Preview Newsletter
ACC am July 15
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(ACC Mentioned) Film Reclamation Group Continues Growth
Jul 14, 2015 | Environmental Expert
Vision and Strategies outlined during June APR Meeting: With the demand for film and flexible packaging expanding, efforts to recover and reclaim that material are becoming increasingly complex and critical. To meet the needs of the film reclamation industry, The Association of Postconsumer Plastic Recyclers... -
(ACC Mentioned) US EPA Releases Index On Antimicrobial Use Patterns
Jul 16, 2015 | Chemical Watch
A first version of its long awaited index on use patterns for antimicrobial products has been released for public consultation by the US EPA. The posting of the use site index (USI) satisfies a condition of a legal settlement agreed between the agency and the American Chemistry Council (ACC) in March (CW 12 March 2015). -
(ACC Mentioned) As Congress Considers Chemical Safety, Chemical Industry Spends Millions to Distort the Debate
Jul 15, 2015 | Union of Concerned Scientists
As the U.S. Senate considers revising chemical safety regulations, a new report by the Union of Concerned Scientists (UCS) shows the debate over chemicals is consistently driven by the chemical industry lobby through its main trade group, the American Chemistry Council (ACC). Last year, the ACC spent $11 million to push public policy in the... -
(ACC Mentioned) Congress Poised to Revise Law Regulating Chemicals Used in Commercial Products
Jul 16, 2015 | Earth Island
By Elizabeth Grossman
If you think every chemical used in every consumer product on our store shelves has been tested and deemed safe, think again. If you think current laws in the United States explicitly prohibit the use of some of the most hazardous chemicals, such as asbestos, in consumer products, think again. -
(ACC Mentioned) “Plastic Still The Future,” According To Canadian Packaging Magazine
Jul 15, 2015 | Solide Waste & Recycling
By John Mullinder
The plastics industry is besieged on multiple fronts and widely depicted as the “archetypical eco-villain of the modern world,” according to the editor of Canadian Packaging magazine. He then latches onto an American Chemical Council study that purports to show how much worse the world would be environmentally if plastics were replaced by... -
Time Running Out for TSCA Vote Before August Break
Jul 16, 2015 | BNA Daily Environment Report
By Anthony Adragna, Dean Scott and Pat Rizzuto
Supporters of the first major overhaul of a U.S. chemical law are continuing to press Senate Republican leaders for a vote on the bill (S. 697) before the August recess, but the window of opportunity for floor time may be closing fast. There are several obstacles to getting the Senate to move on the bill to revamp the Toxic Substances Control Act ... -
Industry Urges EPA To Expand TSCA Work Plan Risk Analysis Program
Jul 15, 2015 | InsideEPA
By Maria Hegstad
Industry groups are applauding EPA's decision to release planning and scoping documents for its ongoing assessment of the health risks of exposure to 1,4-dioxane under the Toxic Substances Control Act (TSCA), but are urging the agency to make the work plan risk analyses more comprehensive and allow more opportunities for public comment. -
Toxic Substances, Nontoxic Policy
Jul 15, 2015 | The Huffington Post - Politics Blog
By Wayne Pacelle
Each year, tens of thousands of animals are killed to test industrial chemicals, including ingredients found in common household products in our homes. These animals suffer terribly, as harsh chemicals are rubbed into their skin, forced down their throats, and even dropped in their eyes. Some tests involve administering these chemicals over... -
NYC Books Millionth Participant In Recycling Program
Jul 15, 2015 | E&E News PM
By Colin Sullivan
A massive electronics recycling push in the Big Apple has enrolled its millionth participant seven months after a ban on discarding such items in regular trash went into effect, city officials announced today. In a news conference, the New York City Department of Sanitation and the city's e-waste contractor, Electronic... -
Joint GHS-TDG Meeting To Address Common Concerns
Jul 15, 2015 | Chemical Watch
Experts from the international group, dealing with classification and labelling of chemicals (GHS) and the transport of dangerous goods (TDG), will hold their first joint session, at the end of this year, to address areas of common concern. Both bodies operate under the UN Economic Commission for Europe (Unece), and recently agreed to work... -
Senate Panel Hears CSB Nominee's Credentials
Jul 16, 2015 | BNA Daily Environment Report
By Robert Iafolla
While nanotechnology isn't the prototypical area of expertise for members of the Chemical Safety and Hazard Investigation Board, a board nominee testified June 15 that her background with that emerging technology prepared her to join an agency focused on major industrial accidents. -
Chemical Safety Nominee Receives Praise
Jul 15, 2015 | The Hill - E2 Wire
By Lauren Aguirre
Senators widely praised President Obama's pick to head the Chemical Safety Board, Kirsten Kulinowski, during a hearing Wednesday before the Environment and Public Works Committee. The president tapped Kulinowski to head the five-person board that investigates chemical accidents following the resignation of the last chairman. -
Pipeline Oil Spill Caused by Fitting Failure: PHMSA
Jul 16, 2015 | BNA Daily Environment Report
A crude oil pipeline pump station in Bond County, Ill., leaked July 10 due to a “fitting failure” that released more than 100 barrels of oil, the Pipeline and Hazardous Materials Safety Administration said in a corrective action order released late July 14. The crude oil from the Plains All American Pipeline LP pipe facility flowed into the nearby Little Silver ... -
BLM Fracking Rule Expensive, Slowing Work: Critics
Jul 16, 2015 | BNA Daily Environment Report
By Alan Kovski
The new federal rule on hydraulic fracturing will cost more than the Bureau of Land Management has estimated, will slow down work and already has created confusion over federal regulations, critics said July 15 at a congressional hearing. If the courts allow the rule to become effective, “then I respectfully request that the committee help the BLM... -
Official Defends Fracking Rules For Federal Lands
Jul 15, 2015 | The Hill - E2 Wire
By Austin Yack
A top administration official is defending new standards for hydraulic fracturing, commonly known as fracking, on land owned by the federal government and Indian tribes. Bureau of Land Management Director Neil Kornze told lawmakers on Wednesday that new rules are necessary to "address modern practices" such as fracking and to... -
California Family Sues Over Fracking Rules
Jul 16, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
California's new regulations governing oil and gas well stimulation activities discriminate against Latino public school children, according to a lawsuit filed July 15 on behalf of a Kern County family (Romo v. Brown, Cal. Sup. Ct., case number unavailable, 7/15/15). Latino children are more likely to attend schools near the state's oil and gas... -
Crude Exports Vote To Come Up On Floor, Not Committee -- Murkowski
Jul 16, 2015 | E&E Daily News
By Geof Koss
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) signaled yesterday that changes to the crude exports ban won't be included in the committee's energy package she aims to start marking up next week. After meeting with ranking member Maria Cantwell (D-Wash.), Murkowski hinted that crude exports language would... -
Murkowski, Upton Eye Energy Bill Markups As Soon As Next Week
Jul 15, 2015 | PoliticoPro - Whiteboard
By Elana Schor
The chiefs of the House and Senate energy committees today hinted that their respective broad policy bills could see markups as soon as next week. Both bills have been in the works for months and both are aimed at amassing bipartisan support. Senate Energy and Natural Resources Chairwoman Lisa Murkowski told reporters... -
White House Taps Former DOE Official As New Commissioner
Jul 16, 2015 | E&E Daily News
By Hannah Northey
The Obama administration last night nominated Jessie Roberson, a former Energy Department official with years of experience with controversial cleanup programs, to serve a five-year term as a member of the Nuclear Regulatory Commission. If confirmed by the Senate, Roberson would fill a vacancy left open by Bill Magwood... -
Can Congress Break the Energy-Legislation Curse?
Jul 15, 2015 | The National Journal
By Jason Plautz
One undercard story in last week's flap over a Confederate-flag amendment on the House floor: It helped extend a multiyear losing streak for the Interior Department and Environmental Protection Agency spending bill. In fact, energy watchers wouldn't be out of bounds to think that passing any energy bill is just a cursed venture. -
NRDC Touts Clean Power Plan Support in Report
Jul 16, 2015 | BNA Daily Environment Report
By Andrew Childers
Environmental advocates predicted the Environmental Protection Agency's Clean Power Plan will survive judicial scrutiny as they marshal resources to support the upcoming final rule. Officials at the Natural Resources Defense Council urged the EPA to expand the role renewable generation and energy efficiency play in the Clean Power Plan... -
Final Power Plan Should Be Tougher In The Near Term -- NRDC
Jul 15, 2015 | E&E News PM
By Jean Chemnick
The final Clean Power Plan that U.S. EPA releases in the coming weeks can and should require even deeper carbon reductions in the 2020s than the draft version did, experts from a leading environmental group said this morning. "We're very confident that the rules we're going to see are going to be stronger than the proposed rules," Rhea Suh... -
Study Shows How Power Plant Rules Can Save Lives, Improve Public Health in Texas
Jul 15, 2015 | Environmental Defense Fund
By Elena Craft
When it comes to reducing carbon pollution from power plants, details in policy choices matter, especially for the state of Texas. The final proposal of the Environmental Protection Agency’s (EPA) Clean Power Plan, which would put the first ever national limits on carbon pollution from power plants in the U.S., is expected later this summer. -
Reid Calls For Fresh Talks On FY16 Bills After House Pulls EPA Legislation
Jul 15, 2015 | InsideEPA
By David LaRoss
Senate Minority Leader Harry Reid (D-NV) is urging Republicans to launch fresh talks on new fiscal year 2016 appropriations bills for EPA and other agencies to replace contentious measures that Democrats oppose, after the House pulled its version of EPA's FY16 funding legislation and has no plans to craft a replacement bill. -
Trading 'Ready' Highlighted As Way For Overburdened States To Cut ESPS Costs
Jul 15, 2015 | InsideEPA
By Lee Logan
State and other supporters of informal or “trading-ready” programs to comply with EPA’s greenhouse gas (GHG) rule for existing power plants are touting the concept as a relatively simple way to reduce compliance costs, especially for states that believe they were disproportionately burdened by the regulation. -
EPA Approves Climate-Friendly Alternatives for SNAP
Jul 16, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency has approved the use of several alternative substances for use in refrigeration, air conditioning, solvent cleaning and other uses under the agency's Significant New Alternatives Policy, commonly known as the SNAP program. The agency said on its website that the decision to approve the alternatives is consistent... -
Senate Rejects Climate Change Education Measure
Jul 15, 2015 | The Hill - E2 Wire
By Devin Henry
Republican senators rejected an amendment to a No Child Left Behind reform bill Wednesday that looked to establish a federal climate change education program. The measure, from Sen. Ed Markey (D-Mass.), would have created a grant program for school districts to “develop or improve climate science curriculum and supplementary education... -
Notification Guidance Released for Final Waste Rule
Jul 16, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency has released interim guidance explaining how facilities should submit required notifications under the agency's recently finalized definition of solid waste rule. The guidance is necessary, because the final rule took effect in July 13 for states and territories without approved hazardous waste programs... -
EPA Rule To End SSM Air Exemptions Spurs Legal, Regulatory Confusion
Jul 15, 2015 | InsideEPA
By Stuart Parker
EPA's final rule forcing 36 states to scrap provisions in their air plans allowing emissions limit exemptions for some facility startup, shutdown and malfunction (SSM) periods is spurring legal and regulatory confusion, with uncertainty over which court will hear challenges to the rule and industry doubts about how to meet air law mandates. -
Free-Market Advocacy Group Faults Legality Of EPA SSM Exemption Rule
Jul 15, 2015 | InsideEPA
By Anthony Lacey
SSM emissions ensure that sources are subject to an emission limitation at all times.” The Clean Air Act requires SIPs to include only emissions controls vital to attaining a NAAQS, and EPA has not shown the SSM SIP Call is necessary for that reason, the filing suggests. “EPA concluded that the affected SIPs were 'substantially inadequate' to comply with any Clean Air Act requirement without any demonstration that... -
Updates to EPA Air Modeling Guideline Proposed
Jul 16, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency is proposing to update its Guideline on Air Quality Models for the first time in a decade to enhance the agency's preferred dispersion modeling system and incorporate a new approach for addressing the secondary formation of ozone and fine particulate matter. -
First Challenges to EPA's Coal Ash Rule Filed
Jul 16, 2015 | BNA Daily Environment Report
By Anthony Adragna
Industry groups and companies began July 15 to launch the first legal challenges to the Environmental Protection Agency's final rule on the management and disposal of coal ash, according to federal appeals court petitions (Utils. Solid Waste Activities Grp. v. EPA, D.C. Cir., No. 15-1219, petition filed 7/15/15). -
Guidance Might Be Option For EPA To Address Uncertainty With CWA Rule
Jul 14, 2015 | InsideEPA
By Bridget DiCosmo
EPA could consider crafting guidance to address Clean Water Act (CWA) issues that might need more clarification following the agency's release of its final rule to define the law's reach, sources say, such as offering a definitive statement on "normal" farming practices exempt from the CWA that is missing from the regulation. -
Cattlemen's Groups Challenge Clean Water Rule
Jul 16, 2015 | BNA Daily Environment Report
By Matthew Berger
A new federal clean water rule sets “no limit” on the Clean Water Act's reach and extends to waters already deemed outside of regulation by the U.S. Supreme Court, opponents said in a July 15 lawsuit (Washington Cattlemen's Ass'n v. EPA, D. Minn., No. 15-cv-03058, 7/15/15). The lawsuit was filed in the U.S. District Court for the District of... -
Senate GOP Raises Broad Legal Attacks On EPA's CWA Jurisdiction Rule
Jul 14, 2015 | InsideEPA
By Bridget DiCosmo
Senate Republicans are raising broad legal attacks on EPA's final Clean Water Act (CWA) jurisdiction rule that echo and build on criticisms outlined in a slew of lawsuits filed over the regulation, including claims that it unlawfully expands the scope of the CWA and violates provisions of the Constitution including the Commerce Clause. -
Confirmation Hearing Set for PHMSA Nominee
Jul 16, 2015 | BNA Daily Environment Report
The Senate Commerce, Science and Transportation Committee will hold a July 22 confirmation hearing for Marie Dominguez, the nominee to head the Pipeline and Hazardous Materials Safety Administration. Dominguez, who said in her nomination filing with the committee that boosting enforcement at PHMSA would be among her top priorities... -
Senate Panel Passes Reauthorization Measure On Party-Line Vote
Jul 16, 2015 | E&E Daily News
By Sean Reilly
A transportation bill covering rail, safety and environmental permitting policies narrowly won approval late yesterday from a sharply divided Senate committee. "I think we've done some important work," Senate Commerce, Science and Transportation Chairman John Thune (R-S.D.) said after the panel passed an amended version of S. 1732...
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(ACC Mentioned) Film Reclamation Group Continues Growth
Jul 14, 2015 | Environmental Expert
Vision and Strategies outlined during June APR Meeting
With the demand for film and flexible packaging expanding, efforts to recover and reclaim that material are becoming increasingly complex and critical. To meet the needs of the film reclamation industry, The Association of Postconsumer Plastic Recyclers, the leading trade organization representing the plastics recycling industry in North America, recently appointed Sandi Childs, a long time recycling industry executive, to direct its flexible film recovery efforts.
“We are very pleased that Sandi has agreed to manage our film and flexible packaging recovery efforts,” commented Scott Saunders, General Manager of KW Plastics and Chairman of APR. “Building upon the development of the APR Design™ Guide for Film and Model Bale Specifications, Sandi is already working with industry leaders to define clear strategies that will lead to increased recovery of flexible packaging for recycling. With over 30 years experience in our industry, including positions with Coca-Cola Recycling, NAPCOR and Southeastern Container, Sandi has the perfect combination of insight and understanding of all aspects of the recycling process.”
“The committee plans to collaborate with all stakeholders, as well as other APR committees, to expand and improve existing film recycling infrastructure,” explained Sandi Childs. “We will also study and assess the impact of bags and films on MRFs and curbside collection, and explore possible ways to redesign collection strategies or MRF equipment so that bags might be accepted in curbside programs in the future.”
According to data from the 2013 NationalPostconsumer Plastic Bag & Film Recycling Report prepared by Moore Recycling Associates for the American Chemistry Council, there is tremendous opportunity in flexible film recycling. Over 1.0 billion lbs of postconsumer film was recovered for recycling in 2013, but there is still additional recycling capacity for mixed postconsumer film in the US and Canada. Mixed film and bags from retail collection showed a significant increase over 2012, second only to commercial mixed color material. End uses for recycled film are split almost evenly between lumber and film sheet, with lumber having a slight edge.
Keeping those statistics in mind, the vision for the Film Committee is that all packaging films are recycled. The basic strategies for achieving that vision are:
1. Drive more supply of high-quality clean film stock.
2. Support strong North American film markets.
3. Inspire consumers to recycle film packaging in a way that encourages the highest and best end use.
New Film Committee members include Trex, Procter & Gamble, EFS Plastics, WestRock (formerly MeadWestVaco and RockTenn), and PepsiCo, bringing the membership to over 20 companies. “We are extremely pleased with the direction the APR Film Reclamation Committee has taken,” stated Jon Stephens, Senior Vice President at Avangard Innovative and Chair of the APR Film Reclamation Committee. “This diversity of membership ensures that all points of view will be considered as the committee moves forward with its work.”
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(ACC Mentioned) US EPA Releases Index On Antimicrobial Use Patterns
Jul 16, 2015 | Chemical Watch
A first version of its long awaited index on use patterns for antimicrobial products has been released for public consultation by the US EPA.
The posting of the use site index (USI) satisfies a condition of a legal settlement agreed between the agency and the American Chemistry Council (ACC) in March (CW 12 March 2015).
The ACC had challenged the agency for failing to release a list of biocidal product uses and how they fit into the 12 use patterns established under the Final Rule on Data Requirements for Antimicrobial Pesticides. The law requires the EPA to release this as guidance.
The commenting period on the index ends on 31 July. According to the settlement the final index should then be published within six months.
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Jul 15, 2015 | Union of Concerned Scientists
As the U.S. Senate considers revising chemical safety regulations, a new report by the Union of Concerned Scientists (UCS) shows the debate over chemicals is consistently driven by the chemical industry lobby through its main trade group, the American Chemistry Council (ACC).
Last year, the ACC spent $11 million to push public policy in the direction of chemical-industry interests—at the expense of Americans’ health and safety. The group spent $1.8 million on more than 6,000 ads in the 2014 election cycle, and actively pressures federal agencies and state governments as well. The ACC and its member companies have given heavily to members of the two committees that oversee most chemical policy, the Senate Environment and Public Works Committee and the House Energy and Commerce Committee. The UCS report, “Bad Chemistry: How the Chemical Industry’s Trade Association Undermines the Policies that Protect Us,” shows how the ACC’s influence marginalizes the independent science that should be informing chemical-safety policies.
“Companies shouldn’t get away with hiding behind their trade associations to influence the political process without accountability,” said Gretchen Goldman, a UCS analyst and the lead author of the study. “This is the same playbook that the tobacco industry and oil companies have used to undermine science. It’s vulnerable people and communities who suffer when chemical companies can buy friendly policies.”
The industry-friendly chemical safety bill before the Senate is just the latest example of the ACC’s power. While public pressure, and the efforts of several reform-minded Senators, led to improvements in the bill, it still is not strong enough to protect the public. The House-passed bill also needs strengthening.
The ACC has lobbied against policies like OSHA rules on exposure to harmful silica dust, EPA rules on formaldehyde, and disclosure of the chemicals used in fracking. It was also instrumental in limiting public access to information about chemical plants and their associated risks
“We should base our chemical policies on the best available science,” Goldman said. “Congress must approve a chemical safety law that protects public health and the environment, not the priorities of chemical manufacturers—and we need to hold accountable the companies and groups who are trying to sideline science.”
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(ACC Mentioned) Congress Poised to Revise Law Regulating Chemicals Used in Commercial Products
Jul 16, 2015 | Earth Island
By Elizabeth Grossman
If you think every chemical used in every consumer product on our store shelves has been tested and deemed safe, think again. If you think current laws in the United States explicitly prohibit the use of some of the most hazardous chemicals, such as asbestos, in consumer products, think again.
Last week, new test reports released by the Environmental Working Group found asbestos in children’s crayons. This is alarming, given that even small amounts of asbestos exposure can cause serious and even fatal lung disease. What may be even more disturbing is that asbestos’ presence in these crayons is not explicitly prohibited by the
Toxic Substances Control Act (TSCA), the primary law that regulates chemicals used commercially in the US.
The US Environmental Protection Agency has been struggling to regulate the more than 84,000 chemicals now registered for commerce in the US using this nearly 40-year-old act that hasn’t been updated since it was signed into law in 1976 by President Gerald Ford. Now, after almost six years of wrangling, Congress is poised to act on legislation to reform TSCA. The House has passed its TSCA reform bill (H.R. 2576) and the Senate is expected to vote on its bill (S. 697) perhaps even before Congress breaks for its August recess.
Everyone — from the EPA to environmental health advocates to chemical industry representatives — agrees that TSCA is outdated and ineffective and badly in need of revision. There is also wide agreement that there’s enough momentum behind the issue to make it very likely that the two bills will be voted on before Labor Day and sent to the president’s desk this year.
Yet whether these bills will ensure meaningful improvement in how the US manages chemicals continues to be a matter of considerable debate among those who’ve been watching this process closely. Before wading into the weeds it’s worth stepping back to ask what TSCA does, does not do and what changes the House and Senate bills propose.
The most basic thing that TSCA does is require that the EPA keep a current list of all chemicals used commercially in the US. That list, known as the TSCA Inventory, now includes more than 84,000 chemicals, but it does not include pesticides, pharmaceuticals, or chemicals used in food, cosmetics and personal care products. Other laws regulate those.
TSCA does not, however, require that the listed chemicals be tested for a full range of environmental and human health effects before they’re put into use. While TSCA does require manufacturers to submit certain information on new chemicals to the EPA, there are some 60,000 chemicals that were in use at the time TSCA was enacted that were allowed to continue being used without any additional safety testing or review. This has meant that these chemicals – that include some of those most widely used such as bipshenol A (BPA), formaldehyde, many flame retardants and plasticizers – have been assumed to be safe, even though we don’t know whether they are so or not.
Under TSCA the EPA has been reviewing chemicals — assessing their safety and issuing what it considers “safe” exposure levels. But this process has been extremely slow, with some individual chemical evaluations taking decades to complete. In those instances when a chemical’s use has actually been restricted or discontinued, it’s often been under voluntary agreements with manufacturers or because the chemical is no longer in use.
Complicating and further limiting what we know about chemicals on the TSCA inventory is the fact that TSCA allows manufacturers to claim some information submitted to the EPA – including the chemical’s identity – as a trade secret.
While TSCA does include some restrictions and even bans on some uses of hazardous chemicals, including PCBs (polychlorinated biphenyls) and lead, it makes it very difficult to actually restrict the use of chemicals found to be hazardous after they’re on the market. To do so — or even to require testing of a chemical already in use — whoever (EPA included) claims the chemical is harmful must present evidence of that harm. Not only is the level of such proof TSCA requires extremely high, but the law also requires that risk of harm be reduced in the way that’s “least burdensome” to the chemical manufacturer.
Asbestos is perhaps the prime example of how hard TSCA makes it for the EPA to completely prohibit a chemical’s use. While TSCA does bar some uses of asbestos — in certain insulation products — it does not keep them out of all products, including those like children’s crayons that may contain talc contaminated with asbestos, an issue about which federal health authorities have been aware since 2000.
“These toys are an example of a failed system in which voluntary action by industry doesn’t completely clean up products in the market,” says EWG senior analyst, Sonya Lunder and co-author of the asbestos-in-crayons report.
“Since 1976, TSCA has failed to protect Americans from asbestos and thousands of other chemicals,” Asbestos Disease Awareness Organization president and CEO, Linda Reinstein told EIJ via email. “The time is now for Congress to pass real TSCA reform that ensures the EPA can expeditiously review and take action to ban asbestos. Enough is enough.”
So what are the House and Senate proposing and will it be “real” TSCA reform?
Both bills largely concur on what needs fixing in TSCA, but how effectively they do so depends on who you ask.
Among the big ticket items being tackled by both bills are — the pace of the EPA’s chemical assessments and how the EPA prioritizes chemicals for safety review; how TSCA handles companies’ confidential business information or trade secrets claims; amending TSCA’s “least burdensome” requirement on chemical restrictions and its definition of chemicals that may pose an “unreasonable risk” of harmful exposure. The other extremely big-ticket item on the table is how a revised TSCA will work with state and other local level chemical regulations.
This last issue is huge since in the absence of effective federal regulation on chemicals, states have been busy filling in the gaps. There are now some 172 individual laws regulating chemicals in about 35 states and an additional 100-plus similar bills have been under consideration in 28 states this year. These regulations range from laws restricting specific uses of individual chemicals to ones – such as those in Maine and Washington that require manufacturers to report on use of scores of potentially hazardous chemicals used in children’s products, or California’s Proposition 65 that sets limits on and requires businesses to warn the public about possible exposure to carcinogens, reproductive and developmental toxics
Whether in California, with its enormous economy, or in a small state like Maine, these state laws are having a huge influence on the consumer marketplace, in many cases prompting manufacturers to change product formulations even without any federal restrictions.
The Senate bill, sponsored by Democrat Senator Tom Udall and Republican Senator David Vitter, now has nearly 50 co-sponsors (a nearly equal mix of Democrats and Republicans). It also has the support of a large coalition of business groups, including the American Chemistry Council, US Chamber of Commerce, Consumer Electronics Association and CropLife America. Others supporting the bill include the National Wildlife Federation, March of Dimes and the Humane Society of the United States.
“From our perspective the Senate bill is a much stronger package, having been negotiated for a longer period of time,” says Environmental Defense Fund senior scientist Richard Denison. The House bill, Denison says, “is more piecemeal and from our perspective that’s a problem because it leaves out major areas of TSCA. The Senate bill has tackled those in a more comprehensive way.”
Safer Chemicals, Healthy Families, a coalition of more than 450 environmental, health and consumer advocacy groups across the country, is endorsing neither bill but prefers the House approach, which is now being supported by the National Governors Association, National Conference of State Legislatures and the Environmental Council of States. The House bill “needs fewer tweaks to make modest reforms,” says Tony Iallonardo, Safer Chemicals, Healthy Families communications director.
Both EDF and Safer Chemicals, Healthy Families have released side-by-side comparisons of the two bills. A close read of both the legislation and the comparisons suggests that the devil is indeed in the details and that anyone hoping to see state chemicals laws continue unimpeded by TSCA as they are now, will be disappointed.
Some critics, like Scott Faber, EWG senior vice-president for government affairs, say that both bills fall short of what’s needed.
“Ordinary people expect that chemicals, especially the most dangerous chemicals, have been reviewed by a government agency and are shocked,” that they are not, Faber told EIJ. The legislation now under consideration “won’t change that,” he said. His big concern: that neither bill will require the EPA to act quickly enough on reviewing and potentially restricting use of the most dangerous chemicals, including asbestos.
Perhaps the big take-away is that even if these bills get adopted, it’s not going to lead to an overnight change in the way potentially toxic chemicals are regulated in this country.
“It’s going to take time to deal with this problem,” Denison says. But, he says, “it’s important that we get started… on shifting away from this system puts all of the onus on EPA to find harm.”
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(ACC Mentioned) “Plastic Still The Future,” According To Canadian Packaging Magazine
Jul 15, 2015 | Solide Waste & Recycling
By John Mullinder
The plastics industry is besieged on multiple fronts and widely depicted as the “archetypical eco-villain of the modern world,” according to the editor of Canadian Packaging magazine. He then latches onto an American Chemical Council study that purports to show how much worse the world would be environmentally if plastics were replaced by competing materials such as paper, glass and metal.
Whatever we say on this subject is bound to be construed by certain parties as biased and confrontational since we compete with our plastic colleagues on many fronts. The reality, however, is that many of our members have a foot in both camps, producing both paper and plastic packaging, the better to serve their customer base. And it’s not as if we, as paper, do not have some empathy for the current disrepute the plastics industry generally finds itself in. Remember the “forest wars” of the 1980s and 1990s and the dioxin threat? Paper was a dirty word.
What we do find difficult to digest, however, is the editor’s uncritical support for, and fulsome quotation from, the particular report he cites. This study, sponsored by the plastics industry, is far from being as “scientifically and empirically sound” as he claims. For starters, it looks only at two (just two) life cycle components (energy consumption and greenhouse gas emissions). You won’t find anything here about air pollution, the sustainability of exploiting non-renewable oil and natural gas deposits, or the impact of plastic litter on marine life. So the study is not a complete life cycle analysis, it’s a partial one.
The authors acknowledge this. The study “does not include an expanded set of environmental indicators.” Nor does it “meet the ISO 14044 criteria for requiring a panel peer review.” Its conclusions, the authors add, are “not intended to be used as the basis for comparative environmental claims or purchasing decisions.”
So why are they being used publically for that very purpose? And why is Canadian Packaging repeating them unquestioningly as if to prove that plastics ain’t that bad? Plastics have their place. And some good things come in plastic. But let’s not confuse credible, complete, peer-reviewed life cycle research with what amounts to a questionable sales pitch aimed at denigrating competing materials.
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Time Running Out for TSCA Vote Before August Break
Jul 16, 2015 | BNA Daily Environment Report
By Anthony Adragna, Dean Scott and Pat Rizzuto
Supporters of the first major overhaul of a U.S. chemical law are continuing to press Senate Republican leaders for a vote on the bill (S. 697) before the August recess, but the window of opportunity for floor time may be closing fast.
There are several obstacles to getting the Senate to move on the bill to revamp the Toxic Substances Control Act before senators depart at the end of the week of Aug. 3. Republican Senate leaders are prepared to move to a surface transportation reauthorization measure after completing work on an education package (S. 1177) now on the floor.
“[TSCA] is going to probably be after highways,” Sen. Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee (EPW), told Bloomberg BNA July 15.
The Senate is expected to spend two weeks on the highway bill, according to two Republican aides.
That would put off possible consideration of TSCA at least until the week of Aug. 3, but Senate leaders continue to push for a time agreement that would limit floor debate on the measure, which aides say must be in place before the bill is brought to the floor.
Further complicating TSCA's prospects for a vote in the coming weeks: Republican leaders are also considering moving a cybersecurity measure that week, the aides said.
Senate Majority Leader Mitch McConnell (R-Ky.) hasn't yet agreed to give floor time to what would be the first update since 1976 of the nation's chemical safety law, which regulates chemicals in consumer and industrial use, though negotiations continue on limiting the number of amendments the chamber would consider. An aide to McConnell said the bill remained “in the mix” for possible consideration.
“We're pushing hard to be in this work period,” Sen. Tom Udall (D-N.M.), one of the bill's sponsors, also told Bloomberg BNA July 15. “There's still a lot of discussion about us being in this work period by all the leadership teams.”
Even if the chamber doesn't act on the bill before the August recess, it could still make time for its consideration later in the year, one of the aides said.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) enjoys the support of 48 co-sponsors. House lawmakers previously passed a narrower reform bill—the TSCA Modernization Act of 2015 (H.R. 2576)—in late June on a 398-1 vote (121 DEN A-1, 6/24/15).
‘Closest We've Ever Been.'
An aide to Sen. David Vitter (R-La.), one of the sponsors of S. 697 along with Udall, told Bloomberg BNA July 15 the chamber was the “closest we've ever been” to voting on updating the chemical safety law.
“There's a really good chance that we'll get it on the floor that first week of August, and at this point, we're the closest we've ever been,” the aide said, adding the bill should secure more than 50 co-sponsors over the next day or two.
Key to the bill's chances may be whether Sen. Barbara Boxer (D-Calif.), the ranking member of the Senate Environment and Public Works Committee, who strongly opposes the Senate bill, allows an agreement on amendments.
“I think if we can get an agreement with Senator Boxer, in terms of the number of amendments and time to bring it forth, we could do that,” Sen. John Barrasso (R-Wyo.) told Bloomberg BNA regarding consideration of the bill before recess. “If somebody wants to drag it out, you can't get it done.”
Multiple senators told Bloomberg BNA the chamber's packed schedule—with items like the highway bill and review of the nuclear deal with Iran—might make it a challenge for consideration of the TSCA measure before August.
“I thought it would have had a chance to go before we took the break, but that was [the thinking] a month ago,” Sen. Joe Manchin (D-W.Va.) said. “Things have happened since then.”
Encouragement from Coons
Sen. Chris Coons (D-Del.) said July 14 some provisions of his Sustainable Chemistry Research and Development Act of 2015 (S. 1447) already have been incorporated into the Senate TSCA overhaul. Coons, a co-sponsor of S. 697, spoke during the 19th annual Green Chemistry and Engineering Conference held by the American Chemical Society.
For example, both his bill and S. 697 would amend the Toxic Substances Control Act to establish an interagency sustainable chemistry program—led by an interagency working group consisting of at least seven federal agencies—to coordinate and promote federal research in, development of and training for sustainable chemistry, Coons said.
Under both bills, the interagency working group would receive recommendations from an advisory council with representatives of small and larger businesses, academia, state and tribal governments and nongovernmental organizations, he said.
Coons said he is working with Senate colleagues to incorporate further provisions of the Sustainable Chemistry bill into S. 697.
Specific Changes Some Democrats Seeking
The EPW committee's report (H. Rept. 114-67) that accompanied the version of S. 697 the committee approved April 28 includes a minority view section summarizing changes Sens. Boxer, Ben Cardin (D-Md.), Bernie Sanders (I-Vt.), Kirsten Gillibrand (D-N.Y.) and Ed Markey (D-Mass.) would like included in the Udall-Vitter bill.
Changes the five senators are seeking in the TSCA bill would:
• allow states to regulate chemicals until the EPA takes a final action;
• require that chemicals or situations dealing with chemicals that are known to be dangerous, such as asbestos or chemicals stored near drinking water sources, are addressed; and
• improve the scope and speed of chemicals that the EPA would be required to assess under the bill.
Senate debate would proceed quickly if the changes were made or if the Senate takes up the House bill as a starting point for the Senate's vote, a Democratic aide to the EPW Committee told Bloomberg BNA July 13.
Without the changes, extensive amendments would be offered to the bill, the Democratic aide said.
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Industry Urges EPA To Expand TSCA Work Plan Risk Analysis Program
Jul 15, 2015 | InsideEPA
By Maria Hegstad
Industry groups are applauding EPA's decision to release planning and scoping documents for its ongoing assessment of the health risks of exposure to 1,4-dioxane under the Toxic Substances Control Act (TSCA), but are urging the agency to make the work plan risk analyses more comprehensive and allow more opportunities for public comment.
"We applaud EPA for providing the public with a problem formulation and initial assessment document before beginning a full risk assessment of 1,4-dioxane," writes Nancy Beck, a senior director at the American Chemistry Council (ACC), in the group's June 29 comments. Doing so will allow stakeholders to provide EPA information it may not have, and assists EPA in conducting an assessment useful to its decision makers, Beck adds. Beck's remarks are echoed by colleagues at the Rubber Manufacturers Association (RMA). Relevant documents are available on InsideEPA.com. (Doc. ID: 183038)
EPA's Office of Pollution Prevention and Toxics (OPPT) began the work plan risk assessment program in 2012, with the intent of assessing the human health risks of of various consumer uses of some 83 prioritized chemicals over the next several years until Congress reforms TSCA.
The OPPT program may continue in some form after that point, however, given that both TSCA reform bills reference the program. The latest version of H.R. 2576 allows EPA to continue assessing chemicals prioritized for the work plan risk assessments in its new framework for EPA, while the bipartisan Senate bill, S. 697, requires EPA to continue assessing the work plan chemicals as part of the group of priority chemicals for the agency to assess under its new format.
The planning and scoping document for 1,4-dioxane is the first work plan assessment where EPA has released such a document for public comment. The agency in April released the "TSCA Work Plan Chemical Problem Formulation and Initial Assessment" of 1,4-dioxane, saying it intends to develop similar documents for other chemicals that the program will assess moving forward.
EPA determined further review is warranted of potential risks to workers exposed to 1,4-dioxane during product formulation or while using it as a cleaning agent. The agency will also assess risks to workers and consumers from products that contain 1,4-dioxane as a contaminant, such as paints, varnishes, adhesives, cleansers and detergents.
EPA's preliminary review concluded that risk to the general population through inhalation exposure to ambient air emissions is low. The agency says a drinking water assessment is not currently necessary because 1,4-dioxane is monitored, and the agency is considering whether regulation is needed under a different process.
Dioxane has long been a concern in drinking water and at Superfund sites, and more recently, environmentalists and public health groups have questioned its appearance in consumer products like soaps and shampoos.
The industry groups, however, are pressing EPA to make the work plan assessments more comprehensive and resource intensive. Both ACC and RMA urge EPA to add an additional comment period into the process. "RMA recommends that problem formulation and initial assessments for work plan chemicals should be first published as drafts, then following collection and consideration of public comments, EPA should publish a revised final problem formulation and initial assessment," Sarah Amick, RMA's senior counsel, writes in the group's June 29 comments.
Both groups also question OPPT's past practice of incorporating existing assessments into the work plan assessment, as EPA did in its work plan assessment of the solvent trichloroethylene (TCE), which borrows from the 2011 Integrated Risk Information System (IRIS) hazard and dose-response assessment of TCE.
"In the initial assessment for 1,4-Dioxane, EPA specified that the agency may review currently available data and information, including but not limited to, assessments conducted by others (e.g. authorities in other countries), published or readily available reports and published scientific literature," RMA writes. "Because EPA may consider data and information from any source, RMA has concern that EPA may consider data or information that is not scientifically sound."
RMA asks that EPA revise its problem formulation and initial assessment if it receives information from public comments indicating that information it relied on is inaccurate, and it presses the agency to release a list of its sources for public comment as well.
The groups' concern stems from EPA's IRIS assessment of 1,4-dioxane, which in 2010 listed the chemical as a "likely" carcinogen and set a strict estimate of cancer risks by oral exposure that industry, the Defense Department, the National Aeronautics & Space Administration and the White House Office of Management and Budget have questioned. The cancer slope factor was 17 times more potent than the one in EPA's 1990 IRIS assessment.
Industry critics recommended that the agency reconsider its assessment based on new toxicity studies, which they said raised questions about EPA's calculation of dioxane's oral cancer risks. The agency in 2013 finalized its assessment based on those new toxicity studies. The assessment included first-time inhalation risk estimates and maintained the controversial "likely" carcinogen finding.
More bluntly, ACC states that per "multiple recommendations from the National Academies of Science (NAS), the [OPPT] must conduct a rigorous review of all the scientific literature to ensure that the best information is used to inform Section 6 rulemaking. This includes seeking sources in addition to [IRIS] assessments to ensure that the best available science is considered . . . The 2013 1,4-dioxane IRIS assessment was finalized without fully implementing standardized approaches for evaluating studies, as well as other important NAS recommendations. As such the IRIS assessment for 1,4-dioxane should not be seen as representing the best available science."
ACC also presses EPA to enhance review scrutiny of the TSCA assessments. "Based on the risk management options that may be considered, EPA should clearly articulate the type of risk assessment that will be conducted (i.e., screening level or robust assessment) and the plans for external peer review," Beck writes. "Rigorous assessments that will be used to inform regulatory activities under TSCA Section 6 should be treated as Highly Influential Scientific Assessments and should undergo robust peer reviews consistent with Office of Management and Budget (OMB) guidance." And ACC urges OPPT to follow recommendations for risk assessment laid out in a 2014 publication from EPA's Risk Assessment Forum, the Human Health Risk Assessment Framework, which provides advice on how best to plan and scope an assessment. ACC considers this to require that "Problem formulation documents must clearly articulate the potential policies and risk management options that may be informed by the work plan assessments."
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Toxic Substances, Nontoxic Policy
Jul 15, 2015 | The Huffington Post - Politics Blog
By Wayne Pacelle
Each year, tens of thousands of animals are killed to test industrial chemicals, including ingredients found in common household products in our homes. These animals suffer terribly, as harsh chemicals are rubbed into their skin, forced down their throats, and even dropped in their eyes. Some tests involve administering these chemicals over a prolonged period of time causing horrific deaths.
But now, there's good news in Congress for modern science-based alternatives to chemical testing that do not rely on animals.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), introduced by Sens. David Vitter, R-La., and Tom Udall, D-N.M., and cosponsored by a bipartisan group of 46 other lawmakers, would significantly improve the science behind chemical testing, resulting in better safety decisions to protect the environment and human health. The bill language would lead to the use of fewer animals in testing and, in some cases, could eliminate it.
Today, I want to call out Senator Cory Booker, D-NJ, for his fierce determination in getting this language included to require the use of existing validated alternatives to animal testing where available, ensure that research and development of new methods is prioritized and create a host of procedures prior to any new testing, making animal testing the final procedure. Senators Udall and Vitter - both determined animal advocates - actively supported his efforts to insert that critical language to make animal testing a last resort.
The bill calls for quickly identifying chemicals that are most likely to pose health problems, and then focusing resources on testing those chemicals more thoroughly. Considering that we are surrounded by tens of thousands of chemicals, it is a practical and common-sense approach that would save time and money: a full battery of safety tests takes more than a decade, and can cost tens of millions of dollars and thousands of animal lives. Toxic chemicals also pose a significant threat to fish and wildlife populations, and science-based testing recommended by this new bill would help reduce that threat.
Traditional chemical safety assessments rely on overdosing animals and observing the results, like death, tremors or tumors. Most of these methods are even older than the current Toxic Substances Control Act, which this bill would replace. There is also a disconnect between the information we get from animal testing and the ability to apply it to human health; according to the Food and Drug Administration, 92 percent of prospective pharmaceuticals that passed animal testing still fail during clinical trials (the only situation where we have direct human information for comparison). This failure is due to many things, including lack of efficacy and unforeseen toxicity, even after testing in a wide range of animals.
In a seminal report in 2007: "Toxicity testing in the 21st century: a vision and a strategy," the National Academies of Science proposed capitalizing on the dramatic revolution that has occurred in our understanding of biology, in the 50 years since the traditional animal-based methods were developed. Innovations in computer and materials science now offer strong alternatives to animal testing, including 3-D printing, construction of artificial human tissues, and the generation of sophisticated computer programs that can make predictions based on complex information. The NAS recommended designing highly reliable tests that measure chemical effects on critical biological pathways without using animals.
Today, scientists and regulators around the world, including the U.S. Environmental Protection Agency, agree that this is the best way forward. We call on the Senate to pass the bill, and continue working to strengthen the ability of states to adopt even stronger animal welfare and public safety provisions, and then urge the House to accede to this Senate language. Please join me in supporting S. 697, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, and urge your senators to vote for this breakthrough bill that would help make chemical testing smarter for regulatory decision-making and protect animals' lives.
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NYC Books Millionth Participant In Recycling Program
Jul 15, 2015 | E&E News PM
By Colin Sullivan
A massive electronics recycling push in the Big Apple has enrolled its millionth participant seven months after a ban on discarding such items in regular trash went into effect, city officials announced today.
In a news conference, the New York City Department of Sanitation and the city's e-waste contractor, Electronic Recyclers International, said a public-private partnership has allowed about an eighth of the city's 8 million residents to take part in the e-cycleNYC program.
In other words, ERI has booked enough enrollees to claim the company picks up old televisions, computers and other items from 1 million New Yorkers living in about 2,500 buildings. Also, ERI says 100 new buildings are enrolling per week.
John Shegerian, chairman and CEO of ERI, called e-waste the "fastest-growing waste stream in the world" and said more than 600,000 pounds of it has been collected so far this year in New York, with 1.5 million pounds to be collected by the end of the year.
The average American household owns 28 electronic devices, but just 55 percent of New York residences have access to a vehicle to unload their waste. Shegerian said this prompted the program, which was started by Mayor Bill de Blasio under the OneNYC sustainability initiative.
An ERI spokesman said those not yet enrolled through their apartment buildings can dump their trash at a retailer like Best Buy or call ERI and try to book a pickup. ERI provides this service to residents for free.
To be eligible, New York buildings have to have at least 10 units. ERI said it picks up old TVs, monitors, computers, laptops, small servers, printers and scanners, tablets and e-readers, mobile phones, MP3 players, VCRs, DVRs, DVD players, video game consoles, cable and satellite boxes, fax machines, keyboards, mice, and hard drives.
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Joint GHS-TDG Meeting To Address Common Concerns
Jul 15, 2015 | Chemical Watch
Experts from the international group, dealing with classification and labelling of chemicals (GHS) and the transport of dangerous goods (TDG), will hold their first joint session, at the end of this year, to address areas of common concern.
Both bodies operate under the UN Economic Commission for Europe (Unece), and recently agreed to work together to avoid duplication.
Such areas include corrosivity criteria, labelling and placarding issues, and documents bearing symbols from both regimes.
In addition, the meeting will discuss amending the manual of tests and criteria, which is specific to the TDG, and chapter 2.1 of GHS in a bid to improve consistency between the two approaches.
National experts have until early September to submit documents for consideration by the meeting, which is scheduled for 9 December.
The plans were discussed at a recent meeting of the sub-committee of GHS experts.
The meeting is the first of the current biannual work programme, which runs until the end of 2016. Hence many projects are at an early stage and most of the submitted documents are for information only, and do not contain specific proposals.
For example, further work is likely on a proposal from the industry group, the Dangerous Goods Advisory Council (DGAC), on GHS versus transport labelling, after the sub-committee provided comments but did not agree to any of the suggestions. And in the area of corrosivity, the work group informed the sub-committee that the US would informally lead the work on the additivity method, where a better correlation is being sought with the results from traditional approaches.
No amendments have been made to the text of the sixth revised edition of the GHS, which was adopted at the end of last year. Electronic versions will be available before the end of the year, says Unece.
Among the changes it will introduce are a new hazard class for desensitised explosives and a new hazard category for pyrophoric gases; miscellaneous provisions intended to clarify the criteria for some hazard classes (explosives, specific target organ toxicity following single exposure, aspiration hazard and hazardous to the aquatic environment); additional information for inclusion in safety data sheets (section 9); revised and further rationalised precautionary statements; and a new example in Annex 7 addressing labelling of small packages.
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Senate Panel Hears CSB Nominee's Credentials
Jul 16, 2015 | BNA Daily Environment Report
By Robert Iafolla
While nanotechnology isn't the prototypical area of expertise for members of the Chemical Safety and Hazard Investigation Board, a board nominee testified June 15 that her background with that emerging technology prepared her to join an agency focused on major industrial accidents.
Nominee Kristen Kulinowski told the Senate Committee on the Environment and Public Works that leading research groups focused on the environmental, safety and health implications of engineered nanomaterials sensitized her to the challenges of protecting workers.
Kulinowski said her nanotechnology work has brought her into partnership with groups like the Occupational Safety and Health Administration, taught her to foster dialog and build consensus among a broad range of stakeholders and honed her dedication to acting based on evidence rather than preconceived notions.
“If confirmed, I will draw on my technical skills, experience with stakeholder engagement and scientific dispassion to work toward the shared goal of ensuring that every American industrial worker goes home at the end of his or her shift,” said Kulinowski, currently a researcher at the Science and Technology Policy Institute.
Kulinowski's nomination hearing comes amid an extended period of leadership transition at the Chemical Safety Board. The departures of former Chairman Rafael Moure-Eraso and member Mark Griffon have reduced the board—which is chartered for five members—to just two active members.
Kulinowski and Vanessa Sutherland, the nominee to lead the CSB, await approval from the Senate Environment Committee before the full Senate can consider confirming them. Sutherland, chief counsel at the Pipeline and Hazardous Materials Safety Administration, testified before the committee in April (78 DEN A-4, 4/23/15).
In addition to turnover at the board level, two top staffers linked to Moure-Eraso have left the agency. CSB Managing Director Daniel Horowitz and Richard Loeb remain on administrative leave pending the conclusion of an internal investigation into potential misconduct.
Acting Chairman Richard Engler put the two officials on leave and initiated the probe, but member Manuel Ehrlich Jr. has criticized the move (118 DEN A-17, 6/19/15).
Internal Investigation Backed
At the hearing, Senate Environment Committee Chairman Jim Inhofe (R-Okla.) appeared to back Engler's decision.
Inhofe noted that, aside from the ongoing CSB probe, the Environmental Protection Agency's Office of Inspector General and the House Committee on Oversight and Government Reform previously investigated Horowitz and Loeb for allegedly harassing other employees, for using nongovernmental e-mail accounts to hide their activities and for delaying the agency's work.
“The investigation is ongoing, and I would ask you, if you are confirmed, will you commit to ensuring this investigation continues unimpeded and that it has the resources it requires?” Inhofe asked.
Kulinowski pleaded ignorance to the particulars of the investigation but said she could see no reason to stop an ongoing probe from going forward.
Kulinowski was met with little skepticism during her brief appearance before the committee. Aside from Inhofe, Sen. Shelley Moore Capito (R-W.Va.) was the only other panel member to question Kulinowski.
CSB's Work With Emergency Responders
In response to Capito's query about the CSB working with local emergency responders, Kulinowski returned to her experience facilitating open stakeholder dialog while leading the International Council on Nanotechnology.
Kulinowski also has headed the Center for Biological and Environmental Nanotechnology, a National Science Foundation research center. Both nanotechnology groups are affiliated with Rice University, where she is an adjunct chemistry professor.
For the past four years, working as a researcher at the Science and Technology Policy Institute, Kulinowski has analyzed innovation policy, disaster response, regulatory science and other topics in support of the White House Office of Science and Technology Policy.
“While my portfolio at my current job has been broad, first and foremost, I'm a chemist,” Kulinowski told the Senate panel.
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Chemical Safety Nominee Receives Praise
Jul 15, 2015 | The Hill - E2 Wire
By Lauren Aguirre
Senators widely praised President Obama's pick to head the Chemical Safety Board, Kirsten Kulinowski, during a hearing Wednesday before the Environment and Public Works Committee.
The president tapped Kulinowski to head the five-person board that investigates chemical accidents following the resignation of the last chairman.
Sen. Ed Markey (D-Mass.) introduced Kulinowski, calling her a "highly technically qualified candidate" and urged his colleagues to back her nomination."She is not a politician," added Sen. Barbara Boxer (D-Calif.), the committee's ranking member. "She is a scientist. That's something we need."
The former CSB chairman, Rafael Moure-Eraso, resigned in March under pressure from the White House and lawmakers, following allegations that he broke the law and was a dysfunctional leader. An investigation is looking into those allegations.
Despite the friendly tone, lawmakers pressed Kulinowski on the challenges the agency faced.
Kulinowski vowed to continue that probe if confirmed and said she would return the beleaguered agency's focus.
"The knowledge that many major accidents could have been prevented drives me to continue to work in this area," she said.
In a lighter moment, Kulinowski pointed out her husband and daughters in the audience. Committee Chairman Jim Inhofe (R-Okla.) said, "Have your daughters stand up. They’re cute,” leading to laughter as her family briefly stood.
Kulinowski has been a research staff member of the Science and Technology Policy Institute since 2011. She holds a doctorate in Chemistry and is an adjust assistant professor at Rice University.
If confirmed, she would serve a five-year term.
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Pipeline Oil Spill Caused by Fitting Failure: PHMSA
Jul 16, 2015 | BNA Daily Environment Report
A crude oil pipeline pump station in Bond County, Ill., leaked July 10 due to a “fitting failure” that released more than 100 barrels of oil, the Pipeline and Hazardous Materials Safety Administration said in a corrective action order released late July 14. The crude oil from the Plains All American Pipeline LP pipe facility flowed into the nearby Little Silver Creek and then Silver Lake, which is used by Highland, Ill., for drinking water. As of July 11, there was no contamination of Highland's water supply and nearly 60,000 gallons of water and crude-oil mix have been collected by the company, the order said. Plains Pipeline, hose pipe recently failed in California, must shutdown the affected pipeline facility (Pocahontas Station), the facility's mainline and a connected pipeline; establish a plan for getting the station back online; test the failed fitting; and assess spill mitigation needs and techniques, among several other requirements. The order is available at http://phmsa.dot.gov/pv_obj_cache/pv_obj_id_FCC2AD675538F4E01D42D9DD7397CF6BFDDB0900/filename/320155007H_Corrective%20Action%20Order_07142015.pdf.
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BLM Fracking Rule Expensive, Slowing Work: Critics
Jul 16, 2015 | BNA Daily Environment Report
By Alan Kovski
The new federal rule on hydraulic fracturing will cost more than the Bureau of Land Management has estimated, will slow down work and already has created confusion over federal regulations, critics said July 15 at a congressional hearing.
If the courts allow the rule to become effective, “then I respectfully request that the committee help the BLM improve it,” said Lloyd Hetrick, an engineer for Newfield Exploration Co.
Hetrick testified to the House Natural Resources Subcommittee on Energy and Mineral Resources, which provided a forum for another round of Republican criticism that the rule is unjustified red tape and Democrats' remarks that the rule is a modest, reasonable minimum set of requirements for fracking regulations applied to federal and Indian lands.
The rule allows for variances where state or tribal regulations are at least as effective as federal regulations, but no variances have been granted yet, BLM Director Neil Kornze acknowledged during the hearing.
James Olguin, a council member of the Southern Ute Indian Tribe, said his tribe has its own regulations and would insist on its tribal sovereignty rather than accepting the BLM regulations. On the possibility of a regulatory variance from the BLM, Olguin said, “We're not even going to seek it.”
Much of the work on the rule has been stalled because of court action, Kornze said, citing the stay issued by a federal court in a case involving challenges to the rule Wyoming v. Interior, D. Wyo., No. 2:15-cv-00043, 6/23/15; 122 DEN A-8, 6/25/15).
Rep. Jared Polis (D-Colo.) offered a new take on the argument over state versus federal regulation of fracking. He said his home state of Colorado, generally regarded as one of the better states for regulating fracking, has “effectively no regulations around fracking safety.”
Fracking Has Its Defenders
Industry officials, state regulators and some Obama administration officials have defended hydraulic fracturing by saying the pollution events sometimes blamed on fracking—a well stimulation technique—stem from other factors, including leaky well casing, inadequate cementing of wells and mishandling of chemicals or wastewater.
Rep. Matt Cartwright (D-Pa.) objected to such distinctions, saying the specific causes don't matter to an affected family. “It's all related to the fracking activity,” Cartwright said.
Rep. Rob Bishop (R-Utah), chairman of the full committee, asked Kornze a series of questions leading to the point, in Bishop's summarization, that the BLM wasn't getting its job done.
The agency not only launched the new rule without variances in place but without adequate numbers of personnel to regulate hydraulic fracturing and without the needed instructional memoranda to state offices to provide guidance on implementation, Bishop said.
Kornze said his Interior Department agency needs more resources to do its work. On the subject of inspectors, he said the agency needs 220 inspectors but only has 160.
Interior Cooperation Questioned
While most of the hearing was about points made many times before in hearings and news releases, Bishop raised the issue of cooperation between the Interior Department and Congress on congressional requests for information.
Bishop gave the example of a request from the committee to Interior for information concerning Interior Department and Border Patrol work in the Southwest since January 2014.
Bishop said Interior sent the committee 3,600 pages, including such documents as an ecological study going back to the 1976 bicentennial, a report on how astronauts were trained in the Southwest between 1963 and 1972 and a copy of a 1983 environmental assessment that came from the University of Minnesota library. Only one document in the package came from the time period requested, Bishop said.
“It seems to us as if we're almost being inundated with things that are in your face, saying, ‘screw you, we're not going to give you the material you want,' ” Bishop said.
Administration officials have complained about the volume of requests for documents that have come from the Republican majority in Congress. Bishop said he wants to minimize the requests but that Interior has to be more cooperative for that to happen. Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:8.0pt; mso-para-margin-left:0in; line-height:107%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}
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Official Defends Fracking Rules For Federal Lands
Jul 15, 2015 | The Hill - E2 Wire
By Austin Yack
A top administration official is defending new standards for hydraulic fracturing, commonly known as fracking, on land owned by the federal government and Indian tribes.
Bureau of Land Management Director Neil Kornze told lawmakers on Wednesday that new rules are necessary to "address modern practices" such as fracking and to account for the increase in drilling on federal lands.
“During this administration, oil production from those lands has increased 81 percent," Kornze told the House Natural Resources subcommittee on energy and mineral resources. "The hydraulic fracturing rule is critical to meeting that responsibility.""It is necessitated the BLM revisits their rules," he added, noting the rules were last updated thirty years ago.
Green groups have raised the alarm about fracking, arguing that it poses a risk of polluting water sources. Republicans though credit the process with the boom in energy production and say environmental fears are overblown.
The new federal regulation has been held up by a federal court as states push to overturn it.
Lawmakers grilled Kornze, arguing that the federal move duplicated state regulatory efforts and placed new burdens on tribal authorities.
Rep. Louie Gohmert (R-Texas) questioned if hydraulic fracturing was as damaging as green groups claim.
“Did you not care that the EPA found there was no groundwater problems with fracking?" said Gohmert. "Then you come in, in search of a problem with your solution, and it is outrageous."
Rep. John Fleming (R-La.) questioned duplication efforts, saying that “states were proactive in regulating the process of hydraulic fracturing, and they were successful in doing so.”
Other GOP lawmakers questioned if the bureau had the authority to implement the new fracking rules.
Rep. Rob Bishop (R-Utah) said the bureau had ignored his requests for more information, saying it seemed like the agency was saying "screw you."
Kornze though defended the agency's efforts and said businesses regularly must abide by both state and federal regulations. He said the agency was receptive to public concerns.
"We work very hard to make sure the public’s voice is heard," he told lawmakers.
Democrats on the panel also expressed support for the rules.
“This rule does not do as much as it should, but it also doesn’t do half as much as the Republicans claim," said Rep. Raul Grijalva (D-Ariz.). "It is much better than nothing."
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California Family Sues Over Fracking Rules
Jul 16, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
California's new regulations governing oil and gas well stimulation activities discriminate against Latino public school children, according to a lawsuit filed July 15 on behalf of a Kern County family (Romo v. Brown, Cal. Sup. Ct., case number unavailable, 7/15/15).
Latino children are more likely to attend schools near the state's oil and gas fields where most of the hydraulic fracturing and other well stimulation treatments occur, the complaint said. Yet, the regulations lack any setbacks or geographic limitations on well stimulation to protect this group of students, according to the lawsuit filed by the Center on Race, Poverty & the Environment.
Filed in California Superior Court in Sacramento County, the complaint alleged violation of California Government Code Section 11135, which bars state practices that intentionally or unintentionally discriminate.
The legal action is the first to challenge the regulations the Department of Conservation's Division of Oil, Gas and Geothermal Resources adopted to implement legislation (S.B. 4) enacted in 2013.
Effective July 1, the rules require permits for certain well stimulation activities, disclosures involving chemicals used, water and wastewater reporting, notices to neighboring property owners and more.
The regulations continue “historic discrimination against students of color, including Latino schoolchildren, on the basis of race, national origin, and ethnic group identification,” the complaint said.
Rodrigo Romo, whose two daughters attend schools located near “fracked” wells, is the named plaintiff. Both girls suffer from “severe asthma” and fear for their health and safety due to their schools' proximity to well stimulation activities, the complaint said.
Kern County, in the San Joaquin Valley, is the center of the state's oil and gas operations.
Environmental and public health advocacy groups, including the Center for Race, Poverty & the Environment, have fought for years on behalf of Latino and other valley residents for stricter regulations to reduce the impacts of oil and gas activities, farming and industry on air and water quality.
“Students of color represent 89.9 percent of the students attending a school within 0.5 mile of confirmed well stimulation and 61.6 percent of students at those schools are Latino,” the complaint said. “Students of color represent 79.6 percent of students attending a school within 1 mile of an active oil and gas production well and 60.3 percent of students at those schools are Latino.”
Law Don't Limit Stimulation Near Schools
California laws don't limit well stimulation activities close to schools, hospitals and homes, the complaint said. While the rules require notification to nearby landowners and tenants, they don't require notices to students, parents, teachers or officials at schools near well stimulation sites, the complaint said.
“Fracking and other types of unconventional well stimulation threaten every child's right to a quality education,” Madeline Stanley, the attorney at the Center on Race, Poverty & the Environment representing Romo, said in a written statement.
The lawsuit aims to hold Gov. Jerry Brown (D) and state regulators “accountable for protecting the health and safety of California's students,” the center said.
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Crude Exports Vote To Come Up On Floor, Not Committee -- Murkowski
Jul 16, 2015 | E&E Daily News
By Geof Koss
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) signaled yesterday that changes to the crude exports ban won't be included in the committee's energy package she aims to start marking up next week.
After meeting with ranking member Maria Cantwell (D-Wash.), Murkowski hinted that crude exports language would likely have to wait for the Senate floor.
"It may be that some of these things like crude that I would like to have but Senator Cantwell is not so keen on, that if you don't see them in the base bill, you see them come along a little bit later," she told E&E Daily. "But I think what is fair to say that the outstanding issues that have yet to be resolved, we believe are resolvable."
Including a controversial repeal of the crude exports ban in the underlying bill that was considered unlikely, given that Murkowski has wanted to build bipartisan support for the package in committee.
"What we have done has been fairly cooperative and collaborative to date, and if we've gotten to a point where we just don't think we can make it work, we're making decisions about, 'OK, do we drop it for now?'" she said.
Murkowski described the outstanding issues as minor. "We've got a little hydro one we're working through," she told reporters. "Basically, we're working the language. These are not areas where it's like, 'Oh, I can't go there on this issue.'"
In addition to crude exports, the House Energy and Commerce Committee has struggled over efficiency standards in its own bipartisan energy package. But Murkowski said there's agreement on the efficiency title of the Senate's version (E&E Daily, June 26).
"We're good on efficiency," she said.
A coalition of environmentalists this week urged the leaders of the House and Senate energy panels to keep climate change in mind as they craft their bills by prioritizing renewable and efficiency provisions.
"We urge you to craft an energy bill that rises to the climate challenge and ensures the United States achieves meaningful reductions in greenhouse gas pollution in the near-term," the Sierra Club and 24 other groups wrote.
Murkowski also reiterated her desire that the bill ultimately be joined with a tax title, which lies outside of the committee's jurisdiction. However, Cantwell, who also sits on the Finance Committee, plans to address energy taxes in a Democratic energy bill intended to guide discussions when the committee's bill hits the floor.
"There's still a lot of other people who are talking about it, and I'm not discouraging that talk," Murkowski said.
Murkowski said she was hopeful discussions would lead to a legislative draft by the end of the week, which would allow her to notice a markup for next week -- one of four she plans before the August recess.
Cantwell spokeswoman Rosemarie Calabro Tully described the pair's meeting yesterday as "fruitful."
"We are optimistic about moving forward and look forward to mark-ups in the coming weeks," she wrote in an email.
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Murkowski, Upton Eye Energy Bill Markups As Soon As Next Week
Jul 15, 2015 | PoliticoPro - Whiteboard
By Elana Schor
The chiefs of the House and Senate energy committees today hinted that their respective broad policy bills could see markups as soon as next week. Both bills have been in the works for months and both are aimed at amassing bipartisan support.
Senate Energy and Natural Resources Chairwoman Lisa Murkowski told reporters that she and Democratic counterpart Sen. Maria Cantwell are making headway on the “small handful of outstanding issues” and that she is “hoping for a markup next week.” With respect to more contentious issues, such Murkowski’s effort to end the crude export ban, she added, “you may not see them in the base bill, but see them come along a little bit later.”
House Energy and Commerce Chairman Fred Upton said his panel is “making progress” as well on a wide-ranging energy bill that, like the Senate’s version, is expected to touch on issues from infrastructure permitting to the electric grid and beyond. He said he hoped to meet with Murkowski soon to share information on how the chambers’ bills are shaping up.
Asked about the chances of a markup next week, Upton said with a smile: “Stay tuned.” -
White House Taps Former DOE Official As New Commissioner
Jul 16, 2015 | E&E Daily News
By Hannah Northey
The Obama administration last night nominated Jessie Roberson, a former Energy Department official with years of experience with controversial cleanup programs, to serve a five-year term as a member of the Nuclear Regulatory Commission.
If confirmed by the Senate, Roberson would fill a vacancy left open by Bill Magwood, an NRC commissioner who drew the ire of Senate Minority Harry Reid (D-Nev.) and is now director-general of the Nuclear Energy Agency of the Organisation for Economic Co-operation and Development. Magwood's term expired on June 30.
Roberson would serve through June 30, 2020, as the third Democrat on the panel, joining NRC Chairman Stephen Burns and Commissioner Jeff Baran.
Kristine Svinicki and William Ostendorff are the agency's two Republican commissioners.
While Roberson has been confirmed for a number of high-profile agency positions in the past, sources say her confirmation could become trickier if paired with a nominee to replace Ostendorff, whose term expires in June 2016.
Ultimately, she would need the blessing of the Senate Environment and Public Works Committee and the upper chamber.
Roberson could also face scrutiny as she moves through the panel, especially from Republicans angry over the cost and pace of new safety upgrades. Republicans including EPW Chairman James Inhofe (R-Okla.) in a letter complained to NRC Chairman Stephen Burns that the agency wasn't sufficiently vetting costs and benefits before moving ahead with new rules, relying too heavily on qualitative factors.
Still, Roberson has years of experience in the nuclear industry and was a rumored favorite to chair the agency in the past.
The Alabama native is currently serving her second term with the Defense Nuclear Facilities Safety Board. She was initially nominated as a member in 1999 by President Clinton and was confirmed by the Senate a year later. President Obama later nominated Roberson as the board's vice chairman.
Roberson is best-known for her decadelong career at DOE and her leadership as head of the agency's nuclear waste cleanup program. She resigned from that position in 2004, citing a desire to spend more time with family (Greenwire, June 16, 2004).
At the time, Roberson was responsible for spearheading the George W. Bush administration's efforts to accelerate cleanup of about 100 million gallons of high-level radioactive waste at 114 sites throughout the nation's nuclear weapons complex. That aggressive and controversial plan drew the ire of environmental groups and Democrats who charged it would weaken cleanup standards and allow the agency to leave more radioactive waste at the sites.
Sen. Maria Cantwell (D-Wash.) even called the program a "sneak attack" that would give DOE broad authority to reclassify high-level waste against the wishes of Washington state and Idaho, rather than ship it to a national repository, namely the Yucca Mountain site in Nevada.
Roberson was also a utility executive before joining DOE, working as a system engineer with Georgia Power Co. and a reactor operator for DuPont in the 1980s. She holds a bachelor's degree in nuclear engineering from the University of Tennessee.
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Can Congress Break the Energy-Legislation Curse?
Jul 15, 2015 | The National Journal
By Jason Plautz
One undercard story in last week's flap over a Confederate-flag amendment on the House floor: It helped extend a multiyear losing streak for the Interior Department and Environmental Protection Agency spending bill.
In fact, energy watchers wouldn't be out of bounds to think that passing any energy bill is just a cursed venture. Since a comprehensive bill last cleared Congress in 2007, energy policy and spending bills have gotten mired in issues both relevant (climate change, the Keystone XL pipeline) and unrelated (Obamacare, the Confederate flag), resulting in a dearth of energy policy from the Hill.
Sen. Lisa Murkowski, chairwoman of the Energy and Natural Resources Committee, thinks she's close to bucking the trend. She and ranking member Maria Cantwell are hammering out an agreement on a broad energy bill, with the hopes of releasing a draft this week and potentially voting on it in committee next week.
So is Murkowski reaching for her lucky rabbit's foot in the hopes of reversing the Hill's energy trend?
"No, no, I don't think it's cursed," Murkowski said with a chuckle. "I think for a period of time, our committees weren't working like we needed to. You're kind of taking on headwinds there. But I think we're doing well as a committee right now and you'll see a product ... where we're going to be able to demonstrate that we can put together a bipartisan energy bill and move it."
The last comprehensive piece of energy legislation to clear Congress came in 2007, with a bill that dealt with fuel economy, biofuel development, and energy efficiency. Since then, it's been a Sisyphean stretch of futility, setting aside a small energy-efficiency package that passed this spring.
Of course, any legislating these days is a struggle, but energy carries with it a heap of nonstarters on both sides. Republicans have used recent energy bills to try to force the Obama administration to approve the Keystone XL oil-sands pipeline or open up new drilling areas. Democrats, in a bid to stick it to climate-skeptic Republicans, have lately tried to attach climate-science language.
"There are so many other issues going on that it's going to get crowded out. And even if you do bring it to the floor, energy will always provoke a lot of amendments," said former Sen. Byron Dorgan, who served on the Energy Committee until his retirement in 2011. "These days, you can't bring anything to the floor without something like Keystone coming up."
Even small-scale bills like the energy-efficiency package from Sens. Jeanne Shaheen and Rob Portman get swept up into a broader national debate—and get stopped up in the process.
"Energy efficiency should be the low-hanging fruit where we can get agreement, but then Shaheen-Portman becomes this surrogate for the climate debate when everyone tries to offer amendments," said Chris Miller, who worked on energy policy for Democratic Senate leader Harry Reid. "Maybe you have to go at this on a pure mechanical level, doing little things to encourage investments and shy away from the core principles."
The Confederate-flag fracas may be the most unexpected roadblock to hit an energy-policy bill. After Democratic Rep. Jared Huffman attached an amendment that would bar the display of the Confederate flag on graves on federal lands, Republican leaders the next day offered their own amendment to reverse the policy, ultimately pulling the bill amid fierce criticism from the Left.
But Democrats say the bill was doomed from the start, given the sheer number of policy riders that had been slapped onto the supposedly routine legislation, including ones to defund key elements of President Obama's climate plan. House Minority Leader Nancy Pelosi said last week that the bill was laden with handouts to "polluters … and special interests" and that the "hatred" represented by the Confederate-flag amendment was just the final straw.
GOP Rep. Tom Cole acknowledged Thursday that the bill may have been fated for failure, saying that "it's a difficult bill always" that generates "ideological" differences.
It's unclear whether the appropriations bill has a path forward. Republican Rep. Ken Calvert, the Appropriations subcommittee chairman who wrote the bill, said there is no agreement to bring it back (in the Senate, Democrats have said they will try to stop spending bills that maintain sequester spending levels from coming to the floor).
Both chambers are trying to buck the unlucky energy trend with comprehensive energy bills. Murkowski said that she and Cantwell are down to a handful of minor outstanding issues on their bill, which is expected to touch on issues like energy efficiency, hydraulic fracturing, renewable energy, and grid security.
The House Energy and Commerce Committee is working on a larger bill under the guise of what Republicans have called the "architecture of abundance," a package based around energy production that's sure to be more partisan and controversial but has the support of House Republicans.
But sponsors face an auspicious history. Take the Shaheen-Portman efficiency bill: First introduced in 2011, it was yanked from the floor in 2013 because GOP Sen. David Vitter wanted to vote on health care language, then again the following year because then-Majority Leader Reid did not want to give Republicans votes on amendments attacking environmental regulations. The two sponsors finally did move a version of the bill, but it was just a fraction of their original package.
Similarly, efforts to move a grand-scale climate-change bill in 2010 went up in flames after Sen. Lindsey Graham, now a GOP presidential candidate, abandoned bipartisan talks and Democrats scaled down the bill to a smattering of policies that ultimately did not move. That killed any remaining momentum from the summer 2009 House passage of cap-and-trade legislation.
While the House has moved plenty of Republican-backed energy bills to boost oil and gas production or curtail regulations, the only bill to get serious consideration in the Senate was one approving the Keystone XL pipeline, which was met with a swift veto from President Obama after weeks of amendment debate earlier this year.
So what's made energy such an impossible dream? Did former House Energy and Commerce Chairman Henry Waxman put a curse on the issue on his way out the door when he retired from Congress last year? Was the Energy and Natural Resources Committee room built on top of a gravesite?
Republican Rep. Joe Barton, who sponsored what became the 2005 Energy Policy Act in the House, was grim about the current environment. "Today when you talk energy, the environmental groups on the Left are so anti-energy that it does complicate it more than it used to. That's a true statement," he said.
It's not just a Left-Right split—energy is tinged with regional elements that go beyond party lines. Cantwell, a Washington Democrat, joked about that trouble when asked Monday about how "comprehensive" her committee's comprehensive energy bill would be.
"Well, that depends on what Heidi will give us," she said, pointing to fellow Democrat Heidi Heitkamp of North Dakota, who is more pro-fossil fuel than others in her party given the oil resources in her state.
Given the industry's ongoing "transformation," Cantwell said, she'd like to move an energy bill every year because there are many smaller measures that Congress can take to "help us make the transition" to the new energy system.
Energy efficiency has emerged as a possible middle ground, since it generally has bipartisan support and sidesteps a lot of the climate and production touchstones. But with no energy crisis—like skyrocketing oil costs or the volatile energy prices in the early 2000s—that needs immediate solving, even optimistic supporters say that they're not sure there's a future for a bill free of politics.
"There's no sense of a shared challenge," said Miller, now an adviser with the energy consulting firm AJW Inc. "You'd need [Senate Majority Leader Mitch McConnell] to put this on the agenda, and his rhetoric has not been soothing or indicative of an easy path to an energy bill because of what he's said about the EPA. At least not so far."
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NRDC Touts Clean Power Plan Support in Report
Jul 16, 2015 | BNA Daily Environment Report
By Andrew Childers
Environmental advocates predicted the Environmental Protection Agency's Clean Power Plan will survive judicial scrutiny as they marshal resources to support the upcoming final rule.
Officials at the Natural Resources Defense Council urged the EPA to expand the role renewable generation and energy efficiency play in the Clean Power Plan to require even deeper carbon dioxide emissions reductions from the power sector when the final rule is issued in August.
“We're very confident that the rule we're going to see will be stronger than the proposed rule in part because of the millions of comments the EPA received encouraging the agency to be even bolder in the final rule, and we believe that there is both the technical, analytical and political way to do that,” Rhea Suh, president of the Natural Resources Defense Council, told reporters July 15.
The Natural Resources Defense Council outlined the benefits of the EPA's proposed Clean Power Plan in a July 15 report that touts the public health, climate and economic benefits of curtailing carbon dioxide emissions from power plants.
The EPA's proposed Clean Power Plan (RIN 2060-AR33) would establish unique carbon dioxide emissions rates for the power sector in each state. State regulators would then develop their own plans to comply with the emissions rates. The EPA would issue federal plans for states that choose not to develop their own.
Senate Majority Leader Mitch McConnell (R-Ky.) has urged governors to boycott compliance with the Clean Power Plan, a strategy dubbed “just say no.” Oklahoma Gov. Mary Fallin (R) has said her state won't comply with the EPA's rule while Govs. Greg Abbott (R-Texas), Scott Walker (R-Wis.) and Mike Pence (R-Ind.) have all raised concerns with their states' ability to meet the proposed targets.
Though many states have questioned their proposed emissions rates, particularly interim targets to be achieved beginning in 2020, Natural Resources Defense Council officials predicted few states would actually fail to submit their own compliance plans because any federal plan issued by the EPA is expected to be more restrictive and potentially more expensive for the power industry.
“There's really no good reason for a state to just decide ‘We're simply not going to comply, ‘” Pete Altman, the group's Climate and Clean Air Campaign director, told reporters. “It doesn't lead anywhere very helpful for them. In many cases, power companies in the states want the state to take the lead in developing a plan so they can figure out a plan that makes the most sense for that state.”
The EPA has drafted a model federal implementation plan for the proposed rule that is currently under review by the White House Office of Management and Budget. The model plan is expected to be proposed along with the agency's final Clean Power Plan (129 DEN A-1, 7/7/15).
Rule's Legality Defended
David Doniger, director of the NRDC's Climate and Clean Air Program, predicted the EPA's Clean Power Plan would survive judicial review despite early challenges to the rule.
“We've seen and heard all the arguments,” he said. “We believe this rule is on very strong legal footing.”
The U.S. Court of Appeals for the District of Columbia Circuit has already rejected some challenges to the proposed rule though they didn't address the merits of the lawsuits brought by several states and industry groups (In re: Murray Energy Corp., 2015 BL 180996, D.C. Cir., No. 14-1112, 6/16/15; West Virginia v. EPA, 2015 BL 180996, D.C. Cir., No. 14-1146, 6/16/15).
Oklahoma, which had participated in both of those prior challenges, has filed a separate lawsuit in the U.S. District Court for the Northern District of Oklahoma seeking an injunction to block the Clean Power Plan. However, a federal judge has asked the state to explain why the lawsuit should proceed given the D.C. Circuit's prior ruling (Oklahoma v. McCarthy, N.D. Okla. , No. 4:15-cv-00369, order issued, 7/2/15; 129 DEN A-1, 7/7/15).
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Final Power Plan Should Be Tougher In The Near Term -- NRDC
Jul 15, 2015 | E&E News PM
By Jean Chemnick
The final Clean Power Plan that U.S. EPA releases in the coming weeks can and should require even deeper carbon reductions in the 2020s than the draft version did, experts from a leading environmental group said this morning.
"We're very confident that the rules we're going to see are going to be stronger than the proposed rules," Rhea Suh, president of the Natural Resources Defense Council, told reporters at a roundtable.
"We believe that there's both a technical and analytical and a political way to do that," she added.
EPA is expected to unveil rules in August for new, modified and existing power plants. A model federal implementation plan is also currently being reviewed at the White House, but it is unclear whether it will be released at the same time or separately.
And agency staff have indicated for months now that the final Clean Power Plan is likely to include changes to the rule's so-called interim compliance targets, which set reduction goals that would be averaged between 2020 and 2029. Even before the public comment period on the rule ended last December, EPA signaled in a supplemental document that it might be rethinking some of its math on the near-term target. And the interim goals are considered among the most likely changes EPA will make between the proposed and final versions.
But that doesn't mean they will be weaker overall, said NRDC's climate and clean air program director, David Doniger.
"There's a lot of push and pull on all of the building blocks, and we'll have to see how it comes out," he said, referring to the assumptions EPA uses to assign states responsibility under the rule, including on-site efficiency, redispatch from coal to natural gas, renewable energy and energy efficiency.
"What is critical is that overall reductions in the 2020s can and should be more than what was in the proposal," he said.
And there is room for the rule's stringency to grow, Doniger argues.
Both Suh and Doniger also said that EPA's rule undercounts potential for renewable energy and demand-side efficiency.
And in its notice of data availability (NODA) last October, EPA asked for comment on some possible changes that could lead to a tougher rule in the near term -- including an adjustment to the rule's assumption about how quickly existing combined-cycle natural gas power plants can ramp up to 70 percent capacity to displace coal-based power (Greenwire, Oct. 30, 2014). The draft assumes the shift can occur by 2020, which is why Texas and Arizona -- with their large fleets of both coal and gas plants -- face such hefty near-term goals.
Those states have pushed back hard in comments and rhetoric, and McCarthy and her staff say they've gotten the message.
"I think that the comments that we received showed a lot of real concern that there were a few states where the combination of the interim target and the aggressiveness of that, and the goal that we wanted to achieve to provide ultimate flexibility to the states -- there was a lot of concern that those collided in a few states," the administrator said at February's meeting of the National Association of Regulatory Utility Commissioners (NARUC) in Washington, D.C. (Greenwire, Feb. 17).
But Doniger said that won't necessarily mean the interim period will yield less reductions overall. In fact, it could achieve more.
"We recommended some things in our comments to achieve better balance, but not for its own sake," Doniger said.
In fact, EPA also signaled in its NODA that it is eyeing other changes that could make it stronger, including the NODA's proposal assigning states reduction responsibilities based on future natural gas use, rather than solely on the gas capacity they currently have.
That tweak could erase the preliminary compliance plan Kentucky's state agency is working on, which relies chiefly on plans for new gas plants. But it would also make that state's reduction target more commensurate with some of its neighbors that have much tougher goals because they currently have more combined-cycle natural gas.
Last year's NODA asked whether EPA should change the way reductions from renewable power and efficiency -- assuming they would go to displace fossil fuel use rather than to satisfy new demand. That would build even lower targets into the rule for a wide variety of states. The agency might also change the way it assesses a state's renewable energy capacity in a way that also increases the overall stringency of the rule. EPA faces pressure from many states to do away with its interim compliance target altogether, but McCarthy and others have signaled that will not happen. Environmentalists note that disarming those near-term requirements would be seen to undermine the 26 to 28 percent by 2025 reductions President Obama has promised the world ahea
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Study Shows How Power Plant Rules Can Save Lives, Improve Public Health in Texas
Jul 15, 2015 | Environmental Defense Fund
By Elena Craft
When it comes to reducing carbon pollution from power plants, details in policy choices matter, especially for the state of Texas.
The final proposal of the Environmental Protection Agency’s (EPA) Clean Power Plan, which would put the first ever national limits on carbon pollution from power plants in the U.S., is expected later this summer. It comes on the heels of the publication of an important study in Nature Climate Change, which examined three different power plant carbon policy options and then investigated how each would affect clean air and public health.The study is titled Health Co-benefits of Carbon Standards for Existing Power Plants, and was conducted by scientists Dr. Buonocore and Dr. Charles Driscoll as well as their colleagues from Harvard, Syracuse, and Boston Universities.
The results suggest that a carbon emissions reduction policy for power plants could prevent thousands of premature deaths, as well as hospitalizations, in the United States every year. That’s great news for us because Texas would be one of the states with the greatest number of lives saved.
Why is decreasing carbon emissions good for public health? When carbon pollution from power plants is reduced, other harmful pollutants are reduced at the same time — this is often referred to as the “co-benefits” of carbon pollution reduction. These other pollutants, including sulfur dioxide and nitrogen oxides, are the forerunners of soot and smog and can cause heart and lung disease, as well as contribute to asthma attacks and premature death.
In the study, researchers analyzed three different scenarios of implementation of power plant carbon emission standards. The scenario most similar to the EPA’s proposed Clean Power Plan, described as “moderately stringent and highly flexible,” was found to produce the greatest estimated health benefits.
The study results estimate that in 2020, this “flexible” scenario would prevent about 3,500 air pollution-related premature deaths in the U.S. each year. There would also be approximately 1,000 fewer hospital admissions from heart and lung problems each year, and roughly 220 heart attacks prevented annually. In addition, a variety of other health benefits would stem from this approach, including reduced asthma symptoms.
Those are big numbers, with even bigger impacts on human health in the United States.
In Texas alone between 2020 and 2030, approximately 2300 lives would be saved and that 790 hospitalizations and 140 heart attacks would be prevented by implementing a carbon reduction strategy similar to the flexible scenario researchers examined. Texas, as one of the states noted for having persistent air quality problems due to power plant pollution, would be one of twelve states to have the most lives saved.
There is a tremendous need to improve air quality in Texas. As Congresswoman Eddie Bernice Johnson of Texas recently said at a climate and health briefing, “Those of us from the Dallas/Fort Worth region are very familiar with the negative effects of smog and are accustomed to seeing orange and red alerts warning us about being outside because the air is too polluted for it to be safe. In fact, the American Lung Association gives the air quality of Dallas Grade F.”
Fortunately for Texas, power plant carbon standards that are both flexible and effective, like those proposed in the Clean Power Plan, could help change that for the better.
At their core, the results of this study show that the decisions the EPA is making on power plant standards do make a difference for all of our health. These policy choices can lead to significant health benefits for Texans and save human lives that should not be taken for granted.
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Reid Calls For Fresh Talks On FY16 Bills After House Pulls EPA Legislation
Jul 15, 2015 | InsideEPA
By David LaRoss
Senate Minority Leader Harry Reid (D-NV) is urging Republicans to launch fresh talks on new fiscal year 2016 appropriations bills for EPA and other agencies to replace contentious measures that Democrats oppose, after the House pulled its version of EPA's FY16 funding legislation and has no plans to craft a replacement bill.
“Senate Democrats have said for months that Republicans are running a sham on the appropriations process,” Reid said in July 14 Senate floor remarks, according to the Congressional Record. “[W]e were surprised how House Republican leadership has handled the appropriations process. Republicans brought their interior and environment appropriations bill before the House for debate. This legislation is nothing short of a disaster.”
House Republicans had pushed for floor consideration of their FY16 spending bill that would cut EPA's existing budget of $8.13 billion by $700 million and included a host of policy provisions to block major agency rules, including its Clean Power Plan greenhouse gas (GHG) standards for power plants. But the GOP leadership pulled the bill, H.R. 2822, after a fight over amendments to bar the display of the Confederate flag on federal land.
Reid in his floor remarks said that the July 9 decision to pull the House bill highlights flaws in the appropriations process. “From the very beginning, the Republicans have proceeded with an appropriations process that is designed to fail. They moved forward bills they know Democrats cannot support. Republican leaders in Congress simply have shown no interest in funding our government in a fair and responsible manner,” the senator said.
The Senate's EPA FY16 bill, S. 1645, would impose a $538 million cut to the agency's budget and includes its own array of policy riders, with similar provisions to the House blocking EPA's Clean Water Act (CWA) jurisdiction rule. However, it would not block the GHG rules entirely, instead allowing states to opt out of the pending standards.
There has been no formal White House veto threat against S. 1645, but White House Office of Management & Budget Director Shaun Donovan sent a July 9 letter to Senate Appropriations Committee Chairman Thad Cochran (R-MS) outlining a host of concerns with the bill's funding cuts and policy riders. Donovan's letter warns that prohibitions on policies such as the water law jurisdiction rule will slow permitting and cause other regulatory problems, and that funding cuts would hurt programs that protect public health.
Separate from concerns over the EPA funding cuts and policy riders, the GOP-crafted spending bills are also facing broad opposition from President Obama and Democrats over the overall discretionary spending caps known as the sequester.
Veto Threat
The White House has threatened to veto any FY16 spending bill that would hold to the sequester, and Reid has vowed that Democrats will filibuster any such bill in the upper chamber, but the Republican leadership has not suggested a willingness to negotiate a budget deal to eliminate the sequester.
Reid in his July 14 speech urged lawmakers to begin new talks on a budget deal to abandon the sequester caps, saying that, “It has been clear for months that the only way Congress will arrive at a responsible budget is by Republicans and Democrats, Senate and House, sitting down together and finding a path forward. Now is the time to negotiate -- not in September, not in October.”
He also cited remarks by GOP appropriators in the House, including Appropriations Committee Chairman Rep. Hal Rogers (KY) and subcommittee chairs Michael Simpson (ID), Thomas Cole (OK) and Charles Dent (PA) on the subject -- including a comment from Dent where he said “We all know there's going to have to be a short-term [continuing resolution (CR)] . . . And I would hope sometime between now and then, we'll have a negotiated budget agreement.”
The White House is also calling for new budget talks. “The key step that needs to happen at this point is that Republican leaders in the House and the Senate need to” enter negotiations on a new budget, Donovan said during a July 9 press call. “Otherwise, Republicans will force us back to a place of brinksmanship, of manufactured crises like we've seen before.”
Demand for new talks could intensify given expectations that House lawmakers are unlikely to revive their EPA funding bill. “It's not going anywhere,” one Democratic Hill source says of H.R. 2822. If the House is unable to overcome the Confederate flag dispute it would mean neither chamber of Congress will be able to pass a spending measure for EPA in the foreseeable future, since Senate Democrats are blocking all FY16 legislation from even reaching the floor in that chamber in hopes of forcing Republicans into a new budget deal.
“Now we're in a position similar to the situation we were in in 2013,” when conflict between the GOP-controlled House and the then-Democratic Senate over FY14 spending bills led to a 16-day shutdown of many federal government functions, the source says.
House Dispute
In late July 8 votes, the House agreed to amendments for H.R. 2822 to ban sale or display of the Confederate flag on federal lands. But the next day several Republican lawmakers from the South crafted a new amendment to undo the Democratic riders -- with backing from Rep. Ken Calvert (R-CA), chair of the appropriations subcommittee responsible for EPA -- and, according to Politico, planned to kill the entire funding legislation if the flag ban survived.
That dispute in turn prompted House Speaker John Boehner (R-OH) to pull H.R. 2822 from floor consideration in order to determine next steps on the debate over the flag. “That bill is going to sit in abeyance until we come to some resolution,” Boehner said, according to remarks reported by Roll Call.
But the Hill source says those discussions appear to be moving slowly if at all. With the House scheduled to recess from July 31 until Sept. 8, and current funding bills expiring on Oct. 1, the conflict raises a serious possibility that legislators will go into the final month of FY15 without a workable EPA bill, the source says. “We'll have to see what happens in September.”
If Oct. 1 arrives with no spending bills legislators' only option to avert a shutdown could be to pass a temporary CR that would continue FY15 funding levels. But since those current levels incorporate the sequester it is unclear whether President Obama would be willing to sign a long-term CR. And Donovan's comments on the July press call also cast doubt on whether President Obama would be willing to sign a CR that incorporates the sequester cuts. Donovan said the White House opposes any bill to “lock in” the sequester but said a short-term CR might not trigger that threat. “I'm not going to speculate on what would happen if Republicans engage in that kind of brinksmanship.” he said.
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Trading 'Ready' Highlighted As Way For Overburdened States To Cut ESPS Costs
Jul 15, 2015 | InsideEPA
By Lee Logan
State and other supporters of informal or “trading-ready” programs to comply with EPA’s greenhouse gas (GHG) rule for existing power plants are touting the concept as a relatively simple way to reduce compliance costs, especially for states that believe they were disproportionately burdened by the regulation.
Many states argue that EPA’s proposed GHG rule gave them particularly difficult GHG reduction targets, especially if they took early action to reduce emissions.
But supporters of the so-called trading-ready concept told the summer meeting of the National Association of Regulatory Utility Commissioners (NARUC) here that states should consider the option even if they believe they were treated unfairly in the final existing source performance standards (ESPS) rule, expected to be issued in early August.
“The proposed rule created winners and losers. We don’t know what the final rule is going to look like,” Michael Schnitzer of the NorthBridge Group, a consulting firm whose clients include utilities Entergy and Exelon, said during a July 13 panel at the NARUC event.
“Whatever it does, that can’t be undone by [trading-ready plans]. If you come out poorly in that allocation of burden, this trading-ready program can maybe help you make lemonade, but it doesn’t solve the underlying problem.”
But Schnitzer added that, “When the dust settles at the end of the day, the assumption is that a rule is going forward, with some allocation of burden -- now what? What I would suggest is that once you pursue all your remedies and you get what [target] you get, this could be an attractive remedy.”
Such suggestions come as a host of states are meeting with the White House Office of Management & Budget to raise their final concerns over the ESPS. The meeting includes states that generally support the rule and trading but want their early actions better recognized, such as California, as well as those that might have stronger objections, including Nevada, Tennessee and Ohio.
Under the trading-ready concept, states would craft individual ESPS compliance plans, but those plans would include a set of “common elements” -- including a mass-based limit on emissions and a standard accounting definition for emissions -- that would enable trading between facilities in states that adopt similar criteria in their own plans.
Such an approach would avoid time-consuming and politically tricky problems associated with regional cap-and-trade efforts such as the Regional Greenhouse Gas Initiative in the Northeast and Mid-Atlantic. But it would still allow participating states to engage in trading programs that many observers say cut compliance costs.
Many states and others have urged EPA to amend its ESPS to make it easier for states to adopt such approaches, saying they are easier to adopt than what the agency first proposed and could also allow regulators to bypass critics' threats that such plans need congressional approval.
Duke University's Nicholas Institute first floated the concept of the common elements approach, releasing a paper that suggested that states adopt such elements in their compliance plans, which, once approved by EPA, would allow plant owners to trade emissions across state lines.
Midwestern States
The “common elements” concept was also the basis for a plan developed by the Midwestern Power Sector Collaborative (MPSC), a group of Midwestern states and other stakeholders, which earlier this year urged EPA to include in its final rule a set of minimum conditions or “compatibility requirements” that states must meet to allow power plant operators to trade emissions credits or allowances across state lines to comply with the rule.
The group's plan, which it provided to EPA during an April 21 meeting, is intended to facilitate trading “without states having to develop and submit to EPA a formal multi-state plan or seek any additional approval from EPA to trade,” says Brad Crabtree, an official with the Great Plains Institute (GPI), which facilitates the MPSC.
The trading-ready concept is also gaining traction among state regulators that participate in the Midcontinent State Environmental and Energy Regulators (MSEER), another group that GPI facilitates.
Speaking on the sidelines of the NARUC meeting, Doug Scott, a former Illinois utility regulator who now works for GPI, said that trading-ready plans “will help to minimize the cost of compliance regardless of what your burden is.”
If a state with a 34 percent GHG reduction target believes its target should be 28 percent, Scott said, trading will still make the goal “all the more reachable.” He added that the proper venue for states to seek a softer target was during the past year when EPA was considering comments on the proposed rule.
In order to facilitate trading-ready plans, Scott said EPA in the final ESPS should offer “clarity” on how a state can convert its rate-based target to a mass-based limit. That would include demonstrating that there is no difference in stringency between the two measures, he said, adding that the approach should also allow for electricity growth.
He also said that it would be “helpful” for EPA to include which “common elements” states should have in their plans if they opt for that approach, and that the agency should say whether the option would allow states extra time to submit compliance plans.
Nancy Lange, a member of the Minnesota Public Utilities Commission, told the July 13 event that states in the MSEER group are not committing to a trading approach, and that each state must evaluate its own situation after the final rule is issued to see if trading would make sense.
“At the end of the day, whether we link up or whether we don’t is an open question,” she said. “But we are all on a much better footing to determine whether that makes sense for our states.”
She added that while models can help show that trading can lead to lower costs, “a model cannot reflect the political context which many states obviously have to address.”
Potential Barriers
Montana Public Service Commissioner Travis Kavulla pointed to such political considerations as a potential barrier to multi-state cooperation in the rule. He predicted that governors would want to maintain control over their compliance plans -- even at the expense of potentially cheaper costs through trading -- to drive investments in measures that would benefit the state economically.
“Those are the types of things which are attractive political outcomes,” he said, noting they are most easily accomplished “through a solo state, top-down approach.”
For example, Kavulla said the “least-cost” way for Wyoming to comply might be for the state to fund aggressive efficiency programs in load centers on the West Coast that import the state’s power. But the state could also require power plant owners to procure a certain amount of in-state renewables, which could be seen as a boost to local economic development.
“Those are the two options, one of which is higher cost,” he said. And while cooperation might reduce costs, he argued, “it doesn’t produce societal benefits [for Wyoming]. That’s the political reality of this environmental regulation.”
Even so, he acknowledged that the West has renewable and efficiency tracking systems that could be used for ESPS compliance to allow for “at least a kind of bilateral approach [in trading credits on specific elements of a state plan] that reflects in the West the ad hoc trading dynamics.” Kavulla has earlier said that such a “modular” approach in the West could be an attractive option, though there are still “significant hurdles to this approach.”
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EPA Approves Climate-Friendly Alternatives for SNAP
Jul 16, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency has approved the use of several alternative substances for use in refrigeration, air conditioning, solvent cleaning and other uses under the agency's Significant New Alternatives Policy, commonly known as the SNAP program.
The agency said on its website that the decision to approve the alternatives is consistent with President Barack Obama's Climate Action Plan, because the newly approved substances offer better climate protection without harming the ozone layer. The newly approved substitutes have lower global warming potentials, a measure of how much energy the emissions of a gas will absorb over a given period of time relative to carbon dioxide, than substances that are predominately in use today, the agency said.
The EPA's determination of acceptability (RIN 2060-AG12), scheduled for publication July 16, expands the list of acceptable substitutes under the SNAP program to include:
• R-450A in new vending machines;
• R-448A, R-513A and R-449A in several refrigeration and air conditioning end-uses;
• Methoxytridecafluoroheptene isomers in several uses, including solvent cleaning end-uses and in adhesives and coatings; and
• Hydrofluoroolefin (HFO)-1336mzz(Z) for high-pressure two-part spray foam.
The SNAP program is intended to transition from ozone-depleting compounds to substitutes that offer lower overall risks to human health and the environment.
EPA Administrator Gina McCarthy signed the determination of acceptability on July 2, the same day she signed a final rule that will phase out the use of some hydrofluorocarbons in favor of more climate-friendly alternatives. That rule (RIN 2060-AS18) will phase out use of certain HFCs in certain applications, including in aerosols, motor vehicle air conditioning, vending machines and retail food refrigeration (128 DEN A-4, 7/6/15).
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Senate Rejects Climate Change Education Measure
Jul 15, 2015 | The Hill - E2 Wire
By Devin Henry
Republican senators rejected an amendment to a No Child Left Behind reform bill Wednesday that looked to establish a federal climate change education program.
The measure, from Sen. Ed Markey (D-Mass.), would have created a grant program for school districts to “develop or improve climate science curriculum and supplementary education materials,” according to the amendment text. It failed on a 44-53 vote. Before the vote, Markey said the amendment aimed to “ensure that we provide the best science training available for this next generation, the green generation.”
“The children of our country deserve the best scientific education they can get on this topic,” he said. “They are the future leaders of our country and our world. They must be equipped for this generational science.”
Sen. Lamar Alexander (R-Tenn.), the author of the Senate’s education bill, equated the measure to Common Core, the federal learning standards that many conservatives have slammed as a government takeover of education.
“If you like Washington, D.C., getting involved in Common Core in your state, you’re going to love this amendment because it gets the federal government involved in creating a curriculum for climate change in your local high schools and other schools,” Alexander said.
Alexander called himself a “a Republican who believes climate change is a problem and that human activity is a major contributor to that problem.” But he warned that attaching the amendment to his bill could lead to curriculum whiplash depending on which party holds the White House and sets education standards.
“Just imagine what the curriculum on climate change would be if we shifted from President Obama to President Cruz and then back to President Sanders and then to President Trump,” he said. “There would be a lot of wasted paper, writing and rewriting textbooks.”
Sens. Kelly Ayotte (R-N.H.) and Mark Kirk (R-Ill.), both of whom face tough reelection fights in swing states next year, were the only Republicans to vote for Markey’s amendment. Among Democrats, Sens. Heidi Heitkamp (N.D.), Joe Manchin (W.Va.) and Jon Tester (Mont.) voted against the measure.
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Notification Guidance Released for Final Waste Rule
Jul 16, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency has released interim guidance explaining how facilities should submit required notifications under the agency's recently finalized definition of solid waste rule.
The guidance is necessary, because the final rule took effect in July 13 for states and territories without approved hazardous waste programs under the Resource Conservation and Recovery Act, but updated notification forms will not be ready until “late 2016,” according to the EPA.
In the final rule (80 Fed. Reg. 1694), the EPA excluded certain hazardous secondary materials from regulation under Subtitle C of RCRA provided certain conditions are met (8 DEN A-1, 1/13/15).
“We are issuing this interim procedure to explain how facilities should meet the notification requirement using the existing” forms, the guidance states.
Formal notification is required under the final rule when a company:
• opts to take advantage of an exclusion from hazardous waste regulation under 40 C.F.R. 261.4(a)(23), 261.4(a)(24) or 261.4(a)(27);
• obtains a variance or non-waste determination under 40 C.F.R. 260.30; or
• determines the product of their recycling process has contaminant levels that are either not comparable or unable to be compared to a legitimate product but should still be considered legitimate recycling.
Facilities that previously submitted notifications under the 2008 definition of solid waste rule—about 100, the EPA estimates—will not have to submit new ones until March 1, 2016.
Under the final rule, facilities in states with an authorized RCRA program cannot take advantage of the exclusions in the regulation until the state formally adopts the final EPA rule into its own regulations.
Alaska, Iowa, the U.S. Virgin Islands, American Samoa and the Northern Mariana Islands currently do not have an authorized RCRA program, according to the EPA.
Several legal challenges to the January final rule (RIN 2050–AG62) are currently pending in the U.S. Court of Appeals for the District of Columbia Circuit (98 DEN A-1, 5/21/15).
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EPA Rule To End SSM Air Exemptions Spurs Legal, Regulatory Confusion
Jul 15, 2015 | InsideEPA
By Stuart Parker
EPA's final rule forcing 36 states to scrap provisions in their air plans allowing emissions limit exemptions for some facility startup, shutdown and malfunction (SSM) periods is spurring legal and regulatory confusion, with uncertainty over which court will hear challenges to the rule and industry doubts about how to meet air law mandates.
Several sources say it remains too early to know whether in response to the rule states will pursue comprehensive changes to their state implementation plans (SIPs) -- blueprints for Clean Air Act compliance -- to remove the provisions at issue in EPA's rule. Some states could attempt to issue letters clarifying their existing SIPs and explaining that the provisions no longer apply, sources say, although it is not clear if this will satisfy EPA's requirements.
Regardless of how litigation over the rule proceeds and what steps the affected states take, one industry source says that companies do not face much increased risk of citizen suits over air law violations during SSM periods. This is because of recent legal defeats citizen groups have suffered in trying to bring SSM-based suits against companies, the source says, and because such suits are very fact-intensive and difficult to pursue.
Industry's focus will instead be on the need to account for unavoidable pollution spikes during SSM. The issue "is not so much the process . . . it is the fix," and prohibiting air limit exemptions for higher emissions during SSM periods is not practical, the source says. "You cannot run a facility that way."
"You are going to see a lot of lawsuits," the source says of the potential for states and industry to challenge the agency's SIP rule. The source adds that state air plans and permits have for decades been written with the understanding that plants need some leeway during SSM events, when emissions can spike.
A second industry source says that some provision to account for emissions increases during SSM periods is vital. One potential option for states could be to revise their SIPs or permits and institute "work practice standards" in lieu of numeric emissions limits during SSM. EPA has used this methodology in its landmark utility air toxics rule during startup and shutdown, when emissions controls are not functioning optimally.
EPA's June 12 "SIP Call" rule gives the 36 states until Nov. 22, 2016, to revise their SIPs to remove language that allows the SSM exemptions and a related "affirmative defense" for air law violations. The rule responds to U.S. Court of Appeals for the District of Columbia Circuit rulings that found the exemptions unlawful.
Pending Litigation
But it is unclear whether the D.C. Circuit will hear legal challenges to the SIP Call rule, as suits over the policy have been filed not only in that court but also in the 5th Circuit, which includes Texas.
Luminant, based in the Lone Star State, and Texas Attorney General Ken Paxton (R) have filed separate challenges over the rule in the 5th Circuit. Paxton in a statement argues that the "SIP Call" rulemaking contradicts EPA's long-running support for the SSM exemption and the affirmative defense.
In the D.C. Circuit, the free-market advocacy group Southeastern Legal Foundation (SLF) is suing EPA over the SIP Call, which SLF says imposes unrealistic restrictions on industry.
One Texas environmentalist says the 5th Circuit cases are unlikely to remain in that court. "They're going to get removed to the D.C. Circuit," the source says. The rule has nationwide applicability -- contrary to claims by Texas and Luminant -- and therefore belongs in the D.C. Circuit. "The law is really clear on that," the source says.
However, if after the Aug. 12 deadline for filing suits over the SIP Call, the various circuit courts of appeals cannot agree on where to hear the cases, the cases may be awarded to courts on a lottery basis, legal sources say.
The Texas environmentalist says that compliance with the SIP Call would be relatively straightforward for the state. "It is an easy fix for Texas to come into compliance -- removing a few sentences from the state rule, it is that easy." For other states, "there may be more work to be done," the source says.
In general, the source predicts that environmentalists will back EPA's SIP Call, even if some of them feel that the agency should go further to strip regulatory exemptions in Texas or elsewhere.
In Texas, without measures going beyond the SIP Call, compliance with the national rule will have little effect, the source says, since air permits in the state already allow for some measure of excess SSM emissions.
In a related development in the state, eight environmental groups including Environmental Integrity Project and Air Alliance Houston are also pushing for SSM provisions to be removed, petitioning EPA May 27 to find that Texas issued SSM exemptions in the permits of more than a dozen power plants in violation of the Texas SIP.
Environmentalists' Support
Meanwhile, a Colorado environmentalist welcomes EPA's SIP Call rule, and notes that Colorado is moving to adopt state regulations over the summer that will address SSM exemptions.
The source says that some states might try offering letters of clarification in lieu to formal SIP revisions, but this would clash with the spirit of the SIP Call, because EPA "wants to eliminate wiggle room."
The source praises the approach taken by Wyoming to SSM events, where the state is using enforcement discretion and not offering any automatic SSM exemptions.
The source also offers qualified support for the idea -- often touted by industry in the context of EPA regulations -- of incorporating SSM concerns into emissions limits themselves. This idea is typically rejected by EPA and environmentalists in the context of setting emissions limits, which would be weaker if they incorporate SSM periods, when emissions are higher than normal.
However, in the SIP Call context and in permitting, this might be acceptable, the source says. "To the extent you can model your emissions, you can include those in limits -- that is acceptable," the source adds. By contrast, vague "work practice standards" would not be enough to ensure pollution is controlled, according to the source. A third environmentalist with a national advocacy group says that advocates are seeking to intervene on EPA's behalf in litigation over the SIP Call, and to move all suits over the policy to the D.C. Circuit. "Our view is that the cases should be heard in the D.C. Circuit because it is a national rule," the source says.
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Free-Market Advocacy Group Faults Legality Of EPA SSM Exemption Rule
Jul 15, 2015 | InsideEPA
By Anthony Lacey
A free-market advocacy group is faulting the legality of EPA's rule forcing 36 states to scrap language in their Clean Air Act compliance plans that exempts industry liability for emissions limit violations during startup, shutdown and malfunction (SSM) periods, saying it violates a host of statutory and regulatory precedents.
In a July 13 statement of issues filed with the U.S. Court of Appeals for the District of Columbia Circuit, the Southeastern Legal Foundation attacks many aspects of the SSM regulation -- including what it calls a “collusive sue-and-settle arrangement” between EPA and environmentalists that set a deadline for issuing the rule.
The filing, which outlines the issues the group plans to raise in briefing, then attacks the merits of the regulation that requires the affected states to delete the SSM exemptions from their state implementation plans (SIPs), which are blueprints for federal air law compliance. The filing questions whether the “SIP Call” rule is “arbitrary and capricious” under the air law because it “violates the Clean Air Act's cooperative federalism structure.”
The group suggests that the rule unlawfully interferes with states' rights under the Clean Air Act to determine how to craft SIPs that are used for national ambient air quality standards (NAAQS) compliance.
It also argues that the rule reverses decades of air law administrative practice, SIP approvals, EPA rulemakings, EPA guidance, and interpretations on treatment of industrial stationary source emissions during SSM periods. EPA developed the rule following D.C. Circuit rulings that said the SSM exemption and a related “affirmative defense” against some pollution spikes were unlawful, and has not crafted a replacement defense.
The final rule sets a deadline of Nov. 22, 2016, for affected states to revise their SIPs to comply with EPA's restated, clarified policy on SSM as laid out in the 554-page rule, which addresses the merits and deficiencies of states' plans individually. The final rule resulted from a petition filed by environmentalists asking for the SIP Call, and the agency in several cases in its response grants advocates' petition partially rather than completely.
Should states miss this deadline, EPA must issue “findings of failure to submit,” starting a two-year clock for states to submit and EPA to approve a state plan, or for the agency to issue a federal implementation plan (FIP) instead. If EPA judges state plans to still be deficient, it can instead issue a FIP and directly regulate the state in question.
Legal Concerns
But the Southeastern Legal Foundation's filing suggests that EPA exceeded its authority with the SIP Call, which is a mechanism usually meant to force changes to SIPs that fall short of NAAQS requirements.
The filing acknowledges that the air law requires emissions limitations to be “continuous” but argues that the SSM exemptions satisfy this mandate. The filing raises the issue that “EPA refuses to recognize that, even under its erroneous interpretation of the Clean Air Act, general duty provisions and conditional affirmative defenses related to SSM emissions ensure that sources are subject to an emission limitation at all times.”
The Clean Air Act requires SIPs to include only emissions controls vital to attaining a NAAQS, and EPA has not shown the SSM SIP Call is necessary for that reason, the filing suggests. “EPA concluded that the affected SIPs were 'substantially inadequate' to comply with any Clean Air Act requirement without any demonstration that the SIPs have resulted in NAAQS non-attainment or even materially eroded air quality,” it says.
The group also suggests that EPA failed to assess the “significant burden” that the SIP Call will put on states with delegated Clean Air Act permitting authority, on regulated sources, and on the economy.
EPA's critics have warned that ending the SSM exemptions will make it impossible for some facilities to comply with emissions limits given unavoidable pollution spikes during SSM periods. The SIP Call “requires states to impose standards that cannot be met or are based on insufficient date,” the statement of issues says. The Sierra Club, Citizens for Environmental Justice, People Against Neighborhood Industrial Contamination, Natural Resources Defense Council, and Environmental Integrity Project filed a July 13 motion to intervene in the suit and help EPA defend the SIP Call and its expected benefits in reducing air pollution. “[T]he Final Rule provides critical safeguards for Movants’ members’ health and welfare, and Movants have a demonstrated interest in defending the Final Rule against challenges seeking to weaken those safeguards,” says the motion.
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Updates to EPA Air Modeling Guideline Proposed
Jul 16, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency is proposing to update its Guideline on Air Quality Models for the first time in a decade to enhance the agency's preferred dispersion modeling system and incorporate a new approach for addressing the secondary formation of ozone and fine particulate matter.
EPA Administrator Gina McCarthy July 14 signed a proposed rule (RIN 2060-AS54) that would make substantive and editorial changes to the guideline document, which is used by states and tribal air agencies to review permits submitted under the agency's New Source Review program. The guideline also is used by states in the formulation of state implementation plans for the national ambient air quality standards, the agency said.
One of the most significant proposed revisions would be an update of the EPA's AERMOD near-field dispersion model to address technical concerns and improve performance.
The revisions include adjustments that would address overprediction concerns under stable, low-wind speed conditions and issues with overprediction when the model is used to assess relatively tall stacks at industrial facilities located near small urban areas.
The EPA also proposed to include in the guideline a tiered demonstration approach to address the secondary chemical formation of ozone and fine particulate matter from single sources of precursor emissions, including nitrogen oxides and volatile organic compounds.
The agency said that due to advances in photochemical modeling, it's now reasonable to provide more specific guidance that identifies particular models or analytical techniques that may be used for assessing the effects of an individual source on ozone and fine particulate matter.
The EPA originally published the guideline in 1978 and last revised the document in 2005. The EPA's spring regulatory agenda projects the final rule to revise the guideline will be issued by December 2016.
August Meeting Planned
The EPA announced its Eleventh Conference on Air Quality Modeling will focus on the proposed updates to the air modeling guideline. The meeting will be held Aug. 12-13 at an EPA facility in Research Triangle Park, N.C.
The draft agenda for the meeting includes presentations on the treatment of fine particulate matter and ozone in permit compliance demonstrations, modeling of mobile sources of pollution and long-range transport for national ambient air quality standards.
The presentations will be followed by a public hearing on the proposed rule. Requests to speak during the public hearing should be submitted by July 31 to George Bridgers in the EPA Air Quality Assessment Division at (919) 451-5563 or Bridgers.George@epa.gov.
The EPA also will open a 90-day public comment period on the proposed rule once it is published in the Federal Register. Publication is not yet scheduled, but comments will be accepted at http://www.regulations.gov under Docket No. EPA-HQ-OAR-2015-0310.
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First Challenges to EPA's Coal Ash Rule Filed
Jul 16, 2015 | BNA Daily Environment Report
By Anthony Adragna
Industry groups and companies began July 15 to launch the first legal challenges to the Environmental Protection Agency's final rule on the management and disposal of coal ash, according to federal appeals court petitions (Utils. Solid Waste Activities Grp. v. EPA, D.C. Cir., No. 15-1219, petition filed 7/15/15).
Major electric utility groups; Beneficial Reuse Management, a Chicago-based beneficial reuse company; several subsidiaries of Lafarge, a major construction supply company; and Associated Electric Cooperative Inc., a rural electric cooperative, launched their challenges to the April final rule in the U.S. Court of Appeals for the District of Columbia Circuit July 15.
The major electric utility organizations are the Edison Electric Institute, National Rural Electric Cooperative Association, American Public Power Association and Utility Solid Waste Activities Group.
The coal ash regulation has already been challenged by:
• Utils. Solid Waste Activities Grp. v. EPA, No. 15-1219,
• Beneficial Reuse Management v. EPA, No. 15-1221,
• Lafarge N. Am. Inc. v. EPA, No. 15-1222, and,
• Associated Electric Coop. Inc. v. EPA, No. 15-1223.
Additional challenges are expected to the regulation before the July 16 deadline. That date represents the end of the 90 day period entities have to challenge waste regulations under the Resource Conservation and Recovery Act.
In April , the EPA opted to regulate coal ash under the nonhazardous waste provisions of Subtitle D of RCRA (80 Fed. Reg. 21,302).
The regulation (RIN 2050-AE81) establishes a number of requirements for landfills and impoundments currently receiving the material, including groundwater monitoring, fugitive dust controls, location restrictions and inspections, but it contained no federal EPA enforcement mechanism.
Environmental advocates, in particular, said upon the rule's release in December that it did not go far enough to protect human health and the environment. Utilities and other industry groups have expressed concern with the enforcement provisions in the regulation and have said the rule leaves open the possibility that the EPA could some day regulate coal ash as a hazardous waste.
The rule's roll-out has been messy. It took nearly five months for the final regulation to appear in the Federal Register, the agency had to clarify its effective date and EPA Administrator Gina McCarthy had to approve six formal corrections to the rule before its publication (127 DEN A-7, 7/2/15).
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Guidance Might Be Option For EPA To Address Uncertainty With CWA Rule
Jul 14, 2015 | InsideEPA
By Bridget DiCosmo
EPA could consider crafting guidance to address Clean Water Act (CWA) issues that might need more clarification following the agency's release of its final rule to define the law's reach, sources say, such as offering a definitive statement on "normal" farming practices exempt from the CWA that is missing from the regulation.
"We'd heard that any issue they're being encouraged to to try to fix [will be] through guidance," says an agriculture industry source. But the possibility that the agency might try to resolve confusion over the final CWA rule with guidance is "problematic because guidance isn't a rule, we'd rather the rule be as clear as possible," the source adds.
Guidance could revive statements that the agency and the Army Corps of Engineers made previously in their March 2014 "interpretive" rule that sought to clarify 56 agricultural conservation activities, such as brush management and fencing in crops, that were exempt from CWA section 404 permit requirements, in an attempt to resolve uncertainty over the exemptions -- but critics said that rule caused legal uncertainty and urged the agencies to scrap it.
The push-back prompted lawmakers to include language in the fiscal year 2015 omnibus law last year forcing the agencies to scrap the regulation, and they formally withdrew it in late January.
EPA Administrator Gina McCarthy said in remarks in December 2014 that, "We heard, as soon as the interpretive rule went out, that people had concerns about it. They were interpreting the interpretive rule in a way we didn't expect. So we're not unhappy with what went through the legislature."
CWA section 404(f) specifies that "normal farming, ranching, and silviculture" measures are not subject to dredge-and-fill permits, but does not define such practices, leaving regulators to set out a definition through rulemaking.
An EPA spokeswoman says, "We haven't issued any implementation guidance to the Regions or states at this point. We have no current plans to issue guidance clarifying CWA section 404(f)."
EPA and the Corps issued the final CWA rule May 27 to clarify when smaller waters are considered jurisdictional following two Supreme Court decisions that confused the issue, but sources that because fact the rule is likely to eventually end up before the high court the agencies might have to issue another CWA rule.
In a 2006 ruling in Rapanos v. United States, 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.
By contrast, the plurality opinion in Rapanos written by Justice Antonin Scalia held that only "relatively permanent" waterbodies that connect to traditional navigable waters and wetlands that have a "continuous surface connection" to such relatively permanent water bodies, are jurisdictional under the water law.
CWA Regulation
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 -- but agriculture officials say that the regulation fails to resolve uncertainty about the CWA's scope for the sector.
"They haven't given any indication how they plan on implementing this," a second industry source says, adding, "they have to do something," and there are "so many unknowns."
One example of an unknown is how the agencies will implement the rule's tributary definition. The final rule defines "tributary" as water "characterized by the presence of physical indicators of a bed and banks and ordinary high water mark (OHWM)" saying that using "indicators" to show existence of a tributary would allow use of "remote sensing or mapping information" or other "desktop tools." Industry argues that those tools may not be widely available and will allow regulators to base jurisdiction on historic presence of those indicators.
Supplemental rulemaking might be one option for EPA to clarify issues with the rule, the second industry source says, but "They can't do anything quick enough, unless they're going to extend the effective date" of the rule, which is Aug. 28.
The first agriculture industry source suggests that the agency has stated that it wants "to do guidance to memorialize the policies in the interpretive rule" to address agricultural sector concerns.
But EPA during the Obama administration has drawn attacks for using informal policy guidance to achieve regulatory goals, which critics say thwarts the Administrative Procedure Act. Examples of EPA's guides include its CWA permit guidance for mountaintop mining, which an appellate court upheld but limited its application, saying states are "free to ignore" its recommendations.
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Cattlemen's Groups Challenge Clean Water Rule
Jul 16, 2015 | BNA Daily Environment Report
By Matthew Berger
A new federal clean water rule sets “no limit” on the Clean Water Act's reach and extends to waters already deemed outside of regulation by the U.S. Supreme Court, opponents said in a July 15 lawsuit (Washington Cattlemen's Ass'n v. EPA, D. Minn., No. 15-cv-03058, 7/15/15).
The lawsuit was filed in the U.S. District Court for the District of Minnesota on behalf of organizations, including the state cattle growers' associations of California, New Mexico and Washington.
It alleges the Environmental Protection Agency and the U.S. Army Corps of Engineers' new rule is unconstitutional and violates legal precedent, including that set by the 2006 U.S. Supreme Court ruling in Rapanos v. United States, which, in part, led to the development of the new jurisdiction rule (Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (U.S., 2006)).
Among the claims in their complaint, the plaintiffs allege that Clean Water Act jurisdiction can't include “all tributaries with an ordinary high water mark” because the Rapanos case rejected that interpretation. They call the rule “arbitrary and capricious, and contrary to law.”
“We are suing to block the administration's breathtaking attempt to control practically every pond, stream, and ditch in the country,” Reed Hopper, principal attorney at the Pacific Legal Foundation, which is representing the cattlemen's groups, said in a statement announcing the lawsuit. “This new regulation is an open-ended license for federal bureaucrats to assert control over nearly all of the nation's water, and much of the property, from coast to coast.”
“Under its vague and limitless terms, the only waters that are clearly not subject to federal regulatory power are a few that are expressly excluded in the Clean Water Act, including artificial reflective pools, ornamental waters, some ground water, and gullies,” he added
The lawsuit is just the latest in many legal challenges to the “waters of the U.S. rule” to be filed since the rule was published in the Federal Register June 29 (134 DEN A-1, 7/14/15).
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Senate GOP Raises Broad Legal Attacks On EPA's CWA Jurisdiction Rule
Jul 14, 2015 | InsideEPA
By Bridget DiCosmo
Senate Republicans are raising broad legal attacks on EPA's final Clean Water Act (CWA) jurisdiction rule that echo and build on criticisms outlined in a slew of lawsuits filed over the regulation, including claims that it unlawfully expands the scope of the CWA and violates provisions of the Constitution including the Commerce Clause.
In a July 14 letter to EPA Administrator Gina McCarthy, the 11 GOP members of the Senate Environment & Public Works Committee (EPW) ask for a reply by Aug. 13 to a host of questions about the legal basis for the rule crafted jointly with the Army Corps of Engineers. “This final rule tramples the Constitution, Supreme Court precedent, and the language of the statute itself,” said EPW Chairman James Inhofe (R-OK) in a statement.
The letter is the latest push-back on the rule, which EPA and the Corps released in May and published June 29 in the Federal Register. More than half the 50 U.S. states and a slew of industry groups have filed suits claiming that the rule violates the Commerce Clause, the 10th Amendment and the Due Process Clause in the Constitution, exceeds CWA authority, and violates the National Environmental Policy Act and the Administrative Procedure Act.
EPA in its response to comments published with the final rule rejects claims raised by industry and states that the rule runs afoul of the Constitution's Due Process provision and 10th Amendment. The agency's defense hints at arguments that the administration will likely raise in the suits over the rule.
EPA Administrator Gina McCarthy has said that the rule provides much needed regulatory certainty on the CWA's reach following Supreme Court rulings that created competing tests for jurisdiction. Industry groups and other critics argue it vastly expands the scope of the water law beyond what Congress intended.
The numerous CWA rule cases have just been filed in federal district and appellate courts and are unlikely to reach the substantial briefing stage for many weeks at the earliest. The EPW Republicans' letter, in contrast, seeks answers from EPA on the legality of the rule by the middle of next month at the latest.
The senators point out that the Supreme Court in 2001 in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers rejected the presence of migratory birds as a sole basis for federal jurisdiction -- but that EPA in its technical support document released alongside the final rule refers 30 times to dispersal of plants (as seeds) and invertebrates (as eggs) by organisms such as birds and animals.
“Is it your position that, after SWANCC, you can reasonably interpret the statute to rely on use of geographically isolated water as habitat by non-migratory birds and other species as a basis for jurisdiction as long as the species lives part of its life in a navigable water?” the letter asks McCarthy.
Senators' Concerns
The letter also asks why EPA relies on ecological connections that were rejected by the 5-4 majority in SWANCC to create jurisdiction under the rule, and whether the agency's position is a narrow interpretation of SWANCC that is only applicable to its facts.
The senators also raise questions on language in the final rule they say indicates that retention and attenuation of flood waters is considered sufficient to establish jurisdiction, which they say is beyond the scope of the authorities granted to EPA or the Army Corps of Engineers under the CWA.
“Nothing in the legislative history of the CWA suggest it includes flood control authority,” the letter says, asking “Is it your position that the CWA authorities go beyond water quality?”
In addition to Inhofe, the other Republican members of EPW who signed the letter to EPA are David Vitter (LA), Mike Crapo (ID), Dan Sullivan (AK), Shelley Moore Capito (WV), Jeff Sessions (AL), Deb Fischer (NE), John Barrasso (WY), Mike Rounds (SD) Roger Wicker (MS) and John Boozman (AR).
In the letter, the senators note that Sullivan during a March 4 EPW hearing asked McCarthy to provide a legal opinion explaining the agency's legal rationale for the rule, which is aimed at clarifying the scope of the water law after a 2006 Supreme Court ruling, Rapanos v. United States, created confusion.
“The final rule raises even more questions regarding its legality” than the proposed rule, the letter says. “In fact, it appears that EPA is once again rewriting a statute to meet its policy goals despite repeated warnings from the Supreme Court against such actions.”
The senators also question whether the rule is at odds with the Constitution, saying, “If EPA is relying on Congress' traditional authority over navigable water as a channel of interstate commerce, please explain how the final rule is an exercise of this authority when none of the scientific studies cited by EPA even identify whether the waters studied are navigable or not.” The letter also asks EPA to explain how the rule is an exercise of Commerce Clause authority when it extends to activities that do not affect navigation or interstate commerce and to explain which prong of the clause the rule relies on.
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Confirmation Hearing Set for PHMSA Nominee
Jul 16, 2015 | BNA Daily Environment Report
The Senate Commerce, Science and Transportation Committee will hold a July 22 confirmation hearing for Marie Dominguez, the nominee to head the Pipeline and Hazardous Materials Safety Administration. Dominguez, who said in her nomination filing with the committee that boosting enforcement at PHMSA would be among her top priorities, has been serving as deputy administrator for PHMSA since June (133 DEN A-15, 7/13/15). The agency has been without a permanent administrator since Cynthia Quarterman left in October 2014. President Barack Obama nominated Dominguez to be PHMSA administrator May 29. The Senate hearing is scheduled for 10
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Senate Panel Passes Reauthorization Measure On Party-Line Vote
Jul 16, 2015 | E&E Daily News
By Sean Reilly
A transportation bill covering rail, safety and environmental permitting policies narrowly won approval late yesterday from a sharply divided Senate committee.
"I think we've done some important work," Senate Commerce, Science and Transportation Chairman John Thune (R-S.D.) said after the panel passed an amended version of S. 1732 on a 13-11 party line vote. The bill, introduced last Thursday, is the committee's contribution to a long-term surface transportation measure that also involves several other panels. It could go to the full Senate as early as next week, Thune said.
But Sen. Maria Cantwell (D-Wash.) objected that the measure breaks with the committee's history of bipartisanship and suggested that its prospects could suffer as a result.
The bill, spanning about 500 pages, includes a four-year bipartisan reauthorization plan for Amtrak that passed the committee last month (E&E Daily, June 19). It would also require the Transportation Department to create a "coordinated" permitting process with other agencies for transportation projects requiring an environmental impact statement and endorses the Obama administration's bid to establish an "infrastructure permitting improvement center" at DOT to spur innovation.
But the bill as it came out of committee yesterday differed in some respects from the original. Committee spokesman Frederick Hill confirmed, for example, that the amended measure drops an initial attempt to reorient the popular Transportation Investment Generating Economic Recovery (TIGER) grant program in favor of freight projects. That proposal had quickly raised the hackles of some local elected officials and transit agencies; Hill could not immediately say yesterday evening whether anything remained in the revised bill that would affect the TIGER program.
But much of the wrangling at yesterday's markup revolved around the bill's proposed changes to truck and rail safety policies. The measure, for example, would effectively push back the existing deadline for railroads to implement the automated anti-crash system known as positive train control from this December to the end of 2018. An amendment proposed by Sen. Richard Blumenthal (D-Conn.) to keep the current deadline failed by a 9-15 margin.
The freight rail industry, which says that the existing timetable is unworkable, has been lobbying for an extension; federal regulators also acknowledge that most commuter and large freight railroads will miss the deadline.
"We have a responsibility to do something," Thune said in defense of the proposed extension. "We just can't blow this off."
But rather than provide a blanket waiver, the Obama administration wants to handle requests for more time on a case-by-case basis. While Thune's bill would give the Transportation Department some leeway in evaluating individual carriers' extension requests, "the law has to hold railroads' feet to the fire," Blumenthal said.
The Commerce Committee is one of three Senate panels with responsibility for the policy provisions in any transportation bill. While the Environment and Public Works Committee has already approved a six-year reauthorization of highway programs, the Banking, Housing and Urban Affairs Committee has yet to deliver the mass transit section. As reason for marking up the measure less than a week after it was introduced, Thune cited a request from top Senate Democrats last month that Republicans have a long-term bill ready for Senate action by July 20 (Greenwire, June 16).
Across the board, however, the key hurdle is financial. Under governmentwide discretionary spending caps dating back to 2011, for example, there is little chance that Amtrak would ever receive the large budget increases allowed by the bill. Although Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that there is bipartisan enthusiasm for "multiyear" transportation legislation, lawmakers yesterday were still looking for a way to pay for it.
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