap and processed food containers have been linked to high blood pressure and diabetes in children, according to a new series of studies. -
Dem Senators Supporting Udall-Vitter TSCA Bill Urge Floor Debate 'as Soon as Possible'
Jul 10, 2015 | E&E Daily
By Sam Pearson
Lawmakers who support the Senate version of a plan to overhaul how the federal government manages toxic substances are pushing back against attempts to make House legislation the preferred vehicle in the upper chamber. -
Germany Loses EU Appeal Over Heavy Metals in Toys
Jul 10, 2015 | BNA Daily Environment Report
By Stephen Gardner
Germany must bring its national limits on the presence of three heavy metals in children's toys into line with European Union legislation, despite a German claim that the EU limits offer a lower level of protection, the EU Court of Justice ruled July 9 (appeal in Germany v. European Commission, EU Court of Justice, Case C-360/14P, 07/09/15). -
OMB Takes Issue With PHMSA Funding Limits in Senate Bill
Jul 10, 2015 | BNA Daily Environment Report
By Rachel Leven
The administration July 9 took issue in a letter with the Senate's fiscal year 2016 transportation appropriations bill, in part for offering too little funding for the Pipeline and Hazardous Materials Safety Administration. -
Pipeline-Incident Proposal Set for Publication
Jul 10, 2015 | BNA Daily Environment Report
A proposal that would require operators to notify the National Response Center within one hour of a pipeline incident is set to be published in the Federal Register July 10. -
Pipeline Company Knew Calif. Spill Could Reach Pacific
| Politico
By Andrew Restuccia and Elana Schor
The pipeline company behind the May oil spill that sullied the pristine California coastline knew before the accident that a worst-case rupture could send fuel into the Pacific Ocean, according to an internal emergency plan that was redacted by federal regulators. Read more: http://www.politico.com/story/2015/07/pipeline-company-knew-calif-spill-could-reach-pacific-119930.html#ixzz3fU7ULTEt -
Unlicensed Hazmat Stock Supports RCRA Conviction
Jul 10, 2015 | BNA Daily Environment Report
By Steven M. Sellers
A California electroplater's unlicensed stock of dangerous chemicals was an unlawful storage—not a disposal—of hazardous waste under the Resource Conservation and Recovery Act even though some containers were leaking, the Ninth Circuit ruled July 8 in a criminal case (United States v. Roach, 2015 BL 217595, 9th Cir., No. 14-50260, 7/8/15). -
Prepare for Breaches
Jul 9, 2015 | The Hill - Congress Blog
By Trey Herr
The data breach at the Office of Personnel Management that saw millions of sensitive personnel records stolen is a teaching moment for information assurance, but policymakers are cutting class. -
House's Next Move on Crude Exports Up in the Air
Jul 10, 2015 | E&E Daily
By Geof Koss
With the clock ticking on plans to bring an energy package to the floor before the August recess, House Republicans continue to wrestle with whether to add provisions to overhaul the federal ban on crude oil exports. -
Benefits of Lifting Oil Export Ban Touted at Hearing
Jul 10, 2015 | BNA Daily Environment Report
By Ari Natter
The reasons behind the 1970s-era ban on crude oil exports “are no longer true,” House Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.) said during the panel's first hearing on legislation to lift the trade restriction. -
Supreme Court Defeat Won't Hinder Climate Push, Says EPA Chief
Jul 9, 2015 | The Hill - E2 Wire
By Timothy Cama
The head of the Environmental Protection Agency remains confident on the legality of the Obama administration’s environmental agenda despite a Supreme Court ruling against a major EPA regulation. -
Democrats Pounce on House Bill’s Demise
Jul 9, 2015 | PoliticoPro
By DARREN GOODE AND ALEX GUILLÉN
A dust-up over the Confederate flag brought down the Interior-EPA spending bill in the House this week, and Democrats are seizing on the controversy to undermine Republicans’ strategy to block the Obama administration’s environmental regulations. -
GOP Cites Environmental Justice As Argument Against Major EPA Policies
Jul 9, 2015 | Inside EPA
By David LaRoss
House Republicans are citing potential adverse impacts from major EPA air and climate rules on environment justice communities as a reason for the agency to drop the rules, an attempt by the GOP to bolster their criticism of the policies by focusing on equity areas -- which EPA has long said its regulations are designed to protect. -
House GOP Turns up Heat on EPA’s McCarthy
Jul 9, 2015 | PoliticoPro
By ALEX GUILLÉN
To Rep. Frank Lucas, President Barack Obama is a “king” whose environmental agenda must be defeated by Congress in order to protect the public. -
McCarthy Slammed for Obstructing Document Requests
Jul 10, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency's failure to promptly provide congressional committees with information and documents can only be labeled a “pattern of obstruction” meant to thwart oversight attempts, Rep. Lamar Smith (R-Texas), chairman of the House Science, Space and Technology Committee, said July 9. -
FERC Asked to Assess How Rules Harm Power Plants
Jul 10, 2015 | BNA Daily Environment Report
By Rebecca Kern
The Federal Energy Regulatory Commission was asked by top Republicans on the House and Senate energy committees to take action to ensure that market rules don't lead to premature retirements of nuclear and coal-fired power plants. -
States Should Resist EPA Clean Power Plan: Pence
Jul 9, 2015 | BNA Daily Environment Report
By Anthony Adragna
A recent U.S. Supreme Court decision requiring the Environmental Protection Agency to consider costs earlier in its regulatory process shows why states should consider aggressively resisting efforts to comply with the agency's Clean Power Plan, Indiana Gov. Mike Pence (R) told reporters July 9. -
Texas Asks Court to Review EPA Clean Air Program Rule
Jul 10, 2015 | BNA Daily Environment Report
By Nushin Huq
Texas asked a federal appeals court to review an Environmental Protection Agency decision to reverse its approval of provisions in the state's clean air program regulating emissions during unplanned startup, shutdown and malfunctions of permitted sources (Texas v. EPA, 5th Cir., number not available yet, 07/08/2015). -
Interior Won't Appeal Colorado Coal Mine Ruling
Jul 10, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Interior Department will not appeal a decision by the U.S. District Court for the District of Colorado that the department failed to properly consider environmental impacts in approving the expansion of a coal mine in northwest Colorado. -
Water and Wildlife May be at Risk from Fracking's Toxic Chemicals, Panel Finds
| Los Angeles Times
By JULIE CART
Hydraulic fracturing uses a host of highly toxic chemicals — the impacts of which are for the most part unknown — that could be contaminating drinking water supplies, wildlife and crops, according to a report released Thursday by a California science panel. -
Permit Sought to Bypass New York Fracking Ban
Jul 9, 2015 | BNA Daily Environment Report
By Gerald B. Silverman
Landowners in the southern tier of New York have applied for a permit to drill for natural gas using a method they contend would bypass the state's ban on fracking. -
Oil, Gas Companies Must Be Responsible
Jul 9, 2015 | The Hill
By Rep. Matt Cartwright (D-Pa.)
Recent technological developments have led to an oil and gas boom that has brought America closer to energy independence, created jobs, lowered fuel prices, and generated incredible profits for oil and gas companies. While I believe that America’s near-term energy and economic future does require oil and gas development, I also think it should be done responsibly, with consideration for our environment and health. -
Colorado Commission Seeks Input on Drilling Proposals
Jul 10, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Colorado Oil and Gas Conservation Commission is holding outreach meetings to solicit input on two recommendations of an oil and gas task force convened by Gov. John Hickenlooper (D) to address conflicts between state and local regulation of drilling. -
Ind. Governor Sees Mercury Ruling Fueling 'Just Say No' Push
Jul 9, 2015 | E&E News PM
By Jean Chemnick
Indiana Gov. Mike Pence (R) said today that states weighing a "just say no" stance on U.S. EPA's Clean Power Plan should take heart from last week's Supreme Court ruling on the Mercury and Air Toxics Standards (MATS). -
Senate Appropriations Approves Green Climate Funding
Jul 10, 2015 | BNA Daily Environment Report
By Dean Scott
U.S. funding for the Green Climate Fund, which President Barack Obama has pledged in a bid to persuade developing nations to participate in a global climate accord, survived a close vote in the Senate Appropriations Committee July 9. -
Banks Agree on Approach to Tracking Climate Finance
Jul 9, 2015 | BNA Daily Environment Report
By Rick Mitchell
On the eve of a major United Nations conference on development financing, the world's top development finance institutions have agreed on a common approach for systematically tracking financial commitments aimed at helping “vulnerable” countries adapt to climate change impacts, according to a joint statement issued July 9. -
Technology for a Healthy Economy
| The Hill
By Rep. Steve Pearce (R-N.M.
Hydraulic fracturing (HF) is a safe, proven method for increasing energy development. If allowed to grow with horizontal drilling, it could position the U.S. as the preeminent energy superpower -- creating career-path jobs, a healthy economy, and bolstering energy security. -
EPA Defends Against Constitutional Criticisms Of CWA Jurisdiction Rule
Jul 9, 2015 | Inside EPA
By Bridget DiCosmo
EPA in its response to comments on its final Clean Water Act (CWA) jurisdiction rule rejects claims raised by industry and states that the rule runs afoul of the Constitution's Due Process provision and 10th Amendment, previewing arguments the agency is likely to raise in response to suits over the rule citing the constitutional claims. -
Lawmaker Floats Congressional Review Act Resolution to Kill WOTUS
Jul 9, 2015 | E&E News PM
By Annie Snider
A Nebraska Republican has filed a resolution of disapproval under the Congressional Review Act aimed at killing the Obama administration's controversial Waters of the U.S. rule. -
Senate Dems Demand Action on Highway Bill
Jul 9, 2015 | E&E News PM
By Daniel Bush
With time running out before a stopgap transportation bill expires at the end of the month, Senate Democrats and Transportation Secretary Anthony Foxx today urged Senate Republican leaders to come up with a plan to fund a long-term highway bill. -
White House Slams Transportation Spending Bill
Jul 10, 2015 | E&E Daily
By Daniel Bush,
A top White House official yesterday bashed the Senate's fiscal 2016 spending bill for transportation, housing and urban development, saying it contains "ideological" riders aimed at gutting key highway projects and other programs. -
Energy Department, PHMSA Announce Research on Crude
Jul 10, 2015 | BNA Daily Environment Report
By Rachel Leven
The Energy and Transportation departments announced July 9 the next research they will fund regarding crude oil characteristics, an issue that has garnered interest in light of a string of derailments of trains carrying crude oil. -
Obama Taps Ex-McConnell Aide for Railroad Board
Jul 10, 2015 | E&E Daily
By Josh Kurtz
President Obama last night nominated a former aide to Senate Majority Leader Mitch McConnell (R-Ky.) to serve on the seven-member board of directors of Amtrak, and he also renominated the railroad board's chairman to another term as a director.
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(ACC Mentioned) Safer Chemicals in Plastics May be Hazardous to Kids
Jul 9, 2015 | CBS News
By Ashley Welch
Two chemicals used to strengthen common household items like plastic wrap andprocessed food containers have been linked to high blood pressure and diabetes in children, according to a new series of studies.
Ironically, the two compounds, di-isononyl phthalate (DINP) and di-isodecyl phthalate (DIDP) -- both in a class of chemicals known as phthalates -- were introduced about a decade ago as "safer" replacements for another chemical, di-2-ethylhexylphlatate, or DEHP, which previous research proved had similar adverse effects.
Researchers from NYU Langone Medical Center analyzed blood and urine samples of children and adolescents who participated in the National Health and Nutrition Examination Survey. The results showed what they call a "significant association" between DINP and DIDP concentrations and high blood pressure. They also found an association between the presence of the chemicals and increased insulin resistance, a precursor to diabetes.
While the American Chemistry Council defended use of the phthalates, Dr. David Agus told "CBS This Morning" that there's an oversight issue among the federal agencies that regulate the manufacturing of these products, including the Food and Drug Administration.
"There's this notion that they only react when there's a problem," he said. "It's innocent until proven guilty and that's an issue."
Lead study author Dr. Leonardo Trasande also called for more testing to be done before chemicals are put into products.
"Our study adds further concern for the need to test chemicals for toxicity prior to their broad and widespread use, which is not required under current federal law (the 1976 Toxic Substances Control Act)," he said in a statement.
The study only shows an association and does not prove the chemicals actually caused the health conditions observed.
But experts still recommend consumers take precautions to limit exposure to phthalates and ensure the health of their families.
If food comes in a plastic takeout container, "take it and put it into a glass container at home," Agus said. "Don't put it in the microwave or into the dishwasher, which can make these chemicals leach out."
Trasande also recommends using other alternatives like wax paper and aluminum wrap and checking the bottom of plastic containers for the numbers 3, 6 or 7 inside the recycle symbol. This indicates chemicals such as phthalates were used in manufacturing the product.
Joseph Perrone, Chief Scientific Officer for the Center for Accountability in Science, pointed out that the conditions could have been to blame for the link between chemicals in plastics and diabetes and high blood pressure. Here is a summary of his view:
"Before companies can use any chemicals that may come into contact with food, the U.S. Food and Drug Administration reviews them for safety. Just last year, the European Commission, which sets strict standards for chemical safety, re-evaluated the phthalates DINP and DIDP and concluded that they are safe in 'all current consumer applications.'
The two new studies cited by CBS News that explore the link between phthalates and increased blood pressure and insulin-resistance have significant limitations. The authors admit that their finding that children with higher levels of phthalates in their urine is associated with a higher blood pressure and insulin resistance could be explained by other factors -- notably that children who eat more processed packaged food (and thus are exposed to higher levels of phthalates) could have higher blood pressure and insulin resistance because of poorer diet, not because of phthalates. The studies neither explore how these children were exposed to phthalates nor show that phthalates actually cause health problems.
Additionally, the phthalates explored by these studies, DINP and DIDP, are also not typically used in microwavable plastic, though viewers were advised to avoid microwaving plastic. Even the most health-conscious viewer should fear neither increased exposure to these phthalates simply by microwaving their food in microwave-safe plastic containers nor exposure to these phthalates from other sources."
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Dem Senators Supporting Udall-Vitter TSCA Bill Urge Floor Debate 'as Soon as Possible'
Jul 10, 2015 | E&E Daily
By Sam Pearson
Lawmakers who support the Senate version of a plan to overhaul how the federal government manages toxic substances are pushing back against attempts to make House legislation the preferred vehicle in the upper chamber.
In a letter to Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Harry Reid (D-Nev.) sent yesterday, Sen. Tom Udall (D-N.M.) and 12 other Democratic senators urged Senate leadership not to scrap a bipartisan bill -- S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" -- which passed the Environment and Public Works Committee in April.
McConnell should consider the bill by Udall and Sen. David Vitter (R-La.) "as soon as possible," the lawmakers wrote.
The jockeying comes ahead of an anticipated Senate floor debate before the August recess.
The letter, which was signed by Udall and Sens. Cory Booker (D-N.J.), Tom Carper (D-Del.), Chris Coons (D-Del.), Martin Heinrich (D-N.M.), Heidi Heitkamp (D-N.D.), Joe Manchin (D-W.Va.), Mark Warner (D-Va.), Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Debbie Stabenow (D-Mich.), Gary Peters (D-Mich.) and Sherrod Brown (D-Ohio), said that the Senate bill "is a stronger and more comprehensive approach to [Toxic Substances Control Act] reform."
The lawmakers wrote they were concerned with several aspects of the House version of the bill, H.R. 2576, or the "TSCA Modernization Act."
Among the points of contention are that the House bill "creates a virtually unlimited pathway for chemicals favored by industry, rather than substances that pose the greatest risk to public health, to dominate the risk evaluation and regulatory process," lacks an independent funding source, and doesn't change how U.S. EPA would review new chemicals or handle companies' confidential business information, the senators said.
The House bill also would not make changes meant to prompt U.S. EPA to shift away from animal testing over time, which are a top priority for Booker and animal welfare organizations (E&E Daily, June 23).
In addition, while the two bills "take similar approaches to establishing the appropriate regulatory roles of the state and federal government," certain discrepancies will require the attention of lawmakers as the two versions are reconciled, the lawmakers said.
Udall said earlier this week that he still expects McConnell to take up his bill, which would make broader changes to existing federal law (E&E Daily, July 9). McConnell's office has maintained that the majority leader still intends to hold a floor debate on S. 697 before the August recess but has not finalized a schedule for doing so.
Though opponents, like Environment and Public Works ranking member Barbara Boxer (D-Calif.), have vowed to use procedural means to slow down a floor debate on the bill, the bill's supporters have said they plan to rely on their roster of 43 co-sponsors to advance the legislation despite the challenges (Greenwire, June 26).
Led by Safer Chemicals, Healthy Families, advocacy groups like the Sierra Club, Natural Resources Defense Council and others opposing the Senate bill also sent a letter to McConnell and Reid earlier this week. They argued the House bill was clearer and could be made more protective with additional amendments.
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Germany Loses EU Appeal Over Heavy Metals in Toys
Jul 10, 2015 | BNA Daily Environment Report
By Stephen Gardner
Germany must bring its national limits on the presence of three heavy metals in children's toys into line with European Union legislation, despite a German claim that the EU limits offer a lower level of protection, the EU Court of Justice ruled July 9 (appeal in Germany v. European Commission, EU Court of Justice, Case C-360/14P, 07/09/15).The court dismissed a German appeal against a May 2014 ruling of the EU's lower court, the General Court, which found that Germany had not convincingly demonstrated that its national limit values for arsenic, antimony and mercury in toys had been undermined by the establishment of harmonized EU limit values (95 DEN A-7, 5/16/14).The EU Court of Justice said in a statement that EU member states could retain national provisions in some cases, but it was “incumbent upon the member state to show that those national provisions ensure a higher level of protection for public health than the EU's harmonization measure.”In ruling that Germany had failed to do this, the General Court “did not err in law,” the EU Court of Justice said.Dispute Over Limit ValuesGermany originally took the issue to court in 2012 after the European Commission, the EU's executive arm, rejected a German request to retain its national limits on the substances in toys rather than implement the limits set out in the 2009 EU Toys Directive (2009/48/EC).The court found that Germany expressed the limit values differently from the way they are described in the Toys Directive and it was not clear in most cases that the German limits offered a higher level of protection.The commission July 9 welcomed the rejection of Germany's appeal.In a statement to Bloomberg BNA, the commission said the judgment “confirms that the scientific approach chosen by the European Union ensures a higher level of protection for children than the one suggested by Germany.”The Toys Directive sets “migration limits,” or limits on the transfer to skin, eyes or the mouth, of a range of hazardous substances from materials used in toys, such as paints and plastics, while the German limits are expressed as daily exposure levels.The German Permanent Representation to the EU did not respond to a request for comment on the rejection of the appeal. -
OMB Takes Issue With PHMSA Funding Limits in Senate Bill
Jul 10, 2015 | BNA Daily Environment Report
By Rachel Leven
The administration July 9 took issue in a letter with the Senate's fiscal year 2016 transportation appropriations bill, in part for offering too little funding for the Pipeline and Hazardous Materials Safety Administration.The Senate Transportation and Housing and Urban Development and Related Agencies Appropriations bill (no bill number) specifically would reduce to $49 million funding for the hazardous materials program, a roughly $3 million drop from FY 2015 levels. It also would leave pipeline safety program funding level with FY 2015 at $124.5 million.These numbers fall too far below the administration's budget request for FY 2016—roughly $33 million below—for the agency that has “growing responsibilities,” Shaun Donovan, director of the White House's Office of Management and Budget, said in the letter to Sen. Thad Cochran (R-Miss.), the Senate Appropriations Committee chairman. The consequences for the lack of funding would be seen in both programs, Donovan said (123 DEN A-15, 6/26/15).“At [the Senate's] funding level [for the hazmat program], PHMSA would not be able to increase the inspector workforce or improve its internal risk management processes,” Donovan said. “[It also] does not invest in the development of a Nation-wide map of pipelines, which is a critical step in reducing risks and helping PHMSA become more strategic.”Donovan also expressed opposition to “ideological riders”—he didn't mention any specifically related to PHMSA—and highlighted the administration's goal to reverse the spending caps set by the Budget Control Act of 2011 (Pub. L. No. 112-25), or sequestration.“Sequestration was never intended to take effect: rather, it was supposed to threaten such drastic cuts to both defense and non-defense funding that policymakers would be motivated to come to the table and reduce the deficit through smart, balanced reforms,” Donovan said.“We look forward to working with the Congress to reverse sequestration for defense and non-defense priorities, and offset the cost with commonsense spending and tax expenditure cuts, as Members of Congress from both parties have urged,” he said. -
Pipeline-Incident Proposal Set for Publication
Jul 10, 2015 | BNA Daily Environment Report
A proposal that would require operators to notify the National Response Center within one hour of a pipeline incident is set to be published in the Federal Register July 10. The proposal, which the Pipeline and Hazardous Materials Safety Administration released on July 1, would also allow the agency to recover costs for certain design work reviews it completes. The rule also would address several National Transportation Safety Board recommendations for operator qualification programs. The proposal (RIN 2137-AE94) will be available for comment for 60 days—through Sept. 8—at Docket No. PHMSA 2013-0163 (127 DEN A-11, 7/2/15). The public inspection notice is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-16264.pdf.
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Pipeline Company Knew Calif. Spill Could Reach Pacific
| Politico
By Andrew Restuccia and Elana Schor
The pipeline company behind the May oil spill that sullied the pristine California coastline knew before the accident that a worst-case rupture could send fuel into the Pacific Ocean, according to an internal emergency plan that was redacted by federal regulators.
The Pipeline and Hazardous Materials Safety Administration also blacked out an estimate that the spill could have been much larger, according to a fuller version of the document obtained by POLITICO. The revelation was redacted from an emergency response plan submitted by Plains All American Pipeline and released by PMHSA last month.
A contractor working for Plains estimated in the company’s emergency plan that a rupture near Santa Barbara’s Refugio State Beach could leak as much as 167,000 gallons of crude, or about 65 percent more than the estimated 101,000 gallons that spilled during the May 19 spill in the area. Thousands of gallons of oil reached the ocean during the incident.
PHMSA routinely keeps key details such as worst-case scenarios out of public versions of companies’ response plans, which are lengthy documents whose contents range from geographic features near pipeline segments to media-management strategies.
Pipeline safety advocates balk at PHMSA’s policy of redacting information about worst-case discharges based on security concerns, and argue that there is no legitimate reason to keep the information from the public.
“I really don’t understand fundamentally the logic of redacting it because the public wants to know how bad this can get,” said Rebecca Craven, the program director at the Pipeline Safety Trust. “If you’ve spent any time on Google Earth or Google Maps, it doesn’t take a genius to figure out where the pipelines are.” Craven said several state-based regulators don’t regularly redact response plans.
Plains declined to comment on the worst-case scenario outlined in its response plan. An agency official said PHMSA does not rely on pipeline companies to take the lead when deciding what portions of response plans to redact.
PHMSA has drawn criticism for failing to meet long-standing mandates from Congress to take a more aggressive role in monitoring the nation’s 2.6 million miles of pipelines, and for giving the industry too much power to influence its rules, a recent POLITICO investigation found.
Information included in a response plan about the worst-case discharge “could help an outsider gain ‘insider information’ on the type of safety/security devices used to ensure the continuity and safe operations of the pipeline infrastructure,” according to a a June 2014 memo from then-PHMSA Administrator Cynthia Quarterman. “Such ‘insider information’ could be used by an adversary to increase the effectiveness of a cyber attack or physical attack.”
In response to an inquiry from POLITICO, California state officials provided an almost entirely unredacted and previously unreported copy of Plains’ response plan. But the version of the plan released by PHMSA contains numerous redactions, and points to a broad disparity between how federal and state officials treat the public release of industry documents.
At POLITICO’s request, California state officials provided an almost entirely unredacted and previously unreported copy of Plains’ response plan. But the version of the plan released by PHMSA contains numerous redactions, and points to a broad disparity between how federal and state officials treat the public release of industry documents.
In 2011, Congress enacted a new pipeline safety law that said the Transportation Department, the agency that houses PHMSA, may, as appropriate, redact certain parts of response plans, including worst-case discharge information, proprietary information and security information.
The plan filed by Plains indicates that the company knew a major spill from the section of the pipeline that crosses near Refugio could leak oil into the ocean via a nearby stream. “Under high streamflow conditions, once the oil reaches the shoreline, it is expected to be carried offshore with the freshwater discharge and spread along the coastline,” the 1,000-plus page plan says.
What remains unclear is why Plains and PHMSA — which is charged with protecting the public and environment from pipeline failures — didn’t take additional preemptive measures to block oil from leaking into the ocean. And the extensive redactions could revive persistent criticism from lawmakers and activists who say PHMSA lacks transparency.
Rep. Lois Capps (D-Calif.), who represents the Refugio area, said she is “absolutely” concerned that Plains didn’t do more to protect the portions of its pipeline that traversed coastal areas vital to locals, wildlife and tourists alike.
“What they should have done was realized what happened in 1969,” when as much as 4.2 million gallons of crude tainted Santa Barbara in an iconic and devastating spill, Capps said in an interview. “This is a hyper-sensitive area for good reason.”
Other federal agencies have taken flak in recent years for redacting data from emergency-related documents and citing security concerns. EPA came under scrutiny for shielding the names of the chemical ingredients in dispersants used during the 2010 BP oil spill, but in that event the agency pointed to a legal requirement to seek the company’s permission — while Congress gave PHMSA more freedom to decide what to shield.
A POLITICO review of other emergency response plans posted on PHMSA’s website shows that the agency consistently redacts worst-case discharge information, preventing the public from adequately understanding the risk of nearby pipelines.
PHMSA began posting emergency response plans online recently after Congress added language to its 2011 safety legislation calling for the plans to be made public. The agency had required the public to file Freedom of Information Act requests to access the information, a process critics complained was too onerous.
A PHMSA official told POLITICO in April that the agency expects to have the full complement of response plans online within three months, though several appear to be missing from the agency’s current list.
The Plains response plan also sheds light on the company’s public relations strategy, which appears to be designed to control information and protect the company’s image.
“Generally speaking, your interaction with reporters should be limited,” the plan instructs Plains employees, adding that any decision to provide information to the media is “not something that should be taken lightly” and should be coordinated with the company’s communications team.
The plan authorizes Plains employees to give the media “pre-approved key points” only if supervisors agree “that communicating with the media is in the best interest of the company.”
Other oil pipeline companies also devote parts of their emergency response plans to managing the media and environmental activist groups.
“Although it will probably not be possible to prevent all negative press, some groups will be less vocal if they have been truthfully informed, and feel that the Company is addressing their grievances,” Phillips 66 wrote in its California regional plan. “Also, positive press can be achieved when it is announced that the Company has met with special interest groups and is aware of their concerns (or at least indicate a willingness to meet with the group for that purpose).”
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Unlicensed Hazmat Stock Supports RCRA Conviction
Jul 10, 2015 | BNA Daily Environment Report
By Steven M. Sellers
A California electroplater's unlicensed stock of dangerous chemicals was an unlawful storage—not a disposal—of hazardous waste under the Resource Conservation and Recovery Act even though some containers were leaking, the Ninth Circuit ruled July 8 in a criminal case (United States v. Roach, 2015 BL 217595, 9th Cir., No. 14-50260, 7/8/15).Robert Roach, the owner of All Metals Processing Co., was convicted based on containers at the site that were sealed and intact, and this condition refuted his defense that he “disposed” of the waste rather than “stored” it under RCRA, the court said.Nor did he abandon, and therefore dispose of, the waste when his company was evicted from the premises. Roach abandoned the premises but not the containers, which were merely transferred to his landlord, the U.S. Court of Appeals for the Ninth Circuit said.The decision affirms Roach's conviction for unlawful storage of hazardous waste under 42 U.S.C. §6928(d)(2)(A) after a bench trial in the U.S. District Court for the Central District of California.Storage or Disposal?All Metals was evicted from the Burbank, Calif., property in 2007, and authorities later discovered hazardous sludge in a large number of containers, some of which were leaking. The company had no permit to store the waste, which included cyanide, chromium, lead and cadmium, according to theindictment.Roach argued he couldn't be convicted of unlawful “storage” of hazardous waste under RCRA because leaks from some containers made any violation a “disposal” of the waste, citing United States v. Humphries, 728 F.3d 1028 (9th Cir. 2013).In Humphries, the Ninth Circuit held that RCRA's “storage” and “disposal” provisions were mutually exclusive, but here the conviction was based solely on hazardous waste in five sealed containers that weren't leaking, the three-judge panel said.Roach's related disposal argument—that he abandoned all of the waste as a result of the eviction—was based on a RCRA provision (42 U.S.C. §6903(3)) that defines disposal as the “placing” of waste on land such that it “may enter the environment.”Leaving the containers unattended created a “potential danger” of environmental contamination, Roach urged, but the court rejected that premise as a defense. Here, the eviction judgment specifically required that Roach remove toxic material from the premises promptly, the court said.Roach is criminally liable as a principal, and his inaction “merely transferred custody of the storage containers to his former landlord,” the court said.Judge Edward R. Korman, sitting by designation from the U.S. District Court for the Eastern District of New York, wrote the opinion and was joined by Judges Sidney R. Thomas and Consuelo M. Callahan.The U.S. Department of Justice represented the federal government.The Litman law firm represented Robert Roach. -
Jul 9, 2015 | The Hill - Congress Blog
By Trey Herr
The data breach at the Office of Personnel Management that saw millions of sensitive personnel records stolen is a teaching moment for information assurance, but policymakers are cutting class.
The key lessons of the breach aren’t about people or technology but process: persistent unwillingness from the U.S. government to prepare for failure and integrate risk while investing in information security. These problems are not confined to one agency or department; breaches in the past 6 months at the White House and State Department alone speak to that. The disaster that occurred at OPM is indicative of a much more serious disease that has plagued the federal government through multiple administrations: failure to prepare for the inevitable breach.
Instead of securing data and building risk into how we design and maintain information systems, multiple government agencies and oversight bodies have dismissed both in favor of a one-size-fits-all checklist approach. Rather than looking for simple narratives of incompetence and personal failure, we should be pushing deeper to understand how an organization charged with administering the most sensitive personal information federal employees possessed could prioritize the availability of their services over the confidentiality of this data.
Organizations respond to standards – contractors are (not yet frequently enough) penalized where they fail to meet well defined contractual milestones and civil servants have performance metrics integrated into annual evaluations. A sprint on weakened legs is not the solution to poorly conceived and badly executed information security strategy. It’s easy to be hard – expending all of our energy vilifying a few leaders or speechifying about how we’re going to harden systems. More important and valuable would be improvements to the process, reforming federal information assurance standards to bring assessment and use of risk into security decision-making and preparing for failure by securing data itself.
Perfect security is impossible but significant improvements can be achieved and have already been demonstrated in the private sector. Around the same time as the OPM attack, a prominent password management service called LastPass was also breached. The company offers to hold passwords and login credentials for websites and applications, allowing users to forgo memorizing an intimidating array of passwords in favor of one master key. A version of this master password is stored in the cloud after going through a hashing and salting process, where the plain numbers and letters are converted into a pseudo-random series of bits via one way mathematical operations. In mid June, Attackers made off with the master password and email addresses for every LastPass user in a massive breach for the service.
LastPass was prepared to fail however - the attack didn’t compromise individual website credentials and customers were notified shortly after the breach’s discovery. The master passwords will be difficult to speedily crack because of the extended hashing process they undergo, meaning attackers will be forced to expend tremendous computational resources to open even a fraction of their loot. The services’ security architecture was designed to expect a breach and prepare for the worst by protecting data and segmenting systems.
Federal organizations aren’t prepared for a breach or to build with resilient engineering like LastPass. The existing information assurance process can not countenance failure and doesn’t consider all three elements of risk: threat, vulnerability, and consequence, in security decision-making. Beginning with the design and passage of the Federal Information Security Management Act (FISMA) in 2002, government information assurance has focused on a checklist of security controls to be applied to all information systems. Operating against the acquired wisdom of information security professionals to “act as if” you’ve been breached and protect data itself against theft, these standards presuppose perfect security is possible, so long as the proper controls are applied.
Even the successor to FISMA, a new information assurance program from the National Institute of Standards and Technology (NIST) called the Risk Management Framework, promises a “risk oriented” approach while delivering much of the same checklist mindset. Little time and fewer specific standards are provided to assess the risk to an information system, most instead given over to selecting, implementing, and then monitoring new controls. Dr. Andy Ozment, Assistant Secretary for Cybersecurity and Communications at DHS, in his testimony to the House Homeland Security Council made the point that there are always more tools and technology for organizations to purchase than constrained budgets allow. Using risk allows organizations to prioritize investment in those systems under greatest threat of or vulnerability to attack.
Emphasizing checklists also creates a posturing process within organizations. Where a control is missing or implemented improperly, there is a shortfall. An inspector general’s report can highlight any of these discrepancies, large or small, and have done its job to call out the “incompetence” in implementation without assessing the actual security of a system. A chief information officer (CIO) or other office charged with implementing these checklist controls can do so without ever really assuring the security of their information.
OPM’s failings are not just those of personality and to avoid the larger organizational picture is to miss the most valuable lesson of the breach – information assurance in the federal government is on the wrong path and the problems are not confined to OPM. The best outcome from the swirl of attention and rhetoric surrounding this breach would be a renewed focus on the information assurance process of all federal organizations, especially those responsible for one of the more important sixteen critical infrastructure sectors like power transmission or air-traffic control systems.
How we make these changes – reforming the IT acquisition system, realigning responsibilities within organizations to balance security and uptime as co-equal missions, and improving standards to include risk and encourage more than checklist behavior –will determine if we learn the lesson of this breach and are better prepared in the future.
Herr is a senior research associate at the Cyber Security and Policy Research Institute and PhD student in the political science department at George Washington University. His research focuses on national security policy, Internet governance, and the market for malware and cyber weapons.
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House's Next Move on Crude Exports Up in the Air
Jul 10, 2015 | E&E Daily
By Geof Koss
With the clock ticking on plans to bring an energy package to the floor before the August recess, House Republicans continue to wrestle with whether to add provisions to overhaul the federal ban on crude oil exports.
"This is an issue that has a real chance to be marked up," Energy and Commerce Chairman Emeritus Joe Barton (R-Texas) said yesterday at the conclusion of an Energy and Power Subcommittee hearing on his bill (H.R. 702) to end the ban.
But Barton, who is leading the repeal charge in the House, told E&E Daily after the hearing that it remains to be seen whether the committee's broad energy package will be the legislative vehicle for doing so.
"That's a decision for Mr. Whitfield and Mr. Upton to make in conjunction with the Democrats and the leadership, but it is under active consideration," he said of Energy and Power Chairman Ed Whitfield (R-Ky.) and full committee Chairman Fred Upton (R-Mich.). "That is a true statement."
A GOP aide on the committee noted the ongoing discussions with Democrats on the bill, as well as Upton's comments during yesterday's hearing about the importance of getting "this policy right" and avoiding unintended consequences.
Committee Democrats have taken a decidedly skeptical view of the push to open the crude spigot. Rep. Frank Pallone (D-N.J.), the panel's ranking member, yesterday expressed numerous doubts about moving toward a full repeal, while suggesting the industry should give up tax breaks or pay new fees if it wants to export crude produced from federal lands owned by all Americans (Greenwire, July 9).
Pallone later declined to comment on whether putting the crude exports bill into the broader energy package would come at the expense of Democratic support, noting ongoing discussions with the majority on the bill. "We're trying to do a bipartisan effort," he told E&E Daily.
But another key Democrat on the committee said adding the exports issue to the bipartisan work would cost his vote.
"I can't support the energy package if they do that, and I support it now," said Rep. Gene Green of Texas, an oil-patch Democrat with a long history of working with Republicans on oil and gas issues. He noted numerous provisions in the bill -- some originating from Democrats -- that he backs, including efficiency and job training, as well as ongoing discussions with the majority on the infrastructure title.
Green said he remains concerned about the effects on Texas refineries and said he would prefer a legislative approach that established a national interest determination process similar to the manner in which the Energy Department weighs applications to export liquefied natural gas, only it would be overseen by the Commerce Department.
He said the process could allow crude to start flowing to overseas markets fairly quickly.
"Oil is different from LNG," he told E&E Daily yesterday. "LNG, you have to spend literally hundreds of millions of dollars to freeze it, whereas we can actually start exporting crude right now."
Barton initially rebuffed his plan, and Green said he's unlikely to write a bill himself incorporating the approach without Barton on board.
"I'd like to work with Joe Barton, because Joe and I are friends," he said. "We don't agree on this, but we've worked on other bills over the years, and maybe we'll get to the point where he'll say, 'To get a bill passed, we could do that.' We may get there."
Barton later said he'll talk to Green about the idea but stands behind his bill, which would fully repeal the ban. "My advice to leadership is I do want to move it, I think this bill can become law, I think it's in our national interest, but how and when we do it, I'll work with them on that," he said, adding that he expected to add four names to the list of 75 co-sponsors yesterday.
Bud Albright, who served as Barton's chief of staff when he chaired the Energy Committee and later as DOE undersecretary in the George W. Bush administration, says some lawmakers continue to fear a voter backlash if gasoline prices later increase after they vote to lift the ban -- an outcome that a growing body of research has shown is unlikely.
"All of the economic studies have shown that this is not going to negatively affect gasoline prices," Albright, now a lobbyist with Ogilvy Government Relations, said this week. "But somebody will demagogue it."
Those concerns, combined with the fact that House members have to face voters every two years, prompted ClearView Energy Partners to predict yesterday that crude export votes may happen first on the other side of the Capitol.
"House GOP leadership may wait for the Senate outcome before putting skittish, rank-and-file Members on record," the firm said in a research note.
At the conclusion of yesterday's hearing, Barton almost took matters into his own hands with the bill, when he found himself in the chairman's seat vacated by Whitfield. Noting the presence of enough members for a quorum, Barton jokingly began to seek unanimous consent to pass his exports bill.
"I could have done it -- I had the authority!" he said in the hallway after, laughing. "But all hell would have broken loose if I'd done that."
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Benefits of Lifting Oil Export Ban Touted at Hearing
Jul 10, 2015 | BNA Daily Environment Report
By Ari Natter
The reasons behind the 1970s-era ban on crude oil exports “are no longer true,” House Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.) said during the panel's first hearing on legislation to lift the trade restriction.In some of his most positive public remarks to date about repealing the 40-year-old prohibition, Whitfield cited studies showing the move would create almost a million jobs and reduce domestic gasoline prices.“Allowing American companies to serve this global market would provide substantial economic as well as geopolitical benefits,” Whitfield said in his opening statement. “It's difficult to understand how we can export almost anything, but we can't export crude oil.”The bill (H.R. 702) introduced by Rep. Joe Barton (R-Texas) has gained 75 co-sponsors. In addition to repealing the section of 1975 energy law establishing the crude oil export restriction, the bill would bar the federal government from imposing or enforcing any similar restrictions and would require the Energy Department to submit a report on the appropriate size and makeup of the Strategic Petroleum Reserve.Cautionary ToneRep. Fred Upton, chairman of the full Energy and Commerce Committee, agreed that “times have changed” since the ban was imposed, but he also struck a cautionary tone.“We need to get this policy right,” Upton said. “We need to be certain that any actions taken don't have unintended consequences that negate the benefits.”Lawmakers have been hesitant to offer their full support for lifting the ban, put in place after the Arab oil embargo of the 1970s, because they fear they could be blamed if gasoline prices rise in the future.“I believe that we need to answer a host of complicated questions before considering a wholesale dismantling of our nation's ability to restrict oil exports,” Rep. Frank Pallone (D-N.J.), the top Democrat on the Energy and Commerce Committee said. “Exports may help oil companies, but will they really benefit consumers?”Companies such as ConocoPhillips have called for ending the ban, while refiners such as Monroe Energy LLC, a Delta Air Lines Inc. subsidiary, have argued for leaving it in place.No House Vote Expected SoonThough House support for lifting the ban appears to be growing, the Senate is more likely to hold the first vote on the issue in the 114th Congress “if it happens at all,” ClearView Energy Partners said in a research note July 9.“We still expect House Members to proceed cautiously, not just because many hail from districts without crude oil production (and all of them represent people who drive), but also because lawmakers in the lower chamber must go before voters every two years,” the ClearView analysis said. -
Supreme Court Defeat Won't Hinder Climate Push, Says EPA Chief
Jul 9, 2015 | The Hill - E2 Wire
By Timothy Cama
The head of the Environmental Protection Agency remains confident on the legality of the Obama administration’s environmental agenda despite a Supreme Court ruling against a major EPA regulation.
Gina McCarthy on Tuesday characterized the June 29 ruling in Michigan v. EPA as “very narrow” and said it will have no bearing on the administration’s carbon dioxide rules for power plants or other regulations.
“EPA is still committed to finalizing the Clean Power Plan. So making a connection between the mercury and air toxics standards decision and the Clean Power Plan is comparing apples and oranges,” McCarthy said at an event hosted by The Christian Science Monitor.
“Last week’s ruling will not affect our efforts,” she said. “We are still on track to produce that plan this summer.”
The court, in a 5-4 decision, said that although the EPA considered the costs of its 2011 regulation limiting mercury and air toxics (MATS) emissions from power plants, it should have considered costs before even endeavoring on the regulatory process.
The decision did not overturn the MATS rule, which is still in effect while the Court of Appeals for the District of Columbia Circuit considers how to enforce the Supreme Court’s mandate.
McCarthy sought to dash the hopes of congressional Republicans, industry and others who read the ruling as a wide-ranging rebuke of President Obama’s EPA that would affect the carbon rules due out this summer, ozone pollution limits and other initiatives.
“The court seemed to go out of its way to narrow this decision, in so many ways,” McCarthy said. “They really made it just about this single provision that they said Congress told us really to treat this differently.”
Had the EPA considered costs earlier in the MATS process, it would have come to a similar conclusion as it did in the rule: up to $9.6 billion in industry compliance costs for up to $90 billion in health benefits and other positive results, she said.
McCarthy said she could not guess how the D.C. Circuit Court would proceed, but she is confident that the rule will continue to stand.
“The majority of power plants have already decided and invested in a path to achieving compliance with those mercury and air toxic standards,” she said. “So we are well on our way to delivering the toxic pollution reductions that people expected.”
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Democrats Pounce on House Bill’s Demise
Jul 9, 2015 | PoliticoPro
By DARREN GOODE AND ALEX GUILLÉN
A dust-up over the Confederate flag brought down the Interior-EPA spending bill in the House this week, and Democrats are seizing on the controversy to undermine Republicans’ strategy to block the Obama administration’s environmental regulations.
In a dramatic reversal, House Republican leaders on Thursday pulled the $30 billion bill from the floor after a critical mass of Southerners threatened to vote against it over language Democrats inserted to bar displays of the Confederate flag at federal cemeteries.
The move means the House will probably be unable to take up the bill for the two agencies as a stand-alone measure.
Rep. Betty McCollum (D-Minn.) told POLITICO that she spoke today with Interior-EPA Appropriations Subcommittee Chairman Ken Calvert (R-Calif.) about the legislation.
“I think it’s a feeling between the two of us that this bill’s probably done,” McCollum said.
But Congress will have to return to questions of how much to cut from agency budgets and how aggressively to target the Obama administration’s environmental agenda before long. Lawmakers will need to grapple this fall with how to avoid a government shutdown when current funding expires Oct. 1.
Environmental riders will be just one of the myriad issues up for debate, and the Confederate flag is unlikely to still command the level of attention it has in the wake of a June 17 shooting by an apparent Confederate sympathizer that killed nine at a church in Charleston, S.C.
Democrats and their green allies were quick to seize on the flag controversy this week in an effort to paint the entire appropriations bill as too extreme.
“The civil rights movement continues to hand gifts to other movements,” said Rep. Raul Grijalva (D-Ariz.), the ranking member on the House Natural Resources Committee.
Scott Slesinger, legislative director at Natural Resources Defense Council, said Thursday’s bill withdrawal will help Democrats show how radical the GOP proposals were.
“Their riders are so out of touch with the American people — this one just being more understandable than section 111d of the Clean Air Act of 1990,” Slesinger added, referring to the law authorizing EPA’s controversial climate change rules for power plants.
“They look so bad they couldn’t look worse,” House Appropriations ranking member Nita Lowey (D-N.Y.) said, adding regardless of the flag controversy, that the vast majority of Republican riders are doomed as part of bicameral spending talks.
“Once we get to conference, there’s no way those riders will stay,” she said.
Even before it was pulled on Thursday, the House bill faced of an insurmountable veto threat and opposition in the Senate to the steep spending cuts and its roster of riders blocking Obama administration greenhouse gas, ozone, water, hydraulic fracturing and other regulations.
House Republicans weren’t quite ready to pronounce the bill dead, but appeared less than optimistic about its chances.
“I want it to come back, but we’ll see,” House Appropriations Chairman Hal Rogers (R-Ky.) said.
Senate appropriators suggested the House fracas wouldn’t spill over to the upper chamber’s appropriations debate, which is already mired in a stalemate over reaching a budget deal to increase sequester spending levels that Congress enacted as part of an earlier budget deal.
“We have our separate track here,” Senate Appropriations Chairman Thad Cochran (R-Miss.) said.
Sen. Barbara Mikulski (D-Md.), the ranking member on Appropriations, said the House should decide what to do about the flag. She reiterated that Senate Democrats would stick to their strategy of filibustering every appropriations bill until Republicans come to the table to negotiate an end to sequestration.
Even without the across-the-board objections from Senate Democrats, it was clear that a more moderate approach would be needed in the upper chamber with regard to climate change and the environment. For example, Democrats succeeded in adding anamendment to a State Department spending bill in committee Thursday cutting out a rider that would have limited Obama’s Green Climate Fund.
Support for the House bill was slim even before the flag fracas erupted late Wednesday, with almost unanimous opposition from Democrats and potential conflicts with fiscal conservatives as well as a few moderate Republicans.
But Republicans pushed ahead with a floor debate in order to build momentum ahead of bicameral talks in the fall that are increasingly likely to focus on producing a catch-all omnibus spending bill or continuing spending resolution.
Rep. Mike Simpson (R-Idaho), a veteran Interior-EPA appropriator, said in an interview last month — before the bill saw its first postponement — that he hoped to see the Senate and House pass their own versions of the spending bill to strengthen the GOP’s hand in talks with the White House.
The new dynamic appears to have Republicans like Simpson worried.
“There’s worse things than losing the Interior bill on the floor,” he said in an interview Thursday. “Like having all this stuff happen: when they wrap all Republicans in this [flag controversy] rather than the few who insisted that it be there.”
Still, it’s not a message the party is pleased to send out.
“It just makes Republicans look bad,” he said. “I think this is isolated to this issue. And Republicans are trying to expand our majority and grow our majority. … This does not help us.”
Simpson said GOP leaders should have brought up for a vote their amendment to replace language in the spending bill barring the Confederate flag at federal cemeteries. A compromise with southern Republicans, the amendment would have nullified two Democratic amendments approved with little debate Tuesday night. Calvert said he had filed the amendment at the behest of GOP leaders.
Republican leaders “need to bring up the bill and run the amendment, because that amendment would go down big time,” Simpson said. “But instead we’ve put our heads [out] like a pumpkin on a stick and given [Democrats] a baseball bat.”
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GOP Cites Environmental Justice As Argument Against Major EPA Policies
Jul 9, 2015 | Inside EPA
By David LaRoss
House Republicans are citing potential adverse impacts from major EPA air and climate rules on environment justice communities as a reason for the agency to drop the rules, an attempt by the GOP to bolster their criticism of the policies by focusing on equity areas -- which EPA has long said its regulations are designed to protect.
Lawmakers in particular say that environmental justice areas face the biggest economic threats from the agency's proposal to tighten its ozone national ambient air quality standard (NAAQS) and the Clean Power Plan, which includes pending first-time greenhouse gas (GHG) standards for existing and newly constructed power plants.
EPA has proposed to tighten its 2008 ozone NAAQS of 75 parts per billion (ppb) down to a limit in the range between 65 and 70 ppb, with a final rule due by Oct. 1 under a court-ordered deadline. Supporters say the rule will better protect public health, while critics argue it will impose massive new costs on states and industry.
By law EPA cannot consider costs in the level at which it sets a NAAQS and must do so solely based on data about a pollutant's impact on human health -- though the agency does weigh costs later when crafting rules for implementing the standards. But GOP lawmakers are now arguing that the health impacts associated with unemployment and low income should be considered alongside the direct effects of reducing ozone air pollution.
Rep. Randy Hultgren (R-IL) told a July 9 House science committee hearing that, “It is clear [a tighter ozone limit] will have a disparate impact on low-income and minority communities, and seniors on fixed incomes.”
EPA critics at the hearing cited a June 9 report from the Center for Regulatory Solutions on the potential impacts of a strict ozone standard in Illinois. The Center's website says that the organization aims to “educate the American public about the burdens and consequences of over-regulation on the economy.”
The study concludes that, “Simply put, EPA’s proposed ozone regulation would impose a severe penalty on manufacturers in the state, which would in turn hobble an already fragile state economy, making it harder for Illinois residents to find quality job opportunities and for those living in poverty to climb out of it.”
EPA has long made a priority of using its air, climate and other regulations to try and better protect the health and welfare of poor and/or minority environmental justice communities living near industrial plants. The agency has argued that its rules will reduce pollution, in turn boosting the health of people in equity areas.
But Republicans used the House Science, Space & Technology Committee hearing on EPA “regulatory overreach” to argue that the massive costs of the rules will cause greater harm for equity communities.
Environmental Justice
“The cost, and the economic impact, should be relevant to the discussion that we're having about ozone, about the Clean Power Plan, about the waters of the U.S. I would really encourage EPA to be more conscientious in that regard, particularly in how it affects low-income families . . . what the EPA's doing is going to have a disproportionate impact on black and Hispanic families,” said House science panel member Gary Palmer (R-AL).
Palmer, Hultgren and other GOP committee members -- including Reps. James Sensenbrenner (WI) and Ralph Abraham (LA) -- argued that EPA should consider health effects associated with lower income and higher utility rates alongside its assessment of the potential public health gains from its rules, especially on ozone and GHGs.
EPA Administrator Gina McCarthy responded that equity areas are “most vulnerable to a change in climate,” and thus stand to benefit most from the environmental gains of climate rules.
In her question-and-answer session with lawmakers, she added that “I believe that jobs and the economy are tremendously important, and should be considered” in the course of a rulemaking.
Meanwhile, Rep. Jim Bridenstine (R-OK) argued that the agency should withdraw its proposed tightening of the ozone standard and reconsider it in light of the Supreme Court's June 29 ruling in Michigan, et al. v. EPA. In that decision, a 5-4 majority of justices held that the agency should have considered costs when it decided whether a mercury and air toxics (MATS) rule for the power sector was “necessary and appropriate.”
Even though the NAAQS and MATS rules operate under separate statutory mandates, Bridenstine said, “I think it's clear we're going to have to start over from the beginning given the Supreme Court's ruling.”
Legislators also raised concerns over how the agency will decide what ozone NAAQS limit satisfies a Clean Air Act mandate to set such standards within “adequate margin of safety.”
In response to those questions, McCarthy said “that will be shared with you in the final rule -- that is when I apply my judgment, and I explain it completely” in the final rule later this year.
CWA Jurisdiction
Along with EPA's pending air rules, legislators raised a host of other concerns about EPA regulations and conduct, most prominently the recently finalized rule on which waters are subject to the Clean Water Act (CWA). While the rule is aimed at clarifying the scope of CWA jurisdiction after Supreme Court rulings struck down earlier EPA policies on the subject, critics have charged that it is both unclear and overly broad.
In response to questions, McCarthy acknowledged that “there's a lot of confusion out there” on the rule, and said “We're trying to develop a question-and-answer document” to resolve uncertainties surrounding CWA jurisdiction.
McCarthy also fielded questions on the rule's economic impacts, such as whether EPA performed a full regulatory impact analysis (RIA), including a study of its likely economic costs as required for any rule with expected costs of $100 million or more. She acknowledged there was no RIA -- which members of the panel called a “political decision” to dodge legal requirements for rulemaking -- but said the agency did weigh its costs in a separate study.
“It would have been difficult to know how to do an RIA” given that the rule has no direct compliance costs, but only spells out which waters are subject to other aspects of the CWA, she said.
Rep. Randy Weber (R-TX) brought up allegations that that the agency's work with environmental and grass-roots organizations to push back against criticism of the jurisdiction rule may have broken federal lobbying law. He cited an email from an anonymous EPA Region 5 employee who said agency officials had “pressured” staff to use the “Thunderclap” program to promote the CWA rule on social media.
McCarthy responded that the agency had disciplined the official involved.
But Weber continued that emails from as far past as 2011 show a too-close relationship between EPA and environmentalists, in particular correspondence between former agency policy chief Michael Goo and staff of the Natural Resources Defense Council (NRDC). Goo is now chief counsel for energy and environment with the House Energy & Commerce Committee’s Democratic minority.
Weber said email records obtained by his office show Goo telling NRDC that a study showing no new construction of coal-fired power plants “would be helpful” in boosting EPA's climate agenda, and that other emails show him inviting advocates to an annual party at his home termed “GooFest.”
“Would you agree that that shows a close, cozy relationship with these folks, and do you think it's appropriate for someone that's responsible for directing EPA's policies to host a party including folks attempting to influence the agency's policy?” Weber asked.
McCarthy said she was unaware of the circumstances surrounding the event. “I have never been to a GooFest.”
EPA Science
Meanwhile, House Science, Space & Technology Committee Chairman Rep. Lamar Smith (R-TX) used the hearing to tout legislation he introduced, H.R. 1030, which would force EPA to use the "best available" science in developing rules and make all data for its rules publicly available. The bill cleared the House in March.
McCarthy when pressed by Smith on the bill repeated objections that the administration has previously raised that disclosing raw data for rules based on health studies, rather than publishing data analysis, would expose private health information and other confidential material.
At the hearing, Smith countered that “that information can be redacted, and I agree that it should be redacted,” but that it should still be possible to disclose the information in some form.
McCarthy responded that EPA “lacks authority” to disclose raw data from private studies, and instead urged legislators to look at “peer-reviewed science” based on the data
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House GOP Turns up Heat on EPA’s McCarthy
Jul 9, 2015 | PoliticoPro
By ALEX GUILLÉN
To Rep. Frank Lucas, President Barack Obama is a “king” whose environmental agenda must be defeated by Congress in order to protect the public.
That didn’t go far enough for Illinois Republican Randy Hultgren, who said Thursday that EPA Administrator Gina McCarthy should act as a partner to the states on environmental rules, not a “Palpatine,” referring to the evil emperor in the “Star Wars” saga.
The epithets came at a House Science Committee hearing with McCarthy, who, although no stranger to aggressive questioning from Republicans in Congress, appeared to grow frustrated at times. She did draw some support from Democrat Don Beyer, who complained of a “combative” attitude from the GOP members.
The long-running tensions over EPA regulations were of full display at the hearing, with Republicans repeating charges that EPA was shielding data used to write contentious regulations — and expressing doubts about that the agency’s position that only two of more than 6,000 text messages sent by McCarthy addressed EPA issues, and the rest were personal or about non-substantive issues like scheduling.
Republicans grilled McCarthy over EPA’s Waters of the United States jurisdictional rule, eventually prompting McCarthy to mutter, “Oh Lord” when yet another lawmaker brought up the issue of whether the agency would regulate ditches at the three-hour-long hearing.
And Rep. Jim Bridenstine (R-Okla.) argued that the administration’s power to withhold federal highway funding for areas not in compliance with standards for ozone and other pollutants amounted to “federal bullying” — though McCarthy countered that the penalty was authorized by the Clean Air Act, not a regulation, and that it had never been used.
But it was the EPA’s stance not to make public some raw scientific data used to justify regulations that truly irked Republicans.
“There is no good reason why other scientists can’t review it,” committee Chairman Lamar Smith (R-Texas) said.
EPA has long argued that it cannot hand over data demanded by lawmakers because the information would violate the privacy of individuals involved in the studies, and McCarthy said that agency is not in possession of much of the data because the studies were conducted by other federal agencies or private researchers.
The Republicans remained unpersuaded, alleging that the failure to reveal that data was indicative of the problems with EPA’s rule-making process.
“I am a physician and a scientist and I would appreciate any raw data you could give me because I can interpret them and I can certainly make my own decisions,” said Rep. Ralph Lee Abraham (R-La.).
Lucas, the former Agriculture Committee chairman, said that EPA may believe it is helping Americans with its environmental regulations, but that ultimately the economic harm was too great.
“We in this committee, and we in Congress, serve a very important role going all the way back to our predecessors in parliament on the other side of the ocean. Our responsibility is to protect the citizens from the king and his government,” Lucas said to a visibly amused McCarthy.
“You are the president’s administrator,” he continued. “It’s our responsibility to make sure that our constituents’ interests are well taken care of and that the king, using an old term, remembers the public.”
The Constitution, upon which EPA’s authority rested, also “left Congress primarily responsible to watch out directly for the interests of the American people because they vote for us,” Dana Rohrabacher (R-Calif.) said.
“Sensitive information not given to the people elected by the voters of this country is an insult to the people, to our Constitution, to everything this country is supposed to be about in terms of freedom, responsibility, openness of government, etc.,” he added.
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McCarthy Slammed for Obstructing Document Requests
Jul 10, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency's failure to promptly provide congressional committees with information and documents can only be labeled a “pattern of obstruction” meant to thwart oversight attempts, Rep. Lamar Smith (R-Texas), chairman of the House Science, Space and Technology Committee, said July 9.Smith's comments came during a heated hearing, “Examining EPA's Regulatory Overreach,” in which Republicans flooded EPA Administrator Gina McCarthy with questions on three agency actions: the proposed Clean Power Plan, a final rule outlining the jurisdiction of the Clean Water Act and proposed revisions to the national ozone standard.Lawmakers also continued to voice concerns over the agency's use of so-called secret science as the basis for agency actions and sought—but didn't receive—a date from McCarthy when the agency would provide outstanding documents to the committee.“It looks to me like you're hiding a lot from the American people,” Smith said. “I think it makes the EPA look bad.”McCarthy countered the agency had responded to 11 document requests from the committee since Jan. 1 alone by providing more than 15,000 pages of documents and 13 written responses. She also said EPA staff have held 10 conference calls and communicated further with committee staff on 35 other occasions.“EPA is committed to transparency and the true and faithful compliance” to committee requests, McCarthy said.Later in the hearing, Rep. Barry Loudermilk (R-Ga.) said the agency's claim of providing 15,000 pages of documents was misleading because more than 2,000 of those produced were “incoherent garbage” and “garble.”Democrats Defend AgencyRep. Eddie Bernice Johnson (D-Texas), ranking member of the committee, defended the EPA against what she described as Smith's “caricature” and strongly criticized the “investigative theater” of the committee.“I have seen grocery carts of documents rolled into here on your agency,” she said. “The reality is that the Obama administration has done far more than the previous one to make sure that the water we drink and the air we breathe are clean.”McCarthy and Republicans on the committee continued to disagree about what the House-passed Secret Science Reform Act (H.R. 1030) would actually do.Smith said it would simply ensure that all data used for agency actions is public and available for independent analysis, but McCarthy said it would ask the agency to release private information on U.S. citizens and attempt to mandate the collection of data for which the agency had no authority.“EPA totally supports both transparency as well as a strong and independent peer-reviewed science process,” the administrator said. “But the bill I don't think will get us there.”House lawmakers cleared the bill on March 18 by a 241-175 vote (53 DEN A-6, 3/19/15).Discussion of Waters RuleAlso at the hearing, Rep. Frank Lucas (R-Okla.) questioned McCarthy about the data that the EPA and U.S. Army Corps of Engineers used in its Clean Water Act jurisdiction rule (RIN 2040–AF30) to assert regulatory authority over wetlands and other waters based on their distances from traditional navigable waters, territorial seas or interstate waters.In the final rule, waters and wetlands can be regulated under the Clean Water Act if they are within 1,500-feet of traditional navigable waters and their tributaries and within the 100-year floodplain.The regulation (80 Fed. Reg. 37,054) also would allow the agencies to determine the significance of linkage between waters or wetlands and jurisdictional waters that are located within the 100-year floodplain or within 4,000 feet of traditional navigable waters, territorial seas and interstate waters.“Have you made public how the EPA decided on the 4,000 feet of high tide line or ordinary high water mark in the final rule, because it wasn't in the proposed rule?” Lucas asked.McCarthy responded that the “good thing” about attracting a million comments is that it allowed the agencies to make changes between the proposed and final versions of the rule. She said those changes were “based on better science and better understanding of how the agencies have been managing these programs for years,” McCarthy said.Rep. John Moolenaar (R-Mich.) later questioned why the EPA and the corps chose not to conduct a regulatory impact analysis despite knowing that the jurisdiction rule was a major rule.According to the White House Office of Management and Budget, Presidential Executive Orders 13,563 and 12,866 require agencies to provide to the public and to the OMB a careful and transparent analysis of the anticipated consequences of “economically significant” regulatory actions.McCarthy conceded that the clean water rule was a major rulemaking, but said the agencies opted to conduct an economic analysis instead of the regulatory impact analysis because there were no direct costs involved, only indirect.Ozone Standards On-TimeMcCarthy told the committee the EPA intended to finalize its revisions to the current national ambient ozone standards of 75 parts per billion by Oct. 1, as required under a court-ordered deadline.The EPA in November proposed (RIN 2060-AP38) revising the national ambient air quality standards for ozone to somewhere in the range of 65 ppb to 70 ppb. The agency estimated the proposal could cost up to $16.6 billion annually in 2025.Multiple lawmakers voiced concerns the standard wasn't achievable, would cripple economic growth and cost jobs in their districts. McCarthy said those same arguments were shown to be unproven last time the agency updated the standard and defended the science used by the agency.“The science behind ozone is one of the most robust bodies of science that we have,” McCarthy said.Janet McCabe, the agency's top air official, defended the agency's actions against similar charges in mid-June (114 DEN A-6, 6/15/15). -
FERC Asked to Assess How Rules Harm Power Plants
Jul 10, 2015 | BNA Daily Environment Report
By Rebecca Kern
The Federal Energy Regulatory Commission was asked by top Republicans on the House and Senate energy committees to take action to ensure that market rules don't lead to premature retirements of nuclear and coal-fired power plants.The request was sent in a July 8 letter to FERC Chairman Norman Bay by Rep. Fred Upton (R-Mich.), chairman of the House Energy and Commerce Committee, Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee, and Rep. Ed Whitfield (R-Ky.), chairman of the House Subcommittee on Energy and Power.The Republicans raised concerns that in recent years, reliable baseload nuclear and coal-fired power plants have been experiencing early retirements due to adjustments to market rules.While changes to the rules may be well-intended, they write, “there are legitimate and pressing questions about whether these rules are jeopardizing the economic viability of current units and risking future investment and reliability in organized markets.”“As we see it, broad scale premature retirements of otherwise performing baseload units because of market rules—rather than market forces—would represent a failure of regulation,” they wrote.Assess Market PoliciesIn the letter, the Republicans asked FERC to assess whether “baseload units are not unduly burdened by market rules or other policies.”Specifically, they ask the commission to assess how the following policies are affecting baseload units: market contracts, demand response programs, renewable energy mandates and subsidies, net metering rules and environmental requirements.They also noted, “Consideration of changes to market rules should reflect the fact that capacity and energy markets are inextricably linked.”Request FERC Issue OrderWhile the lawmakers said they have introduced legislation to address their concerns with changes to market rules, they said the legislative process may be too slow to remedy the problem quickly enough.In turn, they asked FERC to “promptly issue” an order directing Regional Transmission Organizations (RTO) and Independent System Operators (ISO) to make a filing demonstrating that their market rules meet certain criteria specified in the letter, including whether they “promote transparency and communication by the market operator to market participants.”They said that if the RTO/ISO market rules don't meet the listed criteria, FERC should direct that RTO/ISO to propose changes to market rules to fix the problems.FERC received the letter and the chairman will respond to members of Congress, FERC spokesman Craig Cano told Bloomberg BNA July 9. -
States Should Resist EPA Clean Power Plan: Pence
Jul 9, 2015 | BNA Daily Environment Report
By Anthony Adragna
A recent U.S. Supreme Court decision requiring the Environmental Protection Agency to consider costs earlier in its regulatory process shows why states should consider aggressively resisting efforts to comply with the agency's Clean Power Plan, Indiana Gov. Mike Pence (R) told reporters July 9.Pence said the court's 5-4 ruling on the mercury and air toxics standards (MATS) proves there's a “strong opportunity” at the court to “defend ratepayers” against the Clean Power Plan, once finalized. And the experience from MATS—where many utilities made expensive compliance decisions due to slow-moving legal challenges they ultimately at least partially won—shows why states should resist early compliance efforts if the rule is not markedly improved.“My hope would be that a court would stay enforcement of the rule until the process has run its course,” Pence said. “Part of the pattern here is bad regulatory policy comes out of the EPA, the courts—through their machinery—by definition move slowly and the damage is done to ratepayers and to our energy economy.”In its June 29 ruling, the Supreme Court held the EPA should have considered compliance costs when deciding to regulate mercury emissions from power plants. The decision left in place the regulation itself but remanded the rule to a federal appeals court for further proceedings (Michigan v. EPA, 2015 BL 207163, U.S. , No. 14-46, 6/29/15).Pence Writes to ObamaOutlining his preferred way to avoid that damage, Pence wrote a letter June 24 to President Barack Obama saying his state would not comply with the Clean Power Plan unless the final version is significantly and demonstrably improved. He reiterated that stance July 9 (122 DEN A-17, 6/25/15).“We have every intention of following through on our commitment not to comply and to get into the courts,” Pence said. “The best way for this rule to be improved is for it be withdrawn completely, but at minimum it would have to be dramatically changed to address concerns about cost and of course the legality of the approach they're taking.”Ready for Legal ChallengesPence said he remains “hopeful that common sense will prevail here,” but he also said he is prepared to launch legal challenges to the final regulation and expects Congress will attempt to block it through Congressional Review Act challenges this fall.The EPA expects to release a Clean Power Plan final rule (RIN 2060-AR33) under Section 111(d) of the Clean Air Act in late summer. As proposed, the regulation would set a unique emissions rate for the power sector in each state but give states flexibility in how best to meet the targets. States would have to meet interim targets between 2020 and 2029, with a final emissions rate to be achieved in 2030.Just one state, Oklahoma, has definitively stated that it will not comply with the Clean Power Plan, regardless of the final form of the regulation. Several states other than Indiana, including Texas and Wisconsin, have suggested they will follow Oklahoma's lead unless the EPA incorporates major changes to the rule.Pence said other states should follow the lead of those governors and put pressure on the administration to significantly alter its approach to regulating greenhouse gas emissions from existing power plants.“No state is obligated to adopt the president's climate change agenda as their own,” Pence said. “I think it's extremely important that states send a very clear message to the EPA that the rule must be improved demonstrably and significantly.”Report Cites Market InnovationSeparately July 9, the Advanced Energy Economy Institute released a report finding the Clean Power Plan would spur industry innovation that will drive down compliance costs.“The market-readiness of a wide array of compliance measures available to respond to a market signal for emission reductions indicates that compliance under the CPP will likely mirror not only the approach, but also the success of market-based compliance outcomes under prior [Clean Air Act] rulemakings,” the report states. “Robust markets for advanced energy technologies and services, coupled with existing tracking systems customized to meet CPP requirements, together provide a nearly turnkey solution for state compliance needs.”The report made those conclusions based on a review of industry responses to other Clean Air Act rulemakings, including efforts to reduce the lead content in gasoline, combat acid rain and control regional transport of ozone. -
Texas Asks Court to Review EPA Clean Air Program Rule
Jul 10, 2015 | BNA Daily Environment Report
By Nushin Huq
Texas asked a federal appeals court to review an Environmental Protection Agency decision to reverse its approval of provisions in the state's clean air program regulating emissions during unplanned startup, shutdown and malfunctions of permitted sources (Texas v. EPA, 5th Cir., number not available yet, 07/08/2015).These provisions provide for an affirmative defense for emissions violations during unplanned startups, shutdowns, and malfunctions when certain criteria are met. The affirmative defense language prevented industry from being fined for Clean Air Act violations that were the result of unavoidable equipment malfunctions.The state and the Texas Commission on Environmental Quality filed a petition July 8 requesting the U.S. Court of Appeals for the Fifth Circuit to review the EPA's finding of substantial inadequacy on those provisions in the Texas state implementation plan.The EPA had originally approved the state's affirmative defense provisions but reversed its position in May when it enforced a decision by the U.S. Court of Appeals for the D.C. Circuit. That court's decision involved EPA rules for national emissions standards in the state implementation plans of Texas and 35 other states. The EPA rule gives Texas and other states until Nov. 22, 2016, to remove affirmative defense provisions from their plans (100 DEN A-3, 5/26/15).“The EPA's actions make it impossible for even the most carefully-regulated facilities to avoid costly penalties due to unplanned events out of their control,” Texas Attorney General Ken Paxton (R) said in a statement.The attorney general's office declined to comment on the case outside what was provided in its press release.In June, Texas-based Luminant Generation Co., also filed a petition asking the federal appeals court to review the EPA rule (117 DEN A-3, 6/18/15). -
Interior Won't Appeal Colorado Coal Mine Ruling
Jul 10, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Interior Department will not appeal a decision by the U.S. District Court for the District of Colorado that the department failed to properly consider environmental impacts in approving the expansion of a coal mine in northwest Colorado.The department's Office of Surface Mining Reclamation and Enforcement (OSM) said it will not appeal the district court decision to the U.S. Court of Appeals for the 10th Circuit, but is on track to address within a required 120-day period the deficiencies identified by the lower court, Jessica Kershaw, a spokeswoman for the department, told Bloomberg BNA July 9.District Court Judge R. Brooke Jackson ruled May 8 that the OSM violated the law regarding the Colowyo Mine, operated by Tri-State Generation and Transmission Association Inc. near Meeker, by neither notifying the public nor involving it in the preparation of the environmental assessments for the mine expansion (WildEarth Guardians v. OSM, D. Colo., No. 13-CV-518, 5/8/15; 91 DEN A-5, 5/12/15).Failure to NotifyThe OSM also violated the National Environmental Policy Act by failing to notify the public once the assessments had been completed and findings of no significant impact (FONSIS) had been issued, the district court said.The company, however, filed a notice of appeal June 1 with the 10th Circuit (WildEarth Guardians v. OSM, 10th Cir., No. 15-1186, 6/1/15; 106 DEN A-16, 6/3/15).In its filing, the company asked the appeals court to stay the district court ruling pending the appeal so it could continue to operate the mine. The stay is warranted, given the likelihood of a successful appeal and “the irreparable harm that will occur to Colowyo Mine, its employees and northwest Colorado's communities if mining operations are ceased,” the company said in a statement.Company spokesman Lee Boughey told Bloomberg BNA July 9 the Office of Surface Mining “should not be in the business of regulating power plants.” The court's order requiring the agency to analyze emissions from power plants “inappropriately expands National Environmental Policy Act analyses for mining plans beyond what is prescribed under the law,” he said.‘Stepping Up.’WildEarth Guardians, the plaintiff in the case, praised the Interior Department for its “decision to embrace” the district court ruling and fix the environmental assessment.“The Interior Department is stepping up to lead on climate,” Jeremy Nichols, the environmental group's climate and energy program director in Denver, said in a July 8 statement. “This is a milestone, and we sincerely praise the agency for its willingness to finally lead the charge to confront the climate impacts of coal mining.”The Colowyo Mine fuels the nearby Craig power plant, the second largest coal-fired plant in Colorado, the group said. The plant spews millions of tons of carbon and other toxic air pollution into the air annually, it said.“More mining means more coal burning,” Nichols said. -
Water and Wildlife May be at Risk from Fracking's Toxic Chemicals, Panel Finds
| Los Angeles Times
By JULIE CART
Hydraulic fracturing uses a host of highly toxic chemicals — the impacts of which are for the most part unknown — that could be contaminating drinking water supplies, wildlife and crops, according to a report released Thursday by a California science panel.
The long-awaited final assessment from the California Council on Science and Technology said that because of data gaps and inadequate state testing, overwhelmed regulatory agencies do not have a complete picture of what oil companies are doing.
The risks and hazards associated with about two-thirds of the additives used in fracking are not clear, and the toxicity of more than half, the report concluded, remains “uninvestigated, unmeasured and unknown. Basic information about how these chemicals would move through the environment does not exist.”
Jane Long, the report's co-lead, said officials should fully understand the toxicity and environmental profiles of all chemicals before allowing them to be used in California's oil operations.
Recycled oil field wastewater used for crop irrigation may contain chemicals used during fracking and other well stimulation procedures, the report said. While treatment of that water is required, the testing is not adequate, the report said. Long said researchers did not find strong evidence of fracking fluids in irrigation water but added: “What we did find was that there was not any control in place to prevent it from happening.”
The probability of toxic exposure to humans and the environment is low, but no studies have been conducted assessing the risk, the report's authors said.
Sen. Fran Pavley (D-Agoura Hills) said that she planned Monday to propose amendments to legislation she already had introduced, based on some of the report's findings. They include the development of an approved list of chemicals, with known toxicity, for use in oil development as well as the phasing out of the use of unlined pits to dispose of oil field waste.
“Government agencies, the public in general and residents living near well sites need to know in detail about the presence of dangerous chemicals mixed in water used in fracking and then pumped to the surface as byproducts,” Pavely said in a statement.
The potential for contamination linked to fracking, according to the report, demands that the state conduct more thorough studies in order to close significant data gaps.
For example, there is little evidence to show that oil activities are contaminating groundwater, Long said, but little analysis has been done.
“We think the fact that we haven't looked for it is an issue,” Long said. “You can't find what you don't look for.”
Seth Shonkoff, lead author on the public health sections of the report, said he was surprised to learn during his research that recycled wastewater from oil fields was being used on crops.
“We've got to know what to test for … to know that what we are putting onto the crops is safe,” he said. “Until we have that data, I don't know how we can assure farmers and consumers that their food is safe.”
Among the findings of the report, commissioned by the California Natural Resources Agency and written by the California Council on Science and Technology and Lawrence Berkeley National Laboratory:
-- Strong acids, solvents and biocides in oil field water present a “significant hazard to aquatic species and other wildlife, particularly when released into surface water.” All of the chemicals are “undesirable” in drinking water.
-- Injection wells that the state is allowing to dispose of oil field wastewater into federally protected aquifers may have received water containing fracking fluids.
-- Oil operations in federal waters offshore are discharging wastewater directly into the ocean, against EPA regulations.
-- More than half the produced water from fracked wells is disposed of in unlined pits. “We do not know how long hydraulic fracture chemicals persist in produced water or at what concentrations or how these change in time, which means that hazardous levels of contaminants … cannot be ruled out.”
-- About one-third of the oil field wastewater pits in the Central Valley are operating without proper permits.
-- About 1.7 million people in Los Angeles live or work within one mile of an active oil or gas well, and atmospheric concentrations of pollutants near those sites “can present risks to human health.” The report recommended an extensive epidemiological study of residents living near oil production sites. California does not regulate how close oil operations can be from residences, schools or hospitals. The report recommends that California adopt a setback requirement.
-- Oil and gas development causes habitat loss and fragmentation in ecologically sensitive areas of Kern and Ventura counties.
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Permit Sought to Bypass New York Fracking Ban
Jul 9, 2015 | BNA Daily Environment Report
By Gerald B. Silverman
Landowners in the southern tier of New York have applied for a permit to drill for natural gas using a method they contend would bypass the state's ban on fracking.The Snyder Farm Group, in conjunction with Tioga Energy Partners LLC, submitted a permit application July 8 to use liquefied petroleum gas to drill for natural gas on 53 acres of land in Tioga County.The state officially banned fracking in June (125 DEN A-9, 6/30/15).The permit applicants said the ban doesn't cover using liquefied petroleum gas (LPG) in a process that injects gelled propane and sand into drilling wells.Application Made Under 1992 RuleThe application was made under a Generic Environmental Impact Statement (GEIS) on oil and gas drilling issued by the state Department of Environmental Conservation (DEC) in 1992, Adam Schultz, an attorney for the applicants with Couch White, LLP, told Bloomberg BNA.Schultz, who said he expects a response from the DEC within 30 days, said the application was not filed under the recent environmental impact statement that effectively banned fracking (93 DEN A-1, 5/14/15).“As required by law, we will review the permit,” Thomas Mailey, a DEC spokesman, told Bloomberg BNA in an e-mail. “DEC will follow the mandates in the State Environmental Quality Review Act (SEQRA), which could include requiring an environmental impact statement.”Gelled Petroleum, Sand UsedFracking normally refers to the high-pressure injection of water, sand and chemical additives into geologic formations to create fractures through which natural gas or oil can flow. The Snyder Farm Group, in a statement, said using gelled petroleum and sand in a similar process is safer because it uses no water, flaring is minimal and the propane is inert.In a statement, Kevin Frisbie, a member of the Snyder Farm Group, said DEC had already indicated its position on using LPG.“By excluding gelled propane technology from the ban on high-volume hydraulic fracturing, the New York State Department of Environmental Conservation has affirmed its earlier stance that gelled propane technology, combined with horizontal drilling techniques, is considered to be a more environmentally friendly approach to natural gas collection,” he said.The application is supported by Republican state legislators from the region and the Joint Landowners Coalition of New York.In a statement, Julia Walsh, campaign director of Frack Action, said was opposed to the plan.“This is another outrageous industry attempt to frack New York State,” she said.“The vast majority of New Yorkers have made it clear that we do not want fracking and all of the negative environmental, public health, and community impacts that it brings,” she said. “This proposal should and must be denied.” -
Oil, Gas Companies Must Be Responsible
Jul 9, 2015 | The Hill
By Rep. Matt Cartwright (D-Pa.)
Recent technological developments have led to an oil and gas boom that has brought America closer to energy independence, created jobs, lowered fuel prices, and generated incredible profits for oil and gas companies. While I believe that America’s near-term energy and economic future does require oil and gas development, I also think it should be done responsibly, with consideration for our environment and health.
Unregulated and underregulated hydraulic fracturing, or “fracking,” operations pose a serious threat to America’s drinking water, natural resources, and quality of life. Just last month, the Environmental Protection Agency released a draft report concluding that “there are above and below ground mechanisms by which hazardous hydraulic fracturing chemicals have the potential to impact drinking water resources.” The EPA has also confirmed that there are well-documented cases of air quality contamination associated with hazardous air emissions from fracking operations.
Incidents of fracking-chemical spills and leakages are occurring at alarming rates. In my home state of Pennsylvania, there were nearly 600 documented cases of fracking wastewater and chemical spills in 2013 alone. In fact, the EPA estimates that there are as many as 12 chemical spills for every 100 oil and gas wells in Pennsylvania — and there are close to 8,000 active gas wells in the commonwealth right now. Each of these spills threatens precious water supplies and natural treasures.
High rates of fracking spills are due in large part to outdated federal regulations, inadequate state regulations and enforcement, and numerous loopholes codified in federal law. While the scale and impact associated with the oil and gas industry have grown dramatically since 1980, federal fracking regulations have simply not kept pace, and many states have enacted few or no fracking laws or regulations. This industry is being governed by a patchwork of inconsistent and irregularly enforced state laws. Without national standards in place, it is painfully obvious that many states will engage in a “race to the bottom,” to try to attract more oil and gas business with little regard to environmental costs.
Ominously, special interest groups and sympathetic federal lawmakers have inserted several loopholes in the Safe Drinking Water Act, the Clean Water Act, the Resource Conservation and Recovery Act, and the Clean Air Act that exempt oil and gas companies from complying with the most basic environmental protections to which other American individuals and businesses must adhere. As a consequence, the federal government’s ability to monitor fracking operations and enforce safeguards is badly hobbled.
Congress must enact responsible and common-sense updates to federal fracking regulations and close unnecessary loopholes. Doing so will reduce the impact of toxic wastes and emissions, and improve transparency for the American public.
Right now, federal efforts to fight oil and gas-related pollution are practically impossible. For example, under current law, oil and gas companies are not required to have storm water runoff permits to prevent dangerous contaminants from washing into nearby streams and rivers. Without this requirement, federal regulators are limited in their oversight capabilities, and oil and gas companies are not required to formulate and disclose plans to mitigate nonpoint-source pollution. Similarly, oil and natural gas producers are explicitly exempt from federal regulations governing the safe disposal of hazardous waste. This means that if other industries produce a particular waste, the EPA will test it, and if it is deemed hazardous, special steps must be taken to dispose of it properly. However, if the exact same waste is produced by an oil and gas company, testing is skipped and special disposal requirements are ignored. Congress must pass sensible reforms to ensure that oil and gas companies are responsibly storing, handling and disposing of highly hazardous waste.
Furthermore, closing fracking loopholes will protect the public from the release of large volumes of toxic substances into the air. Toxic chemicals can be released into the air during the extraction, storage and transmission of oil and natural gas. However, loopholes in the Clean Air Act exempt fracking operators from some of the most basic air pollution standards. These loopholes must be closed to protect our atmosphere and health.
Not having federal regulation of oil and gas operations also means transparency suffers. Enhanced federal government monitoring of fracking operations would give Americans access to information on the number, quantity, and types of chemicals oil and gas companies are injecting into the ground. The EPA has identified over 1,000 different chemicals that have been used during the fracking process, with an estimated 9,100 gallons of chemicals used for each well. However, under current law, oil and gas companies are not required to disclose to the American public what chemicals are being used. We must pass reasonable reforms to improve the transparency of oil and gas companies’ chemical use, to protect our air and water, and, ultimately, ourselves.
Due to the many environmental and health benefits associated with reforming federal fracking regulations, Reps. Diana DeGette (D-Colo.), Jared Polis (D-Colo.), Jan Schakowsky (D-Ill.) and I have introduced a collection of legislation that would close dangerous fracking loopholes and update regulations. Our bills, collectively deemed the “Frack Pack,” would require oil and gas companies to disclose chemicals used in the fracking process, apply standard Clean Air Act provisions to fracking operations, mandate that oil and gas companies acquire storm water runoff permits, and direct federal agencies to monitor the disposal of toxic fracking waste. These bills would ensure that the federal government’s environmental protections keep pace with the immense scope and complexities of the modern oil and gas industry.
Cartwright has represented Pennsylvania’s 17th Congressional District since 2013. He sits on the Natural Resources, and Oversight and Government Reform committees.
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Colorado Commission Seeks Input on Drilling Proposals
Jul 10, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Colorado Oil and Gas Conservation Commission is holding outreach meetings to solicit input on two recommendations of an oil and gas task force convened by Gov. John Hickenlooper (D) to address conflicts between state and local regulation of drilling.The commission is beginning the rulemaking process to implement the two recommendations (Nos. 17 and 20) from the Governor's Oil and Gas Task Force, which convened from September 2014 to February 2015. At the first outreach meeting July 7, the commission heard from representatives of ConocoPhillips, Bill Barrett Corp. and other companies.Recommendation No. 17 addresses local government collaboration with oil and gas operators concerning locations for “large scale oil and gas facilities” in urban mitigation areas, the commission said.Recommendation No. 20 would require oil and gas operators who are registered with the commission to also register with municipalities in which they operate and, at the request of the municipality, provide certain information about current and planned drilling operations in the municipality.The commission will hold additional outreach meetings in Broomfield, Brighton, Greeley, Rifle and Durango in July and August. It will begin drafting proposed rules after the initial outreach meetings are completed. -
Ind. Governor Sees Mercury Ruling Fueling 'Just Say No' Push
Jul 9, 2015 | E&E News PM
By Jean Chemnick
Indiana Gov. Mike Pence (R) said today that states weighing a "just say no" stance on U.S. EPA's Clean Power Plan should take heart from last week's Supreme Court ruling on the Mercury and Air Toxics Standards (MATS).
One of four state governors who have said they won't implement EPA's carbon rule for power plants, Pence said in an American Energy Alliance call today the ruling shows the high court will be an ally against economically harmful environmental mandates if governors allow judicial review to proceed.
"There is a majority on the court that recognizes the importance of some common-sense cost-benefit analyses by the EPA in the rulemaking process," Pence said. "We think we've got a strong opportunity here to defend ratepayers, and I think it's worth the fight."
In a 5-4 ruling, the court found that EPA should have considered cost initially when weighing whether to move forward with the mercury rule. But it did not invalidate the standard, instead remanding it back to a lower court for consideration (Greenwire, June 29).
EPA Administrator Gina McCarthy said this week she doesn't expect the MATS decision to have any bearing on her agency's flagship carbon rule, which is set to be final this summer. For one thing, she said, the decision is narrowly tailored to the section of the law dealing with air toxics. For another, EPA considered cost "from the get-go" when crafting the Clean Power Plan, she said (Greenwire, July 7).
But Pence painted the court's decision as a rebuke of EPA's legal process, which has also placed the carbon rule on "a very dubious legal foundation." He said he hoped EPA would improve on the proposal by deciding not to go forward with the rule at all, or at least by bowing to cost concerns and allowing coal-fired power plants to live out the rest of their useful lives before retiring.
Failing that, Pence said he expected not to implement the rule and to "avail ourselves of all rights and remedies" by suing EPA and asking courts to stay the rule.
"We think the stakes are very high here," he said.
Indiana depends heavily on coal for electricity, and EPA's mandate would be a burden on "all Hoosiers," he said.
The rule would require Indiana to cut emissions by 20 percent compared with 2005 levels by 2030, a less extensive cut than the rule's nationwide projected reduction of 30 percent by that year.
EPA has predicted the rule will increase power rates in the region that includes Indiana by about 6 percent during an interim compliance period but that the cost increase will dwindle to less than 1 percent by 2030. Pence said those estimates were suspect, however. An estimate by NERA Consulting that is frequently cited by the rule's opponents suggests power prices in Indiana could climb as high as 12 percent by 2021 because of the rule.
Republican Govs. Mary Fallin of Oklahoma, Scott Walker of Wisconsin and Bobby Jindal of Louisiana have said they will not implement the EPA rule. Republican Gov. Greg Abbott of Texas has signaled strongly that he is eying the same strategy. Pence and American Energy Alliance President Tom Pyle noted that the Clean Air Act allows states not to submit a state implementation plan, or SIP.
"No governor is required to adopt the president's climate change agenda as their own," Pence said.'No harm in waiting'
If states don't put forward a SIP, EPA has the authority to enforce a federal implementation plan, and it has shown a willingness to do so in recent years. Texas' experience after refusing to implement an EPA permitting program for carbon led to a federal plan that resulted in permitting backlogs. Austin eventually reversed course and incorporated CO2 into its SIP.
But there is safety in numbers, Pyle advised on today's call. EPA may be able to craft one or two FIPs, but if 10 states refuse to comply, "they have to throw their hands up and come to the same conclusion we have that they can't make this work." Each state FIP will be a separate rulemaking process with separate opportunities for public comment and litigation, he noted.
Pyle also repeated an argument that has often been made by proponents of the "just say no" implementation strategy, including Senate Majority Leader Mitch McConnell (R-Ky.). The theory goes that EPA's FIP would be confined to reductions that can be made on site at power plants because the federal agency, unlike states, has no authority over the power grid. This would mean a FIP's requirements would be much laxer than the ones EPA proposed based on assumptions about states' ability to switch from coal to gas, ramp up renewables and improve demand-side efficiency.
"There's no harm in waiting for that, in my view," Pyle said.
The White House is vetting EPA's model FIP for release this summer. It's widely expected to require emission reductions that go "beyond the fence line."
This will be a busy fall and winter for the Clean Power Plan. McConnell is widely expected to attempt a Congressional Review Act legislative veto of the rule once it is final, and appropriations bills in both chambers include policy riders that would bar it from going into effect.
In the likely event that those efforts fail, Pyle noted that legislative sessions in statehouses early next year are likely to produce bills curbing states agencies' authority to submit plans or at least limiting them to Building Block 1 plans that do not extend beyond the fence line.
Pyle said the noncompliance movement was gaining momentum, but EPA's McCarthy noted earlier in the week that even states that are actively opposing the power plant rule have agencies that are planning for implementation. The MATS ruling does not poke holes in the Clean Power Plan's legal foundation, she said.
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Senate Appropriations Approves Green Climate Funding
Jul 10, 2015 | BNA Daily Environment Report
By Dean Scott
U.S. funding for the Green Climate Fund, which President Barack Obama has pledged in a bid to persuade developing nations to participate in a global climate accord, survived a close vote in the Senate Appropriations Committee July 9.An amendment to allow the Obama administration—at least for now—to proceed with funding for climate aid, which would help vulnerable nations adapt to climate impacts, was adopted by the panel by a vote of 16–14. The vote was held during debate on the fiscal year 2016 funding bill for the State Department and related agencies, which the Senate committee approved 27–3.Democrats got two key votes in the appropriations panel from Republicans Sen. Mark Kirk (Ill.) and Susan Collins (Maine) for the amendment, offered by Sen. Jeff Merkley (D-Ore.). The U.S. announced in November 2014 that it would pledge $3 billion over four years to the Green Climate Fund, which has received more than $10 billion in international pledges, mostly from developed nations (221 DEN A-2, 11/17/14).Merkley's amendment does not authorize a specific amount of funding in the FY 2016 State and Foreign Operations appropriations bill for the GCF, according to a Senate Democratic aide.But the Oregon Democrat's amendment stripped out Republican-authored language in the original bill that would have required any GCF funding to get specific authorization from Congress, an unlikely scenario given that both chambers are controlled by Republicans generally opposed to the funding.“Clearly that would have been difficult, if not outright impossible, to get passed in a GOP Congress,” the aide said.Threat to Paris DealSuch climate aid is considered a key element to getting a global climate accord signed by nearly 200 nations at the year-end UN climate talks in Paris. Developing nations are pressing the U.S. and other richer nations to show how they will provide the level of aid pledged by industrialized nations at the 2009 Copenhagen climate summit: $100 billion a year beginning in 2020 (238 DEN A-1, 12/11/14).Allowing the Republican language to survive in the FY 2016 spending bill would have “been a roadblock to the Paris negotiations,” the Democratic aide said.In a statement issued after the vote, Merkley said his amendment makes clear that the administration has the authority to dedicate U.S. resources to combat global climate change.“Climate change is a global problem and it requires a global solution,” the Democrat said. “America cannot tackle climate change on its own, because it requires reductions in greenhouse gases by nations across the planet.”Climate Science AmendmentThe issue of climate science also bubbled up during Senate debate July 9 on an education bill, the Every Child Achieves Act (S. 1177). An amendment drafted by Sen. Roger Wicker (R-Miss.) would direct the Environmental Protection Agency and the National Oceanic and Atmospheric Administration to provide local and state educational agencies “balanced, objective resources” on the climate change issue, including materials allowing for the “natural cycles” of climate change and “uncertainties inherent in climate modeling.”A Wicker aide said it is too early to tell if the amendment will be accepted for debate and a vote during consideration of the education bill on the Senate floor. -
Banks Agree on Approach to Tracking Climate Finance
Jul 9, 2015 | BNA Daily Environment Report
By Rick Mitchell
On the eve of a major United Nations conference on development financing, the world's top development finance institutions have agreed on a common approach for systematically tracking financial commitments aimed at helping “vulnerable” countries adapt to climate change impacts, according to a joint statement issued July 9.Six major multilateral development banks (MDBs) and the International Development Finance Club (IDFC) also released a three-page document setting out the approach, consisting of voluntary principles, definitions and guidelines, “for tracking the finance for activities that address current and expected effects of climate change.”The African Development Bank, Asian Development Bank, European Bank for Reconstruction & Development, European Investment Bank, Inter-American Development Bank, and World Bank Group are committed to the principles, they said in the document.The MDBs and the International Development Finance Club, a network of national, regional and international development banks, released the statement in Paris during a July 7–10 scientific conference on climate change hosted by the UN Educational, Scientific & Cultural Organization.The upcoming UN Conference on Financing for Development, which begins July 13 in Addis Ababa, Ethiopia, will focus on financing sustainable development goals that the UN is to define in September, and on ways to pay for climate adaptation, to be defined at climate talks set later this year in Paris (141 DEN A-10, 7/23/14).French Warning on Climate FinanceThe 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, or COP 21, begins Nov. 30 in Paris with the aim of reaching a global agreement to fight climate change and replacing the Kyoto Protocol, which expires in 2020.French government officials have warned that the talks could fail without a precise definition of how greenhouse gas reduction commitments from developing and developed countries will be financed (109 DEN A-2, 6/8/15).In the new document, the multilateral development banks and the IDFC said they are committed to promoting and supporting climate resilient development as an essential element of the sustainability of their investments. They will do this “by integrating climate resilience and adaption into their investments, operations and initiatives.”Implementation, reporting and quality control remain each institution's responsibility, they said.‘A Significant Milestone.'The institutions said they have also committed to enhance cooperation and share knowledge on climate finance, building on a similar agreement earlier this year to define and track climate change mitigation finance.The institutions said they aim to achieve a common understanding of what can be considered climate adaptation finance. “By increasing transparency of climate finance flows,” they said, they hope to “build confidence that money is flowing to help deal with this major global challenge.”World Bank Group Vice President and Special Envoy for Climate Change Rachel Kyte called the agreement “a significant milestone in global climate action. It brings development finance institutions together on how we track finance flowing to countries, as they adapt to the impacts of climate change. The agreement paves the way for greater transparency in financial flows and hopefully will help underpin greater commitment in Paris.”According to the document, the MDBs delivered $5 billion in financing in 2014 to help developing countries and emerging economies adapt to climate change, while IDFC members contributed $15.8 billion to adaptation projects in developing countries in 2013.But they said more support for more climate resilient infrastructure, natural ecosystem and other adaptation measures is urgently needed. -
Technology for a Healthy Economy
| The Hill
By Rep. Steve Pearce (R-N.M.
Hydraulic fracturing (HF) is a safe, proven method for increasing energy development. If allowed to grow with horizontal drilling, it could position the U.S. as the preeminent energy superpower -- creating career-path jobs, a healthy economy, and bolstering energy security.
While other industries sputtered after the 2008 recession, oil and gas surged. Today, the industry injects $1.2 trillion into the economy — supporting 9.8 million American jobs.
In the 21st century, there may be no more significant innovation in energy than the fusion of hydraulic fracturing and horizontal drilling. HF makes it possible to tap shale deposits, kindling the U.S. energy renaissance.
According to National Geographic, HF boosted U.S. oil production to near historic highs — more than 9 million barrels a day — close to Saudi Arabia’s 9.6 million. The U.S. is on pace to win the No. 1 ranking by 2020.
In expanding production, HF and horizontal drilling provide multiple benefits: jobs, lower utility rates and cheaper gas prices. Whereas one conventional well could produce daily up to 1,000 barrels, an HF well can pump 5,000.
A 2010 Pennsylvania State University study estimated that investment into natural gas extraction in the Marcellus shale region contributed 44,000 jobs to Pennsylvania’s economy. The shale boom and low-cost natural gas are also lowering power rates for manufacturers, opening the door for more good-paying jobs.
Hydraulic fracturing produces much-needed public revenue for federal, state and local governments. The nonpartisan Tax Foundation found that, since 1981, governments have collected $1.95 trillion in taxes from the oil and natural gas industry.
In fiscal 2014, the federal government collected $3 billion in royalty revenue alone from onshore and Native American oil and gas operations. For every dollar the government spends administering the federal onshore oil and natural gas program, companies return $54.12 in royalties and leasing revenue to the American taxpayer.
States benefit tremendously. For example, Western states collected $9.25 billion in 2013 taxes, royalties and fees. Cities, counties and Native American tribal governments use them to sustain schools, universities, public hospitals and public safety.
Since the 1940s, hydraulic fracturing has been safely and effectively applied to more than 1.2 million wells in the U.S.
In June, after an exhaustive four-year study, the Environmental Protection Agency reconfirmed its safety. The 998-page report “did not find evidence of widespread, systemic impacts on drinking water resources.”
A top EPA official noted:
“The number of documented impacts to drinking water is relatively low when compared to the number of fractured wells,” said Thomas Burke, deputy assistant administrator of the EPA’s Office of Research and Development.
The study examined over 950 sources and reported no threat to drinking water. According to the EPA, it is the “most complete compilation of scientific data to date.”
The findings validate studies going back to 1995, when the agency researched Alabama wells and found “no evidence that the hydraulic fracturing at issue has resulted in any contamination or endangerment of underground sources of drinking water.” In 2004, another EPA study found the risk to the water supply to be negligible: “Injection of hydraulic fracturing fluids ... poses little or no threat to [underground drinking water].”
Top officials, including President Obama’s former secretary of the Interior, Ken Salazar, have consistently vouched for its safety. Similarly, former EPA Administrator Lisa Jackson and former Bureau of Land Management (BLM) Director Bob Abbey stated that hydraulic fracturing has not been proven to have caused a single case of contaminated groundwater.
With constant turmoil in the Middle East, led by the Islamic State in Iraq and Syria, Iran’s saber rattling in the Strait of Hormuz, conflict in Syria and other threats, U.S. energy security is once again critical.
Twenty percent of U.S. oil imports — 2 million barrels per day — are from Persian Gulf countries. Consequently, America’s imported oil is at risk. The good news: With hydraulic fracturing, we have enough to protect consumers from price volatility; there should be no need to rely on the Persian Gulf.
Additionally, HF has positioned the U.S. to help supply our allies with natural gas, giving them an alternative to Russia. Oil would be next if President Obama would exercise his statutory authority to lift the antiquated export ban on U.S. crude.
In March, the BLM imposed unnecessary, heavy-handed rules to shackle HF on federal and tribal lands. More red tape kills new jobs and prompts layoffs in the energy industry. Obstructing HF also undermines our recent gains in energy security. At a time when Iran, Russia and other competitors are engulfed in turmoil, these new rules would weaken U.S. energy independence. Fortunately, a federal court in Wyoming has blocked the rules pending the legal challenge.
States are better equipped to regulate oil and gas, and most already apply rigorous standards. Water and geological conditions often differ among states. The one-size-fits-all BLM rules would only sap production without any practical environmental benefit.
In sum, hydraulic fracturing is a safe and effective technology that could vault the U.S. to premier status as an energy superpower. If allowed to grow, oil and gas development would create career-path jobs, help build a healthy economy and ensure energy security. Congress should strongly support HF and block the administration’s failed anti-energy agenda.
Pearce has represented New Mexico’s 2nd Congressional District since 2011 and from 2003 to 2009. He sits on the Financial Services Committee.
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EPA Defends Against Constitutional Criticisms Of CWA Jurisdiction Rule
Jul 9, 2015 | Inside EPA
By Bridget DiCosmo
EPA in its response to comments on its final Clean Water Act (CWA) jurisdiction rule rejects claims raised by industry and states that the rule runs afoul of the Constitution's Due Process provision and 10th Amendment, previewing arguments the agency is likely to raise in response to suits over the rule citing the constitutional claims.
In addition to the legal challenges, EPA is also fending off attacks on the rule from Congress that include fiscal year 2016 appropriations bill riders to block the regulation and a recently introduced Congressional Review Act (CRA) disapproval resolution to undo the rule. But EPA Administrator Gina McCarthy has repeatedly touted the legal and scientific basis for the rule, and said that it provides certainty on the law's reach long sought by states and industry.
And in a July 8 interview with Inside EPA, EPA Region 3 Administrator Shawn Garvin said, "At the end of the day, we believe we've established a rule that relied on over 1,000 peer-reviewed publications" and considered more than 2 million comments it received on the proposed version of the rule. "We feel the rule we have makes sense" and was initiated after numerous requests from stakeholders for a formal policy that clarified the issue, he said.
EPA and the Army Corps of Engineers in their June 30 response to comments on their joint rulemaking also defended the rule, saying that it "is consistent with the Constitution."
Florida's Department of Agriculture and Consumer Services in written comments on the April 2014 proposed version of the CWA rule had raised concerns that it would extend far beyond the constitutional powers granted to EPA and the Corps to regulate interstate commerce. Florida said the rule "serves to essentially federalize all waters throughout the states, contradicting the CWA's stated purpose of preserving the states' rights to plan the development and use of land and water resources and directly infringing on the Constitution's clear limitations on federal powers."
The criticisms echo those outlined in a handful of lawsuits already filed on the rule, which the agencies published in the June 29 Federal Register, but which is not considered "final" for appellate review until July 13.
The suits have been filed in multiple federal district and appellate courts by more than 25 states as well as major organizations representing industries including agriculture, farming, and mining. The litigants have outlined various attacks on the final rule, including that it violates the Commerce and Due Process Clauses, and is at odds with the Constitution generally by usurping state powers and expanding the reach of the water law.
For example, on July 2, a massive industry coalition including the American Farm Bureau Foundation, the American Petroleum Institute, the American Road and Transportation Builders Association filed a suit in the U.S. District Court for the Southern District of Texas' Galveston Division, claiming the rule violates Due Process rights under the Constitution because the rule is unlawfully vague and will lead to "arbitrary enforcement."
Agencies' Defense
But EPA and the Corps in their technical support document (TSD) summarizing responses to comments on the proposed version of the rule reject claims it would extend federal authorities beyond the limits of the commerce Clause by relying on waters' connections to downstream, traditionally navigable waters to establish jurisdiction. "The final rule does not assert jurisdiction over a water based on a 'mere connection,'" the TSD says.
The response refers to the rule's use of a legal test from the 2006 Supreme Court CWA case, Rapanos v. United States, in which Justice Anthony Kennedy said in a concurring opinion 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 (TNW).
By contrast, the plurality opinion in Rapanos written by Justice Antonin Scalia held that only "relatively permanent" waterbodies that connect to TNW 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
EPA and the Corps in the TSD say that Kennedy already addressed the constitutional concerns on both the interstate commerce and state powers in Rapanos that critics raised in their comments.
The response cites Kennedy's portion of the opinion which says, the high court in the 2001 ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, "by interpreting the Act to require a significant nexus with navigable waters, the Court avoided applications -- those involving waters without a significant nexus -- that appeared likely, as a category, to raise constitutional difficulties and federalism concerns."
On the Due Process claims, the agencies reject the criticism that the significant nexus test poses an issue because it pulls in "similarly situated" waters, saying the language stems directly from the Kennedy opinion, and that "jurisdictional determinations (JD) are not final agency actions so due process is not implicated."
The TSD -- one of a host of supporting documents released alongside the final rule -- says, "Any subsequent jurisdictional determinations with respect to other 'similarly situated' waters in the same region by an agency cannot be inconsistent with an existing jurisdictional determination without explanation, but once the agency has taken a final agency action such as issuing a permit or denying a permit, a recipient has administrative and judicial processes available to challenge the action including any underlying jurisdictional determination."
CWA Jurisdiction
In defense of its position that JDs are not final agency actions and therefore the rule avoids Due Process issues, the agencies cite appellate cases in the U.S. Court of Appeals for the 5th Circuit, Belle Co. LLC v. Corps, in 2014, and a 2008 case in the 9th Circuit, Fairbanks N. Star Borough v. United States Army Corps of Engineers.
But the agencies may struggle to defend that position given that the 8th Circuit on July 7 rejected the Justice Department's (DOJ) request to rehear a ruling that found that JDs are final actions and entitled to pre-enforcement judicial review, preserving an appellate split on the issue that could require the Supreme Court to resolve.
The 8th Circuit's unanimous April 10 ruling in Hawkes Co., et al. v. U.S. Army Corps of Engineers, is in direct conflict with Belle, in which a unanimous three-judge panel backed DOJ's argument that JDs carry no threat of legal action separate from the penalties for violating the CWA bar on unpermitted discharges, and thus are not "final." Instead, the court held that recipients must await a permitting or enforcement decision by regulators and challenge that action
Kent Recycling, a co-plaintiff of Belle in the 5th Circuit litigation, is asking the Supreme Court to grant review of that case in order to resolve what it says is a circuit conflict on whether courts can review JDs. The justices rejected Kent's first request for certiorari without comment March 23, before the 8th Circuit ruled in Hawkes, but is now weighing the recycling firm's request to reconsider its decision in light of the circuit split.
In addition to lawsuits claiming constitutional violations with the CWA rule, litigants are claiming that the rule is at odds with requirements in the National Environmental Policy Act and the Administrative Procedure Act (APA), for example arguing that the agencies violated the APA by not giving enough time for input on the rule.
EPA and the Corps released more than a dozen documents outlining responses to the more than 1 million comments received on the rulemaking, but many of the responses appear to refer to the TSD and the rule's preamble, which one industry source says could boost APA challenges that EPA failed to adequately respond to comments.
"Certainly there's fodder there, whether or not its enough will be determined by the courts," that source says, pointing out that "APA gives the agency lots of outs."
Legislative Efforts
Opponents of the rule -- who say it extends the CWA's reach far beyond what Congress intended and will impose costly new requirements on industries -- are also looking to lawmakers to block it.
The House and Senate FY16 appropriations bills contain language that would prohibit EPA and the Corps from implementing the rules, but those bills have prompted a White House veto threat.
Separately, Rep. Adrian Smith (R-NE) on July 7 introduced a CRA resolution, H. J. Res. 59, providing for Congress' disapproval of the rule, which has been referred to the House Transportation & Infrastructure Committee. The CRA gives Congress 60 days after finalization of an agency rule to block it, and a veto from President Obama would require two-thirds of Congress to overcome.
If a disapproval of the rule succeeded either with Obama's signature or overturning a veto, some observers say the CRA could prohibit the agencies crafting another jurisdiction policy. The law says a rule blocked under the CRA "may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule."
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Lawmaker Floats Congressional Review Act Resolution to Kill WOTUS
Jul 9, 2015 | E&E News PM
By Annie Snider
A Nebraska Republican has filed a resolution of disapproval under the Congressional Review Act aimed at killing the Obama administration's controversial Waters of the U.S. rule.
Rep. Adrian Smith filed a joint resolution of disapproval yesterday, saying opponents of the rule to increase the number of streams and wetlands receiving automatic protection under the Clean Water Act need to use "every tool available" to fight it.
"This unilateral rule is nothing more than a power grab from a federal agency with a lengthy track record of expanding its regulatory authority without regard for the impacts on American families and businesses," Smith said in a statement. "While the administration continues to defy Congress and the American people by pushing forward with this damaging regulation, we must use every tool available to combat this overreach."
The 1996 Congressional Review Act allows expedited procedures to be used to block new regulations. In order to qualify for this fast-track approach, a resolution of disapproval must be filed in either chamber within 60 days of when the rule is sent to Congress.
The CRA's expedited procedures are most significant in the Senate, where the law limits debate time and bans the use of some common procedural delay tactics, including the filibuster. That means it needs only a simple majority to pass.
But whether an attack on the water rule under the CRA can ultimately play any differently than other ongoing attempts to kill it through outright legislation or through the appropriations process remains to be seen. A resolution of disapproval still can be vetoed by the president. Lawmakers would need to override that veto within 30 days to prevent the regulation from going into effect.
In 43 attempts since the CRA was signed into law, only one resolution of disapproval has been passed by both chambers of Congress, according to the Government Accountability Office. In that case, the rule -- an ergonomics regulation from the Department of Labor -- was finalized in the waning days of the Clinton administration, allowing Congress to formally disapprove of it after the Bush administration had taken power.
The House has already moved to kill or block implementation of the water rule through both stand-alone legislation and appropriations riders. But it's unclear whether critics have the 60 votes necessary to kill the water rule in the Senate. There, their best bet may be a policy rider that made its way into the spending bill for U.S. EPA.
White House Office of Management and Budget Director Shaun Donovan yesterday blasted that rider, among others, in a letter to Senate Appropriations Chairman Thad Cochran (R-Miss.) (Greenwire, July 9).
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Senate Dems Demand Action on Highway Bill
Jul 9, 2015 | E&E News PM
By Daniel Bush
With time running out before a stopgap transportation bill expires at the end of the month, Senate Democrats and Transportation Secretary Anthony Foxx today urged Senate Republican leaders to come up with a plan to fund a long-term highway bill.
Foxx and several key Democrats called on Senate Majority Leader Mitch McConnell (R-Ky.) to propose a path forward for funding a six-year highway and transit bill before the Senate turns to the issue next week.
"Republicans are dragging their feet while our roads and bridges continue to crumble, and they haven't put any proposal on the table," Sen. Chuck Schumer (D-N.Y.) said at a Capitol Hill news conference.
"We're 22 days away from a transportation shutdown, and we don't have a Senate plan," said Sen. Barbara Boxer (D-Calif.), the top Democrat on the Senate Environment and Public Works Committee.
The committee unanimously passed a six-year transportation measure last month that would authorize roughly $270 billion for highway and transit projects from fiscal 2016 through 2021, but the bill lacked a framework for covering future transportation costs.
If Congress doesn't extend a short-term highway patch that expires at the end of July, the Transportation Department will likely have to start delaying its reimbursements to states before the end of the fiscal year in September, grinding local transportation projects to a halt.
One solution to the crisis could come through tax reform.
Senate Democrats and the White House have floated a plan to fund the highway bill through a new tax on U.S. corporate profits that are held overseas. Lawmakers need to generate about $90 billion just to maintain current transportation spending levels over the next six years.
Rep. Paul Ryan (R-Wis.), the chairman of the powerful House Ways and Means Committee, endorsed the proposal earlier today at a forum in Washington, D.C., saying the international tax reform measure was the GOP's "first preference" for funding long-term infrastructure legislation.
But it's unlikely that Congress can pass the tax overhaul before the transportation deadline in three weeks, setting up the possibility that lawmakers will have to settle for a shorter five- or six-month highway reauthorization to give both parties more time to negotiate a tax deal to offset a long-term bill.
Democrats have said they oppose another short-term highway bill, but Schumer indicated they could sign on if there's clear bipartisan support for international tax reform.
"International tax reform seems right now to be the only clear bipartisan path to pay for a long-term" highway bill, Schumer told reporters. If a deal appears likely, "then I think a short-term proposal would be acceptable," Schumer added.
Democrats held the news conference and sent a separate letter urging McConnell to act one day after McConnell announced the Senate would likely take up a highway bill next week (E&ENews PM, July 8).
McConnell expressed skepticism yesterday that Congress could strike a tax deal by the end of the month, and rejected an alternative proposal to raise the federal gas tax to pay for the highway bill.
Schumer signaled today that the gas tax hike appears to be off the table.
"While there are some members who support a gas tax hike, the vast majority of members of both parties do not," he said.
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White House Slams Transportation Spending Bill
Jul 10, 2015 | E&E Daily
By Daniel Bush,
A top White House official yesterday bashed the Senate's fiscal 2016 spending bill for transportation, housing and urban development, saying it contains "ideological" riders aimed at gutting key highway projects and other programs.
Office of Management and Budget Director Shaun Donovan said the spending bill for the Transportation Department and Department of Housing and Urban Development would lock in sequestration-level spending caps that would hamper key investments in housing and transportation infrastructure.
"The measure would underfund these important investments and includes highly problematic ideological riders," Donovan wrote in a letter to Senate Appropriations Chairman Thad Cochran (R-Miss.).
The committee approved the $55.6 billion bill last month by a 20-10 vote mostly along party lines. The measure is roughly $7 billion less than President Obama's fiscal 2016 budget request, which included funding for a long-term highway reauthorization bill.
The bill would provide $2.6 billion for the Federal Aviation Administration, a $225 million cut from the president's budget blueprint.
The measure would maintain current funding levels for Amtrak and the "Transportation Investment Generating Economic Recovery" (TIGER) grant program in fiscal 2016.
A House version of the spending bill would cut TIGER, which received $500 million this year, by $100 million next year and slash Amtrak funding by 18 percent.
But Donovan noted that the proposed TIGER funding in the Senate bill is $750 million less than the White House's budget request.
Donovan also objected to proposed funding cuts to the Pipeline and Hazardous Materials Administration, which oversees pipeline and rail transportation safety. Under the Senate bill, PHMSA would receive $49 million next year, $3 million less than fiscal 2015 enacted spending levels.
Donovan also blasted a provision in the bill that he said would undermine trucking industry safety regulations and language that would change the funding formula for a low-income housing program.
"The inclusion of these provisions threatens to undermine an orderly appropriations process," Donovan wrote.
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Energy Department, PHMSA Announce Research on Crude
Jul 10, 2015 | BNA Daily Environment Report
By Rachel Leven
The Energy and Transportation departments announced July 9 the next research they will fund regarding crude oil characteristics, an issue that has garnered interest in light of a string of derailments of trains carrying crude oil.The Energy Department will support initial combustion research to delineate relationships between specific or combined crude and combustion properties, Paula Gant, deputy assistant secretary for the office of oil and natural gas, said in a blog post. The Transportation Department's Pipeline and Hazardous Materials Safety Administration will fund work to determine the best sampling and testing methods for crude, she said.The research that is intended to identify and mitigate risks of this type of transport will be conducted by Sandia National Laboratories, which compiled an initial literature survey on the subject. The departments picked which research they would fund from the lab's working draft, “Crude Oil Characteristics Research Sampling, Analysis and Experiment (SAE) Plan,” which was released July 9 as well (57 DEN A-13, 3/25/15).The departments won't fund all of the research proposed by Sandia, such as more extensive combustion testing, Gant said. However, she said the research tasks could appropriately be supported by other interested parties, such as industry.The July 9 announcement, including the Sandia lab document, presents in more detail plans for study that the Energy Department had already disclosed as early as April (74 DEN A-8, 4/17/15).The administration has sought to learn more about crude oil in recent years following increased rail shipments and derailments resulting in property and environmental damage.By better understanding risks associated with production, treatment and transport of crude oil, the government hopes to determine how -
Obama Taps Ex-McConnell Aide for Railroad Board
Jul 10, 2015 | E&E Daily
By Josh Kurtz
President Obama last night nominated a former aide to Senate Majority Leader Mitch McConnell (R-Ky.) to serve on the seven-member board of directors of Amtrak, and he also renominated the railroad board's chairman to another term as a director.
The White House announced that Obama nominated Derek Kan, director of strategy at GenapSys Inc., a California company that develops genetic testing technology. Kan was a policy adviser to McConnell from 2008 to 2010 and was chief economist for the Senate Republican Policy Committee in 2006 and 2007. He also served as a presidential management fellow at the Office of Management and Budget under President George W. Bush.
Kan received a Bachelor of Science from the University of Southern California, an Master of Science from the London School of Economics, and a Master of Business Administration from the Stanford Graduate School of Business.
Congressional Republicans have been particularly critical of Amtrak, so Kan's ties to Capitol Hill could be an asset for the embattled passenger railroad.
Obama yesterday also renominated Anthony Coscia, the current Amtrak board chairman, to another five-year term as a director. Coscia was chairman of the board of commissioners of the Port Authority of New York and New Jersey from 2003 through 2011. He is also a partner at Windels Marx Lane & Mittendorf LLP, a law firm with offices in New York City, New Jersey and Connecticut, where he specializes in corporate and real estate finance transactions.
Coscia received a Bachelor of Science in foreign service from Georgetown University and a Juris Doctor from Rutgers University School of Law.
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