Preview Newsletter
ACC AM Aug 18
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Cefic Partners With Chemical Industry's Sustainability Initiative
Aug 17, 2015 | Chemical Watch
A partnership between the European Chemical Industry Council (Cefic) and industry initiative, Together for Sustainability (TfS), aims to establish "sustainability benchmarks" for chemical company supply chains. It will look at each stage of the supply chain, from sourcing through to delivery of products at customers’ premises... -
(ACC Mentioned) Senate TSCA Bill's Authors Confident Of Passage This Year
Aug 18, 2015 | Chemical Watch
By Dinesh Kumar
Authors of the Toxic Substances Control Act (TSCA) reform bill are confident that it will hit the floor soon, allowing Congress time to send it to the president's desk by the end of the year. The bill’s (S 697) authors, and other proponents, have dismissed the notion that the delay in Senate action - widely expected before the August recess... -
(ACC Mentioned) Wrap-Up of Federal and State Chemical Regulatory Developments, August 2015
Aug 17, 2015 | JD Supra Business Advisor
EPA Issues Direct Final Rule On Significant New Use Notification Electronic Reporting: On July 20, 2015, the U.S. Environmental Protection Agency (EPA) issued a direct final rule amending the Toxic Substances Control Act (TSCA) Section 5 electronic reporting regulations. 80 Fed. Reg. 42739. The electronic reporting regulations establish ... -
(ACC Mentioned) ExxonMobil Knocks Proposed Phthalate Bans
Aug 17, 2015 | Chem.Info
By Andy Szal
ExxonMobil last month raised a series of concerns with federal authorities about increased restrictions on the use of phthalates. The energy giant, according to a report in ChemicalWatch, held four meetings last month with the U.S. Consumer Product Safety Commission, which last year proposed bans on five additional phthalate chemicals... -
EPA Adds 21 Sites, Deletes 90 From Waste Docket
Aug 18, 2015 | BNA Daily Environment Report
The Environmental Protection Agency has added 21 sites and deleted 90 from its hazardous waste compliance docket, according to a notice in the Aug. 17 Federal Register. The additions and deletions bring the new number of federal facilities to 2,323, according to the notice, which is the 28th update to the docket since... -
Making Kids Safe Is Just Ducky
Aug 17, 2015 | The Huffington Post - Green Blog
By Jim Calio
How do you know that the toys and other products you buy for your kids are safe? You probably don't since good information is hard to come by, but Joshua Kasteler and Safe Ducky can help you find out with one simple test. Kasteler, 40, spent several years in Asia as a chemical engineer. Part of his job was to test products on the... -
EPA Inspector General Investigating Animas River Spill
Aug 18, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Office of the Inspector General for the Environmental Protection Agency said it will investigate the cause and EPA's response to the release of 3 million gallons of mining waste and sediment into the Animas River in southwest Colorado. The investigation, spurred by a congressional request, will involve preliminary research... -
EPA Inspector General Begins Investigation Into Mine Spill
Aug 17, 2015 | The Hill - E2 Wire
By Devin Henry
The Environmental Protection Agency’s Office of Inspector General (OIG) said Monday it will begin investigation the Aug. 5 incident that sent 3 million gallons of toxic sludge into Colorado’s Animas River. In a memo to EPA officials, Assistant Inspector General Carolyn Copper said her office would request ... -
Agency Watchdog To Probe Mine Spill
Aug 17, 2015 | E&E News PM
By Robin Bravender
U.S. EPA's internal watchdog office is investigating the spill that released millions of gallons of polluted water into Colorado and New Mexico river systems. The agency's inspector general notified EPA officials today that it plans to research the causes of the Aug. 5 spill as well as EPA's response. -
Louisiana LNG Projects Pose Minimal Environmental Impact: FERC
Aug 18, 2015 | BNA Daily Environment Report
By Nushin Huq
Two proposed liquefied natural gas projects in Louisiana could proceed with minimal detriment to the environment, the Federal Energy Regulatory Commission staff concluded in two separate environmental impact statements, both issued Aug. 14. Lake Charles: While the Lake Charles LNG project could have some adverse environmental impacts... -
Shell Gets Permit to Drill Deeply for Oil in Chukchi Sea
Aug 18, 2015 | BNA Daily Environment Report
By Alan Kovski
Royal Dutch Shell Plc has received the modified permit it needed to drill into potential oil-bearing layers of rock beneath the Chukchi Sea now that the company has a last piece of equipment nearby for emergency use. The Interior Department's Bureau of Safety and Environmental Enforcement announced Aug. 17 the granting... -
Feds Give Final Approval To Shell's Arctic Drilling Plan
Aug 17, 2015 | The Hill - E2 Wire
By Devin Henry
The Obama administration has given Royal Dutch Shell the final approval it needs to drill into potential oil reserves beneath the seafloor of the Arctic Ocean. The approval, issued by the Bureau of Safety and Environmental Enforcement (BSEE) on Monday, gives the company the chance to drill deeper for oil than it has before. -
Obama Administration OKs Shell’s Arctic Drilling
Aug 17, 2015 | PoliticoPro
By Elana Schor
The Obama administration on Monday gave Shell the go-ahead to expand its multibillion-dollar attempt at Arctic offshore oil drilling, aggravating environmentalists just two weeks after the president basked in their praise for pushing an aggressive climate change plan. -
Feds Allow Shell To Drill For Oil In Chukchi
Aug 17, 2015 | E&E News PM
By Phil Taylor
The Interior Department today approved Royal Dutch Shell PLC to drill into oil-bearing rock in the Chukchi Sea, allowing the company its first opportunity in decades to gauge the frontier area's mineral bounty. The Bureau of Safety and Environmental Enforcement approved Shell's request to drill deeper at its Burger J site in 140-foot water about ... -
Greens Decry Obama’s Shell Game
Aug 17, 2015 | PoliticoPro
By Elana Schor
President Barack Obama crushed greens’ hearts Monday by giving Shell the final go-ahead to drill for oil in Alaska’s Arctic waters, just two weeks after he thrilled them by issuing his landmark regulations on climate change. In the long run, Obama’s successors will determine whether the industry can tap Alaska’s prized offshore oil... -
On Plan's Eve, EPA Urged To Curb Methane From Existing Drilling Sources
Aug 17, 2015 | InsideEPA
By Bridget DiCosmo
Environmentalists are renewing their calls for EPA to eventually launch a new rulemaking to limit methane releases from existing oil and gas sources, saying the package of pending policies that the agency is slated to release in the coming days to curb the potent greenhouse gas (GHG) is unlikely to result in sufficient reductions. -
Green Groups Ask What's Next in EPA Methane Limits
Aug 18, 2015 | BNA Daily Environment Report
By Andrea Vittorio
As the Environmental Protection Agency gets ready to propose methane emission limits for new oil and natural gas wells, environmental groups are already asking what's next for existing sources. The agency's proposed standards for new and modified wells, expected sometime in August, are part of an Obama... -
U.S. Is Set to Propose Regulation to Cut Methane Emissions
Aug 17, 2015 | The New York Times
By Coral Davenport
The Obama administration is expected to propose as soon as Tuesday the first-ever federal regulation to cut emissions of methane, a powerful greenhouse gas that contributes to global warming, by the nation’s oil and natural-gas industry, officials familiar with the plan said on Monday. -
Fate of Shell Arctic Homeport in Seattle Begins Litigation
Aug 18, 2015 | BNA Daily Environment Report
By Paul Shukovsky
The fate of Royal Dutch Shell's Arctic exploration homeport in Seattle now hangs in the balance during an administrative hearing that began Aug. 13 on whether the facility can be classified as a cargo terminal as required by its municipal permit. Shell has met with strong backlash in Seattle in regard... -
Court Denies Air Toxics Exemption for Power Plant
Aug 18, 2015 | BNA Daily Environment Report
By Andrew Childers
A federal appellate court denied a Colorado power company's motion to suspend its obligation to comply with toxic air pollutant standards for power plants while the Environmental Protection Agency responds to a recent U.S. Supreme Court decision (White Stallion Energy Ctr., LLC v. EPA, D.C. Cir., No. 12-1100, order issued 8/17/15). -
Environmentalists Ramp Up Push For EPA To Tighten Pending Utility ELG
Aug 17, 2015 | InsideEPA
By Bridget DiCosmo
Environmentalists are using meetings with top EPA and White House officials to ramp up their push for EPA to use one of the two strictest options it proposed for its looming final power plant effluent limitation guideline (ELG) to curb wastewater discharges from the sector, and to include various other measures to tighten the regulation. -
D.C. Circuit's CSAPR Ruling Casts Doubt Over Future Interstate Air Trading
Aug 17, 2015 | InsideEPA
By Stuart Parker
The U.S. Court of Appeals for the District of Columbia Circuit's ruling remanding Cross-State Air Pollution Rule (CSAPR) "budgets" to EPA for reconsideration casts major doubt over the viability of any future agency interstate emissions trading program because of strict limits the court appears to place on such programs, sources say. -
Small Mining Companies Sue EPA, Corps Over Water Rule
Aug 18, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
A Washington-based mining and exploration association became the latest group to sue the Environmental Protection Agency and the U.S. Army Corps of Engineers over the final clean water rule that takes effect Aug. 28 (Am. Exploration & Mining Ass'n v. EPA, D.D.C., No. 1:15-cv-01323, 8/14/15). -
Utilities Claim EPA Lacks Authority For Ash Rule's Groundwater Mandates
Aug 17, 2015 | InsideEPA
By David LaRoss
Power companies are urging a federal appeals court to scale back or eliminate groundwater protection provisions in EPA's first-time Resource Conservation & Recovery Act (RCRA) coal ash disposal rule, arguing the agency lacks authority for those requirements and for mandates on closed “legacy” ash sites and other facilities. -
Pennsylvania Issues Crude-by-Rail Safety Report
Aug 18, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
Slower train speeds, more monitoring equipment, more frequent inspections and better emergency response plans are among the recommendations in a report on oil train safety released by the office of Pennsylvania Gov. Tom Wolf (D) Aug. 17. University of Delaware research professor Allan M. Zarembski, a railway track... -
Maryland Judge Orders Disclosure of Oil Train Data
Aug 18, 2015 | BNA Daily Environment Report
Notices of oil train movements provided to Maryland officials aren't exempt from disclosure under the state's Public Information Act because they don't constitute confidential commercial information, a Maryland circuit court judge ruled Aug. 14. The issue was raised in two separate but nearly identical cases brought by CSX Transportation ... -
Canada Study: Oil, Gas Pipelines Much Safer Than Rail
Aug 18, 2015 | BNA Daily Environment Report
By Jeremy Hainsworth
Pipelines are by far the safest method to move large amounts of oil and gas across North America, more than four times as safe as using rail cars, according to a study by a Canadian policy think tank. Analysis of data from Canada's Transportation Safety Board showed the rate of incidents...
Industry and Association News
Chemical Management News
Chemical Security News
Energy and Environment News
Transportation News
Full Text of Stories Below
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Cefic Partners With Chemical Industry's Sustainability Initiative
Aug 17, 2015 | Chemical Watch
A partnership between the European Chemical Industry Council (Cefic) and industry initiative, Together for Sustainability (TfS), aims to establish "sustainability benchmarks" for chemical company supply chains.
It will look at each stage of the supply chain, from sourcing through to delivery of products at customers’ premises, including transport safety and waste disposal.
Rüdiger Eberhard, president of TfS and chief procurement officer of Evonik Industries, said that, in addition to setting benchmarks, the partnership will look to implement the industry's Responsible Care programme throughout the global industry.
Responsible Care is the International Council of Chemicals Association’s (ICCA) broader voluntary initiative to reduce the environmental, health and safety risks associated with chemicals throughout their lifecycles.
TfS, founded in 2011 by six multinational chemical companies, currently has 13 members, including Basf, Eastman and Solvay.
The programme involves assessments and audits of suppliers by independent experts, with the results shared among TfS members (CW 1 July 2014).
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(ACC Mentioned) Senate TSCA Bill's Authors Confident Of Passage This Year
Aug 18, 2015 | Chemical Watch
By Dinesh Kumar
Authors of the Toxic Substances Control Act (TSCA) reform bill are confident that it will hit the floor soon, allowing Congress time to send it to the president's desk by the end of the year.
The bill’s (S 697) authors, and other proponents, have dismissed the notion that the delay in Senate action - widely expected before the August recess - is a setback (CW 22 June 2015).
The Senate Environment and Public Works Committee passed the S 697 in April by a 15-5 vote, with four of the nine Democrats on the panel backing it (CW 29 April 2015).
Since then, its sponsors have grown to 52 of the 100-member chamber. The full House overwhelmingly approved its own TSCA bill (HR 2576) in June (CW 24 June 2015).
Senators Tom Udall (D-New Mexico) and David Vitter (R-Louisiana), the authors of S 697, rejected the idea that the Senate's failure to take up the measure for floor action, before the recess, was a setback.
“While I don't control the floor schedule, with 52 cosponsors representing 33 states, I am certainly confident that the Senate will pass the Udall-Vitter bill this year,” Mr Vitter told Chemical Watch.
And the conference process, to reconcile the differences between the Senate and House bills, “shouldn't take much longer,” he added.
“I'm in regular communication with the Senate leadership, and there, absolutely, is time in the calendar to take up TSCA reform,” Mr Udall said in a statement to Chemical Watch. Senate majority leader Mitch McConnell “has been very encouraging, and we're continuing to work with any senators, who want to have a constructive contribution on improvements to our bill,” he said.
Representative John Shimkus, author of the House bill, does not think the delay in Senate floor action is a setback for TSCA reform, said his senior adviser Steven Tomaszewski.
“There is a lot of time left in the 114th Congress” to get TSCA reform passed, he said.
In a development that bodes well for the Udall-Vitter bill, Senator Ed Markey (D-Massachusetts), who co-authored a competing TSCA bill (CW 13 March 2015) with Environment and Public Works (EPW) Committee ranking member Barbara Boxer (D-California), said he is willing to support S 697 if certain improvements were made to it.
“Senator Markey has approached Senator Udall on the issue,” said his aide Jennifer Talhelm. “Senator Udall is open to accommodating any changes that can help grow support for the bill, while retaining the bipartisan support it has,” she added.
Meanwhile, industry groups are also optimistic that Congress will pass a TSCA reform bill this year.
“Given the Senate bill's strong bipartisan support, we feel very good about its prospects for passage this fall,” said Anne Kolton, vice president of communications at the American Chemistry Council.
Bill Allmond, vice president of government relations at the Society of Chemical Manufacturers and Affiliates (Socma), pointed out that “many members of Congress on both sides of the aisle say it is a priority.” So even if the Senate does not get to TSCA reform until October, “it is not a failure. We feel quite confident that the Senate would eventually get to it this year.”
“With over half the Senate cosponsoring the [bill S 697], we have no reason to doubt TSCA modernisation will happen this year,” said Phil Klein, executive vice president of legislative and public affairs at the Consumer Specialty Products Association.
Douglas Troutman, vice president of government affairs at the American Cleaning Institute, is also confident that a TSCA bill will pass through Congress this year. “There is a lot of interest for the Senate to get the TSCA bill on the Senate floor and out of the Senate this session of Congress.”
But Andy Igrejas of the Safer Chemicals, Healthy Families coalition, “rejected the idea that this has to be done right away or can never be done”.
The “shortest way” to get the bill out of the Senate is for its authors to consider the objections raised by Ms Boxer and accommodate “suggestions that she has made for going forward”.
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(ACC Mentioned) Wrap-Up of Federal and State Chemical Regulatory Developments, August 2015
Aug 17, 2015 | JD Supra Business Advisor
TSCA/FIFRA/IRIS/NTP/TRI
EPA Issues Direct Final Rule On Significant New Use Notification Electronic Reporting: On July 20, 2015, the U.S. Environmental Protection Agency (EPA) issued a direct final rule amending the Toxic Substances Control Act (TSCA) Section 5 electronic reporting regulations. 80 Fed. Reg. 42739. The electronic reporting regulations establish standards and requirements for use of EPA's Central Data Exchange (CDX) to submit electronically premanufacture notices (PMN), other TSCA Section 5 notices, and support documents to EPA. The rule provides the user community with new methods for accessing the electronic-PMN (e-PMN) software, new procedures for completing the e-PMN form, changes to the CDX registration process, adds the requirement to submit "bona fide intents to manufacture" electronically, and changes to the procedure for notifying EPA of any new manufacturing site of a chemical substance for which an exemption was granted by EPA. This action is intended to further streamline and reduce the administrative costs and burdens of TSCA Section 5 notifications for both industry and EPA. The direct final rule is effective January 19, 2016, without further notice, unless EPA receives adverse comment on or before August 19, 2015. If EPA receives adverse comments on this action, EPA will withdraw the rule before its effective date. EPA will then issue a proposed rule, providing a 30-day period for public comment.
EPA Schedules Webinars On Updated PMN Submission System: In a related action, on August 12, 2015, EPA announced that it will hold three webinars to assist submitters with the new features of its electronic, web-based system for receiving TSCA Section 5 submission forms and support documents. The webinars are scheduled for 1:00-4:00 p.m. (EDT) on the following days: August 26, 2015 (focusing on the CDX registration process and user roles); September 16, 2015 (focusing on the PMN form and related submissions); and September 30, 2015 (focusing on Notices of Commencement (NOC), biotechnology, and other submissions). More information is availableonline.
EPA Proposes Partial Exemption Of Certain Chemical Substances From Reporting Additional Chemical Data: On July 22, 2015, EPA proposed to amend the list of chemical substances that are partially exempt from reporting additional information under the Chemical Data Reporting (CDR) rule. 80 Fed. Reg. 43383. EPA has determined that, based on the totality of information available on the chemical substances listed in the proposed rule, there is a low current interest in their CDR processing and use information. EPA is proposing to add the following chemical substances to the list of chemical substances that are exempt from reporting the information described in 40 C.F.R. § 711.15(b)(4):Fatty acids, C14-18 and C16-18 unsaturated, methyl esters (Chemical Abstracts Service Registry Number (CASRN) 67762-26-9);Fatty acids, C16-18 and C-18 unsaturated, methyl esters (CASRN 67762-38-3);Fatty acids, canola oil, methyl esters (CASRN 129828-16-6);Fatty acids, corn oil, methyl esters (CASRN 515152-40-6);Fatty acids, tallow, methyl esters (CASRN 61788-61-2); andSoybean oil, methyl esters (CASRN 67784-80-9).
EPA reached this conclusion after considering a number of factors, including the risk of adverse human health or environmental effects, information needs for CDR processing and use information, and the availability of other sources of comparable processing and use information. EPA originally issued a draft final rule on January 27, 2015, to add these chemical substances to the list of chemical substances that are partially exempt from reporting, however, an adverse comment to the rule was submitted. Comments must be received on or before September 21, 2015.
EPA Releases Preliminary Toxics Release Inventory Dataset: On July 21, 2015, EPA released preliminary 2014 Toxics Release Inventory (TRI) data. The posted information represents about 99 percent of the total data EPA has or expects to receive. TRI reports were due July 1, 2015. EPA will release later additional information, including: revised and corrected information for 2014; pollution prevention data; TRI online searching tools, such as TRI Explorer; the complete TRI dataset; and EPA's analysis of the complete dataset. The preliminary 2014 TRI data are available online.
EPA Proposes Trichloroethylene SNUR: On August 7, 2015, EPA proposed a Significant New Use Rule (SNUR) for trichloroethylene (TCE). 80 Fed. Reg. 47441. The proposed significant new use is manufacture or processing for use in a consumer product, with a proposed exception for use of TCE in cleaners and solvent degreasers, film cleaners, hoof polishes, lubricants, mirror edge sealants, and pepper spray. Persons subject to the SNUR would be required to notify EPA at least 90 days before commencing any manufacturing or processing of TCE for a significant new use. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary based on the information available at that time, an opportunity to protect against potential unreasonable risks, if any, from that activity before it occurs. Comments must be received on or before October 6, 2015.
EPA Extends Comment Period On Draft Series 810 Test Guidelines And The Proposed Antimicrobial Pesticide USI Guidance Document: On July 24, 2015, EPA extended until October 1, 2015, the comment period on the draft Series 810 Product Performance Test guidelines EPA first issued on June 17, 2015. 80 Fed. Reg. 44102. In the same Federal Register notice, EPA extended the comment period for the proposed guidance document called the Antimicrobial Pesticide Use Site Index (USI) to August 31, 2015. In 2014, EPA issued a final rule amending the regulations setting forth the data requirements that support an application to register a pesticide product. The final rule contains the data requirements specifically applicable to antimicrobial pesticides, which were codified in 40 C.F.R. Part 158, subpart W. The final rule lists 12 antimicrobial use patterns in 40 C.F.R. § 158.2201. The data requirements applicable to a pesticide product depend in part on the product's use pattern. The general use patterns are broad designations and are used as columns in the antimicrobial data requirements tables to identify which data requirements might be pertinent to the particular pesticide use site. EPA has developed the USI to assist antimicrobial pesticide applicants and registrants and EPA staff to identify the use pattern that applies to a pesticide product, and thus the data requirements that must be met to register the product. EPA states that the USI serves as a compilation of the specific use sites that are commonly listed on antimicrobial labels and links these commonly listed use sites with the 12 general use patterns. The posting of this proposed guidance document for public comment is intended to satisfy a condition of the March 2, 2015, settlement agreement between EPA and the American Chemistry Council (ACC) that followed ACC's July 2013 initiation of a legal challenge to the data requirements regulation in the U.S. Court of Appeals for the District of Columbia Circuit.
NTP Releases Report On Carcinogens Handbook: On July 24, 2015, the National Toxicology Program (NTP) issued a handbook describing the process it uses to prepare the descriptions of chemicals used in the Report on Carcinogens (RoC). The RoC lists chemicals, viruses, and other agents that are known or reasonably anticipated carcinogens. Inclusion in the RoC can trigger the need to update safety data sheets (SDS) and other hazard communications. The NTP announcement and a copy of the RoC handbook are available online.
EPA Issues Cumulative Risk Guidance: On July 29, 2015, EPA announced the availability of draft guidance on how it will conduct cumulative risk assessments. 80 Fed. Reg. 45218. The guidance, entitled "Pesticide Cumulative Risk Assessment: Framework for Screening Analysis Purpose," provides information on how EPA intends to conduct such assessments. EPA is specifically looking for comment on ways to streamline the process. The draft guidance is available online. Comments are due by August 28, 2015.
EPA Releases TSCA Assessment Documents For Flame Retardant Chemicals: On August 13, 2014, EPA released for public comment three Problem Formulations and Initial Assessments and a Data Needs Assessment document for one of four structurally similar flame retardant chemical clusters being reviewed under the TSCA Work Plan assessment effort. The goal of these assessments is to identify scenarios where further risk analysis may be necessary. The documents address the likely exposure and hazard scenarios to workers and consumers based on current production, use, and exposure information for the following flame retardant chemical clusters:Tetrabromobisphenol A (TBBPA), also known as Brominated Bisphenol A, cluster -- used as flame retardants in plastics/printed circuit boards for electronics.Chlorinated Phosphate Esters -- used as flame retardants in furniture foams and textiles.Cyclic Aliphatic Bromides/Hexabromocyclododecane (HBCD) cluster -- used as a flame retardant in extruded and expanded polystyrene foams (EPS/XPS), polystyrene (PS) products.
The Data Needs Assessment document addresses the Brominated Phthalates (TBB and TBPH) cluster of flame retardants that are used in polyurethane foam products. EPA reviewed previous assessments and identified critical gaps in toxicity, exposure, and commercial mixtures data. The Data Needs Assessment document is intended to guide the collection of additional data and information. A pre-publication copy of the Federal Register Notice, a list of the flame retardant chemical clusters, a fact sheet with key questions and answers, and additional information on the TSCA Work Plan effort is available online.
FDA
FDA Issues Final Guidance On Use Of Nanomaterials In Food For Animals: On August 5, 2015, the U.S. Food and Drug Administration (FDA) announced the availability of a final guidance document entitled "Guidance for Industry: Use of Nanomaterials in Food for Animals." 80 Fed. Reg. 46587. The Guidance is intended to assist industry and other stakeholders in identifying potential issues related to safety or regulatory status of food for animals containing nanomaterials or otherwise involving the application of nanotechnology. FDA states that the Guidance is applicable to food ingredients intended for use in animal food that: (1) consist entirely of nanomaterials; (2) contain nanomaterials as a component; or (3) otherwise involve the application of nanotechnology. FDA states:
This final guidance addresses the legal framework for adding nanomaterial substances to food for animals and includes recommendations for submitting a Food Additive Petition (FAP) for a nanomaterial animal food ingredient. This guidance also recommends manufacturers consult with FDA early in the development of their nanomaterial animal food ingredient and before submitting an FAP. At this time, we are not aware of any animal food ingredient engineered on the nanometer scale for which there is generally available safety data sufficient to serve as the foundation for a determination that the use of such an animal food ingredient is generally recognized as safe (GRAS).
FDA Extends Food Labeling Compliance Deadline: On July 10, 2015, the FDA Center for Food Safety and Applied Nutrition (CFSAN) issued a one year extension to its compliance deadline for disclosure of nutrition information for stand-alone and retail food establishments. 80 Fed. Reg. 39675. FDA indicates the extension is being provided to allow impacted parties time to "implement the final rule's requirements." The rule is intended to "ensure that consumers are provided accurate, clear and consistent nutrition information." FDA also indicates draft guidance will be available in Augustto provide answers to some of the more frequent questions. The compliance deadline for the final rule is December 1, 2016.
FDA To Hold Public Meeting In Preparation Of ICCR: On July 15, 2015, FDA CFSAN announced it will hold a public meeting on September 10, 2015, to receive comments on various topics relating to the regulation of cosmetics. 80 Fed. Reg. 41506. FDA anticipates the input received will be utilized in preparation for the International Cooperation of Cosmetic Regulation (ICCR) meeting to be held inNovember 4-6, 2015, in Belgium. The ICCR is a voluntary international group of regulatory authority members, including Canada, Japan, the European Union (EU), and Brazil.
FDA Publishes Revised Guidance On Refuse To Accept Policy For 510(k): On August 4, 2015, the FDA Centers for Devices and Radiological Health (CDRH) issued a revised guidance entitled "Refuse to Accept Policy for 510(k)s." The guidance details the FDA procedures and criteria used to assess the completeness of a 510(k) submission to determine if the "minimum threshold of acceptability" for a substantive review has been met. The current 510(k) Refuse to Accept (RTA) policy includes an early review within the first 15 calendar days after submission to determine if the submission is administratively complete. The revised guidance offers industry and FDA staff updated checklists to assist in this early review process. For more details, see "Refuse to Accept Policy for 510(k)s."
RCRA/CERCLA
EPA Issues Interim Procedure For Submitting Notifications Under 2015 RCRA DSW Final Rule: On January 13, 2015, EPA issued revisions to the Definition of Solid Waste (DSW) rule under the Resource Conservation and Recovery Act (RCRA). 80 Fed. Reg. 1694. The rule requires certain facilities impacted by the changes to comply with certain notification requirements under the final rule using the existing Subtitle C Site Identification Form, more commonly known as EPA Form 8700-12. EPA has not, however, updated the form to reflect the new 2015 DSW final rule, and admits that it likely will be unable to do so by the time regulated facilities are required to notify under the rule. EPA thus issued in July a document entitled "Interim Procedure for Submitting Notifications under the 2015 Definition of Solid Waste Final Rule." The document, which is available online, explains how facilities should meet their notification requirement under the 2015 DSW final rule. These revisions became effective on July 13, 2015.
EPA Updates SW-846: EPA on August 13, 2015, announced the availability of Final Update V to the Third Edition of the Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, more commonly known as the SW-846. 80 Fed. Reg. 48522. The SW-846 is a compendium of EPA-approved test methods that the regulated community may use to demonstrate compliance with the RCRA hazardous waste regulations.
CAA/CWA/SDWA
EPA Releases Final Clean Power Plan: On August 3, 2015, EPA released the final version of its highly anticipated Clean Power Plan rule. The rule has not yet been published in the Federal Register. The rule establishes emission limits on greenhouse gases (GHG) for new and existing fossil-fueled power plants. The final Clean Power Plan is more ambitious than the proposed rule; it would reduce power-sector carbon pollution 32 percent from 2005 levels in 2030, a 9 percent increase over the proposal, EPA states. The final rule will also drive a more aggressive transition to zero-carbon renewable energy sources than the proposed rule. The share of renewable energy generation capacity in 2030 is projected to be over 25 percent higher than in the proposed rule, at 28 percent, compared to 22 percent. The proposed rule relied on a large, early shift of coal generation to natural gas. For example, the share of natural gas in the generation mix was projected to be significantly higher in 2020 than in the baseline. In the final rule, that early rush to gas is eliminated and the share of natural gas is essentially flat. Instead, the rule drives early reductions from renewable energy and energy efficiency, which EPA believes will drive a more aggressive transformation in the domestic energy industry. A driver of these outcomes is likely to be the Clean Energy Incentive Program, which EPA believes will incentivize early deployment of renewable energy and energy efficiency. Under the program, credits for electricity generated from renewables in 2020 and 2021 will be awarded to projects that begin construction after participating state plans are submitted. The program also prioritizes early investment in energy efficiency projects in low-income communities; these projects will be awarded double the number of credits in 2020 and 2021 as compared to qualifying renewable energy projects. EPA did extend the compliance date for states, from 2020 to 2022. States also have a new "glide path" to compliance, with three periods of increasingly more stringent emission limits that end at final compliance by 2030. The final rule also differs from the proposed rule in that it promulgates a specific emission performance rate for both coal and natural gas facilities. States would have the option of adopting one of three methods to meet their obligations under the final rule: emissions standard approach, a rate-based emissions approach, or a mass-based emissions approach. Promulgation of the rule has sparked a firestorm of protest from opponents of the rule. In perhaps the most significant sign of displeasure over the rule, on August 13, 2015, Attorneys General from 15 states filed a petition in the U.S. Court of Appeals for the D.C. Circuit asking the court to stay implementation of the rule, even though it has not yet been published in the Federal Register.
EPA Issues Final Rule To Reduce HFCs: On July 20, 2015, EPA issued a final rule prohibiting certain uses of chemicals that significantly contribute to climate change in favor of safer, more climate-friendly alternatives. 80 Fed. Reg. 42869. The rule responds to President Obama's Climate Action Plan by reducing emissions of hydrofluorocarbons (HFCs) used in air-conditioning, refrigeration, and other equipment. Under the Clean Air Act (CAA) and EPA's Significant New Alternatives Policy (SNAP) Program, EPA reviews alternatives to HFCs on an ongoing basis and issues updates to the lists of acceptable and unacceptable substitutes. This rule changes the status of certain high-global warming potential (GWP) HFCs that were previously listed as acceptable under the SNAP Program as unacceptable in specific end uses. These changes are based on information showing other alternatives are available for the same uses that pose lower risk overall to human health and the environment. The HFCs and HFC-containing blends affected by the rule are used in aerosols, foam blowing, motor vehicle air conditioning, retail food refrigeration, and vending machines. EPA estimates this final rule will reduce GHG emissions of 54 to 64 million metric tons of carbon dioxide equivalent in 2025, equal to the carbon dioxide emissions from the annual energy use of more than 5.8 million homes. The rule takes effect August 19, 2015.
EPA Releases 2014 Effluent Guidelines Program Plan: EPA on August 4, 2015, issued its Final 2014 Effluent Guidelines Program Plan and 2014 Annual Effluent Guidelines Review Report. 80 Fed. Reg. 46280. Section 304(m) of the Clean Water Act (CWA) requires EPA to publish biennially a plan for new and revised effluent guidelines. The Plan identifies new or existing industrial categories selected for effluent guidelines and provides a schedule for issuing those guidelines. The Plan is available online.
NANOTECHNOLOGY
Companies Appeal ECHA's Requests For Information Concerning Nanoforms: On July 16, 2015, the European Chemicals Agency (ECHA) announced the following appeals in which the keywords include nanoforms:J.M. Huber Finland Oy, Case A-011-2015;RHODIA OPERATIONS SAS, Case A-010-2015;IQESIL SA, Case A-009-2015; andEvonik Degussa GmbH, Case A-008-2015.
The cases all concern silicic acid, aluminum sodium salt. The contested decisions were adopted December 17, 2014, following a compliance check under the dossier evaluation procedure of the submitted registration. In each contested decision, ECHA found that the registration did not comply with the requirements of Article 10(a)(ii), as well as Annex VI, Section 2 of the Registration, Evaluation, Authorization and Restriction of Chemicals Regulation. ECHA requested that each appellant submit the following information:Name, molecular, and structural formula, or other identifier of the substance (Annex VI, 2.1 and 2.2);Composition of the substance (Annex VI, 2.3); andDescription of the analytical methods used (Annex VI, 2.3.7).
In each case, the appellant contends that ECHA breached the principle of legal certainty by requesting information related to undefined terms, such as "forms," "grades," and "nanoforms." Each appellant asks the Board of Appeal to annul the contested decision in so far as it requests the appellant to submit information as identified in the appeal.
Canada Begins Mandatory Survey With Respect To Certain Nanomaterials In Canadian Commerce: The July 25, 2015, Canada Gazette includes a notice announcing that the Minister of the Environment requires, for the purpose of assessing whether the substances described in the notice are toxic or are capable of becoming toxic, or for the purpose of assessing whether to control, or the manner in which to control the listed substances, any person described in the notice who possesses or who may reasonably be expected to have access to the information required to provide that information. The notice applies to a substance that has a size of between 1 and 100 nanometers in at least one external dimension, or internal or surface structure; and is provided in the list in Schedule 1 of the notice. The list includes over 200 substances. The notice applies to any person who, during the 2014 calendar year, manufactured a total quantity greater than 100 kilograms (kg) of a substance set out in Schedule 1. The notice also applies to any person who, during the 2014 calendar year, imported a total quantity greater than 100 kg of a substance set out in Schedule 1, at any concentration, whether alone, in a mixture, or in a product. The notice does not apply to a substance in Schedule 1, whether alone, in a mixture, or in a product, that:Is in transit through Canada;Is naturally occurring;Is incidentally produced;Is, or is contained in, a hazardous waste or hazardous recyclable material within the meaning of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations and that was imported in 2014 pursuant to a permit issued under those Regulations;Is, or is contained in, a pest control product within the meaning of subsection 2(1) of the Pest Control Products Act where that pest control product is registered under the Pest Control Products Act;Is, or is contained in, a fertilizer or supplement within the meaning of section 2 of the Fertilizers Act where that fertilizer or supplement is registered under the Fertilizers Act;
Is, or is contained in, a feed within the meaning of section 2 of the Feeds Act where that feed is registered under the Feeds Act; orIs mixed with, or attached to, a seed within the meaning of section 2 of the Seeds Act where that seed is registered under the Seeds Act.Information to be provided includes:The basis on which the substance identified was determined to be in nanoscale form by indicating "research & development sources," "technical data," "information available from patents," "marketing claim," "assumption," or "other (specify)";The total quantity of the substance manufactured or imported;The consumer and commercial codes that apply to the known or anticipated final substance, mixture, or product containing the substance;For each applicable consumer and commercial code, whether any known or anticipated final substance, mixture, or product containing the substance is intended for use in commercial activities;For each applicable consumer and commercial code, whether any known or anticipated final substance, mixture, or product containing the substance is intended for use in consumer activities;For each applicable consumer and commercial code, whether any known or anticipated final substance, mixture, or product containing the substance is intended for use by or for children 14 years of age or younger; andThe study title(s) of any unpublished or published data or studies on the substance with regard to physical-chemical properties, bioaccumulation, persistence, toxicity, metabolism, degradation, release, or disposal of the substance from the final mixture or product.
Any person who provides information in response to this notice may submit a written request that the information or part of it be treated as confidential. Responses are due February 23, 2016.
Non-governmental Organizations (NGO) Challenge Nanosilva's Conditional Registration: On July 27, 2015, two petitions for review of EPA's second conditional registration of a nanosilver pesticide product were filed in the U.S. Court of Appeals for the Ninth Circuit. The Natural Resources Defense Council (NRDC) filed a petition (Case Number 15-72308), as well as the Center for Food Safety (CFS) and International Center for Technology Assessment (ICTA) (Case Number 15-72312). Both suits ask the court to set aside EPA's final order granting a conditional registration for a nanosilver-containing antimicrobial pesticide product named "NSPW-L30SS," or "Nanosilva." NRDC challenged EPA's first conditional registration of a nanosilver product, which it granted to HeiQ in 2011. On November 7, 2013, the U.S. Court of Appeals for the Ninth Circuit granted in part and denied in part NRDC's petition for review of HeiQ AGS-20 and AGS-20 U (collectively, AGS-20). The court held that "substantial evidence" supported EPA's decision to use the characteristics of toddlers rather than infants in determining whether AGS-20 placed consumers at risk. The court vacated EPA's decision "insofar as it concluded that there was no risk concern requiring mitigation for short- and intermediate-term aggregate oral and dermal exposure to textiles that are surface-coated with AGS-20."
EPA Will Continue Review Of Engineered Nanomaterials In Wastewater: On August 4, 2015, EPA announced the availability of its Final 2014 Effluent Guidelines Program Plan. 80 Fed. Reg. 46280. The Final Program Plan includes the following findings from EPA's review of engineered nanomaterials in industrial wastewater:Some manufacturing and processing methods likely generate wastewater, but the quantity generated and waste management practices are not documented;Toxicity hazards from engineered nanomaterials have been demonstrated in the laboratory, but the environmental and human health risks are largely unknown;Fate of and exposure to industrial wastewater releases of engineered nanomaterials to the environment have not been studied;The small size, unique properties, and complexity of engineered nanomaterials present a challenge for environmental monitoring, risk assessment, and regulation;Methods for detecting and characterizing nanomaterials in complex media, like industrial wastewater, are under development;EPA has not approved any standardized methods for sampling, detecting, or quantifying of nanomaterials in aqueous media; andResearch has shown that common treatment technologies employed at municipal wastewater treatment plants can remove nanomaterials from the wastewater, but that these may then accumulate in the sludge.
EPA states that its review also identified four main areas of further research appropriate to assess better the potential presence and impact of engineered nanomaterials in industrial wastewater:Development of standard methods and sampling techniques to detect and characterize nanomaterials in industrial wastewater;Evaluation of engineered nanomaterial toxicity impacts and potential occurrence in industrial wastewater, taking into consideration relevant forms and concentrations of engineered nanomaterials;Identification of the universe of engineered nanomaterial facilities, their production values, and the waste generated and disposed of during the manufacturing and processing of engineered nanomaterials; andEvaluation and characterization of the fate, transformation, and treatment of engineered nanomaterials in industrial wastewaters.
EPA states that it plans to continue to monitor ongoing research on engineered nanomaterials in future annual reviews and will collect any new information as it becomes available, particularly related to the following data gaps:Development of standard methods and sampling techniques to detect and characterize nanomaterials in industrial wastewater;Evaluation of engineered nanomaterial toxicity impacts and potential occurrence in industrial wastewater, taking into consideration relevant forms and concentrations of engineered nanomaterials;Identification of the universe of facilities, their production values, and the nature of the waste generated and disposed by manufacturing and processing of engineered nanomaterials; andEvaluation and characterization of the fate, transformation, and treatment of engineered nanomaterials in industrial wastewaters.
BIOBASED/RENEWABLE PRODUCTS
BRAG Biobased Products News And Policy Report: Bergeson & Campbell, P.C.'s (B&C®) consulting affiliate, B&C® Consortia Management, L.L.C. (BCCM), manages the Biobased and Renewable Products Advocacy Group (BRAG®). For access to a weekly summary of key legislative, regulatory, and business developments in biobased chemicals, biofuels, and industrial biotechnology, go towww.braginfo.org.
EPA Posts Information On Biotechnology Algae Project: EPA has posted a document concerning its development of a project intended to support public dialog concerning the development and use of biotechnology. EPA has oversight responsibility for the production and use of intergeneric cyanobacteria, eukaryotic microalgae, and their products by application of genetic engineering approaches. EPA's recently posted document, US Environmental Protection Agency Biotechnology Algae Project, states that it is focusing its project around these biotechnology algae applications. As part of its efforts to implement TSCA, EPA provides technical support for reporting on new chemical substances and microorganisms that are not yet in commerce. EPA's 1997 document Points to Consider in the Preparation of TSCA Biotechnology Submissions for Microorganisms (Points to Consider)assists those who intend to submit pre-manufacture microbial commercial activity notices (MCAN) or TSCA experimental release applications (TERA) for various commercial products. According to EPA, the Points to Consider document helps submitters identify and organize the information and data they provide to inform EPA's required risk assessments. An important component of EPA's recent announcement is a somewhat muted statement that it is "currently updating the Points to Consider to accommodate the development of new information relevant to risk assessment of biotechnology products regulated under TSCA." According to EPA, the Points to Consider document does not currently provide specific support for those using the emerging technologies of algae production and biotechnology. EPA states that to keep its risk assessment process for biotechnology algae open and transparent, it intends "to develop a separate document on the scientific and technological issues it currently understands to be key and unique for evaluating risks from the production and use of biotechnology algae." EPA will develop its "Considerations for Biotechnology Algae" document in parallel with updating the Points to Consider. More information is available in our memorandum.
OSHA DEVELOPMENTS
OSHA Proposes To Amend Recordkeeping Requirements For Work-Related Injuries And Illnesses: The Occupational Safety and Health Administration (OSHA) on July 29, 2015, issued a proposed rule amending its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. 80 Fed. Reg. 45116. OSHA specifically is proposing to amend its regulations at 29 C.F.R. Part 1904 to clarify that the duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness and that the duty does not expire just because the employer fails to create the necessary records when first required to do so. The proposed amendments consist of revisions to the titles of some existing sections and subparts, and changes to the text of some existing provisions. The proposed amendments add no new compliance obligations; the proposal would not require employers to make records of any injuries or illnesses for which records are not currently required to be made. The comment period on the proposed rule ends on September 28, 2015.
OSHA Proposes Revisions To Beryllium PEL: OSHA on August 7, 2015, proposed revisions to its existing permissible exposure limits (PEL) for occupational exposure to beryllium and beryllium compounds. 80 Fed. Reg. 47565. OSHA currently enforces PELs for beryllium in general industry, construction, and shipyards. These PELs were adopted in 1971 and OSHA has not updated them since. The current time-weighted average (TWA) PEL for beryllium is 2 micrograms per cubic meter of air (µg/m3) as an 8-hour TWA. OSHA is proposing a new TWA PEL of 0.2 µg/m3 in general industry. OSHA is also proposing other elements of a comprehensive health standard, including requirements for exposure assessment, preferred methods for controlling exposure, respiratory protection, personal protective clothing and equipment (PPE), medical surveillance, medical removal, hazard communication, and recordkeeping. The comment period on the proposed rule closes onNovember 5, 2015.
OSHA Issues Updated Training Guidance For Several Industry Categories: OSHA has released an updated version of its guide to regulatory-required training. The guide organizes the training requirements into five categories: General Industry, Maritime, Construction, Agriculture, and Federal Employee Programs. The guidance is available online.
LEGISLATIVE DEVELOPMENTS
Legislation Barring Regulation Of Coal Ash As Hazardous Waste Introduced In Senate: On July 16, 2015, Senators John Hoeven (R-ND) and Joe Manchin (D-WV) introduced legislation (S. 1803) that would ban EPA from regulating coal combustion residues (CCR) as hazardous waste under RCRA. The bill also would grant states a greater role in regulating CCRs. The Senators stated that the legislation will create a "states-first approach" to regulating CCR "that provides both certainty for the safe and efficient recycling of coal ash and an enforceable state permit program for the disposal of coal ash." The legislation is a companion to legislation introduced in the house by Representatives John Shimkus (R-IL) and David McKinley (R-WV). EPA's final CCR rule, announced last December, regulates CCR as a non-hazardous waste. But critics of the regulation argue that it does not provide non-hazardous designation certainty to CCR recyclers or create an effective enforcement mechanism for the disposal of CCR. The bill seeks to address these concerns by providing the certainty sought by CCR recyclers by permanently designating CCR as non-hazardous waste. It also incorporates standards in EPA's CCR rule for disposal in enforceable, mandatory state permit programs. The bill also provides state regulators the same flexibility for implementing the groundwater monitoring and corrective action standards that are currently provided under existing municipal solid waste regulations.
House Passes Coal Ash Bill; White House Threatens Veto: By a vote of 258-166, the House on July 22, 2015, passed legislation that would ban EPA from regulating CCRs as hazardous waste under RCRA. The Improving Coal Combustion Residuals Regulation Act (H.R. 1734), sponsored by Representative David McKinley (R-WV), would also vest states with the authority to tailor their permitting programs for regulating CCR, provided they incorporate minimum federal requirements promulgated by EPA in its 2014 CCR regulation. Stating that the bill "would undermine the protection of public health and the environment," the White House on July 21, 2015, issued a Statement of Administration Policyvowing to veto the legislation. The Obama Administration "strongly opposes" H.R. 1734 because it would "undercut important national protections provided by EPA's 2014 CCR management and disposal rule." The White House stated that the rule articulates clear and consistent national standards to protect public health and the environment, prevent contamination of drinking water, and minimize the risk of catastrophic failure at coal ash surface impoundments. H.R. 1734 would, however, substantially weaken these protections, stated the Administration.
House Committee Holds Hearing On Social Cost Of Carbon: On July 22, 2015, the House Committee on Natural Resources held a hearing on the process and development of the Obama Administration's Social Cost of Carbon (SCC), a controversial statistical model that is being incorporated into environmental reviews subject to approval under the National Environmental Policy Act (NEPA). The hearing was the second in a series of oversight hearings on NEPA and the Obama Administration's "unilateral expansion of regulations across the American economy," according to the Committee's website. Testifying before the Committee were Patrick J Michaels, Ph.D., Director, Center for the Study of Science, The Cato Institute; Kevin Dayaratna, Ph.D., Senior Statistician and Research Programmer, Center for Data Analysis, The Heritage Foundation; Scott H. Segal, Policy Resolution Group; and Dr. Michael K. Dorsey, Interim Director, Energy & Environment Program & Co-Founder (US Climate Plan), Joint Center for Political & Economic Studies & US Climate Plan. Republicans voiced their distaste for the rule. At the hearing, Committee Chair Rob Bishop (R-UT) stated that "[t]he Obama Administration has given itself -- and future administrations -- a mammoth blank check to stop any project based on a radical fantasy. The Social Cost of Carbon is exactly that -- a social restructuring of the way Americans live their lives." He referred to it as "unprecedented authority, disguised as an innocuous guideline for regulatory analysis," adding that it "is a dangerous ideological weapon for the Administration." A webcast of the hearing, witness testimonies, and member statements are available online.
House Passes REINS Act; White House Threatens Veto: The House on July 28, 2015, passed a bill that would subject major rules from EPA and other agencies to Congress for approval before they could take effect. The Regulations from the Executive in Need of Scrutiny (REINS) Act (H.R. 427) would require majority votes in both chambers of Congress to approve agencies' "major" rules. The bill is unlikely to move beyond the House. It faces an uncertain fate in the Senate and the White House on July 27, 2015, issued a Statement of Administration Policy vowing to veto the bill.
Senate EPW Committee Passes Bill Eliminating CWA Permits For Certain Pesticide Uses: The Senate Environment and Public Works (EPW) Committee on August 5, 2015, passed legislation that would eliminate the requirement to obtain a National Pollution Discharge Elimination System (NPDES) permit under the CWA for parties that spray pesticides close to or on rivers and streams. The Committee approved the Sensible Environmental Protection Act of 2015 (S. 1500) by voice vote. No Democrats were in attendance. The bill would amend the CWA requirement for permits for pesticides or the residue of pesticides that get into navigable waters, provided the pesticides are not used in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Senator Mike Crapo (R-ID) sponsored the bill.
Senate Committee Passes Bill Blocking EPA Regulation Of GHGs From Power Plants: The Senate EPW Committee on August 5, 2015, passed a bill that would prohibit EPA from regulating emissions of carbon dioxide and other GHGs from power plants. The Affordable Reliable Electricity Now Act (ARENA, S. 1324) specifically would prohibit EPA from issuing, implementing, or enforcing any final or proposed rule under Section 111 of the CAA that establishes a standard of performance of any GHG from any new, existing, modified, or reconstructed fossil-fuel fired electric generating unit, unless such rule meets specific requirements. One of those conditions is that any such regulation must treat coal-fired and natural gas-fired utilities as separate sources. EPA also cannot establish a standard unless it has been demonstrated at six units for at least a year. EPA also would be required to submit 50 model plans demonstrating how each jurisdiction could meet any future regulatory requirements. Debate on the bill was partisan and heated. The Democratic members of the Committee walked out, leaving the passage of the bill solely to the Republican members. The bill now heads to the Senate floor.
Senate Bill Would Allow States To Restrict Waste Imports: Senator Robert Casey (D-PA) on August 5, 2015, introduced a bill that would allow states to restrict imports of wastes from other states. The bill -- the Trash Reduction and Sensible Handling Act of 2015 (TRASH Act, S. 1953) -- would amend Section 4003 of RCRA and vest states with the authority to limit the wastes imported from other states. Under the bill, states would have the ability to restrict waste imports by requiring that the waste imported from another state be only from states with equivalent or higher standards of waste handling and reduction. States would further be authorized to impose fees on waste imports.
Senate REVIEW Act Would Stay High Impact Rules During Legal Challenges: Senator Dan Coats (R-IN) on August 4, 2015, introduced a bill that would postpone the effective date of any "high-impact rule" pending judicial review. The Require Evaluation before Implementing Executive Wishlists Act of 2015 (REVIEW Act) (S. 1927) would automatically stay EPA and other agencies implementing such "high-impact rules" if legal challenges to the regulations are pending. The legislation is obviously targeted at EPA and its recently issued Clean Power Plan and Waters of the United States rules. The legislation defines a "high-impact rule" as any rule that the White House Office of Information and Regulatory Affairs (OIRA) determines may impose an annual cost on the economy of not less than one billion dollars.
MISCELLANEOUS
GAO Report Notes Gaps In Chemical Security Program: On July 24, 2015, the Government Accountability Office (GAO) issued a report noting the Department of Homeland Security (DHS) needs to verify submitted information to ensure the nation's highest-risk chemical facilities are identified and should develop standardized procedures to address noncompliance with a site's plan to prevent terrorist threats. The report noted DHS' Chemical Facility Anti-Terrorism Standards program has made significant progress in identifying the highest-risk sites nationally and could complete approving all plans to reduce the risks of terrorist attacks within nine to 12 months for the remaining 929 sites awaiting approval. A key issue identified by the report is that DHS reportedly lacks consistent procedures for handling facilities that are not in compliance with portions of their approved site security plans. Problems are now addressed on a "case-by-case basis." Another issue for GAO is that facilities self-report information on the distance from which exposure to a toxic chemical cloud could cause serious injury or fatalities. DHS does not verify the accuracy of that data, however. About 44 percent of the total facilities to complete the initial regulatory screening failed correctly to identify this distance of concern. Approximately 43 percent of those facilities with incorrect estimates underestimated the distance of concern. DHS reported that it is developing a new screening process to eliminate the distance of concern metric, but stated it would verify newly submitted data until that tool has been fully implemented. The report, DHS Action Needed to Verify Some Chemical Facility Information and Manage Compliance Process (GAO-15-614), is available online.
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(ACC Mentioned) ExxonMobil Knocks Proposed Phthalate Bans
Aug 17, 2015 | Chem.Info
By Andy Szal
ExxonMobil last month raised a series of concerns with federal authorities about increased restrictions on the use of phthalates.
The energy giant, according to a report in ChemicalWatch, held four meetings last month with the U.S. Consumer Product Safety Commission, which last year proposed bans on five additional phthalate chemicals in children's toys.
Phthalates are used primarily to increase flexibility in plastic products, but research suggests that they could disrupt hormones in the body and lead to health problems. ExxonMobil's chemical division is amajor producer of plasticizers.
The report said that ExxonMobil officials were particularly irked by a proposed permanent ban on DINP, one of the world's most prominent phthalates that is already banned in toys by European regulators.
Exxon, in part, alleged that a CPSC advisory panel failed to consider important data and said that subsequent regulations based on those findings would be "arbitrary and capricious"
“DINP has previously been proven safe for its intended use by the CPSC itself, as well as other US government bodies and those in Europe and Australia,” a company officials told ChemicalWatch. “The science is clear.”
The American Chemistry Council also criticized the phthalate rules early this year and suggested that they would set an "irresponsible and scientifically unsound precedent" for future chemical regulations. -
EPA Adds 21 Sites, Deletes 90 From Waste Docket
Aug 18, 2015 | BNA Daily Environment Report
The Environmental Protection Agency has added 21 sites and deleted 90 from its hazardous waste compliance docket, according to a notice in the Aug. 17 Federal Register. The additions and deletions bring the new number of federal facilities to 2,323, according to the notice, which is the 28th update to the docket since it was first published in 1988. Federal facilities include lands and improvements to lands, including buildings, structures and equipment owned or leased by the federal government. The docket identifies all federal facilities that must be evaluated to determine if they pose a threat to human health and the environment. Information on facilities that manage hazardous waste is submitted to the EPA under the Resource Conservation and Recovery Act. Under the Comprehensive Environmental Response, Compensation, and Liability Act, the agency must conduct a preliminary assessment for sites listed on the docket “within a reasonable timeframe.” The preliminary assessment is designed to provide information for the EPA to consider when evaluating the site for potential response action or inclusion on the National Priorities List. The docket was last updated Dec. 31, 2014.The list is current as of July 13. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2015-08-17/pdf/2015-20248.pdf.
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Making Kids Safe Is Just Ducky
Aug 17, 2015 | The Huffington Post - Green Blog
By Jim Calio
How do you know that the toys and other products you buy for your kids are safe? You probably don't since good information is hard to come by, but Joshua Kasteler and Safe Ducky can help you find out with one simple test.
Kasteler, 40, spent several years in Asia as a chemical engineer. Part of his job was to test products on the assembly lines for toxicity, often weeding out those that had high levels of toxins such as lead, mercury and phthalates, among others. But he quickly learned that harmful chemicals can often slip through the manufacturing and distribution process and end up in the consumer products we buy in the U.S.
So Kasteler decided he could do something about it. He recently moved from Boston to Los Angeles, and he's started a company called Safe Ducky. Its sole mission is to find out what children's products on the shelves now are safe and which ones are not.
"We don't know much about the chemicals that we expose ourselves and our children to every day," say Kasteler (left, testing for toxins). "We bring home toys and clothing without knowing how they were made, and the fact is, some of those items may have toxic chemicals in them."
Kasteler says the biggest risk factors for toxic products come from three areas: offshore manufacturing, lack of oversight in the manufacturing process itself and limited testing.
"Most products today are not made by the company listed on the label," he says, "but by offshore contract manufacturers. While many of these factories are responsible businesses, the lack of supervision in some of these remote factories can allow for gaps in safety."
Kasteler created Safe Ducky to test children's products right in the store, the first time the consumer comes in direct contact with them. The Safe Ducky process takes a product off the shelf and runs a test with sophisticated portable scanners that allow Kasteler to see the chemical content. In a matter of seconds a read out will tell him--and the store owner--whether or not that product is safe.
Products with toxins over the legal limit are immediately removed from the shelves. Then the store owner and the Safe Ducky team go back to the manufacturer to work out a solution to the problem. When all toxic products have been removed, the store is placed on the Safe Ducky website (www.safeducky.com) , which indicates it is safe for parents to shop there.
This ground level testing is in sharp contrast to the testing that goes on--or doesn't--at the national level.
The Consumer Product Safety Commission (CPSC) is charged by the federal government with testing all imports for harmful chemicals. But the CPSC is woefully underfunded and undermanned. There are only about 500 employees for the entire country, and the budget is only $155 million a year. By contrast, the Food and Drug Administration (FDA) has a $3.2 billion budget and employs 40,000 people.
In 2013 the CPSC examined only 0.07 per cent of products imported to the United States, with half of those inspections made for toys. As far back as 2006 Michael P. Wilson, then a Professor of the School of Public Health at UC Berkeley, warned the U.S. Congress that the U.S. may fall behind the rest of the world without stronger consumer protection against toxic chemicals.
It is possible that pending legislation in Congress will tighten up the testing oversight this fall as the Congress debates the first update to the Toxic Substances Control Act in 40 years. Both industry and consumer groups are working hard to press their point of view
Kasteler is on the right track by taking the process to the local level, where he provides information for both families and retailers about product safety for the products they buy right next door. But he may also be in the vanguard of a new movement to empower consumers everywhere to be more aware of chemical hazards in other things they buy every day.
"This reminds me of that famous clip on YouTube about the guy dancing alone at a rock concert," he says. "Sure, it takes courage to dance by yourself, but it's the first supporter who decides to join the dance that transforms him from that 'crazy dancing guy' to a 'movement'."
Kasteler and Safe Ducky clearly intend to become part of that movement.
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EPA Inspector General Investigating Animas River Spill
Aug 18, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Office of the Inspector General for the Environmental Protection Agency said it will investigate the cause and EPA's response to the release of 3 million gallons of mining waste and sediment into the Animas River in southwest Colorado.
The investigation, spurred by a congressional request, will involve preliminary research into the spill caused when EPA workers accidentally unleashed the wastewater and sludge at the Gold King Mine on Upper Cement Creek near Silverton, Colo., the OIG said in a letter to the EPA Region 8 Office in Denver Aug. 17.
The plume of waste containing elevated levels of arsenic, cadmium, lead and mercury surged from the creek into the Animas River Aug. 5. The plume flowed down the Animas into the San Juan River in New Mexico, then poured into the Colorado River at Lake Powell in Utah (153 DEN A-3, 8/10/15).
The OIG said in a statement it plans to conduct work at Region 8 and at EPA headquarters, requesting documents and interviewing relevant managers and staff in those locations and elsewhere as necessary.
Representatives of Congress and other state and local officials have complained that the EPA was slow to respond to the release of the waste.
On Aug. 15, New Mexico determined that private domestic water well use along the Animas River can resume based on water quality sampling results collected by both the state Environment Department and the EPA. The determination was based on 34 water quality samples taken from private domestic wells .
Gold King Mine continues to release water at the rate of about 600 gallons per minute, the EPA said. The water is being treated at a series of settling ponds before being discharged into Upper Cement Creek.
Collecting Water, Samples
The agency has begun collecting water and sediment samples near the outlet of the San Juan River at Lake Powell, where it believes the contaminants may have reached. The EPA expects no significant impacts to Lake Powell associated with the spill.
The EPA is continuing to collect water quality samples from nine locations near river intakes in New Mexico. It is also taking daily samples from 11 locations in the Navajo Nation. It has doubled its agricultural water deliveries to about 100,000 gallons per day to various locations.
More than 210 EPA employees and contractors are working in the affected region. The Coast Guard has provided 14 responders. About 20 different federal, state and local agencies are involved in the response to the spill, the EPA said.
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EPA Inspector General Begins Investigation Into Mine Spill
Aug 17, 2015 | The Hill - E2 Wire
By Devin Henry
The Environmental Protection Agency’s Office of Inspector General (OIG) said Monday it will begin investigation the Aug. 5 incident that sent 3 million gallons of toxic sludge into Colorado’s Animas River.
In a memo to EPA officials, Assistant Inspector General Carolyn Copper said her office would request documents and interview staffers at both the EPA’s Washington headquarters and its regional offices during the investigation.
The focus, she said, will be the “cause of, and the EPA’s response to” the spill at the shuttered Gold King Mine in Silverton, Colo.
“Due to the scope of the issues involved, the OIG’s Office of Program Evaluation, Office of Audit and Office of Investigations will work collaboratively to conduct parts of this review,” Copper wrote in a memo to the regional administrator covering the Colorado area and an official in the EPA’s Office of Solid Waste and Emergency Response.
“Your offices may receive joint OIG office requests for meetings and information, as well as individual OIG office requests for meetings and information.“
The inspector general investigation comes after a call from Rep. Jason Chaffetz (R-Utah), the chairman of the House Overnight Committee, who has said his panel would conduct its own investigation into the spill.
EPA administrator Gina McCarthy said last week that the agency was planning both an internal and external review of the incident. An OIG spokesman told The Hill last week that the office had launched a probe, but he didn’t immediately have details on its scope.
A team of EPA contractors was inspecting the Gold King Mine on Aug. 5 when they inadvertently sent a flood of contaminated chemicals, including lead, arsenic and other heavy metals, into the Animas River.
The incident is likely to draw attention from more than just the inspector general and the oversight panel.
The Senate Environment and Public Works Committee will hold a hearing on the incident when Congress returns, a spokeswoman for committee chairman Jim Inhofe (R-Okla.) said last week, and the House is likely to follow suit.
“In the coming weeks and months, the committee will be conducting extensive oversight over the causes and the short-term and long-term effects of this serious situation,” House Natural Resources Committee Chairman Rob Bishop (R-Utah) said last week.
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Agency Watchdog To Probe Mine Spill
Aug 17, 2015 | E&E News PM
By Robin Bravender
U.S. EPA's internal watchdog office is investigating the spill that released millions of gallons of polluted water into Colorado and New Mexico river systems.
The agency's inspector general notified EPA officials today that it plans to research the causes of the Aug. 5 spill as well as EPA's response.
The watchdog office launched the investigation in response to a request from Congress, according to the notice to EPA. The probe will be conducted at EPA's Denver-based Region 8 office and EPA headquarters.
The accident -- triggered by an EPA team investigating contamination at the Gold King mine in southwestern Colorado -- spilled about 3 million gallons of water containing pollutants like arsenic, cadmium, lead and mercury into a tributary of the Animas River.
EPA's watchdogs won't be the only ones looking into the spill.
The accident has sparked outrage among EPA's critics, and state and federal officials have also vowed to scrutinize the agency's response (E&ENews PM, Aug. 12).
House Natural Resources Chairman Rob Bishop (R-Utah) said his panel will conduct "extensive oversight" when Congress reconvenes next month; Colorado Sen. Cory Gardner (R) also called for oversight hearings (E&ENews PM, Aug. 11).
During her visit to Durango, Colo., near the Animas River, last week, EPA Administrator Gina McCarthy said the agency would halt its investigation work at all mines and tailing facilities nationwide in the wake of the accident. She said EPA is also evaluating the accident (Greenwire, Aug. 13).
"We will learn lessons from this," McCarthy said, adding that EPA "takes full responsibility."
She said EPA will hold itself "to a higher standard than anyone else."
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Louisiana LNG Projects Pose Minimal Environmental Impact: FERC
Aug 18, 2015 | BNA Daily Environment Report
By Nushin Huq
Two proposed liquefied natural gas projects in Louisiana could proceed with minimal detriment to the environment, the Federal Energy Regulatory Commission staff concluded in two separate environmental impact statements, both issued Aug. 14.
Lake Charles
While the Lake Charles LNG project could have some adverse environmental impacts, most of them would be reduced to less-than-significant levels with the implementation of mitigation steps proposed by the companies in charge of the projects and federal authorities, FERC said in an environmental impact statement.
On March 25, Lake Charles LNG Company LLC, Lake Charles Export Company LLC and Trunkline Gas Company LLC requested approval from FERC to construct new liquefaction facilities next to an existing LNG terminal in Calcasieu Parish, La. (FERC docket number CP14-119). The companies are owned by Energy Transfer Equity LP and Energy Transfer Partners LP.
Once completed, the new facility will have a design capacity of 16.45 million metric tons of LNG per year, providing an LNG export capacity equivalent to about 2 billion cubic feet per day of natural gas, the EIS stated.
FERC staff based its conclusions on a number of factors, including the following:
• The construction of the LNG export terminal would not result in increased LNG vessel traffic;
• About 36 percent of proposed new pipelines would overlap with adjacent existing pipeline right-of-way;
• Much of the above-ground work would be located at existing facilities; and
• Horizontal directional drilling method would be used to cross 22 water bodies, which would avoid direct impacts on those resources.
In addition to mitigation measures the companies outlined, FERC staff developed an additional 96 mitigation measures. FERC staff recommended that those measures be attached as conditions to any authorization issued by FERC.
“We determined that these measures are necessary to reduce adverse impacts associated with the project and, in part, are basing our conclusions on implementation of these measures,” FERC staff said in the EIS.
Sabine Pass
In a separate EIS released on Aug. 14, FERC staff concluded similarly in regard to a proposed amendment to the Sabine Pass LNG terminal.
Cheniere Energy Inc.’s Sabine Pass LNG terminal is located in Cameron Parish, La., on the near the border of Texas and Louisiana. FERC approved construction of the liquefaction project in 2012. On May 6, Sabine Pass Liquefaction LLC and Sabine Pass LNG asked FERC to approve an expansion to the LNG terminal, the East Meter Pipe Project (FERC docket No. CP15-482). The purpose of the project is to supply additional domestic natural gas to the LNG facility, the EIS said.
The project would receive natural gas from a proposed pipeline by Transcontinental Gas Pipeline Company LLC, owned by Williams Partners on the western side of the Sabine Pass LNG terminal site. It would be capable of transporting 2,100 million standard cubic feet per day of natural gas to the liquefaction project.
FERC staff concluded that approval of the project would “not constitute a major federal action significantly affecting the quality of the human environment.” The staff recommended 32 mitigation measures to be included in FERC's final authorization of the project.
To prepare the environmental impact statements, FERC staff reviewed information provided by the applicants and also developed additional information based on data requests, field investigations, scoping, literature research, alternative analysis and contacts with federal, state and local agencies, Indian tribes and individual members of the public, the EIS said. FERC staff prepared the EIS as required by the National Environmental Policy Act 1969. The agency has the exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal under the Natural Gas Act.
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Shell Gets Permit to Drill Deeply for Oil in Chukchi Sea
Aug 18, 2015 | BNA Daily Environment Report
By Alan Kovski
Royal Dutch Shell Plc has received the modified permit it needed to drill into potential oil-bearing layers of rock beneath the Chukchi Sea now that the company has a last piece of equipment nearby for emergency use.
The Interior Department's Bureau of Safety and Environmental Enforcement announced Aug. 17 the granting of the permit for drilling at the Burger prospect, specifically at the lease designated Burger J, in waters north of Alaska.
Shell began drilling July 30 under a conditional permit that allowed the work to begin but limited the depth of the drilling, because there wasn't yet a capping stack handy to be deployed in the event of a loss of well control (148 DEN A-7, 8/3/15).
The capping stack was in transit to the Arctic when Shell applied Aug. 6 for the modified permit to drill. Carried by the icebreaker M/V Fennica, the capping stack is now in the region of the well and capable of being deployed within 24 hours, the BSEE said in its announcement of the modified permit.
Shell also wants to drill on another nearby lease, designated Burger V, but the BSEE said the company for now is limited to only shallow drilling at Burger V, not down into potential oil-bearing layers. If commercial quantities of oil are found at either lease, it will mean the opening up of a new oil frontier.
Permit Welcomed, Decried
The National Ocean Industries Association issued a statement from its president, Randall Luthi, praising Interior Secretary Sally Jewell and the BSEE for “the logical decision allowing Shell to safely proceed with exploratory drilling” in the Chukchi.
“Other nations are pursuing their offshore Arctic oil and natural gas programs, and as Chair of the Arctic Council, the U.S. should be leading the way,” Luthi said.
“It is time to move forward so that Alaskans can benefit from increased economic and energy development off their shores, and the U.S. can reap the rewards of increased energy security,” he said.
Sierra Club President Michael Brune, however, issued a statement saying largely the opposite.
“Granting Shell the permit to drill in the Arctic was the wrong decision, and this fight is far from over,” Brune said. “The president should cancel the lease sales scheduled for 2016 and 2017 and remove the possibility of drilling in the Arctic Ocean leases from all energy plans going forward.”
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Feds Give Final Approval To Shell's Arctic Drilling Plan
Aug 17, 2015 | The Hill - E2 Wire
By Devin Henry
The Obama administration has given Royal Dutch Shell the final approval it needs to drill into potential oil reserves beneath the seafloor of the Arctic Ocean.
The approval, issued by the Bureau of Safety and Environmental Enforcement (BSEE) on Monday, gives the company the chance to drill deeper for oil than it has before.
A Shell rig has already burrowed several thousand feet into the Arctic's sea floor, but officials had said the company couldn't go deeper because it didn't have the proper safety equipment on hand to prevent an accident.
Now that the equipment — a “capping stack” designed to shut in a well during a blowout — is on site, the BSEE has said Shell can drill deep enough to hit potential oil reservoirs beneath the Chukchi Sea off the northeastern coast of Alaska.
“Activities conducted offshore Alaska are being held to the highest safety, environmental protection and emergency response standards,” BSEE Director Brian Salerno said in a statement.
“Now that the required well control system is in place and can be deployed, Shell will be allowed to explore into oil-bearing zones.”
Shell began drilling in the Chukchi’s Burger prospect on July 30 with hopes of finding oil before the end of the drilling season there in late September.
But the company was only permitted to drill shallow wells and not into the rock containing oil until the capping stack was on hand.
The equipment is on board the MSV Fennica, an icebreaker that had been in Portland, Ore. for repairs. The vessel arrived on site last week despite protests from Greenpeace activists who had sought to delay its journey northward.
“This approval means the Obama administration is leaving the fate of the Arctic up to Shell this summer,” Greenpeace USA executive director Annie Leonard said in a statement.
“The Obama administration should know better than to bend over backwards to approve such a reckless plan. The president has seen how big the movement to save the Arctic and to keep fossil fuels in the ground has become, and it’s only going to get bigger if he doesn’t put a stop to this catastrophic plan.”
The Obama administration’s approval of Shell’s drilling plans has angered environmentalists, who say the Arctic is too sensitive an ecosystem to permit oil drilling and risk a potential spill.
Many major green groups released statements Monday slamming the BSEE’s final approval of the company’s drilling plan.
“Today’s decision makes it final: President Obama is willing to allow the pristine Chukchi Sea to become an energy sacrifice zone and worsen climate disruption,” Friends of the Earth climate campaigner Marissa Knodel said.
“President Obama should know better -- Shell has no business in our Arctic Ocean, and he will bear responsibility for the damage that Shell wreaks there.”
Sierra Club executive director Michael Brune said the decision “goes against science, the will of the people and common sense.”
“Granting Shell the permit to drill in the Arctic was the wrong decision, and this fight is far from over. The people will continue to call on President Obama to protect the Arctic and our environment,” he said.
BSEE looked Monday to highlight its oversight of Shell’s drilling excursion.
Federal officials are present on Shell oil rigs to monitor their drilling activities, the agency said, and they’re authorized to order drilling to stop if necessary.
The permit issued Monday also maintains previous restrictions on where Shell can drill, including a minimum spacing of 15 miles between oil rigs to prevent harming the region’s walrus population.
“We will continue to monitor their work around the clock to ensure the utmost safety and environmental stewardship,” BSEE’s Salerno said.
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Obama Administration OKs Shell’s Arctic Drilling
Aug 17, 2015 | PoliticoPro
By Elana Schor
The Obama administration on Monday gave Shell the go-ahead to expand its multibillion-dollar attempt at Arctic offshore oil drilling, aggravating environmentalists just two weeks after the president basked in their praise for pushing an aggressive climate change plan.
The move, which opens up another potential gap between President Barack Obama and Democratic front-runner Hillary Clinton, allows Shell to drill into the oil- and gas-bearing zones in Alaska’s Chukchi Sea, a remote and challenging environment where green groups had fought hard to keep the company away from threatened walruses and polar bears.
Shell last got permission to drill that deeply into the Chukchi, which is estimated to hold more recoverable oil and gas than any coastal area outside the Gulf of Mexico, between 1989 and 1991.
Since its beleaguered 2012 Arctic drilling season ended with a rig running aground while being towed out of Alaska on New Year’s Eve, Shell has beaten back a colorful campaign by eco-activists to disrupt its return to the Last Frontier. Protesters have turned to obstruction by kayaking near the rig as it left harbor in Seattle, dangling from a bridge in Oregon to block a Shell icebreaker, issuing viral videos and circulating old-fashioned legal petitions.
But the administration insisted on Monday that it had thoroughly vetted the operations before giving its final approval.
“Activities conducted offshore Alaska are being held to the highest safety, environmental protection, and emergency response standards,” Brian Salerno, director of the Interior Department’s Bureau of Safety and Environmental Enforcement, said in a statement.
Climate activists who implored Obama to keep the oil industry out of the Arctic’s waters say tapping its oil and gas resources would embarrassingly undercut his work to make the fight against global warming into a legacy issue. And Clinton, facing skepticism among many on the environmental left, appeared to side with them July 29 by telling a New Hampshire television station that “I have doubts about whether we should continue drilling in the Arctic.”
The Democratic presidential front-runner has previously said she favors shielding more areas from drilling but has opposed banning it on all public lands and waters. Environmental groups livid after Interior’s Bureau of Safety and Environmental Enforcement approved Shell’s plans are highly likely to press Clinton to move further left on Arctic oil and gas.
“Last week, President Obama said climate change puts Alaska at the ‘front lines of one of the greatest challenges we face this century,’ and yet today he approved Shell’s plans to drill for oil in the Alaskan Arctic,” Greenpeace USA Executive Director Annie Leonard said in a statement. “The president cannot have it both ways.”
Shell got Interior’s green light to begin work in the Chukchi last month, but that permit blocked the company from oil- and gas-bearing zones beyond 3,000 feet below the surface until a damaged icebreaker ship could return to the area with required safety equipment. The repaired vessel got back to the Arctic in recent days, setting the stage for a final OK of Shell’s drilling plan.
The approval is good for this year’s summer season, set to end in late September.
Shell’s troubled 2012 drilling effort stopped short of oil- and gas-bearing zones in the Chukchi after Interior denied the permits, citing the failure of required safety equipment. An Interior review released in 2013 attributed the stumble to “shortcomings in Shell’s management and oversight of key contractors.”
The company drilled four exploration wells in the Chukchi between 1989 and 1991, according to Interior, including one located in the same Burger Prospect area off the Alaskan coast that Shell is seeking to tap this year. That early effort was abandoned after it yielded mostly natural gas, though newer geological data shows the likelihood that oil is also present.
Shell’s current Alaskan offshore drilling program carries particular urgency for the company, which already has sunk a reported $7 billion-plus into the Arctic even as it slashes spending elsewhere during a historic downturn in oil prices. It’s also crucial for Alaska, where the swoon in crude prices has crunched the state’s budgets and heightened the importance of new discoveries, even in federal waters that don’t yield direct royalty money to the state treasury.
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Feds Allow Shell To Drill For Oil In Chukchi
Aug 17, 2015 | E&E News PM
By Phil Taylor
The Interior Department today approved Royal Dutch Shell PLC to drill into oil-bearing rock in the Chukchi Sea, allowing the company its first opportunity in decades to gauge the frontier area's mineral bounty.
The Bureau of Safety and Environmental Enforcement approved Shell's request to drill deeper at its Burger J site in 140-foot water about 70 miles from the Alaskan village of Wainwright.
BSEE in late July allowed Shell to drill just the top portion of the well but barred it from drilling further until the company's capping stack was on hand to respond to a potential oil spill.
The capping stack is housed on Shell's icebreaker Fennica, which suffered a gash July 3 and had to sail to Portland, Ore., for repairs. The vessel's return to the Arctic theater was briefly delayed by more than a dozen Greenpeace activists who dangled on ropes from a bridge over the Willamette River to impede the ship's passage.
Now the ship is within a day's sail of the drill site, BSEE said.
"Activities conducted offshore Alaska are being held to the highest safety, environmental protection and emergency response standards," BSEE Director Brian Salerno said in a statement. "Now that the required well control system is in place and can be deployed, Shell will be allowed to explore into oil-bearing zones for Burger J. We will continue to monitor their work around the clock to ensure the utmost safety and environmental stewardship."
Today's approval will allow Shell its first opportunity to gauge the mineral wealth in leases it purchased in 2008 for $2.1 billion. The company says it has now invested roughly $7 billion in its exploration campaign in Arctic waters believed to hold more than 20 billion barrels of oil.
BSEE said it has safety inspectors on Shell's drilling units the Noble Discoverer and Transocean Polar Pioneer monitoring the company's performance around the clock.
A handful of environmental groups this afternoon denounced the government's decision to approve Shell's plan.
Greenpeace USA Executive Director Annie Leonard said it was hypocritical for President Obama to warn of climate change ahead of his visit to Alaska later this month while simultaneously approving a plan to unlock massive amounts of climate-warming fossil fuels.
"The president cannot have it both ways," she said. "While President Obama has made some progress during his term on reducing emissions through measures like the recent Clean Power Plan, his environmental legacy will be determined by the steps that he takes to keep fossil fuels in the ground."
But Randall Luthi, president of the National Ocean Industries Association, called BSEE's move a "logical decision."
"Other nations are pursuing their offshore Arctic oil and natural gas programs, and as chair of the Arctic Council, the U.S. should be leading the way," Luthi said. "Shell has stationed safety and support equipment on site and has done everything asked and more, with the approval of federal regulators, to set up for this short drilling season -- with no guarantee of success."
Shell drilled multiple wells in the Chukchi and Beaufort seas in the 1980s and 1990s.
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Greens Decry Obama’s Shell Game
Aug 17, 2015 | PoliticoPro
By Elana Schor
President Barack Obama crushed greens’ hearts Monday by giving Shell the final go-ahead to drill for oil in Alaska’s Arctic waters, just two weeks after he thrilled them by issuing his landmark regulations on climate change.
In the long run, Obama’s successors will determine whether the industry can tap Alaska’s prized offshore oil — and one 2016 contender, Hillary Clinton, has expressed “doubts” about opening the Arctic to drilling. But it was Obama’s Interior Department that gave Shell itsnod Monday, in the face of an opposition campaign that has seen activists dangling from a bridge in Oregon and swarming the company’s Arctic-bound rig with kayaks to try to block the project.
For greens, the announcement was even more galling because it arrived only two weeks before Obama is due to talk climate change during his first visit to Alaska’s Arctic.
“The president cannot have it both ways,” Greenpeace USA Executive Director Annie Leonard said. “Announcing a tour of Alaska to highlight climate change days before giving Shell the final approval to drill in the Arctic ocean is deeply hypocritical.”
Monday’s decision was the latest pro-oil move from a president who has steadily offered mixed signals on fossil fuels throughout his presidency. Obama has repeatedly cheered the economic benefits of the domestic oil and gas boom while moving to open up parts the U.S. coast to possible offshore drilling — but he has also pushed to strip away billions of dollars in industry tax breaks, championed big spending on wind and solar power and, at the very least, dragged out his decision on the Keystone XL oil pipeline for more than six years.
Even the Interior Department’s approval of Shell’s Arctic plans was no slam-dunk win for the company, which has already spent $7 billion on the risky search for oil deposits beneath the Arctic waters.
The new permit is good for several weeks only, and the oil giant doesn’t expect to start production in the Chukchi Sea until 2030, long after its current lease expires in 2020. Monday’s announcement also came with some tighter safety restrictions than Shell had faced before its last, ill-fated attempt at Arctic offshore drilling in 2012, when a series of pratfalls culminated in a rig breaking free and running aground while being towed out of Alaska on New Year’s Eve.
This time, other major oil companies are watching to see whether Shell succeeds in its quest for oil off the Alaska coast, which will have the U.S. join the ranks of Arctic nations such as Norway and Russia that are exploring for new energy deposits as the region’s ice cover recedes.
Even as climate activists lamented the Interior Department’s decision, they vowed to campaign even harder to convince Obama and the next president that Shell has no business in the Arctic.
Keeping the company out of the Arctic is “going to be a real battle, because Shell defines irresponsible and they will keep coming for this oil,” climate activist and author Bill McKibben said by email. Given the “clear” evidence that burning Arctic crude would worsen global warming, he added, “there’s at least a chance, long term, that reason will prevail. Only, of course, if reason comes with a movement to back it up, which all of us will do our best to keep providing.”
Shell, playing the long game, said it aims to prove the viability of its Arctic drilling effort.
“We remain committed to operating in a safe, environmentally responsible manner and look forward to evaluating what could potentially become a national energy resource base,” Shell spokesman Curtis Smith said by email.
Shell CEO Ben van Beurden has said he anticipates production from Alaskan leases to start in 2030, which would require an extension of its current Chukchi lease term. Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) is working to make that possible: She added language allowing Interior to give Alaskan drillers another decade to explore to a bill she’s sponsoring that would lift the United States’ ban on oil exports.
Some greens are optimistic that Shell’s plans will still fail.
“It may well be that action on climate is the reason these resources aren’t developed,” said Mike LeVine, senior counsel at the green group Oceana. “It may be that [the oil is] not there — and more attention to the issue helps on all those fronts.”
The Chukchi Sea is estimated to hold more recoverable oil than any coastal area outside the Gulf of Mexico.
Shell last got permission to drill into its oil-bearing zones between 1989 and 1991, when it ended its operations after discovering only natural gas. And since its missteps in 2012, the company has faced a colorful campaign by eco-activists, who have tried to obstruct its rig with a flotilla of kayaks as it left harbor in Seattle, dangled from a bridge in Oregon to block its icebreaker and issued viral videos as well as circulating old-fashioned legal petitions.
“They see this season and next season as an opportunity to prove to their shareholders” that its Arctic leases are economically viable, Alaska Wilderness League Executive Director Cindy Shogan said, while “we see this season and next season as showing the Obama administration” that allowing further drilling in the area is a mistake.
The Obama administration insisted on Monday that it had thoroughly vetted the oil company’s operations before giving its approval.
“Activities conducted offshore Alaska are being held to the highest safety, environmental protection, and emergency response standards,” Brian Salerno, director of the Interior Department’s Bureau of Safety and Environmental Enforcement said in a statement.
But greens who implored Obama to keep the oil industry out of Arctic waters said several elements of Shell’s new drilling permit stronger are actually weaker on safety than the 2012 version. Those include testing requirements for key safety equipment, which now need to be performed every two weeks rather than every week, and less stringent air quality standards.
Clinton, who is facing skepticism among many on the environmental left, appeared to side with greens on July 29 by telling a New Hampshire television station that “I have doubts about whether we should continue drilling in the Arctic.”
Clinton has previously said she favors shielding more areas from drilling, but has opposedbanning it on all public lands and waters. Activists livid after BSEE approved Shell’s plans are highly likely to press her to move further left on Arctic oil and gas.
Shell got Interior’s green light to begin work in the Chukchi last month, but that permit blocked the company from drilling beyond 3,000 feet below the surface, short of the oil- and gas-bearing zones, until a damaged icebreaker ship could return to the area with required safety equipment. The repaired vessel returned to the Arctic in recent days, setting the stage for a final OK of Shell’s drilling plan.
The approval is good for this year’s summer season, set to end in late September.
Shell’s troubled 2012 drilling effort stopped short of oil- and gas-bearing zones in the Chukchi after Interior denied the permits, citing the failure of required safety equipment. An Interior review released in 2013 attributed the stumble to “shortcomings in Shell’s management and oversight of key contractors.”
The company drilled four exploration wells in the Chukchi between 1989 and 1991, according to Interior, including one located in the same Burger Prospect area off the Alaskan coast that Shell is seeking to tap this year. That early effort was abandoned after it yielded mostly natural gas, though newer geological data shows the likelihood that oil is also present.
Monday’s approval from Interior allows Shell to expand drilling at one well in the Burger area. The company remains barred from deeper access to a second well in the prospect — it is prohibited from drilling both prospects simultaneously, since both lie within a buffer zone that the administration previously established to protect walruses.
Shell’s current Alaskan offshore drilling program carries particular urgency for the company as it slashes spending elsewhere during a historic downturn in oil prices. It’s also crucial for Alaska, where the swoon in crude prices has crunched the state’s budgets and heightened the importance of new discoveries, even in federal waters that don’t yield direct royalty money for the state treasury.
Arctic drilling also stands to prove a crucial component of Obama’s climate legacy, despite the brighter spotlight his aides hope to shine on EPA emissions regulations. But environmentalists are aware of how much 2016 matters for their battle.
The Sierra Club’s lands protection director, Athan Manuel, said that “the next president will have big influence in whether a production platform is ever placed” in the Arctic, even as he promised activists wouldn’t give up on pressuring Obama to halt drilling off the Alaskan coast. “It’s just not something you’d expect from a Democratic president.”
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On Plan's Eve, EPA Urged To Curb Methane From Existing Drilling Sources
Aug 17, 2015 | InsideEPA
By Bridget DiCosmo
Environmentalists are renewing their calls for EPA to eventually launch a new rulemaking to limit methane releases from existing oil and gas sources, saying the package of pending policies that the agency is slated to release in the coming days to curb the potent greenhouse gas (GHG) is unlikely to result in sufficient reductions.
“It is very clear we're going to need regulation of existing sources,” Mark Brownstein, vice president of climate and energy for Environmental Defense Fund (EDF), said during an Aug. 17 press call.
While they renewed their calls for a new rulemaking to address existing sources, Brownstein and others said they are also readying efforts to consider whether the forthcoming policies will attain the administration's target of slashing the sector's emissions by 40-45 percent by 2025.
“One of the things we'll be looking at is how far down the road it [the proposal] takes us and how quickly it gets us there,” Brownstein said.
The call, “Methane: Enormous Emissions, Outsized Opportunity,” was aimed at previewing what the environmentalists will be focusing on as the administration prepares to unveil, as early as this week, its proposed measures to cut the sector's methane as early as this week.
The package includes a proposed rule, known as a new source performance standard (NSPS), regulating methane and volatile organic compounds (VOC) from certain new and modified sources, the first time the agency will regulate the GHG from the oil and gas sector.
The rule will amend the agency's 2012 standards for some sources that only targeted VOCs, a measure that has provided a co-benefit of also reducing methane. The proposed rule, a draft version of which EPA sent to the White House June 24, will target VOCs and methane for sources of emissions within the sector, some of which were the subject of five 2014 white papers: completions of hydraulically fractured oil wells, leaks, pneumatic devices, compressors and liquids unloading operations.
The agency is also crafting control technique guidelines (CTG) regulating VOCs from existing sources in areas that are out of attainment with air quality standards for ozone.
Methane Plan
EPA is developing the measures under the terms of President Obama's climate plan to cut methane from the oil and gas sector. The president's plan required EPA to publish a final NSPS, under section 111(b) of the Clean Air Act, by the end of 2016 -- shortly before the administration leaves office.
The agency also recently proposed a new plan for industry groups to voluntarily cut methane from existing sources.
In recent meetings on the NSPS with the White House Office of Management & Budget (OMB), the American Petroleum Institute (API) and other industry groups have urged the administration to avoid direct regulation of methane and instead continue to focus on reducing VOCs.
But environmentalists say that while the agency's 2012 VOC rule has resulted in some indirect methane reductions, they say it does not go far enough and that the administration will eventually have to craft a rule under section 111(d) governing existing sources.
And in their recent meetings with administration officials, environmentalists have pushed for the NSPS to be crafted in a way that captures a broad range of “new” sources, an approach that would preserve options for eventually regulating a similarly broad range of existing sources.
And they renewed those calls during the Aug. 17 call. Clean Air Task Force's Conrad Schneider said that whether EPA's pending CTG is adequate for curbing existing sources would largely depend on “how exactly EPA defines sources that might be subjected” to the controls.
The CTG rule would target only VOCs, not methane, Schneider said, and “existing sources need direct methane regulation to ensure” meeting the 2025 target, but added that the guideline could have significant co-benefits of cutting methane.
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Green Groups Ask What's Next in EPA Methane Limits
Aug 18, 2015 | BNA Daily Environment Report
By Andrea Vittorio
As the Environmental Protection Agency gets ready to propose methane emission limits for new oil and natural gas wells, environmental groups are already asking what's next for existing sources.
The agency's proposed standards for new and modified wells, expected sometime in August, are part of an Obama administration strategy to curb emissions of methane, a potent greenhouse gas, by as much as 45 percent by 2025 (10 DEN A-1, 1/15/15).
“What we hope to see from the administration in the next week or two are regulations for the oil and gas industry that begin to move us towards achieving that goal,” which likely cannot be met unless existing sources of methane emissions are also regulated, Mark Brownstein, a vice president in the Environmental Defense Fund's climate and energy program, said in a media briefing Aug. 17.
Brownstein said he'll be looking at the upcoming proposal to see what the EPA's game plan is for existing sources and how such a plan may unfold over time. The agency has not said yet what it intends to do with existing sources of methane, although regulating new and modified sources under Section 111(b) of the Clean Air Act would trigger requirements for existing sources under Section 111(d).
An EPA spokeswoman had “no update” on how and when the agency plans to address existing sources of methane emissions from the oil and gas industry.
Industry representatives have called the rules unnecessary at a time when emissions from the sector are already declining. The administration has acknowledged that the sector's methane emissions have dropped by 16 percent since 1990, but they're projected to grow by more than 25 percent by 2025 without new controls.
Technology for Reductions Exists
Conrad Schneider, advocacy director for the Clean Air Task Force, said there are proven, low-cost technologies that oil and gas companies can use to significantly reduce leaks and capture more methane.
Research commissioned by both the task force and EDF has shown that “most of these measures pay for themselves in a few years, if not a few months,” Schneider said during the briefing. “But without regulations, most companies don't bother to adopt these technologies.”
Some in the oil and gas industry have already adopted solutions from companies like FLIR Systems, which makes infrared cameras that can detect methane leaks. Brent Lammert, who directs FLIR's U.S. sales, said that in Colorado and Wyoming—where controls for fugitive emissions from oil and gas operations are in place—companies are “rapidly adopting this technology and putting it to use.”
Methane accounted for 10 percent of U.S. emissions in 2013, according to EPA data; however, field studies conducted by the EDF suggest that data may be underestimating their scale.
The group has put out a series of studies looking at how much and from where methane is escaping across the natural gas supply chain, including one scheduled for release Aug. 18 focusing on natural gas gathering facilities and processing plants.
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U.S. Is Set to Propose Regulation to Cut Methane Emissions
Aug 17, 2015 | The New York Times
By Coral Davenport
The Obama administration is expected to propose as soon as Tuesday the first-ever federal regulation to cut emissions of methane, a powerful greenhouse gas that contributes to global warming, by the nation’s oil and natural-gas industry, officials familiar with the plan said on Monday.
The proposed rule would call for the reduction of methane emissions by 40 to 45 percent over the next decade from 2012 levels, the officials said. The proposal was widely expected, after the Environmental Protection Agencysaid in January that it was working on such a plan.
The new rules are part of Mr. Obama’s broad push for regulations meant to cut emissions of planet-warming gases from different sectors of the economy. This month, Mr. Obama unveiled the centerpiece of that plan, a regulation meant to cut emissions of carbon dioxide by 32 percent from 2005 levels by 2030, a move that could transform the way the nation produces and consumes electric power.
The new rules on methane could create a tougher regulatory scheme on the nation’s fossil fuel production, particularly on the way that companies extract, move and store natural gas.
Environmental advocates have long urged the Obama administration to crack down on methane emissions. Most of the greenhouse gas pollution in the United States comes from carbon dioxide, which is produced by burning coal, oil and natural gas. Methane, which leaks from oil and gas wells, accounts for just 9 percent of the nation’s greenhouse gas pollution — but it is over 20 times more potent than carbon dioxide, so even small amounts of it can have a big impact on global warming.
The oil and gas industry has resisted methane regulations, insisting that new rules could stymie a booming natural gas industry and that voluntary industrywide standards are sufficient to prevent methane leaks. Mr. Obama is pressing efforts to cut harmful emissions as he works toward forging a United Nations global warming accord in Paris in December. The aim of the accord is to commit every nation to enact policies to cut greenhouse gases. The United States has already submitted a plan to the United Nations laying out how it will cut domestic greenhouse gas emissions by up to 28 percent from 2005 levels by 2025.
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Fate of Shell Arctic Homeport in Seattle Begins Litigation
Aug 18, 2015 | BNA Daily Environment Report
By Paul Shukovsky
The fate of Royal Dutch Shell's Arctic exploration homeport in Seattle now hangs in the balance during an administrative hearing that began Aug. 13 on whether the facility can be classified as a cargo terminal as required by its municipal permit.
Shell has met with strong backlash in Seattle in regard to locating the homeport for its multibillion-dollar effort to drill in Arctic waters on the city's working waterfront. Even as a fleet of some 30 vessels—including the massive Polar Explorer drilling platform—is on station in the Chukchi Sea, Shell contractor Foss Maritime Co. has been waging legal battles to ensure it can continue to service the fleet at the Port of Seattle, a separate jurisdiction from the city of Seattle.
City Hearing Examiner Anne Watanabe ruled at the outset that she would not consider allegations brought by Foss and the port that political interference from the Seattle mayor and City Council influenced municipal land use regulators to issue a notice of violation based on a city code interpretation that in essence says that the homeport does not meet the permitted use of “cargo terminal” as defined by the Seattle Municipal Code (86 DEN A-5, 5/5/15).
Setting aside the concerns of attorneys for the city and for Earthjustice—which represents environmental-group interveners—Watanabe allowed evidence comparing what kind of vessels use various terminals at the port with the permits held for those terminals.
Cargo Terminal?
Litigants at the hearing argued over definition of “cargo terminal.” Attorneys for the port and Foss recited a litany of vessel types—such as research, military and fishing boats—that appear unrelated to the hauling of cargo but commonly call on cargo terminals.
Outside counsel to the port, Patrick J. Schneider of the Seattle office of Foster Pepper PLLC, said the city planners' interpretation of code “undoes the port's entire business model.”
The hearing is expected to end Aug. 24 with Watanabe likely reserving a ruling pending further deliberation.
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Court Denies Air Toxics Exemption for Power Plant
Aug 18, 2015 | BNA Daily Environment Report
By Andrew Childers
A federal appellate court denied a Colorado power company's motion to suspend its obligation to comply with toxic air pollutant standards for power plants while the Environmental Protection Agency responds to a recent U.S. Supreme Court decision (White Stallion Energy Ctr., LLC v. EPA, D.C. Cir., No. 12-1100, order issued 8/17/15).
The U.S. Court of Appeals for the District of Columbia Circuit, in its Aug. 17 order, said Tri-State Generation and Transmission Association Inc. could file another motion seeking to be exempted from the mercury and air toxics standards in the future if it “cannot obtain timely relief from the EPA or the state of Colorado.”
Tri-State Generation and Transmission Association had asked the D.C. Circuit to suspend compliance obligations for the company's coal-fired Nucla Station power plant in Colorado by Sept. 1. The company argued that such action is necessary, because it has until Sept. 1 to decide whether to shut down the plant or spend millions of dollars to install a new pollution-control device needed to meet the rule's emissions limit for hydrochloric acid.
The motion was opposed by the EPA, which said it intends to address the U.S. Supreme Court's recent ruling on the legality of the mercury and air toxics standards by spring 2016 (154 DEN A-4, 8/11/15).
The Supreme Court in June ruled that the EPA was required to consider compliance costs when deciding whether it was “appropriate and necessary” to regulate mercury emissions from power plants, a finding that triggered promulgation of the MATS rule, which is estimated to cost the power sector $9.6 billion per year to comply (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (U.S. 2015) ).
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Environmentalists Ramp Up Push For EPA To Tighten Pending Utility ELG
Aug 17, 2015 | InsideEPA
By Bridget DiCosmo
Environmentalists are using meetings with top EPA and White House officials to ramp up their push for EPA to use one of the two strictest options it proposed for its looming final power plant effluent limitation guideline (ELG) to curb wastewater discharges from the sector, and to include various other measures to tighten the regulation.
The final rule, which EPA must issue by a Sept. 30 judicial deadline, has been under White House Office of Management & Budget (OMB) mandatory pre-publication review since July 2. The policy will update the existing ELG standards which have not been revised since 1982. One environmentalist says the rule "will be a big improvement over the status quo, regardless of what option EPA is likely to pick" given the lack of prior updates.
"I think there will be a lot to like," says the source about the final rule, but nevertheless environmentalists are using their meetings with the administration to reiterate their calls for a sufficiently strict ELG.
For example, several major environmental groups, including Earthjustice and Sierra Club, met with EPA and OMB officials July 30 to ensure that the rule requires "best available technology (BAT)" to curb discharges. They say only two of the five control options EPA outlined in the proposed version of the rule would satisfy BAT.
In a separate meeting on the ELG, held Aug. 3 with Clean Water Action, the Association of Metropolitan Water Agencies and American Water Works Association, water industry officials stressed the importance of a final rule that addresses bromide discharges upstream of drinking water treatment plants. The concern is that bromides can interact with treatment processes at public drinking water intake systems to form disinfection byproducts, which are linked to some cancers, creating major compliance problems for the drinking water plants.
EPA says it uses technology-based ELG standards to reduce industrial discharges of pollutants into U.S. waters, and the requirements are incorporated into Clean Air Act national pollutant discharge elimination system discharge permits issued by the agency and states and through the national pretreatment program.
On its "Rulemaking Gateway" website of pending regulations, EPA says the steam electric EGL affects power plants using nuclear or fossil fuels such as coal, oil and natural gas. The agency conducted a study in 2009 that found the 1982 ELG was inadequate to address discharges and needed to be updated to protect water quality. But EPA's delay in revising the rule spurred advocates to sue the agency and secure the Sept. 30 deadline for a final rule.
'Strongest Rule'
In their July 30 meeting with EPA and OMB, the groups Earthjustice, Sierra Club, Southern Environmental Law Center and Waterkeepers Alliance reiterated their jointly issued comments on the April 19, 2013 proposed rule which urged the agency to opt for one of the two strictest versions of the proposed ELG. "We reiterated that we want the strongest rule possible," a second environmentalist says of the recent meeting.
The two options are chemical precipitation followed by mechanical evaporation, and chemical precipitation followed by biological treatment. They say those options -- more stringent than the other three EPA floated -- are essential to put industry on a path to eventually meeting a zero liquid discharge target.
EPA outlined five options for curbing such discharges in the proposed ELG, but has indicated it is unlikely to adopt the most stringent of the controls, arguing that portions of that standard may be too costly and could violate the CWA requirement that such rules be "economically achievable."
But environmentalists have repeatedly urged the agency to adopt either of the two most stringent options and have threatened to sue EPA if it finalizes a weaker standard.
Most recently, they argued in a June 17 report that EPA underestimated the monetary value human health benefits associated with the rule in its earlier proposal, saying that environmental groups' estimate shows that a "comprehensive valuation" puts the total cost savings at more than the agency's estimated $14 million to $20 million per year.
During the July 30 meeting at OMB, the environmental groups reiterated their comments on the proposal that "includes so-called 'preferred' options that would do next to nothing to curb dangerous pollution" and would "leave other major waste streams unregulated--including large amounts of toxic bottom ash waste."
Compliance Deadlines
The first environmentalist says that the groups also stressed during the July 30 meeting that regardless of the option EPA adopts in the final rule, the agency can make the ELG more stringent in other respects, such as setting strict deadlines for compliance and addressing legacy wastewater.
Environmentalists took issue with the proposed rule's decision to exempt existing, "legacy" wastewater stored in impoundments but discharged after the rule goes into effect from the rule's requirements.
They argue that EPA must instead evaluate and determine BAT for each legacy wastewater stream because the CWA requires the agency to establish effluent limits that reduce or eliminate discharges of pollutants regardless of when those pollutants were first generated.
The groups also argue that the "plain language" of the CWA requires compliance with ELGs within three years of a final rule, and that the proposed rule's compliance deadline allows for "three years of delay" before any compliance is required and sets no hard deadline for compliance for standards implemented through state-issue permits, according to the 2013 comments.
"EPA must state in the final rule that compliance is required with the new BAT requirements 'as soon as possible, but no later than three years from the effective date of the final rule.'" the comments say.
Upstream Discharges
In a separate Aug. 3 meeting with administration officials, representatives from the groups Clean Water Action, Association of Metropolitan Water Agencies and American Water Works Association stressed the importance of a final rule that addresses bromide discharges upstream of drinking water treatment plants.
The concern is that bromides can interact with treatment processes at public drinking water intake systems to form disinfection byproducts, which are linked to some cancers, creating major compliance problems for the drinking water plants.
A third environmentalist says that while environmentalists' favored approach of mechanical evaporation would help address the issue, they are "not real optimistic" it will be addressed in the final rule.
The utility ELG will update the current limits for the sector to account for liquid discharges that have become more toxic in recent years, as plants are installing equipment, such as scrubbers, to meet new air regulations.
EPA's Rulemaking Gateway says the agency is slated to publish the final rule in the Federal Register sometime in September, which would allow it to meet the Sept. 30 judicial deadline.
OMB review typically takes 90 days -- but can take more or less time depending on the rule -- and the agency's decision to send the rule to the White House July 2 suggests it could meet that deadline.
EPA de facto water chief Ken Kopocis has also previously said the agency is on track to meet the Sept. 30 judicial deadline for issuing the final rule.
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D.C. Circuit's CSAPR Ruling Casts Doubt Over Future Interstate Air Trading
Aug 17, 2015 | InsideEPA
By Stuart Parker
The U.S. Court of Appeals for the District of Columbia Circuit's ruling remanding Cross-State Air Pollution Rule (CSAPR) "budgets" to EPA for reconsideration casts major doubt over the viability of any future agency interstate emissions trading program because of strict limits the court appears to place on such programs, sources say.
But an EPA spokeswoman counters that "[t]his is not EPA's reading" of the D.C. Circuit's July 28 decision inEME Homer City Generation L.P. v. EPA, which remanded the budgets but left the rest of the landmark sulfur dioxide (SO2) and nitrogen oxides (NOx) emissions trading program intact. The spokeswoman says EPA will address the decision in a pending rulemaking designed to help further cut transported emissions beyond CSAPR's mandates.
The D.C. Circuit's ruling for now ends long-running litigation of CSAPR -- although some related lawsuits continue -- following an initial 2-1 decision issued in 2012 that rejected all challenges to the trading program. Critics of the rule then appealed it to the Supreme Court, which issued a 6-2 ruling in April 2014 that upheld the overall structure of the trading regime.
However, the high court did not address a host of technical and other challenges to the rule -- including fights over the budgets, which are emissions limits established for states under CSAPR. The justices remanded the litigation over the rule to the D.C. Circuit, which issued a July 28 unanimous ruling that left the structure of the rule largely intact, but vacated and remanded to EPA the budgets for 13 states after finding flaws in EPA's approach.
In last month's EME Homer City ruling, the unanimous three-judge panel expressed concern that EPA's vacated budgets led to "over-control" -- forcing upwind states to cut emissions more than is required for downwind states to meet regulatory air standards. The court's concerns about over-control will have serious ramifications going forward for EPA's cost-effectiveness thresholds that are key to interstate trading efforts, sources say.
The appellate court appears to imply that state-specific thresholds for cost-effectiveness are needed -- which would effectively eliminate interstate trading as a policy option, some legal observers say.
Judge Brett Kavanaugh, writing the unanimous opinion in the new EME Homer City decision, focused on the need to avoid over-control of emissions from upwind states in CSAPR.
CSAPR seeks to help states attain the 1997 ozone national ambient air quality standards (NAAQS), expressed as 85 parts per billion (ppb), and also the 2006 fine particulate matter (PM2.5) NAAQS, set at 15 micrograms per cubic meter (ug/m3) by curbing ozone-forming NOx and SO2 that leads to PM2.5 formation.
The Supreme Court in its ruling on CSAPR said on the subject that over-control of emissions from an upwind state to a particular downwind location to which it is "linked" is permissible only in certain circumstances. Linked states are those contributing pollution amounting to at least 1 percent of the national ambient air quality standard (NAAQS) for either ozone or PM2.5 in areas failing to attain these standards.
Such over-control may be tolerated if there are other downwind areas also linked to the upwind state that are in NAAQS "nonattainment," or which see their "maintenance" of NAAQS attainment threatened by the upwind emissions. The high court left open the possibility of "as-applied" challenges by states if they feel they are being over-controlled and are not contributing to the NAAQS attainment problems of any downwind area.
'As-Applied Challenges'
Kavanaugh in his latest ruling says that "[i]n evaluating petitioners' as-applied challenges" to the CSAPR emissions budgets "we thus must determine whether a downwind location would still attain its NAAQS if linked upwind States were subject to less stringent emissions limits" as a result of the high court's decision.
He further judges stringency of controls in terms of EPA's cost-effectiveness thresholds, which are measured in dollars per ton of pollution prevented. The agency in CSAPR established four such thresholds: $500/ton for all states in the annual NOx trading pool; $500/ton for the states in the ozone-season (summertime) trading pool; $2,300/ton for SO2 for states in trading Group One, and $500/ton for SO2 trading Group Two.
Kavanaugh holds that if an upwind state can reduce its emissions at a lower cost than that assumed by EPA -- for example, $100/ton, rather than $500/ton -- and still meet its obligations to help the downwind areas to which it is linked meet the NAAQS, then this is evidence of unlawful over-control.
EPA in CSAPR employed such uniform cost-effectiveness thresholds to provide the basis for interstate trading. States are permitted to trade with each other if they have the same cost-effectiveness threshold -- so Group One SO2 states may not trade with states in Group Two.
The agency in the suit argued that uniformity is essential to the effective functioning of a market, because states required to install more expensive controls cannot trade on an equal basis with those only required to impose much cheaper controls. Sources note that utilities operating in multiple states will generate power wherever it is cheapest for them to do so, and electricity markets will buy power generated at the cheapest price, creating the danger of "leakage," or migration of generation to the lower-cost -- and frequently upwind -- states.
Kavanaugh in his ruling cites EPA's argument from briefing in the case: "EPA says that uniform cost thresholds are important because they subject 'to stricter regulation those States that have done relatively less in the past to control their pollution' and prevent those States from 'free riding on their neighbors' efforts to reduce pollution.'"
But Kavanaugh dismisses such concerns, writing that the Supreme Court's opinion "explicitly authorized as-applied challenges that, when successful under the principles outlined by the Court, will necessarily mean a lack of uniformity in certain circumstances. . . . EPA's uniform cost thresholds have required States to reduce pollutants beyond the point necessary to achieve downwind attainment. That violates the Supreme Court's clear mandate in EME Homer."
Using the existing "linkage" test, some 26 states would appear to be linked to downwind nonattainment or "maintenance" areas for the purposes of the next transport rule, according to an Aug. 4 notice of data availability (NODA) containing the latest EPA air quality modeling to support a new rule. EPA in the NODA stresses, however, that it will not decide on policy issues such as cost-effectiveness thresholds under it proposes another transport rule
Sources say that this conception of how to measure over-control is problematic. One environmental legal source says it "will have crippling impacts" on EPA's ability to use trading programs to address the issue of interstate pollution if Kavanaugh's view prevails in the entire circuit, suggesting that a motion for en bancreview from EPA or other supporters of CSAPR among environmental groups is a possibility.
Command-And-Control Regulation
If Kavanaugh's ruling stands, the power industry "will have shot itself in the foot" in its opposition to CSAPR, because by eliminating interstate trading as an option, the courts leave EPA more inclined to impose stricter command-and-control type regulation of individual power plants, says the environmentalist.
An industry legal source agrees that EPA could struggle to use interstate trading again in the pollutant transport context as a result of the new ruling. That could hinder the agency's ability to use trading, which allows companies to either install pollution controls and earn emissions reduction compliance credits, or buy credits to comply.
But the source argues that "it wasn't so much the D.C. Circuit's opinion as the Supreme Court's opinion that sounded the death knell," suggesting Kavanaugh's interpretation of the high court's opinion is correct.
"In the future, you are pretty much going to see intrastate programs," says the source. Intrastate emissions trading programs are much more limited in scope as they only allow trading of emissions between facilities within one state, whereas interstate programs allow trading across several states. CSAPR includes both types of trading.
The industry source notes that interstate trading was already limited in CSAPR, due to a previous D.C. Circuit ruling that remanded the Clean Air Interstate Rule (CAIR), CSAPR's predecessor program. The court in that 2008 decision found that CAIR had failed to tie upwind emissions to downwind air quality problems, among other failings.
The source says that because of the potential significant restrictions on future interstate trading, the overall cost-effectiveness of CSAPR and successor rules will fall, even as the costs to utilities in certain states also fall. CSAPR will not be able to cut pollution as much to help states attain the agency's ozone and PM2.5 NAAQS, the source says, and certain states like Texas will see their emissions budgets rise in the future.
The real importance of the court's remand, sources agree, is for future transport rules, because much of the country is already attaining the 1997 ozone NAAQS, and indeed many areas will meet the tougher 2008 standard without the need for new regulation. If EPA as expected adopts a NAAQS of 70 ppb or lower, many areas will be thrown into nonattainment, however, making interstate transport a highly-charged issue once more.
Cost-Effectiveness Thresholds
But a second environmental attorney disagrees that the EME Homer City ruling limits trading, and argues that EPA could "fine tune" its approach, perhaps by using more groups of states with different cost-effectiveness thresholds. The agency could "differentiate a bit more between differently situated states," the source says.
One Northeastern air pollution expert adds that the new ruling does little or nothing to curb interstate trading, because the court already found unfettered trading illegal under CAIR.
The "latest D.C. Circuit decision may result in increases in some state emission budgets, but the constraints on interstate trading already existed from the CAIR holding. To the extent leakage may occur, it would occur no matter the program, if from a covered state to an uncovered state," according to the source.
The source notes that EPA in its recent NODA released new air quality modeling data to support its forthcoming interstate transport rule, expected in the fall. In the document, EPA outlines its projections of which states will struggle to meet the 2008 ozone NAAQS in 2017, and what the contribution of upwind states to downwind states' NAAQS attainment problems will be in future rulemakings.
The first environmentalist, however, says Kavanaugh's opinion "is a superficial analysis that does not give any credence at all to the Calpines of the world," referring to electric utility Calpine that supported EPA in the case. Calpine is one of a group of "clean" utilities using a high percentage of gas-powered, nuclear or renewable generation that backed CSAPR, and in particular EPA's consideration of cost-effectiveness in the rule. The source says it is a "reasonable prospect" that the D.C. Circuit's opinion is the "death knell" for interstate trading in interstate transport rules.
Further, when EPA reconsiders CSAPR on remand, it would be "indefensible" for the agency to do so without re-gearing the rule to meet current NAAQS. Failure to issue a revised transport rule that seeks to meet the latest NAAQS would "provoke a slam-dunk lawsuit from public health advocates," the source says.
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Small Mining Companies Sue EPA, Corps Over Water Rule
Aug 18, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
A Washington-based mining and exploration association became the latest group to sue the Environmental Protection Agency and the U.S. Army Corps of Engineers over the final clean water rule that takes effect Aug. 28 (Am. Exploration & Mining Ass'n v. EPA, D.D.C., No. 1:15-cv-01323, 8/14/15).
In a complaint filed Aug. 14 in the U.S. District Court for the District of Columbia, the Spokane, Wash.-based American Exploration & Mining Association accused the EPA and the corps of allegedly violating the Regulatory Flexibility Act (RFA) and the Administrative Procedure Act by promulgating the final clean water rule on June 29 (80 Fed. Reg. 37,054).
The final clean water rule (RIN 2040-AF30) sought to clarify which waters and wetlands received Clean Water Act protections under federal permitting, oil spill prevention and state water quality certification programs.
The association, which represents mining companies that employ fewer than 500 people, said the federal agencies violated the RFA, because the agencies used the wrong baseline to determine whether there's a significant economic impact. It said the final rule is unsupported by the final economic analysis and the law.
The association claimed that the final rule increases the scope of Clean Water Act jurisdiction, which in turn imposes increased costs on small mining business members conducting activities in the vicinity of waters, which the association said is likely to fall under federal jurisdiction.
While states are awaiting guidance from the government on how to implement the rule, groups such as the National Corn Growers Association are urging the agencies to delay implementation of the rule especially in the wake of recently revealed corps memos that showed disagreement over the rule's scope and direction (156 DEN A-6, 8/13/15).
11 Cases Filed
With this most recent lawsuit, the tally of lawsuits filed against the EPA and the corps over the jurisdiction rulemaking now stands at 11 in eight different federal district courts.
Challenges filed in the courts of appeal already have been consolidated, but those filed in the federal district courts haven't been consolidated yet.
The Justice Department on behalf of the corps and the EPA has petitioned the U.S. Judicial Panel on Multidistrict Litigation to consolidate the district court cases, but industry groups, including the American Farm Bureau Federation, oppose this motion. Oral arguments over the question of consolidation have been set for Oct. 1, according to Ellen Steen, the farm bureau's general counsel.
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Utilities Claim EPA Lacks Authority For Ash Rule's Groundwater Mandates
Aug 17, 2015 | InsideEPA
By David LaRoss
Power companies are urging a federal appeals court to scale back or eliminate groundwater protection provisions in EPA's first-time Resource Conservation & Recovery Act (RCRA) coal ash disposal rule, arguing the agency lacks authority for those requirements and for mandates on closed “legacy” ash sites and other facilities.
The arguments against the rule's various provisions are outlined in a joint non-binding statement of issues filed by several utilities in consolidated litigation over the rule in the U.S. Court of Appeals for the District of Columbia Circuit. Separate filings by environmentalists in contrast seek to expand regulation of legacy disposal sites that are no longer in use, while the ash reuse sector is faulting as too strict the threshold for regulating large “structural fills.”
While the statements are not binding in the litigation, many of the arguments echo written or other comments on both the proposed version of the RCRA rule and the final version EPA issued in December, which came in response to the 2008 Tennessee Valley Authority spill of ash, also known as coal combustion residuals (CCRs).
EPA in the rule sided with calls from industry and states to regulate ash as solid waste under RCRA subtitle D, though states and the power sector have faulted the final rule because it gives states no implementation authority and instead relies on citizen suits to enforce a single set of federal standards nationwide.
Environmentalists meanwhile urged the agency to regulate ash as hazardous under RCRA subtitle C and impose it to strict controls, but the rule's supporters say subtitle D rules are just as strict. Proponents of the rule also warned that subtitle C rules would give ash a “stigma” that would decimate the ash reuse sector.
Various lawsuits over the final regulation have been consolidated in Utility Solid Waste Activities Group (USWAG), et al. v. EPA in the D.C. Circuit. USWAG and several other power sector groups including the American Public Power Association, Edison Electric Institute and National Rural Electric Cooperative Association in their Aug. 17 statement of issues outline their concerns about the rule's groundwater provisions.
Although the industry groups have most harshly criticized the rule's enforcement provisions, their legal challenge as set forth in the issues statement questions EPA's legal authority to regulate legacy sites in addition to active ash impoundments; to require facilities to “address” releases of contaminants to groundwater; to mandate corrective action for leaks without consideration of costs; and to mandate a host of requirements for facility closure, including restrictions on when an impoundment qualifies for a more lenient “alternative closure” process.
While the statement does not outline why the utility groups believe the groundwater provisions are unlawful, in its 2010 comments on the then-proposed rule USWAG criticized EPA's draft for requiring existing impoundments to close if they were located in regions where waste might leak into groundwater.
USWAG called the policy “an extreme and draconian departure” from other RCRA rules. Such a requirement must at minimum include the possibility for a site-specific waiver, the group argued.
Closure Requirements
“The Agency does not even begin to assess the risks associated with the placement of existing impoundments in these areas. EPA simply asserts that the risks associated with impoundments are greater than those associated with landfills,” which are not subject to the same groundwater standards, USWAG argued.
The closure requirements at issue include the mandate for facilities to either complete a safety assessment by Oct. 17, 2016 or cease operation; not considering costs or “non-CCR waste streams” during alternative closure screenings; and the requirement for unlined impoundments to close if groundwater contamination is detected.
In their new statement of issues, the utility groups signal that they will claim the legacy site regulations are “in excess of statutory authority,” while the other disputed provisions are cited as being promulgated without proper notice and comment, or “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law” -- the general test for an unlawful agency action under the Administrative Procedure Act.
The statement does not signal the relief the groups will seek, meaning they could ask for the contested provisions to be struck from the rule entirely, modified, or remanded to the agency for further work before being re-proposed.
The pending court challenge is one source of the uncertainty that plagues the rule, since Republicans are pushing legislation to overhaul the policy -- though that bill faces a veto threat.
In addition to the power groups' broader objections, they also join ash reuse firms who filed separate petitions for review in disputing EPA's threshold for subjecting large-scale “structural fills” of ash to the rule, which the recycling industry previously charged was based on a math error.
The cement company Lafarge North America filed its own statement of issues Aug. 10 questioning the rule's reuse provisions, which set strict reporting and other requirements for fills over 12,400 tons.
Lafarge says in that filing that “credible evidence was presented to Respondents on April 1, 2015 showing significant calculation errors that would result in the 12,400-ton level being much higher, and Respondent has to this day offered no public response whatever to such evidence.”
The evidence in question is an April 1 letter from the ash recycling company Headwaters, Inc., that says the standard appears to be based on a database of coal ash landfills EPA compiled from industry submissions in 2013, with the 12,400-ton level used to approximate the smallest fill in the list that was considered a potential environmental concern -- specifically, a 2.3-acre facility identified as "the 'Bangor' landfill."
Headwaters said EPA is underestimating the Bangor facility's waste storage capacity by a factor of 27, and that once that figure is corrected the smallest facility in EPA's database is a landfill identified as "Plant 6602," which holds 74,800 tons of ash, and that the agency should therefore use that figure as its standard.
EPA has yet to formally respond to the letter. An EPA spokeswoman told Inside EPA in May that the agency was "currently reviewing" Headwaters' claim.
Also targeting reuse concerns is the electric utility AES Puerto Rico, which says in its own Aug. 17 issue statement that the rule is improperly treating facilities that store ash for future reuse as if they were permanent impoundments. The company will litigate whether EPA acted unlawfully by “imposing the regulatory requirements for CCR landfills on a product manufactured from CCRs that is stored in an on-site inventory at the facility where the product was produced prior to off-site beneficial use,” among other issues, the filing says.
Ash Impoundments
Meanwhile, the Springfield, MO-based Associated Electric Cooperative filed its own statement of issues Aug. 17 focused on the rule's prohibition on many ash impoundments in areas with high seismic activity. It claims that many of the closure requirements, and thresholds for seismic activity in the rule were adopted without proper notice and comment, and that many contradict evidence in the rulemaking record.
The city of Springfield, MO -- the sole government entity to challenge the ash rule -- also filed a separate issue statement Aug. 17 where it argues that the agency should exempt facilities from the rule if they are subject to an existing Clean Water Act permit or state-administered landfill regime. It also claims that many definitions key to which facilities are subject to rule provisions are seriously flawed.
The rule is “arbitrary and capricious and unconstitutionally vague, by defining a CCR surface impoundment as one that is designed to hold CCR and liquids, but failing to define coal combustion residuals or 'liquids' in a manner which allows determination of what minimum levels or concentrations of either create an impoundment,” the statement says.
It also says EPA erred by not excluding underground hardrock mines, “including limestone quarries,” from the definition of “impoundment.” The filing also attacks EPA's final rule for requiring any facility to close if it has an “intermittent” hydrologic connection to groundwater instead of subjecting those sites to site-specific analysis to decide whether the connection could lead to environmental harms.
Springfield also attacks closure requirements for small impoundments, saying the agency unlawfully subjected such facilities to shorter closure deadlines and set new location restrictions for them without adequate cost-benefit analysis.
Environmentalists' Criticisms
Meanwhile, the seven environmentalist groups challenging the rule, including Clean Water Action, Waterkeeper Alliance, Sierra Club and Environmental Integrity project as well as local groups, took aim at just three provisions of the ash rule in their joint statement of issues, also filed Aug. 17.
In that filing, the groups claim EPA acted unlawfully in regulating only legacy ash impoundments at active power plants rather than applying the rule to all legacy sites; that the agency improperly allowed existing impoundments with a single liner of compacted soil to continue operating without new protections; and that the agency should have required monitoring for boron in addition to other potential groundwater contaminants.
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Pennsylvania Issues Crude-by-Rail Safety Report
Aug 18, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
Slower train speeds, more monitoring equipment, more frequent inspections and better emergency response plans are among the recommendations in a report on oil train safety released by the office of Pennsylvania Gov. Tom Wolf (D) Aug. 17.
University of Delaware research professor Allan M. Zarembski, a railway track, operations and safety expert, listed 27 recommendations in an 84-page analysis. Wolf commissioned the study to assess the risk of train derailment or tank car breaches of crude-by-rail shipments coming into the state.
The state estimates that as many as 70 trains per week move crude oil from the Bakken region through Pennsylvania en route to Philadelphia and other East Coast refineries. Large volumes are shipped by Norfolk Southern and CSX Transportation, the report said.
Most of the recommendations in the report exceed standards of the Federal Railroad Administration (FRA) and expand upon or “intensify” practices that the railroads already are taking, Zarembski said in a conference call with reporters Aug. 17. “The question is, can we get the railroads to do it at a level that would reduce the risks further?” he said.
For example, the report recommended reducing train speed to 35 miles per hour when trains are traveling through cities with a population of more than 100,000 people. Currently, trains run at 50 mph on regular track and 40 mph through Pittsburgh and Philadelphia, Zarembski said.
More Tests, Inspections
The report also recommended that the railroads test tracks more frequently and that the state government carry out more inspections, work with the railroads to carry out route analysis and improve emergency response plans in communities along oil train routes.
In an e-mailed statement, Norfolk Southern Corp. told Bloomberg BNA that the company is working to improve the safety of crude-by-rail shipments by advocating for higher federal safety standards in tank cars, voluntarily increasing high-tech inspections of crude oil routes and reducing speeds for Class 3 flammable liquid trains in populated areas to 40 mph. The company also is conducting routing analysis for crude oil trans to ensure the safest routes.
The company will spend $2.4 billion this year to upgrade infrastructure and maintain tracks and bridges, the company said.
In a written statement released Aug. 17, Pennsylvania Public Utility Commission Chairman Gladys M. Brown said that several of the recommendations in the report, such as filling staff vacancies and coordinating with the FRA to increase attention on inspections of major oil train routes, “are already under way,” and other recommendations are being evaluated.
The report by Zarembski follows letters that the governor sent to President Barack Obama in February (50 DEN A-1, 3/16/15) and to the railroads in May (97 DEN A-6, 5/20/15) expressing concerns about Bakken crude oil being transported into the state.
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Maryland Judge Orders Disclosure of Oil Train Data
Aug 18, 2015 | BNA Daily Environment Report
Notices of oil train movements provided to Maryland officials aren't exempt from disclosure under the state's Public Information Act because they don't constitute confidential commercial information, a Maryland circuit court judge ruled Aug. 14. The issue was raised in two separate but nearly identical cases brought by CSX Transportation and Norfolk Southern Railway Co. (CSX Transp. v. Md. Dep't of the Env't, Md. Cir. Ct., No. 24C14004378, 8/14/15;Norfolk Southern Ry. Co. v. Md. Dep't of the Env't, Md. Cir. Ct., No. 24C14004367, 8/14/15). Plaintiffs had filed suit in the Circuit Court for Baltimore City seeking to bar the Maryland Department of the Environment from releasing data submitted under the U.S. Department of Transportation's May 2014 order that required railroads transporting large amounts of Bakken crude oil to notify state officials (141 DEN A-7, 7/23/15). Although ruling against the railroads, Judge Lawrence P. Fletcher-Hill granted both plaintiffs a stay until Sept. 4 while they decide whether to appeal or seek a further stay.
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Canada Study: Oil, Gas Pipelines Much Safer Than Rail
Aug 18, 2015 | BNA Daily Environment Report
By Jeremy Hainsworth
Pipelines are by far the safest method to move large amounts of oil and gas across North America, more than four times as safe as using rail cars, according to a study by a Canadian policy think tank.
Analysis of data from Canada's Transportation Safety Board showed the rate of incidents or accidents per million barrels of oil transported was more than 4.5 times higher for rail than for pipelines in the decade from 2003 to 2013, according to the Fraser Institute study, released Aug. 13.
Kenneth Green, lead author of the study, said increased hydrocarbon production and continued opposition to pipelines means rail cars are being relied on more heavily to move oil and gas.
“In both Canada and the United States, rising oil and natural gas production necessitates the expansion of our transportation capacity,” Green said in a statement. “The decision of which mode of transport should be used is a simple one. It should be the safer one; it should be pipelines.”
An earlier report from 2013, which Green co-authored and used data from the U.S. Department of Transportation from 2005 to 2009, showed that rail averaged slightly more than two incidents or accidents per billion ton-miles, while pipelines had less than 0.6 incidents or accidents per billion ton-miles.
Road transport fared much worse, with nearly 20 incidents or accidents per billion ton-miles traveled (202 DEN A-14, 10/18/13).
If the Keystone XL pipeline from the Alberta oil sands to the U.S. Gulf Coast is approved then not as much rail capacity would be needed, said Greg Stringham, Canadian Association of Petroleum Producers vice president for markets and oil sands. The proposal has been hung up for years in the U.S. approval process (126 DEN A-3, 7/1/15).
Keystone XL is one of several pipelines proposed to move oil sands product to the U.S. or Asia currently in the U.S. or Canadian regulatory processes (37 INER 1505, 11/05/2014) (211 DEN A-8, 10/31/14).
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