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ACC AM July 30
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(ACC Mentioned) Staffer Outlines Markey's Goals For TSCA Reform As Bill Nears Floor Vote
Jul 29, 2015 | InsideEPA
By Dave Reynolds
A staffer for Sen. Ed Markey (D-MA) is outlining potential changes to a bipartisan Toxic Substances Control Act (TSCA) reform bill -- including increasing industry funding for EPA assessments and speeding agency reviews of certain chemicals -- that, if adopted, could lead the senator to support the measure as it heads to a floor vote. -
(ACC Mentioned) New OPPT Advisory Committee To Review Work Plan Risk Assessments
Jul 29, 2015 | InsideEPA
By Maria Hegstad
EPA appears to be moving toward creating a more formalized and rigorous process for assessing the human health risks of chemicals and their applications through its Toxic Substances Control Act (TSCA) work plan risk assessments, as the agency has added another step to their development and created a new advisory committee... -
EPA Rule May Apply to Chemicals Used to Make Products
Jul 30, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The chemicals that are used to make a car, computer or other manufactured things might be covered by a proposed nanoscale materials rule that is open to public comment through Aug. 5, a senior Environmental Protection Agency official said July 29. -
California Seeks EPA Rule Defining All Nanomaterials As 'New' Chemicals
Jul 29, 2015 | InsideEPA
By Dave Reynolds
California state regulators, in comments on EPA's proposed Toxic Substances Control Act (TSCA) data collection rule for nanoscale materials, are urging the agency to define all nanomaterials as new chemicals, arguing new reporting requirements are insufficient to protect the public though producers are seeking exemptions from the reporting... -
Congressional Couches Test Positive for Toxic Retardant
Jul 30, 2015 | Roll Call
By Bridget Bowman
As Congress considers an overhaul of toxic chemical regulations, a new analysis has brought the issue close to home — perhaps a little too close for comfort. The Environmental Defense Fund recently analyzed six couches from each of the congressional office buildings and found three contained a toxic flame-retardant chemical known as TDCPP. -
Updated Toxic Chemicals Legislation Is An Advance
Jul 29, 2015 | The Baltimore Sun
By Ellen Silbergeld
By urging rejection of bipartisan legislation to reform the Toxic Substances Control Act, Emily Scarr lets the perfect become the enemy of the good ("Updated chemical bill undermines state regulation," July 24). Her claim that the Senate bill is "so weak as to be almost useless" ignores its many improvements by focusing solely... -
Senate panel clears picks for chemical board, highway agency
Jul 30, 2015 | E&E Daily News
By Sam Pearson and Sean Reilly
The Senate Environment and Public Works Committee unanimously approved four nominees yesterday -- two for the U.S. Chemical Safety Board, the acting head of the Federal Highway Administration (FHWA) and a director for the Tennessee Valley Authority. -
Study: Mine Dam Failures Cost Public
Jul 30, 2015 | BNA Daily Environment Report
By Rachel Leven
Failures of dams that hold waste from mining operations are occurring more frequently, causing more damage and requiring more cleanup funds, a study released July 29 by a public interest researcher and mining specialists said. The study, “The Risk, Public Liability, and Economics of Tailings Storage Facility Failures,” estimates 11... -
(ACC Mentioned) D.C. Circuit Sets Date For Arguments In Combustion Air Rule Litigation
Jul 29, 2015 | InsideEPA
The U.S. Court of Appeals for the District of Columbia Circuit has scheduled oral arguments for Dec. 3 in three related lawsuits challenging EPA's package of combustion air rules that includes a maximum achievable control technology (MACT) air toxics rule for boilers and a stricter emissions standard for incinerators. -
The Desperately Needed Pipeline That Has Nothing To Do With Oil
Jul 29, 2015 | The Hill - Congress Blog
By Doug Brake
Wireless spectrum is the secret ingredient linking our smartphones to YouTube and our things to the Internet. It is the lifeblood of some of our economy’s fastest growing industries and will only grow in importance. With wireless data traffic continuing to increase dramatically, now is the time to start planning ways to accommodate for that traffic. -
Boehner Urges End of U.S. Oil Export Limits
Jul 30, 2015 | BNA Daily Environment Report
By Jim Snyder
House Speaker John Boehner (R-Ohio) endorsed ending a ban on most U.S. oil exports, giving his support to the lobbying by energy producers to end limits imposed four decades ago. Oil exports would provide a “big boost to the economy,” Boehner told reporters July 29 at the Capitol. -
Speaker Calls For End To Oil Export Ban
Jul 29, 2015 | PoliticoPro
By Timothy Cama
Speaker John Boehner (R-Ohio) called Wednesday for Congress to lift the 40-year-old ban on crude oil exports. Boehner hadn't taken sides in the debate until Wednesday, and his endorsement likely sets the stage for a major policy battle this fall on Capitol Hill.“Lifting the ban would create an estimated 1 million jobs here at home... -
Boehner Backs Lifting Crude Export Ban
Jul 29, 2015 | E&E News PM
By Daniel Bush and Geof Koss
House Speaker John Boehner today signaled support for lifting the crude oil export ban, becoming the highest-ranking House Republican to come out in favor of changing the decades-old energy policy. Lifting the 1970s-era ban on crude oil exports would create as many as 1 million new jobs and lower gas prices ... -
House Dems Introduce Another Bill To Reduce Methane Waste
Jul 30, 2015 | E&E Daily News
By Phil Taylor
House Democrats yesterday introduced a bill that would establish new standards to reduce the waste of natural gas from drilling operations on public lands. The measure by Rep. Alan Lowenthal (D-Calif.) is the second Democratic bill in as many weeks to target the venting, flaring and industrial use of natural gas, or methane... -
Pipelines Protect Permian Basin From Shale Bust
Jul 30, 2015 | BNA Daily Environment Report
By Dan Murtaugh
To understand why U.S. oil production is so resilient, it helps to consider the maze of pipelines running out of Midland, Texas. New lines have relieved a chokepoint in America's biggest oil-producing area. A massive supply glut had forced producers to offer discounts of more than $20 a barrel below... -
Oil Producers Easily Skirt Keystone Pipeline Snag
Jul 30, 2015 | BNA Daily Environment Report
By Rebecca Penty, Jim Snyder and Robert Tuttle
The oil-sands industry is working around delays to the Keystone XL pipeline as the outlook dims for its approval any time soon. Sen. John Hoeven, a North Dakota Republican and leading congressional supporter of the $8 billion proposal, cited unidentified “sources” Tuesday in predicting... -
Clinton: I Have ‘Doubts’ About Arctic Drilling
Jul 29, 2015 | The National Journal
By Jason Plautz
Hillary Clinton is splitting with President Obama over controversial oil- and gas-drilling in the Arctic, saying she has "doubts" about the practice. In an interview with a New Hampshire TV station, Clinton said she wasn't sure the United States should continue offshore drilling in the untested Arctic waters. -
Canada's Harper Not ‘Hopeful' on Keystone Approval
Jul 30, 2015 | BNA Daily Environment Report
By Theophilos Argitis and Greg Quinn
Canadian Prime Minister Stephen Harper said U.S. delays in approving the Keystone XL pipeline are “not a hopeful sign” and reflect the “peculiar politics” of the Obama administration. “A positive decision has not been rendered for a very long time, that's obviously not a hopeful sign,” Harper said in an interview July 29 at his Ottawa office, adding... -
Committee Expected to Finish Energy Bill: Murkowski
Jul 30, 2015 | BNA Daily Environment Report
By Ari Natter
The Senate Energy and Natural Resources Committee is expected to complete work on a broad energy bill July 30, Chairman Lisa Murkowski (R-Alaska) said at the conclusion of a markup that featured debate on amendments related to climate change and natural gas exports. -
Will Climate Spell Trouble For Senate Bill
Jul 30, 2015 | E&E Daily News
By Geof Koss and Hannah Northey
GOP senators yesterday brushed aside efforts to insert climate change into the Senate's bipartisan energy bill, but Democrats made clear they're not giving up on the issue. After all Republicans on the Senate Energy and Natural Resources Committee blocked his nonbinding... -
EPA Wants Power Plant Startup Rule Lawsuits Halted
Jul 30, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
A federal appeals court should halt litigation over power plant startup provisions in the Environmental Protection Agency's mercury and air toxics standards until the court decides how to handle a June ruling by the U.S. Supreme Court, the EPA said (White Stallion Energy Ctr. v. EPA, D.C. Cir., No. 13-1106, motion to govern future proceedings... -
White House Vows Strong Defense Of Eased EPA Power Plant GHG Rule
Jul 29, 2015 | InsideEPA
By Lee Logan
White House Chief of Staff Dennis McDonough is promising a strong defense of EPA's greenhouse gas (GHG) rule for existing power plants amid indications that the administration has decided to give states an additional two years to both craft their compliance plans and begin meeting interim emissions reduction targets. -
Whitfield Lauds Changes, Says GOP Still Aims To Kill Power Rule
Jul 30, 2015 | E&E Daily News
By Jean Chemnick
he head of a key House Energy and Commerce subcommittee said last night that giving states more time to comply with U.S. EPA's Clean Power Plan could help, but that GOP lawmakers will still do everything they can to stop the rule from going into effect. Rep. Ed Whitfield (R-Ky.) told reporters last night during the final... -
What’s On EPA’s List Of Changes For The Climate Plan?
Jul 29, 2015 | PoliticoPro
By Alex Guillén
Extra time for states to make carbon cuts may be the first of several changes in store for EPA’s landmark climate change rules for power plants. States, utilities, grid operators, the energy industry and environmental groups have pressed for changes to the Clean Power Plan’s rules ... -
States Would Welcome Power Plant Rule Extension
Jul 30, 2015 | BNA Daily Environment Report
By Andrew Childers
State air pollution regulators lauded the possibility of extending the Clean Power Plan's initial compliance deadline from 2020 to 2022, saying the additional time would allow them to further refine their compliance strategies. “Changing the interim target—the 2020 date—was an obvious and very important change that will reduce... -
Businesses Push Carbon Trading for Power Plant Rule
Jul 30, 2015 | BNA Daily Environment Report
By Mark Drajem
Some businesses that back President Barack Obama's plan to curb greenhouse gases are making a late lobbying push to add an element similar to a cap-and-trade program. With the administration set this week or next to unveil its final rules to cut emissions from coal and natural gas plants... -
White House: ‘We Will Not Back Down’ On Climate Fight
Jul 29, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama’s top aide vowed on Wednesday that the White House won’t yield to Republican attacks on its landmark climate change rule, even as the administration prepared to soften a deadline for states to cut the greenhouse gases from their power plants. -
House Urges Administration to Retain Ozone Standards
Jul 30, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Members of the House of Representatives urged the White House and the Environmental Protection Agency to abandon a proposal to revise the current national ambient air quality standards. House Energy and Commerce Committee Chairman Fred Upton (R-Mich.), in a July 29 letter sent to White House Chief of Staff Denis McDonough... -
Suits Over EPA SSM 'SIP Call' Unlikely To Reach High Court, Attorney Says
Jul 30, 2015 | InsideEPA
By Suzanne Yohannan
Litigation challenging EPA's rule forcing states to scrap provisions in their air quality plans exempting some facility emissions from Clean Air Act limits during startup, shutdown and malfunction (SSM) periods is unlikely to reach the Supreme Court as the justices have already heard several other major air cases, says an industry attorney. -
Washington State Regulators Ordered to Cap Carbon
Jul 30, 2015 | BNA Daily Environment Report
By Paul Shukovsky
Washington Gov. Jay Inslee (D)—whose proposals to put a price on carbon dioxide emissions and set low-carbon fuel standards were stymied this year by the Legislature—has ordered regulators to use existing state law to promulgate rules capping carbon emissions. -
Sanders Rebuffed On Amendment Stating Climate Change Is Real
Jul 29, 2015 | The Hill - E2 Wire
By Devin Henry
A Senate panel on Wednesday rejected a push from Sen. Bernie Sanders (I-Vt.) to acknowledge climate change in an energy reform bill. Sanders, who is running for the Democratic presidential nomination, had pushed an amendment to the chamber’s energy bill affirming the sense... -
McCarthy: Corps' Water Rule Concerns ‘Satisfied’
Jul 30, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Environmental Protection Agency Administrator Gina McCarthy reiterated July 29 that all outstanding concerns with the water jurisdiction rule were resolved with the U.S. Army Corps of Engineers prior to the rule's public release in May. At a House Oversight and Government Reform hearing, McCarthy addressed recently revealed memos... -
New Rules for Unattended Hazmat Trains
Jul 30, 2015 | BNA Daily Environment Report
By Robert Iafolla
In response to a catastrophic derailment two years ago, federal transportation regulators issued a final rule on July 29 enhancing the brake system safety standards for unattended trains carrying hazardous cargo. The Federal Railroad Administration rule requires one trained...
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(ACC Mentioned) Staffer Outlines Markey's Goals For TSCA Reform As Bill Nears Floor Vote
Jul 29, 2015 | InsideEPA
By Dave Reynolds
A staffer for Sen. Ed Markey (D-MA) is outlining potential changes to a bipartisan Toxic Substances Control Act (TSCA) reform bill -- including increasing industry funding for EPA assessments and speeding agency reviews of certain chemicals -- that, if adopted, could lead the senator to support the measure as it heads to a floor vote.
Markey is one of five senators, four Democrats and an independent, who voted against a compromise version of S. 697 when the Senate Environment and Public Works Committee (EPW) approved the bill April 28 in a 15-5 vote.
If the proponents of the legislation make the changes Markey is seeking, his support could be significant in helping to further boost prospects for the bill, which currently has 52 Senate supporters -- eight votes short of the 60 votes needed to overcome a potential filibuster from Sen. Barbara Boxer (D-CA), a leading critic of S. 697.
Bill sponsors Sens. David Vitter (R-LA) and Tom Udall (D-NM) have indicated that while they will allow some amendments when the bill goes to a floor vote in the coming weeks, they oppose major changes that could cost the bill its broad bipartisan support.
But EPW ranking member Boxer has voiced significant opposition, saying numerous changes to the bill are necessary, including scrapping existing language that would broadly preempt state chemicals programs.
During a July 27 forum at the Center for Strategic and International Studies (CSIS) in Washington, D.C., Markey's environmental policy advisor, Michal Freedhoff, provided a short list of priority changes needed for Markey to support TSCA reform legislation in the Senate, and in a conference committee to reconcile S. 697 with a narrower measure the House passed 398-1 June 26.
Freedhoff told the forum "Chemical Safety and Security: TSCA Legislation and Terrorist Attacks" that Markey voted against S. 697 in committee because he is seeking to bolster EPA oversight under a future chemicals law, while ensuring that provisions for federal preemption of state restrictions are acceptable to states.
Markey's priority areas for TSCA negotiations are increasing an $18 million cap on industry funding of EPA chemical reviews and tightening a seven-year window for EPA reviews of persistent, bio-accumulative and toxic chemicals (PBTs) for which risks are already well understood.
Additionally, Freedhoff said concerns remain with both the Senate and House bills about the scope of federal preemption of state laws and how compromises on that issue will be implemented. For Markey, a remaining concern on preemption is ensuring states are not preempted by federal chemical restrictions that may not take effect for years.
"There is an interest in saying, 'If we're being asked to replace state regulations with federal ones, the federal ones should have to be implemented in a reasonable time frame.'" Freedhoff said.
Her presentation of Markey's remaining priorities for TSCA reform comes as the full Senate is expected to vote on the compromise version of S. 697 in August or September, and as some proponents expect to have legislation to President Obama by September or October.
At the CSIS conference, Freedhoff and the American Chemistry Council's (ACC) Michael Walls, differed on the challenge that lay ahead for a conference committee in reconciling the two bills. Walls emphasized the broad support for both measures, saying he expects S. 697 will gain 85-90 yes votes in the Senate. And he called issues in both bills "imminently reconcilable."
While Freedhoff acknowledged a "path forward" for TSCA reform, she said that if significant differences remain when the two bills reach conference, committee members will have to decide which bill to work from, and that such a process takes time.
She also noted that most environmental and public health groups have not endorsed either bill, and said state concerns about preemption of state chemicals rules continue.
A primary concern for Markey is that EPA has sufficient funding to quickly assess chemicals. As EPA begins regulating existing chemicals under a reformed TSCA, agency costs will rise, Freedhoff said, noting that EPA officials have testified that evaluating chemicals already on the market could take decades or a century.
"More money and tighter deadlines would speed that up," Freedhoff said, opposing the $18 million cap on industry contributions and a seven-year window for EPA's review of PBTs in the Senate bill. "Senator Markey is hoping that further improvement could be made in those areas."
Walls noted that while industry's contribution to certain chemical reviews is capped at $18 million, the Senate bill calls for industry to pay the entire cost of reviews companies request. Additionally, Walls argued that costs will come down as EPA becomes more efficient and as new tools for chemical screening come online.
The Senate bill also calls for periodic review of the agency's fee structure to help ensure adequate resources, he said.
"The resources are clearly a factor," Walls said, adding that industry will provide EPA with much of the data it needs for assessments, which should also help lower costs. Walls also raised concerns about the House bill's approach to EPA review of PBTs, saying the bill does not call for the consideration of exposure. Disregarding exposure during chemical reviews would lead to unnecessary assessments, Walls said, which would strain resources.
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(ACC Mentioned) New OPPT Advisory Committee To Review Work Plan Risk Assessments
Jul 29, 2015 | InsideEPA
By Maria Hegstad
EPA appears to be moving toward creating a more formalized and rigorous process for assessing the human health risks of chemicals and their applications through its Toxic Substances Control Act (TSCA) work plan risk assessments, as the agency has added another step to their development and created a new advisory committee to peer review them.
EPA announced last month that it is accepting nominations for members to sit on its new Federal Advisory Committee Act (FACA) panel, the Chemical Safety Advisory Committee (CSAC). The group's charter explains that it will "provide expert scientific advice, information and recommendations to the Office of Pollution Prevention and Toxics (OPPT) on the scientific basis for risk assessments, methodologies, and pollution prevention measures or approaches."
The charter notes that the new advisory committee will be supported by EPA's Office of Science Coordination Policy within the Office of Chemical Safety and Pollution Prevention. The charter goes on to describe CSAC's primary objectives, including "[r]eview of: risk assessments; models; tools; documents; chemical category documents; and other chemical assessment and pollution prevention products as deemed appropriate, that are prepared by OPPT; and [a]ddressing other issues that OPPT identifies as critical to it programs." Relevant documents are available on InsideEPA.com. (Doc. ID: 183475)
OPPT's primary risk assessment program is its TSCA work plan of some 83 chemicals prioritized for risk assessment based on their toxicity, persistence and potential for consumer exposure. The Obama EPA started the program in 2012, with an eye to more strictly exercising its TSCA authorities than previous administrations had done while awaiting congressional reform of TSCA, the 39-year-old law long bashed by critics for its weaknesses.
OPPT initiated four risk assessments in the work plan program's first year, which were peer-reviewed by experts managed by a contractor, The Scientific Consulting Group, Inc. Such contractor-managed peer reviews are generally considered the lowest level of peer review, while more important documents undergo review by one of EPA's FACA-compliant advisory committees, or the National Academy of Sciences.
In recent comments, the chemical industry association American Chemistry Council (ACC) presses EPA to heighten peer review scrutiny of these documents, as EPA as indicated that three of these have led the agency to consider proposing TSCA section 6 bans: trichloroethylene, methylene chloride and n-methlpyrrolidone.
"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," ACC's Nancy Beck writes in the group's June 29 comments on EPA's initial scoping and problem formulation plan for an ongoing work plan assessment of 1,4-dioxane, a chemical frequently found at Superfund sites and a contaminant in soaps and other personal care products.
OMB guidance requires that highly influential assessments, those that are expected to cost more than $500 million in a year, undergo "a more rigorous form of peer review for highly influential scientific assessments." Generally, such EPA assessments are conducted by the agency's Integrated Risk Information System (IRIS) program, housed in its research office, and are peer-reviewed by its Science Advisory Board or the National Academy of Science, rather than a contractor.
It appears that OPPT is seeking to formalize the review process for work plan assessments, says one former agency source, pointing to the creation of the new standing advisory committee and EPA's April release of the draft scoping and screening document for 1,4-dioxane. OPPT has said it intends to develop similar documents for other chemicals that the work plan program will assess moving forward, similar to what the agency already does in its IRIS program.
"They're trying to expedite review of that program," the source says of OPPT. "They were doing it in an ad hoc fashion. [Now they are creating] a standing committee to look at these things. The pesticides [office] has their own and the IRIS folks have theirs . . . it makes sense."
ACC indicates its support of these new approaches in recent comments. "ACC, therefore, is very supportive of EPA's recent establishment of a [CSAC]," writes ACC's Sarah Brozena in July 13 comments on the new committee. "While the CSAC will no doubt prove useful to EPA's assessment of chemicals today under its TSCA Work Plan program, creation of it also anticipates the need for such an advisory committee once legislation to modernize TSCA is enacted. The policies, procedures and guidance that EPA will need to develop to implement TSCA reform will be vital to ensuring a science basis for chemical safety assessments. The CSAC can and should provide EPA the scientific and technical advice it will need once a new statute is enacted."
Brozena goes on to comment upon the candidates nominated to serve on the new committee. "The industry candidates nominated to date reflect a diverse and well qualified list from which the Agency can choose. Given the potential breadth of the CSAC's charge, ACC suggests that the Agency seek candidates for the CSAC with broad experience as well as particular expertise in topics likely to be of great importance in a modernized TSCA, e.g. exposure assessment. The Agency should also take care to select a committee chair with a broad understanding of risk assessment and its implications."
The CSAC charter indicates the new committee will meet three or four times per year, and that it will have about 10 members, "who have demonstrated high levels of competence, knowledge, and expertise in scientific/technical fields relevant to chemical risk assessment and pollution prevention." EPA's docket indicates a wide variety of individuals have been nominated to serve on the new committee, or nominated themselves, including industry scientists, academics, a staff scientist for the environmental group Environmental Defense Fund, former EPA scientists, scientists with Washington state and Massachusetts environmental and public health agencies and a toxicologist nominated by the National Tribal Toxics Council. The group praised the toxicologist, Barbara Harper, for her "identification of unique tribal exposure pathways and associated risk assessments."
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EPA Rule May Apply to Chemicals Used to Make Products
Jul 30, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The chemicals that are used to make a car, computer or other manufactured things might be covered by a proposed nanoscale materials rule that is open to public comment through Aug. 5, a senior Environmental Protection Agency official said July 29.
The proposed rule wouldn't apply to the final manufactured product, or “article,” said Jim Alwood, a program manager with the EPA's Chemical Control Division.
Alwood distinguished between articles and the chemicals companies use to make them during a webcast briefing at the request of three semiconductor trade associations and the NanoBusiness Commercialization Association (NanoBCA).
The webcast addressed a proposed rule the EPA issued April 6 to obtain information about chemicals manufactured or processed at the nanoscale level (58 DEN A-4, 3/26/15).
Companies making products as diverse as airplanes, asphalt, cars, computers, golf clubs, clothing, sanitizers, solar panels, tires and yachts use nanomaterials to make those goods, meaning the rulemaking may affect a wider range of manufacturers than companies realize.
What's in Commerce
The EPA proposed to require chemical manufacturers and processors to provide the agency a range of basic information about nanoscale chemicals they make or work with.
Chemicals covered by the proposal would have to meet specific criteria, including being manufactured, imported or processed in the size range of one nanometer to 100 nanometers and exhibiting unique and novel characteristics or properties because of that tiny size. For comparison, human DNA is 2.5 nanometers wide.
The proposed rule would set up both a one-time reporting obligation and an ongoing reporting obligation. The one-time reporting obligation would apply to nanoscale materials already in commerce.
Under the ongoing obligation, companies that would like to make or process a new, distinct form of a nanoscale chemical would have to provide basic information to the agency 135 days in advance.
In either case, the rule wouldn't require companies to generate new data but rather would provide the EPA with information they already have or can reasonably ascertain, Alwood said.
The agency has proposed the rule to better understand nanoscale materials that are in commerce, he said. The information would allow the EPA to determine whether some could pose health or environmental risks.
Processors, Users of Chemicals
A confusion that underlaid several questions participants raised involved whether a company processed a nanoscale chemical or simply used it.
The distinction can be confusing, Alwood acknowledged.
The Toxic Substances Control Act defines a processor as “any person who processes a chemical substance or mixture,” the agency said in a 1992 documentoffering congressional, court and other interpretations of the word.
The core idea, Alwood said, involves changing a chemical or chemical mixture.
Processors may add something to or distill something from a chemical or chemical mixture they purchase. They change the chemical formulation in some way, he said.
A company that purchases a chemical formulation and doesn't alter it in any way may be a user, not a processor, and therefore not subject to the proposed rule, he said. “It's case by case decision.”
Anyone who wants the EPA to provide clarification should ask for it in comments they submit, Alwood said.
Defining Novel, Unique
Most of the questions representatives of these trade associations asked were designed to clarify what business practices and materials used in their members' businesses would be covered by the proposed rule and which wouldn't.
“What is EPA's definition of ‘unique’ and ‘novel property?’ ” asked Rory McCarthy, an environmental manager at Brewer Science Inc. The company makes advanced materials and equipment for microdevices used in electronics such as tablet computers, smartphones, digital cameras and televisions.
Alwood said the EPA used those words because they are part of the National Nanotechnology Initiative's definition.
The NNI, which is a federal research and development initiative, defines nanotechnology as “the understanding and control of matter at dimensions between approximately 1 and 100 nanometers (nm), where unique phenomena enable novel applications not feasible when working with bulk materials or even with single atoms or molecules.”
Alwood said he could not comment further on the definition, but he said parties that find it unclear should say so in comments they file.
Wafer Surfaces, Bound Particles
Laurie Beu, an environmental, health and safety consultant, asked whether nanoscale materials that semiconductor manufacturers use to make integrated circuit transistors on wafer surfaces would generally be exempt from the proposed rule.
Her question is based on an exemption provided in the proposed rule, which would exclude “chemical substances manufactured at the nanoscale as part of a film on a surface.”
In general, such materials likely would fit the proposed rule's definition of an article or a film and therefore be excluded, Alwood said.
Again, however, he urged semiconductor manufacturers to request guidance on that question when they comment on the proposed rule.
Lynn L. Bergeson, managing partner of Bergeson & Campbell, P.C., asked whether bound and unbound nanoscale particles would be covered by the proposed rule.
For example, she asked, “Would carbon nanotubes embedded within an epoxy matrix be considered an unbound or bound nanoscale material? Would it [the material] be in the scope of the regulation?”
Alwood said if the nanoscale particles were bound within an article, they would not be covered by the proposal.
Particles in epoxy matrixes might be, he said.
Companies Again Urged to Seek Clarification
He urged companies to also seek clarification on that question.
The EPA will seek to provide as much guidance as it can, he said.
In addition to NanoBCA, the trade associations that organized the webcast were SEMI, which serves semiconductor manufacturing supply chains for various high-tech industries; the Semiconductor Industry Association; and the Semiconductor Environmental Safety and Health Association.
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California Seeks EPA Rule Defining All Nanomaterials As 'New' Chemicals
Jul 29, 2015 | InsideEPA
By Dave Reynolds
California state regulators, in comments on EPA's proposed Toxic Substances Control Act (TSCA) data collection rule for nanoscale materials, are urging the agency to define all nanomaterials as new chemicals, arguing new reporting requirements are insufficient to protect the public though producers are seeking exemptions from the reporting proposal.
EPA is taking comment through Aug. 5 on a proposed TSCA section 8(a) nano reporting and record-keeping rule, which the American Chemistry Council has said the agency should revise and re-propose. The chemical industry association argues the proposed rule lacks sufficient clarity on reportable substances and scientific backing for some of the requirements.
But in recent comments, the California Department of Public Health (CDPH) seeks to strengthen EPA's proposal and calls for an additional EPA rule on nanomaterials that would define all nanoscale versions of already approved substances as new chemicals -- therefore subjecting them to the same premanufacture scrutiny that EPA undertakes of any other new industrial chemical substance before it enters the market.
"Without such a rule -- or without legislation that differentiates the two -- EPA will be unable to require manufacturers and processors to test their nanosized chemical substances and report the health and safety effects nor be able to regulate nanosized chemical substances in any way different from that of the gross chemical substances from which they are derived," CDPH says in June 22 comments.
EPA differentiates "new" chemicals from "existing" substances that were on the market when TSCA took effect in 1976, and which, as a result, EPA has far less ability to regulate than new chemicals. TSCA provides EPA the authority to review any new chemical before it enters the market, but gives the agency few tools to require manufacturers to submit toxicity data on existing chemicals.
The state's call for EPA to define all nanomaterials as new substances is similar to past efforts by environmentalists, and within EPA, that have riled industry groups who feared such a change could stigmatize promising technologies.EPA's proposed one-time reporting rule under TSCA came after the agency apparently dropped consideration of a controversial proposal in 2011 that would have deemed nanoscale versions of conventional ingredients in pesticides as new active ingredients, requiring disclosure and possible regulation even if the bulk substances were already registered.
Also, in March, EPA granted parts of the International Center for Technology Assessment's years-old petition, urging EPA to subject all nanosilver to the mandates of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), though industry officials have said EPA's response did not meaningfully change the agency's policy.
Regulating Nanomaterials
Federal agencies, including EPA, have long struggled with how to assess and potentially regulate nanomaterials because their unique properties that advance technology may also present health and safety risks. EPA's April 6 proposal follows years of wrangling with the nano industry and White House officials over the scope of the rule.
The proposal would require a one-time data submission to EPA six months after issuance of the final rule. The agency is also proposing that any company that intends to manufacture a substance that would have been subject to the one-off rule but does not do so until after the effective date of the regulation would have to report to EPA at least 135 days before commencing manufacturing.
EPA has said the data collected will guide its future policies on the substances, including potential regulation of some nanomaterials found to pose risks to human health or the environment.
During a June 11 public meeting, EPA staff said that the agency's proposed collection effort focuses on nanoscale materials derived from existing substances already on the TSCA inventory, as agency officials believe EPA review processes for new chemicals are effective at ensuring substances do not pose health and safety risks.
In its comments, CDPH argues that given the rapid increase in nanomaterials in commerce, regulators do not have time to wait for exhaustive test results and that the agency should consider protective measures now, despite uncertainties and gaps in knowledge.
CDPH says a rule defining all nanomaterials as new chemical substances would be a good starting place, and adds that without that change, EPA's proposed data reporting rule will be of little use in protecting the public from potential hazards.
Noting EPA's effort in the proposed rule to define discrete forms of chemical substances, CDPH argues that nanomaterials "have different physical properties from gross material, and the two cannot meaningfully be regulated as one type of substance."
While backing the proposed reporting rule as "a useful step," CDPH seeks to strengthen the proposal, urging EPA to tighten criteria for identifying reportable substances, and requiring that companies follow certain testing methods in determining whether a substance meets those criteria. CDPH also wants to tighten the exclusion for small manufacturers and processors, and urges EPA to remove exemptions for certain substances.
CDPH also says EPA's final rule should include places of employment where workers are exposed to nanomaterials in order to facilitate future health and safety testing.
Meanwhile, the Silver Nanotechnology Working Group (SNWG) in recent comments asks EPA to exclude non-pesticidal uses on nanosilver from the proposed reporting requirements, arguing they would duplicate existing reporting, including to EPA, under FIFRA, as well as to the Food and Drug Administration and the National Institute for Occupational Safety and Health. SNWG says nanosilver has few non-pesticidal uses that cause minimal consumer exposure. "SNWG believes any information that might be submitted would be of limited or no use to EPA for these reporting purposes," the group says.
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Congressional Couches Test Positive for Toxic Retardant
Jul 30, 2015 | Roll Call
By Bridget Bowman
As Congress considers an overhaul of toxic chemical regulations, a new analysis has brought the issue close to home — perhaps a little too close for comfort.
The Environmental Defense Fund recently analyzed six couches from each of the congressional office buildings and found three contained a toxic flame-retardant chemical known as TDCPP. The chemical can be found on the California Environmental Protection Agency’s list of carcinogens.
The analysis could cause some concern around the Capitol — particularly among members of the “Couch Caucus,” who sleep in their offices. Advocates working to overhaul chemical safety regulations hope it pushes lawmakers to act.
“It’s crazy to think that there are toxic chemicals in the very furniture we’re sitting on while working to update America’s chemical safety law,” Sen. Tom Udall, D-N.M., said in a statement. A couch from his office in the Hart Senate Office Building tested positive for TDCPP, along with couches from the Rayburn and Cannon House Office Buildings.
The EDF-secured nickel-sized samples of foam from the couch cushions of six individual offices. The samples were then sent to Duke University’s Superfund Research Center, which conducts free analyses of furniture foam, and three of the six samples tested positive for TDCPP.
The couches in the study are a small sample size for the hundreds of offices on Capitol Hill. But the EDF noted in a statement about the analysis that congressional furniture “remains in use for many years” and “the varying results may be due to differing ages of the furniture.”
TDCPP, also known as chlorinated tris, was used in children’s pajamas in the 1970s, but manufacturers stopped using the chemical when consumers became concerned about its harmful effects.
More recently, it has been used as a flame retardant in couch cushions. Researchers found in 2012 that more than 85 percent of couches contain chemical flame retardants, and 41 percent used TDCPP. Researchers have found these chemicals are not bound to the foam and can accumulate in dust, increasing the risk of human exposure.
“Frankly, I am not surprised. These chemicals are ubiquitous and, until recently, impossible to avoid,” said House Energy and Commerce ranking member Rep. Frank Pallone Jr., D-N.J., a proponent of updating chemical regulations. “Even those who know the risks of chemicals in consumer products and work to avoid them often can’t protect themselves. This is exactly why it is so important to ensure that the House’s [Toxic Substances Control Act] reform becomes law.”
Pallone is a co-sponsor of legislation by Rep. John Shimkus, R-Ill. — the TSCA Modernization Act — which passed the House 398-1 in June. Advocates hope the recent study will push the Senate to act.
“Members of Congress are coming into daily contact with such chemicals even as we and others press them to protect the public,” said Richard Denison, lead senior scientist at the EDF. “It’s just more proof that there is no safe place from toxic chemicals until our chemical safety law is brought into the 21st century.”
Currently, chemicals in consumer products are not required to undergo a safety assessment. But Udall and Sen. David Vitter, R-La., are hoping to change that with the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which they introduced in March. In conjunction with the House measure, the Senate bill, which is named after the late New Jersey Democratic senator, would be the first major changes to chemical regulations in nearly 40 years.
The Udall-Vitter bill would require the Environmental Protection Agency to conduct safety reviews of current and new chemicals in the marketplace and would make a number of other updates, including barring the EPA from considering cost in its safety reviews. The senators are hopeful their chamber will take up the Lautenberg bill before leaving for August recess.
“We’re still having conversations with leadership about it, and we’re very hopeful that the Senate will take up TSCA reform before the August break,” said Udall spokeswoman Jennifer Talhelm. “There’s a lot of interest in getting to the Lautenberg bill soon because it has really strong bipartisan support; we expect it would pass the Senate easily, and we’re really encouraged by how much energy there is for reforming our broken chemical safety laws.”
Talhelm said Udall’s staff was concerned to learn their office couch contained a toxic chemical they are attempting to combat. “The staff here in particular, and Sen. Udall, too, have been dealing with the issue for a really long time and this really underscores the importance of passing chemical safety reform,” Talhelm said.
Though the lawmakers are focused on federal chemical regulations, the study also raised questions about the use of flame retardant chemicals in the Capitol complex. A spokesperson for the Architect of the Capitol, which handles Senate furniture, declined to comment. The office for the chief administrative officer, which oversees House furniture, did not respond to requests for comment.
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Updated Toxic Chemicals Legislation Is An Advance
Jul 29, 2015 | The Baltimore Sun
By Ellen Silbergeld
By urging rejection of bipartisan legislation to reform the Toxic Substances Control Act, Emily Scarr lets the perfect become the enemy of the good ("Updated chemical bill undermines state regulation," July 24). Her claim that the Senate bill is "so weak as to be almost useless" ignores its many improvements by focusing solely on limitations on state initiatives to regulate toxic chemicals. These are important in advancing public policy, and senators, especially Maryland Sen. Ben Cardin, have worked to preserve a role for states. But states need a strong federal backstop, as we know from repeated failures in ensuring safe workplaces and consumer products. Ms. Scarr omits the strength of the Senate bill in including public access to toxicity data and requiring rigorous and scientifically robust screening of existing and new chemicals. This will take time, but it's far better than the decades-long stalemates under current law. Forgoing this opportunity will perpetuate the problems of current law, which has truly been almost useless.
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Senate panel clears picks for chemical board, highway agency
Jul 30, 2015 | E&E Daily News
By Sam Pearson and Sean Reilly
The Senate Environment and Public Works Committee unanimously approved four nominees yesterday -- two for the U.S. Chemical Safety Board, the acting head of the Federal Highway Administration (FHWA) and a director for the Tennessee Valley Authority.
At a markup held off the Senate floor, the panel endorsed the nominations of Vanessa Sutherland for CSB chairwoman and Kristen Kulinowski to be a CSB board member.
The chemical board has been in gridlock for months, with its two remaining members unable to approve a final report last week because of internal divisions (E&ENews PM, July 22).
Sutherland, the general counsel at the Department of Transportation's Pipeline and Hazardous Materials Safety Administration, and Kulinowski, a nanotechnology adviser and Rice University adjunct professor, both stressed the importance of cooperation and public outreach in their confirmation hearings.
Environment and Public Works Chairman James Inhofe (R-Okla.) said in a statement that Sutherland and Kulinowski "will hopefully improve the dynamics and accountability of the embattled CSB and get the board back on its mission of objectively investigating accidents instead of pursuing issue advocacy."
The committee also advanced the nomination of Gregory Nadeau, the acting administrator of FHWA, and Eric Martin Satz, a nominee for a seat on TVA's board of directors.
President Obama tapped Nadeau in May to head FHWA, which has about 2,900 employees and oversees tens of billions of dollars in annual road and bridge spending. Nadeau joined the agency in 2009 as deputy administrator. While his formal title has varied, Nadeau told the EPW Committee earlier this month that he has effectively served as the agency's acting chief since December 2013.
A former Maine state legislator, Nadeau later worked as an adviser to then-Gov. Angus King (I) and as director of policy and communications for the Maine Transportation Department.
Both King, now representing the state as a senator, and Sen. Susan Collins (R-Maine) praised Nadeau at the uneventful nomination hearing.
If confirmed, Nadeau told the panel in a statement that he would "work tirelessly" to run road and bridge programs in a way "that will maximize safety for the traveling public and efficiency in project delivery."
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Study: Mine Dam Failures Cost Public
Jul 30, 2015 | BNA Daily Environment Report
By Rachel Leven
Failures of dams that hold waste from mining operations are occurring more frequently, causing more damage and requiring more cleanup funds, a study released July 29 by a public interest researcher and mining specialists said.
The study, “The Risk, Public Liability, and Economics of Tailings Storage Facility Failures,” estimates 11 “very serious” failures will occur worldwide between 2010 and 2019 that will cost roughly $6 billion to remedy. The study goes on to say that mining companies can't afford to clean up these incidents, nor can they secure insurance for those costs, which leaves the public with the bill.
The study comes roughly one year after British Columbia's Mount Polley mine dam failure, which released 6.6 billion gallons of copper and gold mining waste into the Fraser River watershed that resulted in water use restrictions for more than a week in certain areas. The incident sparked concerns on Capitol Hill about the need for federal regulators to look more closely at such dams in the U.S. (97 DEN A-18, 5/20/15).
Business Decisions Contribute to Failures
“Our research shows that most catastrophic failures of tailings dams are the result of poorly informed, consciously made business and management decisions by miners who then refuse to accept the public loss and consequence of those decisions,” said Lindsay Newland Bowker, a co-author of the report and director at Bowker Associates, Science & Research in the Public Interest.
“Regulatory systems also contribute by not recognizing deviation from accepted practice and the unfolding of financial risk as it evolves, escalating environmental risk to a level of public disaster,” Bowker said.
Luke Popovich, a spokesman for the National Mining Association, declined to comment.
David Chambers, director of the Center of Science in Public Participation, co-authored the report.
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(ACC Mentioned) D.C. Circuit Sets Date For Arguments In Combustion Air Rule Litigation
Jul 29, 2015 | InsideEPA
The U.S. Court of Appeals for the District of Columbia Circuit has scheduled oral arguments for Dec. 3 in three related lawsuits challenging EPA's package of combustion air rules that includes a maximum achievable control technology (MACT) air toxics rule for boilers and a stricter emissions standard for incinerators.
In July 21 orders, the court said it will hear together the cases United States Sugar Corp v. EPA, which challenges the MACT for large "major" source boilers; American Chemistry Council v. EPA, which challenges the MACT for smaller "area" source boilers; and American Forest and Paper Association, et al. v. EPA, which is a suit over the agency's emissions standard for commercial and industrial solid waste incinerators.
Major sources as defined by the Clean Air Act are those emitting more than 10 tons per year (tpy) of one hazardous air pollutant (HAP) or 25 tpy of a combination of HAPs. Area sources emit below these thresholds.
Criticisms of the rules raised by industry in briefing in the cases include whether EPA can require energy efficiency assessments and tune-ups for boilers; whether EPA can set MACT limits on a pollutant-by-pollutant basis; whether EPA should set "work practice standards" instead of numeric emissions limits; EPA's failure to account for malfunctions in setting MACT standards; and whether MACT limits are unattainable.
Environmentalists, meanwhile, challenge EPA's use of carbon monoxide as a "surrogate" for HAPs, the agency's use of subcategories to set MACT standards, and EPA's reliance on a statistical method called the Upper Prediction Limit (UPL) to set MACT standards. Environmentalists say the UPL is not a true average, as required by the Clean Air Act, and makes the MACT emissions limits weaker than they should be.
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The Desperately Needed Pipeline That Has Nothing To Do With Oil
Jul 29, 2015 | The Hill - Congress Blog
By Doug Brake
Wireless spectrum is the secret ingredient linking our smartphones to YouTube and our things to the Internet. It is the lifeblood of some of our economy’s fastest growing industries and will only grow in importance. With wireless data traffic continuing to increase dramatically, now is the time to start planning ways to accommodate for that traffic. We need to create a pipeline to channel spectrum from old sectors and technologies to new wireless broadband applications and the Internet of Things.
Repurposing spectrum for these burgeoning new services depends on lengthy and complex bureaucratic processes. And everyone who already holds claims to spectrum that is best for wireless broadband—a diverse crowd, from TV broadcasters to the Department of Defense—is keeping a tight grip on their valuable slice of this resource, whether or not it is in the public interest. In March of 2010, the Federal Communication Commission unveiled a National Broadband Plan that set a goal of making 500 megahertz of spectrum available for wireless broadband use within the next 10 years. Soon after, President Obama also made 500 megahertz the official goal for the executive branch. Now, in the summer of 2015, we are more than halfway through the National Broadband Plan’s 10-year challenge, and while we have made good progress with some low-hanging fruit, the odds of hitting the 500 megahertz target are not looking good.
In the memorandum formalizing the 500 megahertz goal, the White House noted that “America’s future competitiveness and global technology leadership depend, in part, upon the availability of additional spectrum.”
That point is key: our nation’s success in delivering the bandwidth needed, not just for mobile video, but for the Internet of Things and other future wireless services—critical drivers of productivity growth throughout our economy—will largely turn on how much spectrum is available. And by most measures we won’t have enough.
Cisco’s Visual Networking Index estimates we will see a seven-fold increase in mobile traffic from 2014 to 2019. Imagine knowing that Capital Beltway traffic was set to increase seven times over—you would hope the Department of Transportation would at least have some plans in the works to add a few lanes. A recent study by the Brattle Group estimates that to meet this demand, we will need at least 350 more megahertz of licensed spectrum by 2019.
These projections are no doubt difficult, because there are many variables to account for. When spectrum is scarce, operators can make trade-offs, like building more and smaller cells (though this gets expensive fast). Trends like Wi-Fi offloading or the next bandwidth-hungry app are hard to predict. And of course operators can adjust pricing to lower demand to match a limited supply. Inevitable back-and-forth over whose projections are how accurate belies the fundamental point: to get cheap wireless broadband, we need more spectrum.
So how do we get 350 more megahertz in the next four years? A big, important step is the FCC’s upcoming incentive auction. Now set for next March, it is a mind-bogglingly complex attempt to coordinate a two-sided auction—swapping spectrum from those TV broadcasters ready to exit the business to the wireless broadband providers looking for more capacity. Let’s hope the FCC succeeds in clearing a significant amount of licensed spectrum in the process. But after that, there is for the foreseeable future no clear source of spectrum available to reallocate. And this is where Congress comes in.
While federal spectrum use is an area ripe for broader reform, the important first step is simply to identify where the next chunk of wireless capacity will come from and create a clear pipeline to allocate it for exclusive, licensed mobile operations. The sooner we do this the better, as it takes considerable time to move from planning, to auction, to building out actual networks. Thankfully, this pipeline should not be nearly as controversial as others you may have heard of. Everyone should be able to get behind a more robust, competitive, capacious mobile broadband ecosystem; this is a pipeline we can all get behind.
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Boehner Urges End of U.S. Oil Export Limits
Jul 30, 2015 | BNA Daily Environment Report
By Jim Snyder
House Speaker John Boehner (R-Ohio) endorsed ending a ban on most U.S. oil exports, giving his support to the lobbying by energy producers to end limits imposed four decades ago.
Oil exports would provide a “big boost to the economy,” Boehner told reporters July 29 at the Capitol. He didn't say when a vote may happen.
“America is experiencing an energy boom, and our policy needs to follow suit,” he said.
Congress imposed the restrictions in response to the Arab oil embargo in the 1970s, which drove up domestic gasoline prices. Refined products such as gasoline and aviation fuel can be exported already.
U.S. oil producers pinched by declining oil prices have lobbied for more than a year to end the restrictions. Domestic producers argue selling oil overseas could help the industry rebound, and Boehner said allowing exports could create as many as 1 million jobs.
The Iran nuclear deal and a promise to eventually lift economic sanctions that now limit that nation's oil exports has given proponents another argument to push. Boehner said U.S. oil drillers also should be able to sell overseas.
Jack Gerard, chief executive officer of the American Petroleum Institute, which represents Exxon Mobil Corp. and other major oil companies, made a similar argument in a news conference earlier July 29.
“U.S. energy producers should not be placed at a competitive disadvantage to anyone, whether it is Russia, Iran or any oil-producing country,” Gerard said.
A bill introduced by Rep. Joe Barton (R-Texas) has attracted 110 co-sponsors, including more than a dozen Democrats.
The path to approval, though, is considered tougher in the Senate, where any measure would need at least 60 votes to advance.
Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee, has introduced a bill to lift the restrictions. But she excluded language on the export ban from a bipartisan bill that's backed by Sen. Maria Cantwell (D-Wash.), the top Democrat on the energy panel (142 DEN A-5, 7/24/15).
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Speaker Calls For End To Oil Export Ban
Jul 29, 2015 | PoliticoPro
By Timothy Cama
Speaker John Boehner (R-Ohio) called Wednesday for Congress to lift the 40-year-old ban on crude oil exports.
Boehner hadn't taken sides in the debate until Wednesday, and his endorsement likely sets the stage for a major policy battle this fall on Capitol Hill.“Lifting the ban would create an estimated 1 million jobs here at home, jobs that would frankly get created in every state. It would help bring down prices at the pump for consumers, and it will be good for our allies,” Boehner said at a press conference.
“I would support lifting the ban,” he said. “Hopefully, we can work together in a bipartisan fashion to bring our energy policy into this century.”
In endorsing oil exports, Boehner is joining a growing group of Republicans and some Democrats, initially from oil-drilling-heavy regions, who say it's time to open the United States’ oil industry to the world market.
Supporters argue that the export ban is an outdated policy meant to protect United States consumers from oil scarcity of the 1970s. But with domestic oil production reaching historic highs, they say it’s time to reevaluate the issue.
Boehner said the nuclear deal with Iran, which would lead to a relaxing of western sanctions for the country, boosts the case.
“If the administration wants to lift the ban for Iran, certainly the United States should not be the only country left in the world with such a ban in place,” he said.
Rep. Joe Barton (R-Texas) has been leading the case for oil exports in the House, and Sens. Lisa Murkowski (R-Alaska) and Heidi Heitkamp (D-N.D.) have led efforts in the Senate.
Boehner only came to his position after he and GOP leaders did a whip count in recent days to evaluate support for lifting the ban within the party, Republicans said.
And it appears that the count was pretty decisive.
“There continue to be some skeptics, or at least politically concerned members in areas like the Northeast, where there’s a hub of refiners. But by and large, it’s whipped very strongly on our side,” said Rep. Kevin Cramer (R-N.D.), who supports exporting crude.
He and other members said GOP leaders would almost definitely move for a vote in the House sometime this fall.
“I think if the bill came up today it would pass easily,” Barton said. “And it would be bipartisan. We would get almost all the Republicans and we would get a very healthy number of Democrats.”
Barton said the bill is unlikely reach the 290 votes needed for suspension of the rules, but said it could easily obtain 218 votes.
He said leaders have yet to decide whether to put his standalone bill up for a vote or to attach it to another piece of legislation.
They also have not decided whether to put the bill through regular order, as Barton favors, which would start with the House Energy and Commerce Committee’s subcommittee on energy and power.
“But the good news is it’s going to move in one way or another,” he said. “It does have a green-light to be considered sometime this fall.”
House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) has not formally announced support for lifting the ban, but said it could bring many benefits.
The Senate Energy and Natural Resources Committee could vote on exports as soon as Thursday. The vote would be on a Murkowski bill to lift the ban while opening more areas to offshore drilling and providing neighboring states a share of the federal royalties from that drilling.
Democrats and some Republicans are skeptical of the push, saying that allowing crude oil exports could boost prices at home. It could also increase the consumption of oil and the greenhouse gas emissions from doing so.
At a Tuesday hearing in Senate Banking Committee, Sen. Elizabeth Warren (D-Mass.) said lifting the ban would be “dangerous” to the environment, while Sen. Robert Menendez (D-N.J.) said it would increase gasoline prices by as much as 18 cents.
Independent oil refiners have been the most vocal opponents of lifting the prohibitions. They fear that the new demand for oil would increase their costs.
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Boehner Backs Lifting Crude Export Ban
Jul 29, 2015 | E&E News PM
By Daniel Bush and Geof Koss
House Speaker John Boehner today signaled support for lifting the crude oil export ban, becoming the highest-ranking House Republican to come out in favor of changing the decades-old energy policy.
Lifting the 1970s-era ban on crude oil exports would create as many as 1 million new jobs and lower gas prices for consumers, the Ohio Republican said.
"I would support lifting the ban, and I hope we can work in a bipartisan fashion to try and bring our energy policies into the 21st century," Boehner told reporters.
Boehner also cited the Iran nuclear agreement, saying American producers should be allowed to sell crude abroad if Iran ramps up its oil exports as part of the deal.
Boehner stopped short of endorsing a House bill that would lift the ban. More than 100 House lawmakers, including 12 Democrats, have signed onto the legislation, which was introduced earlier this year by Rep. Joe Barton (R-Texas).
But Boehner threw his weight behind an energy package moving through the House that could eventually include language to lift the ban. GOP members of the House Energy and Commerce Committee have said they plan to attach an export ban provision to the bill when the panel marks it up this fall.
The broader energy bill is "a top priority here in the House," Boehner said.
Meanwhile, the leading Senate proponent of lifting the ban continues to build the case for doing so.
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) is highlighting the economic impacts of crude exports for the Great Lakes region.
"Although the United States already exports crude oil through the Great Lakes region to Canada (via Detroit), shipments of crude oil produced in the U.S. to overseas trading partners are largely prohibited," states a report prepared by Murkowski's staff and released this afternoon.
"A growing body of analytical work confirms the positive impacts of lifting the ban from a geopolitical and national economic perspective," the report says. "The states of the Great Lakes region would generally share in these benefits and each would gain in certain ways."
Allowing exports would boost oil and gas production, the construction of new infrastructure, and manufacturing, adding revenue to local coffers and lowering regional gasoline prices, the report states.
Murkowski will address the effects of lifting the ban on other regions in later studies, the report notes. Murkowski's analysis comes as export backers are scrambling to build support for lifting the ban, which the Senate Energy Committee will vote on before the August recess.
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House Dems Introduce Another Bill To Reduce Methane Waste
Jul 30, 2015 | E&E Daily News
By Phil Taylor
House Democrats yesterday introduced a bill that would establish new standards to reduce the waste of natural gas from drilling operations on public lands.
The measure by Rep. Alan Lowenthal (D-Calif.) is the second Democratic bill in as many weeks to target the venting, flaring and industrial use of natural gas, or methane, from wells on public lands. The bill would also require that royalties be paid on all gas removed from the earth.
"Oil and gas companies have been let off the hook for far too long for venting and flaring natural gas on our public lands and waters," Lowenthal said in a statement yesterday. "The Natural Gas Environmental and Economic Security Act will ensure that oil and gas companies are held accountable for every ounce of taxpayer resources lost and any damage they cause to our environment."
The bill, which received statements of support yesterday from the Wilderness Society and Sierra Club, carries a dozen additional Democratic co-sponsors, including Natural Resources Committee ranking member Raúl Grijalva (D-Ariz.).
It comes as the Bureau of Land Management nears the release of a major rule to reduce the venting and flaring of methane on public tracts. The agency currently permits companies to vent or flare significant amounts of methane without paying royalties. Methane can also contribute to global warming.
Last week, Rep. Dan Lipinski (D-Ill.) introduced H.R. 3140, a narrower bill backed by the Sierra Club, the Natural Resources Defense Council and EDF Action that would simply require royalties be paid on all gas removed from the ground.
In addition to doing that, Lowenthal's bill, according to a summary, would: Require operators to capture 99 percent of gas produced on public lands each year. Require operators to flare gas rather than vent it when capturing the gas is not feasible. Ban flaring from new wells within two years of bill's passage and require reductions in the amount of gas flared from existing wells. Require gas capture plans. Require emission standards for key equipment and operating procedures. Require regular monitoring for leaks and set deadlines to repair them.
Like Lipinski's bill, Lowenthal's measure will face a tough road in the Republican-controlled Congress, where leaders in both chambers have opposed bills that make it more costly to drill on public lands.
Industry officials say it's often too cumbersome to get a permit for pipelines that could capture and transfer gas to market. They argue that companies are already capturing as much gas as is currently economically feasible.
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Pipelines Protect Permian Basin From Shale Bust
Jul 30, 2015 | BNA Daily Environment Report
By Dan Murtaugh
To understand why U.S. oil production is so resilient, it helps to consider the maze of pipelines running out of Midland, Texas.
New lines have relieved a chokepoint in America's biggest oil-producing area. A massive supply glut had forced producers to offer discounts of more than $20 a barrel below the U.S. benchmark last year. This month, prices have been at an average premium of 78 cents, the most in records going back to 1991.
Magellan Midstream Partners LP, Plains All American Pipeline LP and Sunoco Logistics Partners LP finished work in the past year that added more than 750,000 barrels a day of capacity, while output grew by only 400,000. With an outlet to Gulf Coast refineries, the Permian Basin has been the only major U.S. shale region to keep growing as prices dropped by more than half to less than $50.
“Putting in those pipelines and connecting the Permian to the Gulf directly allowed that premium to develop,” John Auers, Dallas-based executive vice president at Turner Mason & Co., an energy consulting firm, said by phone on July 27. “When you talk about these price levels, $5 to $10 is the difference between putting rigs back to work or shutting down.”
The Permian is a vast expanse of arid territory in West Texas and New Mexico, stretching over 75,000 square miles, or about the size of South Dakota. It's been producing energy commercially since the 1920s after ranchers and farmers struck oil while drilling for water.
Production Rebound
After peaking at more than 2 million barrels a day in 1973, basin production slid to less than half that by the turn of the century. That changed in 2010, when companies starting using horizontal drilling and hydraulic fracturing, the techniques employed elsewhere for shale drilling. Output has doubled since then, back to more than 2 million barrels daily.
But the infrastructure didn't keep up. There was only about 1.6 million barrels a day of refinery and pipeline capacity last summer. Storage tanks filled and producers had to offer discounts to buyers willing to ship on more expensive trucks and trains. West Texas oil sold at an average discount to crude in Cushing, Oklahoma, of $12.42 a barrel in August 2014 and dipped as low as $21. That's changed.
“Now there simply isn't enough crude to supply all of the pipes out of the Permian and to satisfy regional refinery demand,” said Dominic Haywood, an analyst for Energy Aspects Ltd. in London.
Pipeline Relief
Producers are shipping their crude out of the basin to coastal refineries where prices are higher. Crude inventories in Midland have fallen about 40 percent in the past five weeks to less than 3.5 million barrels as of July 17, according to Genscape Inc., a Louisville, Kentucky-based energy information provider.
Prices in Midland were above those in Cushing, the delivery point for futures on the New York Mercantile Exchange, on July 28. West Texas Intermediate oil fell 38 cents to $47.60 a barrel in electronic trading at 10:11 a.m. New York time on July 29.
“Had these pipelines not existed, you'd see Midland differentials at an $8–to–$10 discount to WTI,” Andy Lipow, president of Lipow Oil Associates LP in Houston, said by phone.
The new lines came at a good time for Permian drillers such as Concho Resources Inc. and Occidental Petroleum Corp. Prices collapsed in part due to extra supply from West Texas and other U.S. shale areas. Drillers responded by cutting budgets and idling more than half their rigs since December.
Other Regions
Production is falling in the other major shale regions. The Eagle Ford in South Texas will drop by 10 percent from March to August, while the Bakken in North Dakota will be down about 5 percent, according to the Energy Information Administration. The Permian has slowed to a growth rate of about 0.2 to 0.4 percent monthly from 2 to 4 percent, but it's still expanding. Large swaths of the Permian are still profitable with $49 oil, according to Wood Mackenzie Ltd.
“Even at $50 oil, a lot of development in the Permian looks pretty tight,” Christopher Kopczynski, a senior research analyst for Wood Mackenzie in Houston, said by phone. “If you imagine an extra $10 discount for crude, things start to look pretty ugly pretty quickly.”
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Oil Producers Easily Skirt Keystone Pipeline Snag
Jul 30, 2015 | BNA Daily Environment Report
By Rebecca Penty, Jim Snyder and Robert Tuttle
The oil-sands industry is working around delays to the Keystone XL pipeline as the outlook dims for its approval any time soon.
Sen. John Hoeven, a North Dakota Republican and leading congressional supporter of the $8 billion proposal, cited unidentified “sources” Tuesday in predicting President Barack Obama will reject it in August. The denial would block a project designed to ship 830,000 barrels a day of crude to Gulf Coast refineries, mostly from Canada's oil sands.
After repeated delays since TransCanada Corp. applied for U.S. permission to build the line in 2008, producers are turning to costlier trains and expansion of existing systems to transport their crude. Other pipelines are also being planned to Canada's coasts, including one by TransCanada to the Atlantic.
“The earliest we'll now see it, we think, is in 2018” under the next U.S. president, said Patrick Kenny, an analyst at National Bank Financial in Calgary. “That's why Canada and TransCanada have gone with this Plan B.”
Keystone XL has become one of the most contentious energy issues of Obama's presidency. He has repeatedly challenged its benefits to the U.S. and vetoed a Republican-backed bill that would have bypassed a State Department review and cleared the way for construction.
‘Multiple Sources.’
“What I'm hearing from multiple sources is that he is going to turn down Keystone when we're out in August,” Hoeven told Bloomberg BNA's Ari Natter after a speech on the Senate floor Tuesday in which he discussed the project. “I got a couple sources, and that's what they're saying. But I can't tell you who” (145 DEN A-1, 7/29/15).
The Obama administration hasn't said when a decision will be made. Frank Benenati, a White House spokesman, declined to comment on Hoeven's prediction, referring questions to the State Department. The department didn't immediately comment.
“If indeed these rumors are true with what Senator Hoeven has said today, it's a victory for our opponents,” James Millar, a TransCanada spokesman, said Tuesday by phone. “We would simply be making a choice of saying ‘Yes’ to oil from Iran and Venezuela and ‘No’ to oil from Canada and the U.S. Bakken.”
Among alternatives to Keystone, Enbridge Inc. can now move more than 800,000 barrels a day of Canadian crude to the U.S. after completing an expansion to its cross-border Line 67 system.
Oil by Rail
Exports of Canadian oil by rail rose to about 120,000 barrels a day in the first three months of the year, more than seven times the volumes of early 2012, according to data from Canada's National Energy Board. TransCanada's Energy East line to the Atlantic would be able to carry 1.1 million barrels a day.
“When you see the expansion of the Enbridge line and we are bringing in so much crude from Canada, it doesn't seem there is an impetus to get Keystone up and running now,” said Carl Larry, head of oil and gas for Frost & Sullivan LP in Houston.
Washington has played host to a massive lobbying fight over Keystone XL. Environmentalists oppose the project because they argue it would promote development of the Alberta oil sands, which release more greenhouse gases than conventional drilling. Backers say the project would create thousands of jobs and boost ties to a close ally.
“It's not a question of whether this project will be approved; it is a matter of when,” Greg Rickford, Canada's natural resources minister, said in an e-mailed statement. He said development would be environmentally responsible. “We will continue to strongly advocate for this job-creating project.”
‘Export Pipeline.’
The pipeline originating in Alberta would carry crude across Montana, South Dakota and Nebraska, including some U.S. supplies, and connect to an existing network that extends to the Gulf Coast.
Obama hasn't said how he'll decide but has been critical of the project, calling it an “export pipeline” that wouldn't benefit U.S. drivers. He called the process of extracting Alberta's oil sands “extraordinarily dirty,” at a March event in South Carolina.
Hoeven said on the Senate floor that Obama would wait until the August recess because the timing would mean less “pushback” from Congress. The House is scheduled to begin its recess this week, with the Senate following next week.
He said he may try again to force approval of the project in an amendment to an energy bill now under discussion in the Senate.
With assistance from Kathleen Miller and Angela Greiling Keane in Washington and Josh Wingrove in Ottawa.
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Clinton: I Have ‘Doubts’ About Arctic Drilling
Jul 29, 2015 | The National Journal
By Jason Plautz
Hillary Clinton is splitting with President Obama over controversial oil- and gas-drilling in the Arctic, saying she has "doubts" about the practice.
In an interview with a New Hampshire TV station, Clinton said she wasn't sure the United States should continue offshore drilling in the untested Arctic waters.
"And I don't think it is a necessary part of our overall clean-energy climate-change agenda," she told NH1 News. "I will be talking about drilling in general, but I am skeptical about whether we should give the go ahead to drill in the Arctic."
The statement is likely to win serious kudos among environmentalists, who have been waiting to hear firm statements from Clinton on issues such as fracking and offshore oil-drilling, even as she has rolled out proposals on clean energy and climate change in the past few days.
Clinton has also repeatedly dodged questions about whether she is in favor of approving the Keystone XL tar-sands pipeline.
The Arctic issue is raw among the environmental community ever since this summer, when Obama's Interior Department gave Royal Dutch Shell conditional permits to drill off of Alaska's coast. (The company can only drill the top section of wells because of damage to its emergency-response equipment to cap a well.) Greens have said that drilling in the Arctic is too dangerous and unproven and that a spill there could be catastrophic.
Green activists are gathering this week in Oregon and plan to use kayaks to try to block the path of the ship that Shell will use for its Arctic exploration.
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Canada's Harper Not ‘Hopeful' on Keystone Approval
Jul 30, 2015 | BNA Daily Environment Report
By Theophilos Argitis and Greg Quinn
Canadian Prime Minister Stephen Harper said U.S. delays in approving the Keystone XL pipeline are “not a hopeful sign” and reflect the “peculiar politics” of the Obama administration.
“A positive decision has not been rendered for a very long time, that's obviously not a hopeful sign,” Harper said in an interview July 29 at his Ottawa office, adding he discussed the matter recently with the U.S. president. “I think there's very peculiar politics of this particular administration.”
U.S. President Barack Obama will reject the project in August, Republican Senator John Hoeven said Tuesday, citing unidentified “sources.” TransCanada Corp.’s proposed $8 billion link between Alberta crude deposits and Gulf Coast refineries has been under review since 2008.
Harper said a rejection of the pipeline “is clearly possible,” when asked about Hoeven's comments.
Getting the project approved has been among Harper's highest-priority diplomatic efforts. He called the project a “no-brainer” in a 2011 interview.
A rejection of the project in the next few months could be a setback for Harper heading into Oct. 19 elections. His government's position has consistently been that Keystone offers job creation and the displacement of oil imports from countries that can be hostile to the U.S.
Keystone has become one of the most controversial energy issues of Obama's presidency. He has questioned its benefits to the U.S. and vetoed a Republican-backed bill that would have bypassed a State Department review and allowed construction.
“The fact a decision has not been rendered for so long, even after all the objective analyses said that the project is better from an economic standpoint, an energy standpoint, even an environmental standpoint—it's certainly preferable to rail—even after all those things, a decision hasn't been rendered,” Harper said. “I believe that whether this project goes ahead or not under this administration, it will ultimately go ahead under a subsequent administration.”
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Committee Expected to Finish Energy Bill: Murkowski
Jul 30, 2015 | BNA Daily Environment Report
By Ari Natter
The Senate Energy and Natural Resources Committee is expected to complete work on a broad energy bill July 30, Chairman Lisa Murkowski (R-Alaska) said at the conclusion of a markup that featured debate on amendments related to climate change and natural gas exports.
The committee, which has dispensed with nearly 50 of almost 100 amendments filed, has managed to avoid issues that could endanger the bill, a trend that Murkowski said is expected to continue.
“In terms of something that is going to cause fur to fly, I'm not seeing that,” Murkowski said. “I am pretty convinced we will be able to move through in good order tomorrow and be able to report this energy bill by tomorrow.”
Among the amendments approved during the committee's July 29 markup was a measure by Sen. Jeff Flake (R-Ariz.) that would exempt certain information about the U.S. electricity grid from federal and state Freedom of Information Act requests.
The amendment, which was approved by voice vote, is supported by groups representing utilities such as Dominion, American Electric Power and ITC Holdings Corp.
“Public power entities are concerned that the cyber provisions in Section 2001 [of the underlying bill] could require them to disclose sensitive information pursuant to state public records laws or other federal disclosure requirements,” Flake's office said in a statement to Bloomberg BNA.
Studying Natural Gas Exports
The committee also voted 13-9 to adopt an amendment from Sen. Elizabeth Warren (D-Mass.) that would require a study on liquefied natural gas exports.
An amendment from Sen. Angus King (I-Maine), which would have required the Energy Department to conduct a study on the impacts of natural gas exports if the department approves exports of more than 20 billion cubic feet per day, failed.
“The revolution in hydrofracking and particularly in the production of natural gas has been enormously beneficial to this country both in terms of energy costs, electricity costs, environmental benefits, and this amendment is designed to simply ensure we don't lose those benefits through unencumbered exports,” King said.
The amendment failed by a vote of 10-12 and was opposed by Murkowski, who said that it could delay the approval of exports.
Climate Amendment Rejected
The committee also voted down an amendment from Sen. Bernie Sanders (I-Vt.) that would have expressed a “sense of the Senate” that global warming is real and caused by human activities and “has already caused devastating problems” in the U.S. and abroad.
“If we do not believe climate change is real, than that takes us in a certain direction of thought about what we want to do: Drill baby drill, more fossil fuels,” Sanders said. The amendment failed by a vote of 9-13.
Murkowski said the amendment wouldn't improve the bill and that the issue had already been voted on by the Senate earlier in the year. The underlying legislation includes provisions to increase renewables and energy efficiency, she noted.
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Will Climate Spell Trouble For Senate Bill
Jul 30, 2015 | E&E Daily News
By Geof Koss and Hannah Northey
GOP senators yesterday brushed aside efforts to insert climate change into the Senate's bipartisan energy bill, but Democrats made clear they're not giving up on the issue.
After all Republicans on the Senate Energy and Natural Resources Committee blocked his nonbinding resolution affirming climate science from being added to the package, aspiring Democratic presidential nominee Bernie Sanders (I-Vt.) told E&E Daily yesterday he'll have climate-themed amendments ready when the energy bill hits the floor later this fall.
"To be very honest with you, going beyond politics, I am rather stunned that not one Republican voted for what virtually the entire scientific community understands to be real, and that is climate change is real, caused by human activity, causing devastating problems and we've got to address it," Sanders said, essentially summarizing his amendment. "And that not one Republican was prepared to vote for that is, to me, beyond comprehension."
However, climate change still isn't a complete slam-dunk for Democrats. Sen. Joe Manchin (D-W.Va.) also voted against Sanders' amendment, which calls it "imperative" to transition away from fossil fuels, language the West Virginian called unrealistic given global dependence on coal as a power source.
But with a host of Senate Republicans up for re-election next year and control of the chamber hanging in the balance, the political atmosphere is ripe for Democrats to turn the tables and force tough climate votes on GOP moderates.
Vulnerable incumbent Sen. Mark Kirk (R-Ill.) knows firsthand the perils of climate politics. Environmentalists this month spent heavily to remind Illinois voters of his recent vote against an amendment to strip a rider from the Interior-Environment spending bill that blocks EPA from finalizing the Clean Power Plan (Greenwire, July 6).
Just days after the advertising blitz, Kirk sided with Democrats to soften another appropriations rider targeting the U.N. Green Climate Fund (Greenwire, July 6).
Energy Chairwoman Lisa Murkowski (R-Alaska), who along with other moderates once co-sponsored a bipartisan cap-and-trade bill, acknowledged that there will be more discussion of climate on the floor.
She defended her own vote against Sanders' proposal, which she said wouldn't have added any substance to the underlying bill, while also pointing out that the chamber had multiple votes on similar amendments earlier this year.
"It's a sense of the Congress, and it doesn't add, in my view," she told reporters after the markup. "And it's something that we've already said what the sense of Congress is on this. I think that that's out there. Does it need to be added as part of a bill? Is it necessary? I'm not convinced it's necessary. "
Debate over Sanders' amendment on the Senate floor is sure to bleed into discussions about the export of domestic gas and oil in light of yesterday's committee exchange.
Before the proposal failed by a 10-12 vote, Democratic Sen. Elizabeth Warren of Massachusetts, who in recent months has insisted she's not making a 2016 bid for the White House, said the upper chamber cannot pass energy legislation without first considering the effects of climate change. Sanders' language, she said, is the right starting point.
"I understand that this has been a real challenge to try and bring something together that people can agree on, but we're talking about a bill that, let's face it, is about expanding export of liquefied natural gas around the world," Warren said. "Not to at least discuss the climate impact of that in some modest way seems to me to be irresponsible here."
Concern over carbon emissions has flared in recent months along with congressional interest in fast-tracking gas exports. The White House has, for its part, signaled support for expanded use of gas and exports while moving to tackle methane emissions and leaving the regulation of hydraulic fracturing to states. Debates were roiled last year when the Energy Department released a report that found LNG exports for power production in Europe and Asia wouldn't increase greenhouse gas emissions when compared with mining and burning coal over 100 years (Greenwire, June 10, 2014).
Although Sanders has not yet signaled he'll tackle gas exports as the committee crafts an energy package, he's no stranger to voicing outright opposition to fossil fuels, arguing yesterday that his climate amendment would expose Exxon Mobil Corp.'s and the Koch brothers' efforts to obfuscate the issue of climate change.
Sanders said during an interview last year that while natural gas is often seen as a "bridge fuel," the United States needs to aggressively divest from fossil fuels to thwart climate change (E&E Daily, April 3, 2014).
Murkowski said Sanders' language would do little to enhance elements "cobbled together" in the current bill such as infrastructure and accountability that are already moving the United States toward a cleaner and more efficient system. The chairwoman also said she isn't discrediting scientists' assertions about climate change.
But Warren wouldn't budge.
"If we're trying to, as you put it, cobble together the pieces that we can," she said, "one of those pieces should be an acknowledgement that climate change is real, that this is a huge and growing problem for this country and for this Earth."
Sanders played off her support in his hallmark volume.
"At the end of the day, the United States Congress is going to have to determine whether it believes in science or not," he said. "That's the precursor to everything else."
After dealing with climate and natural gas exports, Murkowski said the committee "tentatively" is past the most controversial amendments to the underlying energy bill.
"I think Senator Sanders still has a couple more solar that he would like to bring up, but in terms of something that's going to cause fur to fly, I'm not seeing it," she said.
However, Murkowski reiterated her intent to also pass a separate package of bills that would expand offshore revenue-sharing with coastal states and lift the crude export ban before the August recess.
She hopes to complete the bipartisan energy bill today, before moving on to the more controversial package.
"If we don't, we've got next week, as well," she told reporters.
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EPA Wants Power Plant Startup Rule Lawsuits Halted
Jul 30, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
A federal appeals court should halt litigation over power plant startup provisions in the Environmental Protection Agency's mercury and air toxics standards until the court decides how to handle a June ruling by the U.S. Supreme Court, the EPA said (White Stallion Energy Ctr. v. EPA, D.C. Cir., No. 13-1106, motion to govern future proceedings filed 7/28/15; Util. Air Regulatory Grp. v. EPA, D.C. Cir., No. 15-1013, motion to govern future proceedings filed 7/23/15).
The agency, in motions to govern further proceedings, asked the U.S. Court of Appeals for the District of Columbia Circuit to continue to hold two lawsuits in abeyance until 30 days after the court issues its decision on remand for the mercury rule.
The U.S. Supreme Court in June held that the EPA was required to consider costs when deciding it was “appropriate and necessary” to regulate mercury emissions from power plants, an agency finding that ultimately led to promulgation of the mercury and air toxics standards (RIN 2060–AP52, RIN 2060-AR31). The litigation was remanded to the D.C. Circuit, which will decide whether the standards will remain in place or be vacated while the EPA works to address the Supreme Court ruling (Michigan v. EPA, 80 ERC 1577, 2015 BL 207163 (U.S. 2015); 125 DEN A-1, 6/30/15).
The EPA said litigation on the work practice standards should continue to be held in abeyance because the D.C. Circuit's decision on how to handle the remand may have an impact on the issues in the related litigation. Under the EPA's motion, future motions to govern further proceedings in the work practice standards lawsuits would be due 30 days after the court issues its decision on the remand.
The two related lawsuits are White Stallion Energy Ctr. v. EPA, which challenges the 2012 mercury rule's requirement that power plants comply with a work practice standard during periods of startup and shutdown, and Util. Air Regulatory Grp. v. EPA, which challenges a November 2014 rule (RIN 2060-AS07) that established an alternative work standard for power plant startup.
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White House Vows Strong Defense Of Eased EPA Power Plant GHG Rule
Jul 29, 2015 | InsideEPA
By Lee Logan
White House Chief of Staff Dennis McDonough is promising a strong defense of EPA's greenhouse gas (GHG) rule for existing power plants amid indications that the administration has decided to give states an additional two years to both craft their compliance plans and begin meeting interim emissions reduction targets.
Despite widespread reports that the administration has extended the compliance plan deadlines until 2018 and interim targets until 2022, McDonough is portraying the final rule as tougher than the proposed version issued last year.
The pending final rule will be “stronger in many ways than the proposed rule,” and it will “encourage rapid deployment” of renewables and energy efficiency, he told a July 29 event sponsored by the Center for American Progress and New Republic.
Later during his remarks, he said the administration “will finalize a stronger rule,” and “we will not back down” from expected attacks from Republican lawmakers and some industry officials. He also pledged to veto “ideological riders” in spending legislation that would block or undermine the existing source performance standards (ESPS).
Although McDonough did not directly confirm the deadline extension for compliance plans and GHG cuts, he said the rule will give “states and utilities the flexibility they need to craft plans that meet their unique needs.”
Citing sources familiar with the final rule, the New York Times and the Washington Post reported July 28 that states will have until 2018 to submit final compliance plans and that the start of the compliance window would be moved back from 2020 to 2022.
Additionally, E&E Publishing obtained a timeline from EPA's website -- which has since been removed -- saying the rule would be issued Aug. 3, and that states would still need to submit initial compliance plans by Sept. 6, 2016, but that all states would have three years, until 2018, to submit final plans. The timeline notes that the 2022 start of the compliance period is seven years from the rule's issuance.
Several reports also indicated that the rule will include incentives to encourage states to develop renewable energy and energy efficiency programs to help attain the new 2022 deadlines. "The incentive program is really going to help move states to take early action on deploying renewable energy and deploying efficiency programs, which is going to jump-start their efforts to hit their targets in the compliance window," a source told Politico.
Under the proposed ESPS, states would have had until 2016 to submit initial plans, with final plans for most states due in 2017. States that agreed to cooperate with neighbors on compliance efforts would have had until 2018 to submit a plan. Also, the proposal would have required states to begin meeting “interim” GHG reduction targets starting in 2020, with final targets in 2030.
EPA officials have long indicated that they are likely to ease proposed requirements for submitting compliance plans and achieving the interim targets. But officials, including EPA Administrator Gina McCarthy, have suggested they are more likely to consider design changes in how states demonstrate attainment of the interim targets rather than deadline extensions, suggesting the final rule could also include additional measures to ease states' ability to comply.
'Made Up Their Mind'
Despite the additional flexibilities, critics downplayed any benefits. The American Coalition for Clean Coal Electricity in a July 29 statement called the two-year implementation delay “irrelevant,” citing previous studies that the proposed rule would hike electricity prices and threaten grid reliability.
“That the White House is reported to provide two additional years for states to comply with its wholly unworkable regulations is irrelevant as American families and businesses will start to bear the brunt of more costly, less reliable electricity,” the group said.
But McDonough said the White House expects such reactions. “Some Republican and industry leaders have already made up their mind on this rule. We know what to expect from them.”
He argued that such criticisms will start to come in “before people have taken time to read the rule or the updated analysis.”
McDonough rejected several of critics' claims about the rule, calling them “flat-out false” and “further from the truth.” He added: “No doubt we will be focused on this and forced to battle back the same tired old tactics that we've faced for 40 years.”
Additionally, Rep. Raul Grijalva (D-AZ) said during a July 29 House Natural Resources Committee hearing that the extended compliance deadlines in the final rule show that EPA has been attentive to concerns from states and utilities.
The deadline adjustment also demonstrates that Republican opposition to the rule is overblown, Grijalva said during the hearing, in which GOP lawmakers sought to prove that EPA shirked a legal duty to consult with federal wildlife agencies about impacts that the rule would have on endangered species such as manatees that use warm water discharges from power plants as habitat. “This new-found Republican concern for the health and safety of the manatees is a sham,” Grijalva said, adding that the hearing is another ploy by Republican lawmakers to dismantle the soon-to-be-finalized ESPS.
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Whitfield Lauds Changes, Says GOP Still Aims To Kill Power Rule
Jul 30, 2015 | E&E Daily News
By Jean Chemnick
The head of a key House Energy and Commerce subcommittee said last night that giving states more time to comply with U.S. EPA's Clean Power Plan could help, but that GOP lawmakers will still do everything they can to stop the rule from going into effect.
Rep. Ed Whitfield (R-Ky.) told reporters last night during the final round of votes before the August recess that reports that EPA will grant states more time to plan and implement the existing power plant rule would relieve some of the stress on states rushing to comply.
"It definitely would help the states. They need more time because this has never been done before, and one of the common complaints we heard from the states is that they don't have enough time," said the Energy and Power Subcommittee chairman.
Whitfield said that if he were "in their shoes," he would do what EPA has apparently done -- grant extra time -- saying the tweak would be a significant concession to states that have expressed deep concern about the rule as proposed.
The agency appears to have extended both the timelines for submitting state implementation plans and for complying with the rule's interim compliance period by two years -- requiring final SIPs in 2018 instead of 2016 and phasing in the near-term targets in 2022, rather than 2020. To encourage states to achieve reductions early by 2020, the agency will introduce an incentive program that would "give states credit for deploying new clean energy technologies, allowing for deeper cuts in carbon pollution in the long term," said a source familiar with the rule, which is expected to be released in final form next week.
The changes to the rule aim to "address reliability concerns and result in substantially increased renewable deployment compared to the proposed rule," the source said.
Whitfield, who said the rule still promises to be economically destructive, said GOP leaders would "pursue everything that's available to us" to invalidate the rule.
"We're looking at the Congressional Review Act, as well," he said.
The rarely used law allows Congress to veto executive branch regulations and allows resolutions of disapproval to clear the Senate with a simple majority of the vote. Those resolutions are subject to veto, but a vote in both chambers to disapprove of the Clean Power Plan could nonetheless be embarrassing for the Obama administration, coming as it would in the last couple of months before U.N. climate talks in Paris in December.
For that reason, an Environment and Public Works Committee aide speculated recently, the agency might delay submitting the final rule to be published in the Federal Register until after the Paris negotiations. The carbon proposal for new power plant CO2 was not published until four months after it was unveiled in September of 2013, a fact that Republicans attributed to political factors.
GOP political strategist Michael McKenna said yesterday that he expects the Clean Power Plan to play out much the same way.
Delaying publication would also prevent states from securing a stay on the rule pending a legal decision on the grounds that implementing it would do irreparable harm. Such a stay can only be obtained if a rule is final. If granted, the stay would mean the Obama administration would attend the U.N. conference without its flagship climate policy having taken effect.
"This is a crucial point because it shows what this is really all about -- the Paris deal and the optics, rather than the substance of the rule," McKenna said.
But the changes EPA has apparently made to the rule -- especially to the timelines for SIP submission -- may have made it difficult for states to secure a stay anyway, because it would be harder for them to show that they would be forced to act in a way that causes irreparable harm before judicial review concludes, said Thomas Lorenzen, a partner at law firm Crowell & Moring and a former defender of EPA rules for the Justice Department.
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What’s On EPA’s List Of Changes For The Climate Plan?
Jul 29, 2015 | PoliticoPro
By Alex Guillén
Extra time for states to make carbon cuts may be the first of several changes in store for EPA’s landmark climate change rules for power plants.
States, utilities, grid operators, the energy industry and environmental groups have pressed for changes to the Clean Power Plan’s rules on a carbon-capture requirement for new power plants, treatment of nuclear power and individual state targets, among myriad other requests made during months of formal comments and meetings with EPA and White House officials.
Sources tracking the rule’s rollout that could come as early as Monday say the administration appears open to making additional tweaks, although officials have so far divulged few concrete details.
EPA has decided to give states an extra two years to comply with the rule, and the administration will provide new incentives to encourage them to build more renewable energy facilities, according to a source familiar with the changes.
But kicking the initial compliance deadline back to 2022 is unlikely to be the only revision to the rule that was first proposed last year and is vehemently opposed by the coal industry and congressional Republicans.
Here’s a list of other items to watch out for when the final Clean Power Plan is released.
Carbon capture and sequestration
EPA’s proposed rule would require new coal-fired power plants to install expensive technology to capture and store carbon dioxide as coal is burned.
The coal industry lashed out at the CCS requirement, arguing that requiring plants to capture 30 percent of their emissions is uneconomical and effectively bars the construction of new coal-fired power plants.
While cheap natural gas and other air quality rules have led most utilities to shun plans for new coal projects, critics say the CCS requirement leaves the rule open to being overturned in court, an outcome the administration has vowed to avoid. Furthermore, should EPA’s new-plant rule fall, the agency would be unable to implement its sweeping limits on carbon emissions from existing plants. EPA Administrator Gina McCarthy told lawmakers in February that she is “very confident” that CCS technology is a viable option for new coal plants, but the trade publication Inside EPA reported in May that the administration may have dropped that requirement. Several high-profile CCS commercialization projects have floundered despite receiving government support. Republicans say the 2005 energy law bars EPA from basing its requirements on CCS projects that received government support, although the administration contends those projects are not the only basis for the requiring that technology.
State goals
Each state has its own target to hit by 2030, ranging from North Dakota’s 11 percent carbon reduction to 72 percent for Washington state, which largely relies on hydropower and is planning to shutter its only coal plant. (Vermont, which does not have any fossil fuel-fired power plants large enough to qualify for the rule, and Washington D.C., have no goals.)
EPA may adjust state targets based on the feedback it received during the comment period, and several governors have argued that the proposal would short-change early efforts to deploy more wind and solar or implement energy-savings programs. It remains to be seen whether the changes would reduce the overall reductions promised by the rule, which add up to a 30 percent drop compared to 2005 emissions levels.
Ultimately, many of those state goals are expected to be challenged on a case-by-case basis should the Clean Power Plan survive broader legal challenges.
Interstate and international clean energy
State regulators and power providers say the proposed rule did not provide enough guidance on how to assign credit for renewable energy that is produced in one state and sold to consumers in another. It’s no small question; wind farms are expanding in rural areas but often power homes and businesses hundreds of miles away in more populated regions.
EPA is expected to give credit to states that purchase the power, according to numerous sources tracking the rule.
That would mean, for example,Wyoming would not get credit under the Clean Power Plan for wind power sold into California, although environmentalists point out it would still benefit from the tax revenue and economic boost that come with hosting those projects. Canadian energy interests also met with the White House recently to press the administration to count Canadian hydropower that is delivered over international boundaries.
Nuclear power
The nation’s nuclear fleet, which provides nearly 20 percent of the nation’s power and is the largest source of carbon-free baseload electricity, is critical to the administration’s plans to cut emissions. But EPA took swift criticism over its treatment of the industry, leading sources to expect a friendlier approach in a final rule.
Five reactors are now under construction in Tennessee, Georgia and South Carolina, but the states were unhappy that EPA counted the plants as already operational, meaning those plants would not count toward states’ goals.
EPA also assumes that six percent of the nation’s nuclear power plants are at risk for retirement in the foreseeable future, a nod to the nation’s aging nuclear fleet and the failure of the nuclear “renaissance” to spur major new development of nuclear power plants, though the industry is skeptical that the rule provides enough incentive to keep older nuclear reactors online.
McCarthy told businesses in June that she has heard “loud and clear” concerns about the credit given for nuclear projects under construction, but declined to go into detail.
Reliability "safety valve"
Some states and utilities warned that the Clean Power Plan’s broad changes to the nation’s electricity mix, particularly the projected retirement of 90 gigawatts of coal-fired power, might hurt grid reliability. EPA has long argued that its rule will in no way impact reliability.
In May, FERC suggested that EPA pay closer attention to managing reliability issues as they crop up on a case-by-case basis.
One potential model is the reliability “safety valve” included in EPA’s Mercury and Air Toxics Standard, which allows utilities to petition EPA for a temporary waiver if they determine shutting down a particular plant would risk a serious disruption in grid reliability.
FERC officials and grid operators said the MATS safety valve provides a good starting point to address reliability concerns with the Clean Power Plan, although they cautioned that the mercury rule was far less complex to implement.
Biomass
Many environmentalists were irked that EPA’s proposed rule treated biomass as a zero-emissions power source. They argue that burning wood and other bioenergy fuels, which are sometimes mixed in with coal, actually releases significant amounts of carbon dioxide.
The campaign to get EPA to treat biomass as a carbon-emitting source attracted the attention of Sens. Ed Markey and Elizabeth Warren, both Massachusetts Democrats.
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States Would Welcome Power Plant Rule Extension
Jul 30, 2015 | BNA Daily Environment Report
By Andrew Childers
State air pollution regulators lauded the possibility of extending the Clean Power Plan's initial compliance deadline from 2020 to 2022, saying the additional time would allow them to further refine their compliance strategies.
“Changing the interim target—the 2020 date—was an obvious and very important change that will reduce much of the criticism of this proposal,” Bill Becker, executive director of the National Association of Clean Air Agencies, told Bloomberg BNA July 29. “Giving states more time will further reduce critics who have said we won't have time to develop the plan.”
The EPA briefly posted a slide to its website July 28 that suggests the final rule would be released Aug. 3 and would extend states' initial compliance deadline from 2020 as proposed to 2022. The slide indicates the EPA would return the final compliance deadline of 2030.
The EPA said the slide was simply a “web design mock-up.” When asked whether the dates on the slide were accurate, an agency spokeswoman couldn't comment further.
Though the initial compliance deadlines may be extended, administration officials said the final rule wouldn't sacrifice stringency.
“It will be stronger in many ways than the proposal put forward by the EPA by encouraging rapid deployment of the cleanest forms of energy while giving states and utilities the flexibility they need to craft plans that meet their unique needs,” White House Chief of Staff Denis McDonough said July 29 at a climate change forum sponsored by the New Republic.
However, state regulators said the new deadline, if accurate, indicates the EPA has listened to their concerns about the rule (RIN 2060-AR33), which would set a unique emissions rate for the power sector in each state.
State regulators would determine how best to meet the targets using four so-called building blocks—heat rate improvements to existing power plants, expanding use of existing natural gas generating capacity, new renewable energy investments or through energy efficiency programs.
Association Applauds ‘Flexibility.'
“Our state and local members are hopefully encouraged by the flexibility that seems to be in the timeline,” Clint Woods, executive director of the Association of Air Pollution Control Agencies, told Bloomberg BNA July 29. “At least in that area there's at least additional flexibility in the final rule.”
The proposal would have required states to begin meeting interim emissions targets, which included the bulk of the required emissions reductions, beginning in 2020. States nearly uniformly told the EPA that date was unrealistic given the planning time frames required, and senior agency officials have repeatedly suggested that the interim deadline would be revised as part of the final rule.
“I don't know of a single state in the country that supported 2020,” Becker said.
Though states welcome an additional two years to prepare, the extension wouldn't help utilities that have already made significant investments to comply with other EPA regulations such as the mercury and air toxics standards and the Cross-State Air Pollution Rule, Jay Holloway, a partner at Sutherland Asbill & Brennan LLP, told Bloomberg BNA July 29.
The EPA's proposal could still drive coal-fired utilities to retirement before they have reached the end of their useful life or paid off loans to install updated pollution controls required by other Clean Air Act regulations, he said.
“It's one of those potential gifts that really isn't a gift,” Holloway said. “Two years in the larger scope of trying to get into those interim emissions rates isn't helpful or really meaningful at all.”
Agency Might Not Budge on Other Revisions
The EPA's decision to extend that initial compliance period could be a signal it might not budge on other revisions states are seeking to the rule, Nathan Richardson, a visiting fellow at Resources for the Future and assistant professor at the University of South Carolina School of Law, told Bloomberg BNA July 29.
“If anything, I think it might be a signal you won't see major concessions elsewhere,” he said. “There's a limited number of concessions they're going to make.”
Richardson and Dallas Burtraw, the Darius Gaskins Senior Fellow at Resources for the Future, had identified timing as “as an easy concession” for the EPA in a July 15 blog post on possible revisions to the upcoming rule.
The slide also suggests that the final rule would give states an additional year to develop their compliance plans. As proposed, the Clean Power Plan required states to submit compliance plans by June 30, 2016, with one-year extensions available and two-year extensions allowed for multi-state plans. According to the slide, states would need to submit their initial plans to the EPA by Sept. 6, 2016, but the final document wouldn't be required until Sept. 6, 2018.
States Concerned About Interstate Trading Programs
States had complained to the EPA that the short deadlines for submitting plans would likely preclude establishing interstate emissions trading programs because they would be difficult to establish within the one to two years the agency had allotted for development plans (73 DEN A-1, 4/16/15).
Though additional time would be welcomed, state regulators said they are also closely watching other revisions to the final rule, including revising individual state emissions rate targets, crediting states for actions already taken to reduce carbon dioxide emissions or revising the baseline—currently 2012—to reflect an average of several years' worth of emissions.
“States are looking for some additional direction from EPA to figure out where they're going to fall,” Woods said. “At least the low hanging fruit has been dealt with. Hopefully there's some higher hanging fruit to be dealt with.”
Though the EPA may extend the compliance dates and revise some of the building blocks states will use to achieve those goals, such revisions are meaningless unless the agency accordingly adjusts state emissions rates, Holloway said.
“If the emissions rates targets stay the same, they're not meaningful changes,” he said.
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Businesses Push Carbon Trading for Power Plant Rule
Jul 30, 2015 | BNA Daily Environment Report
By Mark Drajem
Some businesses that back President Barack Obama's plan to curb greenhouse gases are making a late lobbying push to add an element similar to a cap-and-trade program.
With the administration set this week or next to unveil its final rules to cut emissions from coal and natural gas plants, representatives of companies such as Johnson Controls Inc., Alstom SA and AES Corp. have pressed officials to include a carbon market so that costs don't surge.
Those programs—a slimmed-down version of a plan Congress debated and failed to pass early in Obama's tenure—would apply to states that balk at putting rules in place.
“It would reward states for what they are doing, whether they submit a plan or not,” said Bob Wyman, a lawyer for the National Climate Coalition, a group advocating to make the Environmental Protection Agency's rule workable. “It sets a national carbon price that can unleash investment.”
The first U.S. rules on carbon emissions from power plants are among the most sweeping and complex in the EPA's history, promising to revamp the way electricity has been generated and distributed for a century. They are the centerpiece of Obama's fight to combat climate change, the issue he's made a top priority of his final two years in the White House.
Wyman's group, on behalf of Alstom, AES, Boeing Co. and other companies, and Advanced Energy Economy, which speaks for Johnson Controls and First Solar Inc., met separately with White House officials to pitch versions of trading programs as the best way to get cuts. The plans are part of a wide-scale advocacy campaign that is trying to shape the EPA's carbon plan before it's finalized.
EPA's Standards Assailed
The EPA's standards for fossil-fuel power plants, the top source of the emissions blamed for global warming, have drawn fire from coal producers, manufacturers, state officials and Republicans, led by Senate Majority Leader Mitch McConnell of Kentucky. He has urged governors to refuse to submit plans to meet the goals set out by the EPA.
The agency now is grappling with specific criticisms of its proposal, which was released last year. The objections include how it tried to give a boost to existing nuclear plants, the amount of natural-gas generation it assumed will be available by 2020 and the wide discrepancies in cuts mandated from one state to another.
Rural electric cooperatives in Florida and Arizona also met with White House officials recently. They say the EPA's rules could force them to shut coal plants after investing million of dollars to meet other federal pollution rules. Unlike large utilities such as Southern Co., they said they don't have the ability to switch among many different plants.
Only two of Arizona's coal plants are likely to survive if the EPA's plan is unchanged from the proposal, according to the National Rural Electric Cooperative Association. Arizona would have to make the second-steepest cut in the country, at 52 percent, under the proposals.
“We don't have the transmission resources to replace our coal fleet,” said Patrick Ledger, chief executive of Arizona Electric Generation and Transmission Cooperatives. “We tried to reach out to the administration in every way possible, but we don't have any idea if they really listened to us.”
Ledger said that to avoid a mandate under a separate EPA regional haze rule, his cooperative agreed to curb pollution at one coal unit and switch another to run on natural gas. Now, under the EPA's carbon rules, the coal unit may be forced to close—and default on a federal loan.
Put in Debt Jeopardy
“I have $200 million in outstanding debt on this plant, and I can't make it go away,” he said. Ledger said that when he met with EPA Administrator Gina McCarthy to press his case, she assured him the agency would address his state's issue.
The agency also has vowed to address states that don't come up with adequate plans. McCarthy said the agency will release a federal implementation proposal at the same time it finalizes the power plant rule.
Lawyers say that the EPA can't rework a state's entire electricity system and so must set standards plant-by-plant. The only way to do that, and not cause widespread problems for coal plants, is to allow trading, advocates say.
Unlike the economywide cap-and-trade system considered in Congress, these plans would only apply to the electricity sector and would likely entail a reduction in the emissions rate, not an absolute cap.
“If EPA takes this approach, there is no substantive or policy downside for power plants in states that do not develop their own plans,” said Arvin Ganesan, vice president for federal policy at Advanced Energy Economy in Washington. “In fact, it would result in cheaper compliance cost for utilities and end consumers.”
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White House: ‘We Will Not Back Down’ On Climate Fight
Jul 29, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama’s top aide vowed on Wednesday that the White House won’t yield to Republican attacks on its landmark climate change rule, even as the administration prepared to soften a deadline for states to cut the greenhouse gases from their power plants.
“We will not back down. We will finalize a stronger rule,” White House chief of staff Denis McDonough told an event hosted by The New Republic and the liberal Center for American Progress. “We’ll veto ideological riders to stop this plan or undercut our bedrock environmental laws. And we’ll move forward on behalf of the American people with the vision set forward by the president.”
His comments come as the administration prepares to release as early as Monday a final Environmental Protection Agency rule that delays for two years the initial deadline for states to begin cutting the greenhouse gas pollution from their power plants.
EPA would push back the deadline to 2022, rather than 2020, as the administration initially proposed last summer, a source familiar with the rule told POLITICO late Tuesday. But the ultimate 2030 deadline for states to achieve their final pollution cuts will remain in effect, the source said.
Early reactions showed the changes did little to dampen support for the rule from green groups and Democrats who have hailed the EPA plan as a major achievement, with some expecting the changes to help protect the rule from legal challenges. Reactions from conservatives and other opponents were muted, and there appeared to be little chance the new deadlines would win over any of EPA’s critics.
The plan, the centerpiece of Obama’s environmental agenda and his hopes to achieve a global climate deal, would for the first time seek cuts in the carbon dioxide emissions from the nation’s fossil-fuel power plants while spurring the growth of renewable electricity sources such as wind and solar. The rule could come out as soon as Monday.
“There’s not a more important and pressing issue on the president’s agenda than climate,” McDonough said.
And he dismissed the attacks on the rule as a “stale chorus” from some Republicans and industry leaders who have already made up their minds about the effort.
“We know what to expect from them. It’s a well-worn playbook of scary tactics that are used again and again,” he said.
The 2020 deadline was one of the plan’s most-criticized aspects, drawing warnings from states that moving so fast could threaten the reliability of the nation’s electricity supply, and EPA Administrator Gina McCarthy had said months ago that she was willing to revisit the date. The agency hasn’t said whether it will offer concessions on other parts of the plan, such as a 2013 proposal that all new coal-fired power plants be required to install expensive, novel technology to capture and store their carbon emissions.
In conjunction with postponing the 2020 deadline, the administration will also roll out incentives to encourage states to deploy green energy and energy-efficiency programs before 2022, the source said.
None of the changes have any chance of stemming the barrage of criticism that the plan has drawn from Republicans and coal-state Democrats in Congress, who have denounced the entire set of regulations as a “war on coal” that would send electricity prices skyrocketing, continue an ongoing wave of shutdowns of coal-burning power plants and fail to do much to stem global warming. Some Republican governors and state legislatures have also vowed to resist the plan, with the encouragement of Senate Majority Leader Mitch McConnell (R-Ky.).
But supporters of the plan say EPA’s move to delay the initial compliance deadline is likely to appeal to states.
“They’ve gone out of their way to give the states the time they need and I think the states are going to be, most of them, pretty happy with it,” said Sen. Barbara Boxer (D-Calif.).
And clean-air advocates like the American Lung Association said the rule appeared to be “robust,” and they welcomed its effort to speed the shift to renewable power.
“To fight climate change successfully, carbon pollution must be cut significantly,” ALA President Harold P. Wimmer said. “Children, the elderly and people with lung diseases including asthma face some of the greatest risks, including from ozone and soot that climate change makes worse.”
But Democratic presidential candidate Sen. Bernie Sanders (I-Vt.) said he isn’t happy with the delays for states to meet the pollution goals.
“It is not OK. I want to see this thing move as quickly as possible to see what we can do about it,” Sanders told POLITICO.
And Sen. Lisa Murkowski (R-Alaska), who heads the Senate Energy and Natural Resources Committee, said she saw the delay from the the 2020 deadline — a presidential election year — as a political move. Still, the longer time frame might temporarily defuse some of the opposition to it, she said.
“Maybe the imperative, the urgency kind of settles a little bit,” she said. “But I think you’re still going to have folks that are still very concerned about its application in their states. I know in Alaska we are.”
The New York Times and The Washington Post had initially reported the delaying of the 2020 deadline late Tuesday night. The states will also get another year, until 2018, to submit those final plans to EPA.
Many states and utilities have complained that the 2020 deadline is too early and could threaten the stability of the power grid if coal-fired power plants were taken off line too quickly or if wind and solar sources grew too quickly. Opponents have also filed legal challenges against the proposed carbon-capturing requirement, accusing EPA of violating federal law by proposing to mandate an untested technology.
With the initial compliance deadline delayed by two years to 2022, the Obama administration is looking for a way to keep states from sitting on their hands. So early-adopted states that make clean energy efforts in 2020 will get extra credit toward complying with the final rule, the source said.
“It was an idea born to help accelerate the deployment of renewable energy and energy efficiency in states so that … there’s a reason for them to get an early start toward meeting their early compliance goals,” the source said.
The source expects a “snowball effect” from the incentives and other components of the final rule to help states meet and surpass their targets.
Another person briefed by the White House on Tuesday said administration officials stressed the importance of increased renewable energy use to comply with emissions goals. The timing of the release is “imminent” but depends on the president’s schedule, the source said.
EPA for months has said that it was taking a hard look at the first compliance deadline, and a two-year delay means the administration may sacrifice little in overall emissions reductions while acknowledging the states’ logistical and planning issues. It is unclear how the states individual pollution-cutting goals may change in the final rule, or if the administration will change its overall goal by 2030 that the nation’s power plants produce 30 percent less carbon that they had in 2005.
More broadly, Republicans and industry critics have complained that the rule exceeds EPA’s authority under the Clean Air Act because goes well beyond requiring pollution controls at the power plants themselves. Instead, it allows states to comply using steps such as offering incentives for energy conservation or quicker deployment of wind and solar power, and opens the door to states joining in regional cap-and-trade compacts.
One renewable energy industry source speculated that the new two-year delay for the first compliance deadline could help support the rule in the coming legal fight, since it showed that the administration was making an effort to be flexible and take into account the concerns of states and industry.
“They want to make sure they’re in the right legal position and that they’re accommodating for the industry,” the source said. The White House has declined to comment about details of the rule or its planned rollout
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House Urges Administration to Retain Ozone Standards
Jul 30, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Members of the House of Representatives urged the White House and the Environmental Protection Agency to abandon a proposal to revise the current national ambient air quality standards.
House Energy and Commerce Committee Chairman Fred Upton (R-Mich.), in a July 29 letter sent to White House Chief of Staff Denis McDonough, said the EPA should refrain from revising the ozone standards to avoid “significant costs” and provide more time for reductions to be achieved under the current standards. That letter was also signed by Reps. Ed Whitfield (R-Ky.) and Pete Olson (R-Texas), the chairman and vice chairman of the Energy and Commerce Subcommittee on Energy and Commerce.
The EPA is under a court-ordered deadline of Oct. 1 to issue a final decision on whether to revise or retain the current standards, set at 75 parts per billion in 2008 under President George W. Bush. The agency is soon expected to submit its final decision to the White House Office of Management and Budget for interagency review, which is generally the last step in the rulemaking process before a rule is signed and released.
The agency in November proposed (RIN 2060-AP38) to set the standards in a range between 65 ppb to 70 ppb (229 DEN A-1, 11/28/14).
The three House Energy and Commerce members said the EPA's proposal would trigger billions in annual compliance costs and place hundreds of counties into nonattainment if enacted.
“EPA's pending rule threatens serious economic harm and is being proposed as the nation continues to face major fiscal and employment challenges, including stagnant wages and a low labor participation rate,” the three representatives said.
The agency estimated its proposed ozone rule could cost up to $16.6 billion annually in 2025 while providing up to $38 billion in annual benefits from reductions in asthma and other health problems.
The letter included a list of about 700 organizations, including the American Petroleum Institute, the American Trucking Associations and the U.S. Chamber of Commerce, that have voiced opposition to EPA's ozone proposal.
136 Members Pressure EPA
House Energy and Commerce leadership sent their letter to the White House one day after 136 members sent a similar letter to EPA Administrator Gina McCarthy on the ozone proposal.
The members said EPA can continue a “decades-long trend” of improving air quality while supporting economic growth by retaining the current 75 ppb ozone standards. Ozone levels are projected to drop over the next decade through a combination of federal pollution control requirements, state programs and industry efforts, the House members said.
The Clean Air Act requires the EPA to review its national ambient air quality standards every five years and make revisions as appropriate. The agency is prohibited from consider the cost of setting national ambient air quality standards, consistent with a 2001 U.S. Supreme Court ruling (Whitman v. American Trucking Ass'ns, 531 U.S. 457, 51 ERC 2089 (U.S. 2001); (40 DEN AA-1, 2/28/01).
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Suits Over EPA SSM 'SIP Call' Unlikely To Reach High Court, Attorney Says
Jul 30, 2015 | InsideEPA
By Suzanne Yohannan
Litigation challenging EPA's rule forcing states to scrap provisions in their air quality plans exempting some facility emissions from Clean Air Act limits during startup, shutdown and malfunction (SSM) periods is unlikely to reach the Supreme Court as the justices have already heard several other major air cases, says an industry attorney.
Within the past few years the high court has reviewed three major lawsuits over EPA air rules including its power plant air toxics standard and greenhouse gas (GHG) permitting rules, and is expected to hear eventual litigation over the agency's pending GHG rules for power plants. Industry attorney Mack McGuffey said on a July 23 webinar that the caseload means that justices are unlikely to grant any petition to hear suits over the SSM rule.
“That would be four big Supreme Court cases on Clean Air Act issues in the last few years. I don't think there's room for this one to go,” he said on the webinar, hosted by Bloomberg/BNA. The implication therefore is that whatever an appellate court rules on the SSM regulation is likely to be the final statement on the policy.
EPA's June 12 rule would force 36 states to remove language in their state implementation plans (SIPs) -- blueprints for how states comply with Clean Air Act requirements -- that allows emissions limit violations during SSM periods, which industry says are periods when there are unavoidable and uncontrollable pollution spikes.
Lawsuits over the rule have been filed in the U.S. Court of Appeals for the District of Columbia Circuit and the 5th Circuit, with a deadline of Aug. 12 for groups to file other challenges.
McGuffey said he expects that the 5th Circuit case will either be folded into the D.C. Circuit case or dismissed outright, given that the D.C. Circuit reviews challenges to rules with nationwide effects.
EPA's final "SIP Call" rule gives the 36 affected 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 D.C. Circuit rulings that found the exemptions unlawful.
McGuffey laid out several legal arguments he believes will arise in litigation over the rule, through which EPA is forcing changes to the SIPs. “At the top of the list is whether EPA is reaching outside its statutory authority and impinging on the authority that states should have under the Clean Air Act, as Congress designed it,” he said.
He said that the air law has a cooperative federalism structure giving EPA broad authority at a high level but also giving states "significant authority" in choosing which measures to apply to address air quality issues.
Given this authority, he said, the question is whether the SIP Call, which claims affirmative defense and exemptions for SSM events must be eliminated, encroaches on states' authority to define what limits apply, as well as states' authority to define what is a violation of that limit.
A second legal question that will likely arise in litigation relates to EPA's requirement that emission limitations be continuous. The air law measures that tell states what to do to address air quality issues say they must include in their SIP both emission limitations and other control measures, he said. Even if emission limits must be continuous, the question is whether these other control measures also must be continuous, he said.
Control Measures
Another legal question is whether the control measures under SIPs already in place are in fact continuous, he said. Many states included that argument in comments on EPA's SIP Call proposal and supplemental, pointing out that a number of requirements apply for SSM even when numeric limits do not, he said. They indicated "that just because an SSM provision suggests that a numeric emission limitation doesn’t apply for those events, it doesn’t mean that it’s a get-out-of-jail-free card.” It does not mean that there is nothing that applies, he said. For instance, he said, work practice standards and general duty requirements requiring good operations apply.
"A fourth question is really what is EPA's SIP Call authority?" McGuffey said. The air act permits EPA to issue a SIP Call when SIPs are "substantially inadequate," he noted. Past such calls have only been used in cases where it appeared there was a "palpable threat to air quality," such as air quality that had degraded below a level EPA deemed safe, he said. The substantially inadequate label has applied in instances where there is a law change or significant court decision that suggests the air act should be interpreted differently, he said.
Here, EPA says it is concerned about a legal deficiency with SIPs that include provisions the D.C. Circuit has found unlawful, he said. But the difference is that the changes in law the agency has previously cited to argue for substantially inadequate "are a bit more dramatic" than anything it cites in this situation, he said.
Another legal question is whether affirmative defenses are precluded or not, he said. While EPA argues that a recent D.C. Circuit decision confirms that affirmative defenses are not permitted under the air act, he said a closer look at the case indicates that is an exaggeration of what the court held.
He says one of the key rulings EPA cites for its SIP Call is Sierra Club v. EPA, a 2008 ruling by the D.C. Circuit. In the decision, the court said that EPA under section 112 of the air act has to make a certain showing that it is necessary to have a non-numeric standard in certain circumstances, and that EPA had failed to do that.
But, McGuffey said, the SIPs are governed by a separate section of the air law, section 110, which lacks the same sort of measure that requires states to first prove that a non-numeric standard is necessary. “That discretion appears to be readily granted” in the ability of states to adopt other control measures to deal with SSM events, he said. The court's finding in Sierra Club of EPA failing to follow section 112 is irrelevant to the SSM SIP Call, he said.
A second ruling EPA cites in support of its SIP Call is Natural Resources Defense Council (NRDC) v. EPA, a 2014 decision, he said. The case also deals with section 112, rather than 110, which shows it may not be directly applicable to SIPs, he said. But, he noted, there is a part of the decision that appears equally applicable to both 110 and 112, which relates to affirmative defense. The court said that if an affirmative defense is employed improperly, it could interfere with a court's authorities to determine when penalties should apply for violations, he said.
Legal 'Mismatch'
But McGuffey said he thinks "there's a bit of a mismatch between what the court said and what EPA's doing here." EPA read the decision to claim all affirmative defenses are illegal, he said. But NRDC does not address situations where an affirmative defense is used in such a way that when it applies, the event to which it applies is no longer a violation, he said. "If the affirmative defense basically eliminates the violation, then there's nothing left for the court to do.”
The most recent decision EPA references as the basis for its SIP Call is U.S. Magnesium v. EPA, a 2012 decision by the U.S. Court of Appeals for the 10th Circuit, he said. The case relates to a SIP Call EPA issued to Utah over its SSM provision; when litigated, the court upheld EPA's SIP Call.
EPA contends that the SIP Call to Utah is basically the same as its SIP Call to 36 states, he said. But McGuffey made the argument that there are several reasons why U.S. Magnesium does not apply as broadly as EPA argues. He said U.S. Magnesium differs because in that case, EPA identified specific ambient air quality violations suggesting a threat to air quality related to emissions stemming from SSM events. In the final rule related to the 36 states, EPA conceded it made no effort to identify if there had been specific air quality violations linked to SSM events, he said.
Several sources have the said the rule has already created 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. They say it remains too early to know whether in response to the rule states will pursue comprehensive changes to their SIPs 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.
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Washington State Regulators Ordered to Cap Carbon
Jul 30, 2015 | BNA Daily Environment Report
By Paul Shukovsky
Washington Gov. Jay Inslee (D)—whose proposals to put a price on carbon dioxide emissions and set low-carbon fuel standards were stymied this year by the Legislature—has ordered regulators to use existing state law to promulgate rules capping carbon emissions.
Inslee's order issued July 28 to the state Department of Ecology invokes his existing authority under the state Clean Air Act to regulate carbon emissions. Unlike Inslee's legislative proposals, the regulatory cap won't impose a cost on carbon emitters, and it “wouldn't create a centralized market for trading of emissions credit,” a prepared statement July 28 from the governor said.
“This is not the comprehensive approach we could have had with legislative action,” Inslee said in the statement. “But Senate Republicans and the oil industry have made it clear that they will not accede to any meaningful action on carbon pollution so I will use my authority under the state Clean Air Act to take these meaningful first steps.”
Inslee signed a bill July 15 hiking fuel taxes to fund a critical $16 billion transportation package despite language he dubbed a “poison pill” inserted by Republican lawmakers seeking to stave off his plan to administratively impose low-carbon fuel standards ( 136 DEN A-10, 7/16/15).
Inslee essentially said July 28 that the poison pill provision that would eliminate hundreds of millions of dollars for transit was too harmful to swallow. “In talking about the terrible choice the Senate imposed on the people of Washington—clean air or buses and safe sidewalks—I heard broad agreement that we need both clean transportation and clean air,” Inslee said in announcing he would back off from imposing low-carbon fuel standards.
Cap-and-Trade Not Taken Up
The governor's cap-and-trade proposal didn't make it to the floor of either legislative chamber for a vote. Inslee framed his July 28 decision to take executive action on capping carbon as the route available to him to meet emission limit sets by the Legislature in 2008.
Attorney Andrea Rodgers of the Western Environmental Law Center told Bloomberg BNA July 29 there is no question the state Clean Air Act gives Inslee the power to cap carbon through his regulatory authority. She cited a state Superior Court ruling reached in June to support her assertion.
Rodgers successfully represented eight environmental activist children who asked the court to remand to the ecology department their petition that asked the agency to adopt a rule recommending statutory limitations on greenhouse gases consistent with current science on what steps are necessary to stem climate change (Foster v. Wash. Dept. of Ecology, Wash. Super. Ct., No. 14-2-25295-1, order remanding 6/23/15).
Rodgers in a telephone interview pointed to a statement from the ecology department in a reply brief which reads: “Ecology does not argue that it lacks the authority to adopt additional greenhouse gas emission standard[s] if it chooses to do so. Rather, the argument is that Ecology is not required to adopt additional standards.”
Limits Seen Based on Politics, Not Science
Rodgers said the emission limits set by the Legislature were based on politics, not science. “Those emission targets don't get us to where we need to go. Those limits did not preempt Ecology's authority under the Clean Air Act. Those limits in that statute are a floor, not a ceiling.”
The governor's communications director, David Postman, told Bloomberg BNA in a July 29 e-mail that there is no connection between Rodgers' litigation and Inslee's order to promulgate carbon cap regulations. And the focus, Postman said, is not to change the 2008 Legislative limits.
“We are not proposing using regulations to make those limits more stringent,” he wrote. “We are going to use regulations to restrict how much carbon an entity could put into the air, which again is not part of the 2008 law and not part of the lawsuit.”
“I believe that greenhouse gases can clearly be regulated under the state Clean Air Act,” Clark said. “I don't think anybody could say differently with a straight face. There is language that says we can set emissions standards by rule. That is very broad authority.”
State Sen. Doug Ericksen (R), chairman of the Energy, Environment and Telecommunications Committee, didn't respond to a voice mail and e-mail July 28 seeking comment on Inslee's order to Ecology. Ericksen was a leader in efforts to block the governor's efforts to impose low-carbon fuel standards by regulation (136 DEN A-10, 7/16/15).
A July 29 story in the Seattle Times quotes Ericksen as saying,: “I don't think he has the ability to do it via rule.”
Legislature Didn't Limit Agency's Authority
Ecology department Air Quality Program Manager Stuart Clark, in a July 29 telephone interview, said that the Legislature, when it set targets in 2008, didn't limit the agency from making deeper cuts to carbon emissions.
Clark said it will take at least a year to promulgate the rule after extensive consultations with stakeholders, public meetings and formal hearings. He said it will be “a couple of months” before the agency issues a formal notice, called a CR 101, which sets off the process by announcing the intent to begin rulemaking and generally outlines what regulation is contemplated.
“We have to answer a lot of questions first, like who is in the system; what is possible to do; and what is technically feasible,” Clark said. A first order of business is to meet with the governor's office to get more clarity on what Inslee wants to happen, he said.
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Sanders Rebuffed On Amendment Stating Climate Change Is Real
Jul 29, 2015 | The Hill - E2 Wire
By Devin Henry
A Senate panel on Wednesday rejected a push from Sen. Bernie Sanders (I-Vt.) to acknowledge climate change in an energy reform bill.
Sanders, who is running for the Democratic presidential nomination, had pushed an amendment to the chamber’s energy bill affirming the sense of Congress that climate change is real and that more needs to be done in the energy sphere to confront it.“I think, for those who are planning to vote against the amendment, speak to your kids, think about your grandchildren,” Sanders said at an Energy and Natural Resources Committee mark-up. “Because I think that history will record you on the very, very, very wrong side of this enormous issue.”
The whole Senate voted on similar climate change resolutions earlier this year. Democrats on the committee, including Sen. Elizabeth Warren (D-Mass.) and ranking member Maria Cantwell (D-Wash.), spoke in favor of Sanders's proposal, even as they noted that the measure was a mostly symbolic addition to the energy package.
“I don’t think the world is going to change overnight because of the Sanders amendment, but I do think it’s the recognition that a transformation has to happen.” Cantwell said.
But most members — including Sen. Joe Manchin (D-W.Va.) — were opposed. Committee chairwoman Lisa Murkowski (R-Alaska) said the provision was unnecessary because of the resolution senators approved this session and because of the work members put into the underlying bill.
“I think everything that we have done along the way is designed to move us towards that cleaner, more efficient, more responsible, greater focus on our environment, while at the same time ensuring a level of affordability and access to all Americans,” she said.
Senators worked through 20 amendments to the energy bill on Wednesday — including 12 non-controversial provisions they lumped together and passed as one — bringing their tally to 45 over two days. Members introduced 94 amendments to the bill before the mark-up began.
The hearing had a sharper edge than the first mark-up meeting on Tuesday.
A debate flared up over an amendment from Sen. Angus King (I-Maine) requiring regulators to perform an environmental review before approving new liquefied natural gas export permits. The underlying bill, Republicans noted, looks to speed up permitting, and the amendment was likely to slow it down instead.
“I believe that this amendment, if adopted, would severely degrade the bipartisan support that this legislation currently enjoys,” Sen. John Barrasso (R-Wyo.) said.
The climate change and export amendments were among the first to reveal the political hatchets members have buried to try advancing the energy bill.
Much of Tuesday’s hearing looked like the first a three-day victory lap for Murkowski, Cantwell and the committee. In discussing the bill, members often lauded the bipartisan nature of it and the congenial way with which the committee was marking it up.
Ahead of the climate change and natural gas export debates, that mood was present on Wednesday. Before the committee rejected a Sanders measure to provide grants for low-income families to buy solar panels for their homes, Murkowski joked that the proposal’s acronym — "LISA" — might be a long-shot play to try winning her support.
“I’m trying to get your vote on this,” Sanders joked. “It was going to be ‘Barrasso,’ but it doesn’t quite fit.”
Murkowski said after the hearing that the amendments members pushed Wednesday were likely the most contentious the committee would consider. The committee will meet again Thursday to mark up the bill.
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McCarthy: Corps' Water Rule Concerns ‘Satisfied’
Jul 30, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Environmental Protection Agency Administrator Gina McCarthy reiterated July 29 that all outstanding concerns with the water jurisdiction rule were resolved with the U.S. Army Corps of Engineers prior to the rule's public release in May.
At a House Oversight and Government Reform hearing, McCarthy addressed recently revealed memos from the corps that questioned the economic analyses and technical support documents used in developing a rule (RIN 2040-AF30) to clarify which waters are subject to Clean Water Act protections (144 DEN A-1, 7/28/15).
“She indicated that all of the concerns with the Army Corps had been satisfied. And moving forward on the final [rule], I individually had conversations with her about changes the Army Corps was interested in making as the proposed rule moved through the interagency process. And I understood that everything had been fully satisfied,” McCarthy told Rep. Paul Gosar (R-Ariz.).
The White House Office of Management and Budget conducted a review of the rule between April 3 and May 26. The regulation was released May 28 and published June 29 (80 Fed. Reg. 37,054; 125 DEN A-4, 6/30/15).
Question Raised About Addressing Concerns
The memos, sent from Maj. Gen. John Peabody, deputy commanding general for civil and emergency operations, to Darcy between April 27 and May 15, concluded the rule's technical, economic and legal rationale wasn't based on “sound science” and would be difficult to defend and challenging to implement in the field. The memos also said supporting documents were “flawed in multiple respects” (144 DEN A-1, 7/28/15).
While questioning McCarthy, Gosar submitted the memos for the public record. Previously they had been seen only by members in both the House and Senate who had requested copies of them. A few members of the media, including Bloomberg BNA, also were privy to the documents.
Darcy, in a July 1 letter to House and Senate oversight committees, asked that the documents not be released to the public, citing sensitivity to litigation.
In that letter, however, Darcy also acknowledged that she and her staff were unaware of Peabody's May 15 memo until Rep. Bob Gibbs (R-Ohio) questioned her about the existence of the memo and the criticisms it contained during a June hearing on the water resources bill. The hearing took place before the House Transportation and Infrastructure Subcommittee on Water Resources and Environment.
Darcy ‘Completely Unaware' of Document
“My staff and I were completely unaware of the existence of this document until you brought it to our attention,” Darcy wrote.
The House oversight committee plans to make the letters public by July 31, according to an aide.
The American Farm Bureau is among the nearly 20 business, industry and agriculture groups that are challenging the clean water rule in federal courts.
“We will be evaluating them very closely, and if we determine that they would be useful in our litigation—we will use them,” Don Parrish, the farm bureau's senior regulatory relations director, told Bloomberg BNA July 29 when asked whether the farm bureau would consider the use of these memos in its litigation.
Parrish said the corps did indeed raise “explosive legal and technical issues” that weren't addressed in the final rule. “This should force Congress and the courts to question the legitimacy of EPA's questionable actions and the underlying technical and legal rationale for the rule,” Parrish said.
A day earlier, Lowell Rothschild, a senior attorney with Bracewell & Giuliani LLP, discussed the legal implications of the final clean water rule in light of the corps' memos following a Bloomberg BNA webinar on the regulation (145 DEN A-4, 7/29/15).
Although Rothschild emphasized that he hadn't seen the memos, he said that “the more the memo criticizes the heart of the rule's rationale, the more convincing a court will find arguments that the memo supports a finding that the rule is arbitrary and capricious.”
NRDC Seeks to Toughen Rule
The Natural Resources Defense Council is among the environmental groups that are challenging the clean water rule to make it stronger. The corps' memos criticized the EPA for arbitrarily setting up a 4,000-foot threshold limit that has excluded from jurisdiction large lakes, ponds and wetlands that contribute to the physical, chemical and biological integrity of downstream navigable waters.
However, Jon Devine, NRDC senior attorney, told Bloomberg BNA July 29 that he hasn't seen the corps' memos. “Moreover, it would be unwise for me to guess as to others’ litigation strategy or discuss ours, so I am not in a position to respond,” Devine wrote in an e-mail.
The U.S. Judicial Panel on Multidistrict Litigation July 29 issued a consolidation order, bringing challenges of the water rule filed in eight appellate courts to the U.S. Court of Appeals for the Sixth Circuit.
This includes the challenges filed by the NRDC in the U.S. Court of Appeals in the Second Circuit and the National Wildlife Federation in the U.S. Court of Appeals for the District of Columbia Circuit. The order also applies to challenges filed by a coalition led by the Waterkeeper Alliance and the Puget Soundkeeper and Sierra Club in the U.S. Court of Appeals for the Ninth Circuit.
Applies to State Challenges Also
Among states, this order applies to separate challenges filed by Ohio, Tennessee and Michigan in the Sixth Circuit, a coalition of 14 states led by North Dakota in the U.S. Court of Appeals for the Eight Circuit and a three-state coalition led by Texas in the U.S. Court of Appeals for the Fifth Circuit.
The petition for review filed by Georgia on behalf of nine mostly southern states in the U.S. Court of Appeals for the Eleventh Circuit also would be consolidated, as would the challenge filed by Oklahoma in the U.S. Court of Appeals for the Tenth Circuit.
Among industries, the consolidation order applies to the challenges filed in the Sixth Circuit by Murray Energy, a coal mining company, the Fifth Circuit by the Utility Water Act Group, the Eleventh Circuity by the Southeastern Legal Foundation and in the Tenth Circuit by a coalition led by the U.S. Chamber of Commerce.
The farm bureau's appellate petition was filed in the Fifth Circuit, but it was omitted from the consolidation order. However, the bureau's petition also will be consolidated along with the others in the Sixth Circuit, according to Ellen Steen, the bureau's general counsel. Steen noted that the consolidation of the various appellate court petitions is separate from the matter of the various district court suits that have also been filed challenging the waters rule. Those district court cases remain in the several district courts, and a separate process will occur to determine whether those cases will be consolidated or proceed separately, she said.
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New Rules for Unattended Hazmat Trains
Jul 30, 2015 | BNA Daily Environment Report
By Robert Iafolla
In response to a catastrophic derailment two years ago, federal transportation regulators issued a final rule on July 29 enhancing the brake system safety standards for unattended trains carrying hazardous cargo.
The Federal Railroad Administration rule requires one trained railroad worker to secure the train and a second to verify that it is properly secured. The rule also includes several other mandates related to briefing workers on securement, installing exterior locks, setting handbrakes, removing train reversers and setting air brakes.
“Requiring that an additional, trained individual double-check that the handbrakes have been set on a train will help stop preventable accidents,” acting FRA head Sarah Feinberg said in a statement.
The rule—set to take effect 60 days after it has been published in the Federal Register—will apply to unattended trains carrying materials that are toxic or poisonous by inhalation, as well as unattended trains carrying 20 or more cars of crude oil, ethanol or other high hazard materials.
The FRA estimated the rule will affect 365,000 trains per year.
Lac-Megantic Derailment
The rule (RIN 2130-AC47) incorporates elements of an emergency order issued in the aftermath of the July 2013 train derailment in Lac-Megantic, Quebec (152 DEN A-10, 8/7/13).
The incident killed 47 people, injured many more and caused significant damage to the nearby property and environment.
The Canadian government's investigation of the fatal derailment found that the engineer of the train failed to properly secure the train, one of nearly 20 causes of the incident, according to the Transportation Department.
“Verifying that a train has been properly secured is a common sense solution to prevent accidents,” Transportation Secretary Anthony Foxx said in a statement.
The FRA estimated the rule's 20-year monetary benefits between $1.2 million and $1.6 million in reduced vandalism and recordkeeping. That would far outweigh the costs, which the agency estimated between $87,000 and $100,000 for attending to trains and installing locks.
New Rule for Oil Boom
The FRA noted in the rule's preamble that existing securement regulations have been successful in mitigating risks associated with unattended equipment, additional requirements are warranted when such equipment includes hazardous materials that can lead to catastrophic events.
The Lac-Megantic derailment involved a train carrying 72 carloads of crude oil extracted from the Bakken formation in North Dakota, one of the epicenters of the North American oil production boom.
That boom has led to a nearly 500 percent increase in the number of carloads of crude oil transported in a recent two year period, jumping from about 82,000 in 2011 to 485,000 in 2013, the FRA said.
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