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Industry and Association News

(ACC Mentioned) With Dow, Coca-Cola, Ocean Conservancy Seeks to Cap Plastic Pollution
Sep 30, 2015 | GreenBiz
By Sureya Melkonian

We’ve all seen the images: the albatross carcass stuffed with colorful trinkets, the sea turtle's head caught in a six-pack ring, and the swirling, Texas-size gyres of debris.
(ACC Mentioned) We Can Solve the Ocean Plastic Problem
Sep 30, 2015 | The Huffington Post
By Andreas Merkl

Today, Ocean Conservancy released a major report: Stemming the Tide-Land-based strategies for a plastic-free ocean. We think it's a big deal. It squarely addresses one of our biggest worries: the avalanche of plastic that cascades into the ocean every year.
Group Offers $5B Plan to Eliminate Plastic from Seas
Sep 30, 2015 | E&E PM
By Emily Yehle

Removing plastics from the ocean would cost $5 billion a year under a plan released today by the Ocean Conservancy that details how countries can eliminate plastic waste "leakage."

Chemical Management News

(ACC Mentioned) Legislators Engage in Spirited Debate Over Chemicals in Consumer Goods
Sep 30, 2015 | State House News Service
By Katie Lannan

Legislation that would require the disclosure, reduction or replacement of toxic chemicals in consumer goods was panned Tuesday by industry groups who said it imposes a burden without improving safety, while supporters of the bills shared emotional testimony urging lawmakers to take action they said would protect the public.
(ACC Mentioned) Industry Remains Opposed to Planned Prop 65 Website
Oct 1, 2015 | Chemical Watch
By Kelly Franklin

A coalition of more than 170 industry organisations has expressed concern with California's statutory authority to mandate that manufacturers supply additional hazard and product information for a proposed Proposition 65 website (CW 25 June 2015).
(ACC Mentioned) Vinyl Flooring Chemical Linked to High Blood Pressure During Pregnancy
Oct 1, 2015 | Environmental Health News
By Brian Bienkowski

Pregnant? Beware of the vinyl flooring.
Four Governors Seek Changes in TSCA-Overhaul Bill
Sep 30, 2015 | BNA Daily Environment Report
By Pat Rizzuto

Four Democratic governors asked Senate leaders to revise legislation to overhaul the Toxic Substances Control Act lest the bill “seriously impede protection for the American people against harmful chemicals.”
Deal Expected to Bring TSCA bill to Senate Floor
Sep 30, 2015 | E&E PM
By Sam Pearson

Senators are expected to reach an agreement soon to bring a bill to update the nation's 39-year-old toxic chemicals law to the floor, advocates said this week.
Vitter, Inhofe Announce Growing Republican Support for Chemical Safety Reform
Sep 30, 2015 | Edmond Sun

Today, U.S. Sens. David Vitter (R-La.) and Environment and Public Works Committee Chairman James Inhofe (R-Okla.) announced the Frank R. Lautenberg Chemical Safety for the 21st Century Act has 33 Republican Senate cosponsors, bringing the total of bipartisan cosponsors to 56 representing 36 states.
Senate Moves Closer to Floor Action on TSCA Reform
Sep 30, 2015 | Shopfloor
By Rachel Jones

The rumors are true; the Senate is set to consider major chemical reform. Taking up S. 697, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, demonstrates that bipartisan partnership is still possible amid partisan gridlock.
Senate Chemical Bill Draws Fresh Concerns from States
Sep 30, 2015 | Safer Chemicals, Healthy Families
By Tony Iallonardo

With rumors swirling that the Senate could call a vote very soon on S.697, the Vitter-Udall chemical bill, four governors are raising fresh concerns about the bill, even as they encourage Congress to pass reform.
EPA Lists Extensive Data Needs for Bioengineered Algae
Sep 30, 2015 | BNA Daily Environment Report
By Pat Rizzuto

Guidance the Environmental Protection Agency is developing for new types of genetically engineered algae submissions may require a wide range of genetic, production, disposal and other information, officials said at a Sept. 30 workshop.
Osha to Update HazCom 2012, Says Ruskin
Oct 1, 2015 | Chemical Watch
By Dinesh Kumar

The US Occupational Safety and Health Administration (Osha) will update its chemicals classification and labelling standard, HazCom 2012, to bring it in line with the sixth revised edition of the UN Globally Harmonized System (GHS).
ECHA Outlines Updates to REACH Guidance
Sep 30, 2015 | BNA Daily Environment Report
By Stephen Gardner

The European Chemicals Agency (ECHA) Sept. 30 said that it would update “in the coming months” REACH guidance on hazardous substances in manufactured products, following a Sept. 10 European Union Court of Justice ruling on substance notification thresholds.
Wilson Center Finds Limited Federal Research On Synthetic Biology Risk
Sep 30, 2015 | InsideEPA
By Maria Hegstad

A new report from the Wilson Center's Synthetic Biology (synbio) Project finds federal agencies spending little on environmental and health risk research related to nascent synbio technologies, despite the growing number of applications EPA has received seeking permission to test or produce synbio products in recent years.

Chemical Security News

DuPont Urged to Adopt Safety Reforms at Plant Where 4 Died
Sep 30, 2015 | E&E PM
By Sam Pearson

DuPont used poor safety procedures, encountered design problems and failed to plan for a leak of toxic chemicals at its La Porte, Texas, plant where four workers were killed last year, the U.S. Chemical Safety Board said today.

Energy and Environment News

Federal Court Blocks Obama Administration’s Fracking Rule
Sep 30, 2015 | The Wall Street Journal
By Amy Harder

A federal judge in Wyoming on Wednesday blocked Interior Department rules setting stricter standards for hydraulic fracturing on public lands, the second set of major regulations from the Obama administration to be faulted in court in as many months.
Judge Blocks Obama Administration Rules on Fracking
Sep 30, 2015 | The New York Times
By Coral Davenport

A federal judge on Wednesday blocked the Obama administration’s first major regulations on hydraulic fracturing, a technique for oil and gas drilling that has led to a boom in American energy production but has also raised concerns about health and safety risks.
Judge Halts Fracking Rules Until Legal Challenge Decided
Oct 1, 2015 | PoliticoPro - Whiteboard
By By Elana Schor

A federal judge in Wyoming today issued a preliminary injunction against the Interior Department's landmark fracking regulations that prevents them from taking effect until a lawsuit brought by states and industry groups runs its course.
New Federal Fracking Rules Blocked by Judge in Wyoming
Sep 30, 2015 | BNA Daily Environment Report
By Andrew Harris and Mark Drajem

New federal fracking regulations have been blocked by a U.S. judge in Wyoming, who said the Bureau of Land Management lacks the authority to control hydraulic fracturing (Wyoming v. Interior, D. Wyo., No. 15-CV-43, 9/30/15).
Judge in Wyoming Blocks Fracking Rule
Sep 30, 2015 | The Hill - E2 Wire
By Devin Henry

A federal judge has issued an injunction against new Department of Interior regulations for hydraulic fracturing on federal land.
Federal Court Blocks BLM Fracking Rule
Sep 30, 2015 | E&E PM
By Ellen M. Gilmer

The Obama administration's long-awaited hydraulic fracturing rule won't take effect until a federal court reviews its legality.
Toxics, Water Use Top Fracking Concerns: Researcher
Sep 30, 2015 | BNA Daily Environment Report
By Pat Ware

Public concerns about hydraulic fracturing to extract oil and natural gas include the toxicity of the compounds and the quantity of water used in the procedure, a researcher with the Environmental Protection Agency's Science Advisory Board said Sept. 30.
Congress Averts Government Shutdown With Hours To Spare (Video)
Sep 30, 2015 | Roll Call
By Emma Dumain

Though conditions on the ground looked eerily similar to those that caused a two-week government shutdown two years ago, the House on Wednesday passed legislation to keep federal operations afloat through Dec. 11.
Congress Clears Funding Bill Minus Environmental Riders
Sep 30, 2015 | BNA Daily Environment
By David Schultz

A short-term federal spending bill without policy provisions that affect environmental programs cleared both chambers of Congress with hours to spare before a government shutdown.
House Panel Approves Energy Bill, Overrules Democrats
Sep 30, 2015 | BNA Daily Environment Report
By Ari Natter

The House Energy and Commerce Committee voted Sept. 30 to approve a broad energy bill after a marathon markup session during which scores of Democratic amendments were defeated.
House Panel Approves Energy Reform Bill
Sep 30, 2015 | The Hill - E2 WIre
By Devin Henry

The House Energy and Commerce Committee approved an overhaul of the nation’s energy laws on Wednesday, though the legislation shed much of the bipartisan support it once enjoyed.
House Energy Bill Advances on Mostly Party-Line Vote
Sep 30, 2015 | PoliticoPro
By Darren Goode

The House Energy and Commerce Committee voted mostly along party lines on Wednesday to advance a sweeping energy bill after the collapse of months of negotiations aimed at securing broader bipartisan support.
Rough Road ahead as House Bill Advances with Meager Dem Support
Oct 1, 2015 | E&E Daily
By Geof Koss and Hannah Northey

The House Energy and Commerce Committee yesterday approved a broad energy package with the support of just three Democrats, raising questions over the measure's prospects.
OMB Finishes Review of Ozone Rule, Expected To Be Released Today
Oct 1, 2015 | PoliticoPro - Whiteboard
By Alex Guillen

The White House Office of Management and Budget today wrapped up its review of EPA's new ozone standard, as expected, according to a notice on the agency's website. The notice gives no indication of what the final standard is.
OMB Starts Review Of EPA Ozone Transport Rule
Sep 30, 2015 | InsideEPA

The White House Office of Management & Budget (OMB) has started its review of a proposed EPA rule to curb interstate transport of ozone-forming emissions that aims to help states attain the agency's 2008 ozone standard, while the agency is poised to issue a decision under an Oct. 1 judicial deadline on tightening the standard.
Updated Ozone Transport Proposal Under OMB Review
Sep 30, 2015 | BNA Daily Environment Report
By Patrick Ambrosio

The White House Office of Management and Budget is reviewing a proposal to update requirements for states to control emissions of ozone precursor emissions that cross state lines and affect downwind areas.
If It's October, It's Ozone
Oct 1, 2015 | PoliticoPro (Morning Energy)
By Eric Wolff

Today is the deadline for EPA to finalize its new ozone standard, and in a video published to YouTube yesterday, the agency promised that it would indeed lower the standard from its present level of 75 parts per billion, though it did not specify by how much.
D.C. Circuit Won't Rehear Early Clean Power Plan Lawsuits
Sep 30, 2015 | BNA Daily Environment Report
By Anthony Adragna

A federal appeals court has said it will not rehear an initial volley of challenges from states and several industry groups to the Environmental Protection Agency's Clean Power Plan (In re Murray Energy Corp., D.C. Cir., No. 14-1112, order filed 9/29/15; West Virginia v. EPA, D.C. Cir. , No. 14-1146,order filed 9/29/15).
Texan Launches Congressional Review Act Bid to Kill Rule
Sep 30, 2015 | E&E PM
By Jean Chemnick

The House appears to have its first set of Congressional Review Act resolutions aimed at toppling U.S. EPA's Clean Power Plan, despite the fact the rule has not yet been published in the Federal Register.
New Regulations on Smog Remain as Divisive as Ever
Sep 30, 2015 | The New York Times
By Coral Davenport

In August 2011, as President Obama prepared to unveil a major new environmental regulation on smog, his political advisers issued a warning: The rule would affect power plants and factories throughout the Midwest, slowing the economy in states like Ohio that would be crucial to the president’s re-election.
California Draft Targets Short-Lived Climate Pollutants
Sep 30, 2015 | BNA Daily Environment Report
By Carolyn Whetzel

California unveiled a draft plan Sept. 30 to reduce emissions of methane and fluorinated gases 40 percent from 2013 levels by 2030 and cut non-forest black carbon emissions in half by the same date.
3rd Circuit Faults State's EPA-Approved Haze Plan
Sep 30, 2015 | InsideEPA

The U.S. Court of Appeals for the 3rd Circuit has ruled to partially reject EPA's approval of Pennsylvania's state implementation plan (SIP) for reducing haze-forming emissions, saying the agency wrongly overlooked errors and omissions by state air regulators based on a theory of “harmless error” that the court says is mistaken.
Whitehouse Sees GOP ‘Epiphanies' on Climate Change
Sep 30, 2015 | BNA Daily Environment Report
By Anthony Adragna

Republican presidential candidates will have to talk seriously to voters about how they will address climate change before the 2016 elections, and that will create an opening for renewed discussion of a carbon fee, Sen. Sheldon Whitehouse (D-R.I.) told Bloomberg BNA Sept. 30.
Army Corps Chief Defends Role in Developing WOTUS Rule
Oct 1, 2015 | BNA Daily Environment Report
By Anthony Adragna

The head of the U.S. Army Corps of Engineers staunchly defended the agency's role in writing a final Clean Water Act jurisdiction rule with the Environmental Protection Agency before skeptical Republicans on a Senate Environment and Public Works subcommittee.
GOP Senators Say Corps Memos Undermine 'Waters' Rule
Oct 1, 2015 | InsideEPA

GOP senators say internal Army Corps of Engineers memos faulting the Obama administration's Clean Water Act (CWA) jurisdiction rule undermine the legal basis for the policy, with Republicans predicting that courts will refuse to defer to agencies' discretion on crafting the rule -- though a top Corps official is downplaying the memos.
Corker Letter Fires Opening Shot Against Paris Talks
Oct 1, 2015 | E&E Daily
By Jean Chemnick

Senate Foreign Relations Chairman Bob Corker (R-Tenn.) questioned Secretary of State John Kerry in a letter yesterday about plans the administration might have to circumvent the Senate's role in sanctioning an international climate deal.

Transportation News

(ACC Mentioned) Rail Service Shutdown Could Cost Economy $30 Billion, Group Says
Sep 30, 2015 | Miami Herald
By Curtis Tate

A looming shutdown of the nation’s rail system could have a bigger economic impact than the 2013 government shutdown and could even trigger a recession, according to a new report.
(ACC Mentioned) H.R. 3651: PTC Relief?
Sep 30, 2015 | Railway Age
By William C. Vantuono

That whooshing sound you may have heard early on Wednesday, Sept. 30 was a collective sigh of relief expelled by everybody who has been beating their head against the wall since 2008, when the Rail Safety Improvement Act mandating fully operational Positive Train Control by the stroke of midnight Jan. 1, 2016, was passed.
(ACC Mentioned) House T&I Committee Introduces Legislation for Three-Year PTC Deadline Extension
Sep 30, 2015 | Railway Track & Structures
By Mischa Wanek-Libman

The U.S. House of Representatives Transportation and Infrastructure Committeeleadership introduced legislation to extend the deadline for U.S. railroads to implement Positive Train Control (PTC).
Bill to Extend Safety System Deadline Would Avert Rail Shutdown, Help Metra
Sep 30, 2015 | Chicago Tribune
By Richard Wronski

A measure introduced in the U.S. House on Wednesday seeks to avert the threatened year-end shutdown of the nation's freight and commuter railroads, including Metra.
House Moves to Delay Deadline for Automating the Nation's Railways
Sep 30, 2015 | The Hill - Transportation
By Keith Laing

Lawmakers in the House are moving to extend a federal deadline for automating trains that most railroads say they will not be able to meet.

Industry and Association News

(ACC Mentioned) With Dow, Coca-Cola, Ocean Conservancy Seeks to Cap Plastic Pollution

Sep 30, 2015 | GreenBiz

By Sureya Melkonian

We’ve all seen the images: the albatross carcass stuffed with colorful trinkets, the sea turtle's head caught in a six-pack ring, and the swirling, Texas-size gyres of debris.
Given the estimated 8 million metric tons of plastic "leaking" into the oceans annually and its non-biodegradable nature, the problem of marine plastic pollution appears insurmountable.
Yet the Ocean Conservancy is making a first attempt at a large-scale, long-term solution. It is releasing an ambitious plastic-reduction strategy along with the Trash Free Seas Alliance it spearheads, which includes seemingly unlikely bedfellows as Dow Chemical and Coca-Cola.
The nonprofit's report this week serves as a call-to-arms to national governments, multinational organizations, industry and technology providers alike. "Stemming the Tide: Land-based Strategies for a Plastic-Free Ocean" lays out solutions to eliminate ocean trash by preventing it from getting into the oceans in the first place.
Its focus is sharp on the five countries identified as producers of more than half of land-based plastic-waste that winds up in waterways: China; Indonesia; the Philippines; Thailand; and Vietnam. China alone is responsible for 25 percent.
These five nations have all succeeded at achieving significant development and industrialization in recent years, and their economic growth has lead to waste production that far surpasses local waste-management systems.
The report proposes to reduce plastic pollution from these five sources by 65 percent over 10 years.
"We don’t like simple, solvable problems," Ocean Conservancy CEO Andreas Merkl told GreenBiz.
The strategy laid out in this solutions-oriented report is clear: Eliminate ocean trash by preventing it from getting into the oceans in the first place.
It's important to debunk common myths about plastic, he added, such as "that it comes from everywhere equally," that "you can recycle your way out of it," or that it's "all about redesign." (Yes, we want redesign, but if you wait for such options to be effective at a large scale, "the ocean will be swamped," Merkl said.) Plus, only 3 percent of marine plastic pollution is circulating in those gyres that have come to symbolize the problem.

Only after we debunk these myths can we effectively do what needs to be done in parallel with the larger circular economy efforts, to prevent 250 million tons of plastic from entering the ocean, "to stop the avalanche now," he said.
The report details pollution-reduction solutions and evaluates each by measuring the estimated cost against the estimated metric ton of plastic leakage avoided. The solutions largely focus on mitigation, treatment and collection.
The first order of business is to keep trash that already has been collected from escaping. Twenty-five percent of the plastic that winds up in the oceans in the top five countries originates after it has been collected, due to flaws within waste-management systems, such as improper dumping. So the report calls for a concerted effort to improve the waste transport systems, increase the use of formal dumps and relocate or secure the dumps near waterways.
The second task would be to crank up collection to 80 percent. With just these two strategies in the five countries, 50 percent of global plastic leakage would be mitigated.
Currently, though, only 20 percent of the waste plastic in these countries has enough value to be collected and recycled. The report foresees capturing as much of this recyclable material as possible by expanding formal systems of recycling, as well as empowering the informal systems of recycling by subsistence waste-pickers to become safer and a bit more formalized.
What about attempts to recycle plastic debris into products, such as flip-flops or 3D-printed iPhone cases? These are "a drop in the ocean" and do not address the larger problem of the types of soft plastics so common in the waste streams in developing nations, Merkl said.
"There is no silver bullet. The closest we get to a silver bullet is the process of pyrolysis. ... When the price comes down, the profits go back through the value chain."
25 percent of the plastic that is leaked into the oceans originates post-collection.
The report lays out plans to effectively increase the value of the 80 percent of plastic waste considered low-quality, and thereby increase the likelihood of it being collected. This is where Merkl views elements of the circular economy come into play. For example, there is a call to encourage technologies that convert plastic into fuel through gasification and pyrolysis, or into electricity through incineration with energy recovery.
"This story has been written before on renewables to a very large degree," Merkl said. "We need to copy it for energy."
A pioneer region is likely to be in the Philippines, which has progressive mayors and other local leadership. "A lot of people are already constructively engaged," Merkl said. "China is not going to be easy but it’s certainly something we’re going to tackle."
What is in it for the Coca-Cola Company, with its ubiquitous red-label plastic bottles, and the Dow Chemical Company, which makes plastic resins?
“Companies don’t make plastic with the intent of it ending up in the ocean, and we acknowledge the strong role industry must play in order to help eliminate ocean plastic waste by 2035," said Jeff Wooster, global sustainability director of Dow Packaging and Specialty Plastic, in a statement.
"They want to make lots of plastic but don’t want it to end up in the ocean, either," Merkl said. "We should have all the arguments with them about ... the circular economy elements. Yet saying ‘Stop making plastic' is a nonstarter." Instead, "We decide to work with them, accept that is a nonstarter and get their help. We’d love for broad range of folks to join the alliance. There is quite a bit of discussion in environmental community around things like the role of incineration. We need a good robust discussion."
And as solving marine debris is one of the new U.N Sustainable Development Goals, Merkl hopes the discussion to play out on a larger scale than ever.
Among the other members of the Trash Free Seas Alliance are Algalita Marine Research and Education, Worof Wildlife Fund, REDISA, American Chemistry Council, Covanta Energy and Keep America Beautiful. McKinsey is a research partner.

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(ACC Mentioned) We Can Solve the Ocean Plastic Problem

Sep 30, 2015 | The Huffington Post

By Andreas Merkl

Andreas Merkl is President and CEO of Ocean Conservancy
Today, Ocean Conservancy released a major report: Stemming the Tide-Land-based strategies for a plastic-free ocean. We think it's a big deal. It squarely addresses one of our biggest worries: the avalanche of plastic that cascades into the ocean every year.
It's getting really bad. Practically every kind of animal, from plankton to whales, is now contaminated by plastic. It's in the birds, in the turtles, in the fish. At the current rate, we could have 1 ton of plastics for every 3 tons of fish by 2015.
This is nobody's plan. It's not the plan of the plastics industry, it's not the plan of the consumer goods industry and it's certainly not the plan for those of us who love and need the ocean. Nobody wants this.
The problem is born on land. Most of the plastic originates in rapidly industrializing countries whose waste management infrastructure is lagging behind. This is a typical phase of development that all countries go through. The problem is simply that the enormous utility of plastic, combined with the explosive economic growth of Asia and Africa, combine to yield an enormous flow of unmanaged plastic waste into the ocean.
The majority of plastic waste ending up in dumps and in waterways is composed of thin films used in grocery bags and food packaging. This type of material is very low value after it is discarded and there is little economic incentive to pick it up. Blown or washed into the ocean, it breaks apart, and becomes the "microplastic" that is so easily mistaken by animals for tasty zooplankton. These microplastics are ubiquitous, found everywhere from the equator to the poles, and it is a real and rapidly growing problem. By comparison, the famous ocean gyres, or "garbage patches", which are considered to be the most concentrated areas of plastic in the ocean, contain only a small percentage (< 3 percent) of all plastics entering the ocean.
So what to do? We are fortunate, in a sense, that the plastic flow into the ocean is quite concentrated. Only five Asian countries account for the majority of the flow. Within these countries, there are a limited number of cities, rivers and watershed that really matter. We know where we need to go.
In these places, we need to first concentrate on the basics: the safe collection, transportation and storage of plastic waste. By optimizing the waste hauling system, increasing collection rates to 80 percent and advancing waste treatment and conversion technologies in these five countries alone, we could cut the flow of plastic into the ocean by 45% by 2025.
Stemming the Tide lays out in detail how the various elements of the solution have to come together, what they cost and who needs to be involved. This is clearly a solvable problem, but it will require the cooperation of many groups: industry, cities, national governments, multi-lateral organizations, banks, NGOs. Together, we need to create the conditions that make it possible for investors and entrepreneurs to invest in integrated waste management solutions.
This is a classic example of a global problem with local solutions. The good news is that the global community is becoming very concerned about the ocean plastic problem. We can concentrate global expertise and resources on local problems, greatly accelerating the rate at which the fundamental waste management infrastructure is built.
Ocean Conservancy created the Trash Free Seas Alliance® (Alliance) specifically to focus these global resources on the right local problems. It consists of NGOs, corporations and scientists that have come together to create pragmatic, real-world solutions focused on the measurable reduction of ocean plastics. Stemming the Tide is a signature initiative of the Alliance with support from the American Chemistry Council, The Coca-Cola Company, the Dow Chemical Company, REDISA and WWF, and was advised by a broad set of experts from the industrial, finance and waste management realms.
For the Alliance, this report is only the end of the beginning: it is the start of a global effort to turbo-charge the development of ocean-smart waste management infrastructure in the places that really matter.

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Group Offers $5B Plan to Eliminate Plastic from Seas

Sep 30, 2015 | E&E PM

By Emily Yehle

Removing plastics from the ocean would cost $5 billion a year under a plan released today by the Ocean Conservancy that details how countries can eliminate plastic waste "leakage."
The group's report will serve as a guide for the Trash Free Seas Alliance, which includes corporate partners such as the Dow Chemical Co. and the Coca-Cola Co. Among its recommendations: closing dump sites near waterways, using waste-to-energy plants in some areas and developing products that can more easily be recycled.
The ocean is on track to contain 1 ton of plastic for every 3 tons of fish by 2025, according to the report. Most of that waste is from sources on land. The Ocean Conservancy -- which wrote the report with the McKinsey Center for Business and Environment -- asserts that today's plan could cut leakage by 45 percent over the next decade and eliminate it by 2035.
Andreas Merkl, CEO of the Ocean Conservancy, said solving the problem requires a "coordinated effort" from industry, nonprofits and governments. But the group asserts that it's very doable.
In a statement, Dow Packaging and Specialty Plastics pledged its commitment.
"Companies don't make plastic with the intent of it ending up in the ocean, and we acknowledge the strong role industry must play in order to help eliminate ocean plastic waste by 2035," said Jeff Wooster, the company's global sustainability director.
The report emphasizes that efforts should be tailored to regions, and it identifies five "priority" countries that should address plastic leakage first: China, Indonesia, the Philippines, Vietnam and Thailand.

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Chemical Management News

(ACC Mentioned) Legislators Engage in Spirited Debate Over Chemicals in Consumer Goods

Sep 30, 2015 | State House News Service

By Katie Lannan

Legislation that would require the disclosure, reduction or replacement of toxic chemicals in consumer goods was panned Tuesday by industry groups who said it imposes a burden without improving safety, while supporters of the bills shared emotional testimony urging lawmakers to take action they said would protect the public.
Sponsored by Sen. Kenneth Donnelly and Rep. Jay Kaufman, a bill titled "An Act for Healthy Families and Businesses" would establish a process to identify toxic chemicals in consumer products, noting that safer alternatives exist to many chemicals that have been linked to chronic diseases.
Among the bill's supporters was Laura Spark, a Boston mother who said her sister's death from cancer prompted a fear of losing her children as well, causing her to avoid products containing chemicals like BPA.
A component of some plastics and resins, BPA has been found by the FDA to be safe at very low levels, though some studies have linked it to a variety of adverse health effects. Spark said she didn't have the information available to know that BPA was in sippy cups, baby bottles and jugs of bottled water she had been using with her daughters.
"I would not have bothered with any of those things had I known that they contained chemicals linked to breast cancer, but I didn't know," Spark said.
In 2010, the state Public Health Council voted to ban the use of bisphenol-A in baby bottles and cups. Health activists at the time applauded the council's vote but said the measure was "inadequate" and called on the state to regulate the use of BPA in infant formula and baby food packaging, as well as reusable food and beverage containers.
Kaufman, a Lexington Democrat, and Donnelly, an Arlington Democrat, also put forth a bill that would require manufacturers to notify the Department of Environmental Protection of toxic chemicals in children's products.
Another bill from Sen. Marc Pacheco, a Taunton Democrat, creates a committee that would recommend funding mechanisms to support development and assessment of substitutes for toxic chemicals.
The toxic chemical bills drew criticism from trade groups, who said that chemicals in question are often safe at low doses and their existing products do not pose a danger.
David Garriepy of the Toy Industry Association made the comparison to salt, where a little can be useful in cooking but excessive quantities become harmful.
Sen. Anne Gobi, the committee's co-chairwoman, said the bills had been filed repeatedly in the past, while European countries have passed their own regulations dealing with toxic chemicals.
"We hear about what's being done in European nations, where companies have been able to acquiesce to their concerns," Gobi said after hearing testimony from the American Cleaning Institute. "It always comes back to, if you're willing to do it in Europe, why aren't you willing to do it here?"
In response, Jacob Cassady, the institute's associate director for legislative affairs, told Gobi his group's member companies "comply with the laws where the laws are."
Representatives from the Toy Industry Association and American Chemistry Council pointed to several existing federal laws that regulate their products and forbid harmful toxic substances.
"You heard the word toxic thrown around a lot," said Stephen Rosario of the American Chemistry Council. "It's a very highly charged word, but in this space, what we really need to be looking at is hazard and exposure. That is what gets you to safety and what these bills don't look at."
Margo Golden, president of the Massachusetts Breast Cancer Coalition's board of directors, asked the committee to consider costs beyond what would be borne by retailers who had to comply with new regulations.
"Please also remember the cost to society of toxic chemical exposures," said Golden, who has been living with metastatic breast cancer. "The cost to society is devastating to the economy, the cost of cancer -- for example, the cost of my chemotherapy each month is $7,000."
Speaking on behalf of the Can Manufacturers Institute, epidemiologist Julie Goodman said BPA has been widely studied, and the body of scientific evidence does not show exposure at a normal rate causes adverse effects.
But others called for at least disclosure of chemical content, calling it a piece of information that can empower consumers to make their own choices.
"You can't manage what you can't measure," said Elizabeth Saunders, Massachusetts director for Clean Water Action. "We may have the next DDT or asbestos or lead sitting in our homes, and we probably do, in the form of flame retardants in our furniture or additives to plastic."

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(ACC Mentioned) Industry Remains Opposed to Planned Prop 65 Website

Oct 1, 2015 | Chemical Watch

By Kelly Franklin

A coalition of more than 170 industry organisations has expressed concern with California's statutory authority to mandate that manufacturers supply additional hazard and product information for a proposed Proposition 65 website (CW 25 June 2015).
California's Office of Environmental Health Hazard Assessment (Oehha) released, in early September, a modified version of its proposal to implement a lead agency website, which would require companies to submit supplemental hazard information to Prop 65 warning labels, upon the agency's request.
The modified proposal included changes to address comments raised by industry stakeholders earlier this year (CW 7 September 2015).
However, the California Chamber of Commerce-led coalition attested, in recently published comments, that Oehha “elected not to discuss or address” its concern that the agency lacks the authority to mandate that manufacturers supply additional information beyond Proposition 65 warning labels.
The coalition also says that despite the agency adding a process by which a party could request a correction of inaccurate information published on the website, no mechanism has been included that would alert a business to a product- or company-specific content being added to the site.
Adopting such a notification process “would reduce the number of requests for correction and, perhaps more importantly, would ensure that otherwise inaccurate or misleading information would be corrected, before being made available for public consumption,” said the coalition.
The American Coatings Association, a coalition member, said, in its own comments, that the website “would effectively become a 'database' of information for potential Prop 65 lawsuit targets”, as attorneys could review the website against products in commerce to see if all warnings correspond.
The ACA attests that this potential issue could contradict one of California Governor Jerry Brown's Proposition 65 reform initiatives “to prevent the flood of frivolous litigation” (CW 20 August 2014).
Coalition member, the American Chemistry Council, said in separate comments that “crucial points” from their previous comment letter were “unaddressed” by the modified proposal, and it “again urges Oehha not to launch a stand-alone Proposition 65 website”.
A joint letter from the Association of Global Automakers and the Motor Equipment Manufacturers Association (Mema) said that the modified proposal also fails to address its previously expressed concerns that:Oehha should allow six months for businesses to reply to requests for information;the abundance of what is made available may “overwhelm consumers with overly technical information”; andtrade secrets are not adequately protected.

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(ACC Mentioned) Vinyl Flooring Chemical Linked to High Blood Pressure During Pregnancy

Oct 1, 2015 | Environmental Health News

By Brian Bienkowski

Pregnant? Beware of the vinyl flooring.
Chemicals often used in vinyl flooring and PVC may make pregnant women more susceptible to heart diseases, according to a new study. It builds on other studies that concluded that certain phthalates, also found in plastics, cosmetics, fragrances and—by extension, most of us—may impact heart health.
The researchers looked at phthalate levels in the urine of 369 pregnant women during their pregnancy. They also monitored blood pressure and any pregnancy-induced heart problems.
The body breaks down phthalates into metabolites. Researchers found that women with the highest levels of a common phthalate metabolite were almost three times as likely to have pregnancy-induced high blood pressure than women with the lowest levels.
“Pregnancy is kind of like a stress test,” said lead author Dr. Erika Werner, an assistant professor at Brown University’s Alpert Medical School. She said many women who develop heart problems later in life experience high blood pressure and related complications during pregnancy.
"Pregnancy is kind of like a stress test."-Dr. Erika Werner, Brown UniversityThe metabolite that was linked to the heart problems is a by-product of butyl benzyl phthalate, most commonly used to make PVC and vinyl foams flexible and pliant.
People are exposed to such phthalates through inhalation, skin absorption and by eating or drinking. Scientists believe phthalates can migrate out of flooring and contaminate indoor air.
Exposure to butyl benzyl in the U.S. has decreased an estimated 32 percent from 2001 to 2010, according to a2014 study. However most U.S. women are still exposed, Werner and colleagues warned. The study sampled women from the Cincinnati, Ohio, region between 2003 and 2006.
“The population impact could be substantial because exposure to the parent compound of this metabolite, butyl benzyl phthalate, is ubiquitous in U.S. women,” the authors wrote in the study, published last month in Environmental Health.
How the chemical might spur heart problems remains unclear. However, experts believe it’s most likely through inflammation and oxidative stress, an imbalance in the body that hampers its ability to detoxify.
“Oxidant stress is well known to fuel cardiovascular disease, and certain phthalates are oxidant stressors,” said Leo Trasande, a researcher and associate professor in pediatrics, environmental medicine and health policy at the New York University School of Medicine, in an email. He was not involved in the study.
Trasande and colleagues in 2013 reported the phthalate levels in children’s urine was linked to higher blood pressure.
The study did not find any links to the other phthalates metabolites and heart impacts, which Werner said suggests the phthalate linked to high blood pressure might be more prone to affecting cells that impact heart health.
She cited a study published last year that supports this, as the same phthalate was linked to plaque buildup in the arteries of elderly folks.
Werner’s study is the latest that raises questions about the safety of phthalate exposure, as previous animal tests and some human studies have linked them to hormone disruption, altered male genital development, diabetes, asthma, attention, learning disabilities and obesity.
The American Chemistry Council, which represents chemical manufacturers and maintains that typical human exposure to phthalates is safe, doesn’t represent the phthalates mentioned in the study. It did not comment on the findings.

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Four Governors Seek Changes in TSCA-Overhaul Bill

Sep 30, 2015 | BNA Daily Environment Report

By Pat Rizzuto

Four Democratic governors asked Senate leaders to revise legislation to overhaul the Toxic Substances Control Act lest the bill “seriously impede protection for the American people against harmful chemicals.”
In a Sept. 30 letter to Senate leadership, Govs. Jerry Brown of California, Maggie Hassan of New Hampshire, Peter Shumlin of Vermont and Jay Inslee of Washington described three key concerns they have about the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697).
S. 697, they wrote, should address the following issues:
• Timing of Preemption: State preemption should occur only when the Environmental Protection Agency has issued a final rule that safeguards the public and environment against toxic chemicals.
• Waivers: An updated TSCA statute should retain the existing law's language allowing states to request waivers from federal preemption and should include a deadline for the EPA to act on a state waiver request.
• Grandfathering: The bill should clearly preserve existing state statutes, rules, regulations and other actions or requirements in place at the time of the bill's adoption, including authority to undertake future actions under existing laws and regulations.
“We urge the Senate to fix these problems prior to passage of any bill to reform TSCA,” the four governors wrote.
The Senate will take up S. 697 in October, Senate Majority Whip John Cornyn (R-Texas) told Bloomberg BNA Sept. 29 (189 DEN A-17, 9/30/15).
A bipartisan total of 56 senators representing 36 states have signed on to support the bill, although states have raised concerns similar to those the four Democratic governors raised (189 DEN A-11, 9/30/15).
Core Provisions Unchanged Since 1976
The four governors commended Republicans and Democrats in the House and Senate for working to modernize TSCA, which hasn't had its core provisions changed since 1976.
The four governors said, however, it's essential that states continue to have a role in the oversight of chemicals.
“Effective TSCA reform must allow the states to act to protect our citizens and economic vitality,” the governors wrote. “Our states have taken prudent action to evaluate and limit the use of certain chemicals that have clearly posed a threat to human health and the environment. Even with the newly proposed TSCA authorities, limitations on the scope of U.S. Environmental Protection Agency (EPA) actions necessitates that states maintain the ability to act on their own in concert with EPA.”

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Deal Expected to Bring TSCA bill to Senate Floor

Sep 30, 2015 | E&E PM

By Sam Pearson

Senators are expected to reach an agreement soon to bring a bill to update the nation's 39-year-old toxic chemicals law to the floor, advocates said this week.
With the Senate passing a continuing resolution clearing the way for the federal government to remain open, lawmakers could have time to take action soon on S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," supporters of the bill said.
An agreement to proceed to the bill by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) is likely soon, said Ben Dunham, a senior managing director at Dentons and the former chief counsel to Lautenberg.
That could clear the way for the bill to come to the floor "in the next day or two" or possibly next week, Udall spokeswoman Jennifer Talhelm said.
If confirmed, the agreement would prevent what could have been a lengthy floor debate over the proposal, freeing up more floor time for other bills.
"Working out something with Senator [Barbara] Boxer and others to limit the amount of time it will take will make this process easier on everybody, and we'll be able to get to the next step in this process, which is working out an agreement in the House reconciling these two bills," Dunham said.
Boxer (D-Calif.), a leading critic of the Udall-Vitter legislation, confirmed this week that she is negotiating with lawmakers who support the TSCA bill. Previously, Boxer had warned she would raise procedural objections on the Senate floor and seek amendments if her colleagues did not address her concerns with the plan (E&E Daily, July 9). Boxer had argued that the more limited House TSCA reform bill, H.R. 2576, could be amended to be more protective and the Senate bill scrapped, but that position failed to win the support of most of her colleagues.
"I'm not going to tell you what I'm negotiating, but it's going very well," Boxer said this week, according to Bloomberg BNA. Boxer's office declined to elaborate on her comments.
Lawmakers are also working to avoid unnecessary amendments to the legislation, such as a plan floated by Sen. John Hoeven (R-N.D.) last week to attach an amendment allowing crude oil exports to the bill (E&E Daily, Sept. 17).
Dunham said the bill, with 56 co-sponsors, should pass the Senate quickly.
Despite the prospects of action, groups including the Natural Resources Defense Council; Safer Chemicals, Healthy Families; the Environmental Working Group; and others have opposed the plan. Safer Chemicals, Healthy Families released a letter today by Democratic Govs. Jerry Brown of California, Peter Shumlin of Vermont, Maggie Hassan of New Hampshire and Jay Inslee of Washington warning that the bill "would weaken safeguards against dangerous chemicals."
The governors said that S. 697 needed to be altered to adjust the timing of when state chemical laws would be overridden by federal authority, keep language letting states request waivers from federal pre-emption and preserve all existing state chemical laws and programs.
"We'll have to see, once everyone sees the changes that were made in order to get a time agreement, whether that's enough to get even more groups to jump on board with the Lautenberg bill," Dunham said.
Vitter, who is running for governor of Louisiana this year, is scheduled to participate in agubernatorial debate tomorrow in Westwego, La., according to the New Orleans Times-Picayune, which could make it a less attractive date for considering the TSCA legislation on the Senate floor.
Vitter and Environment and Public Works Chairman James Inhofe (R-Okla.) touted what they said are the bill's conservative principles this afternoon.
"This legislation will prevent one or two states, working only with the environmental community, from determining regulations that impact businesses and families across the entire nation," Inhofe said in a statement. "It instead promotes collaboration among all the states and the federal government, empowers governors to make recommendations on what substances are being reviewed, and gives states like Oklahoma a greater role going forward."
In a statement, Vitter said the bill "has common sense conservative reforms, including holding federal agencies accountable for their decisions and ensuring they use sound science and rigorous cost-benefit analysis, which unfortunately is not something they are currently required to do."
Senate Majority Leader Mitch McConnell (R-Ky.) hasn't determined a date to proceed to the TSCA bill, spokesman Don Stewart said.

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Vitter, Inhofe Announce Growing Republican Support for Chemical Safety Reform

Sep 30, 2015 | Edmond Sun

Today, U.S. Sens. David Vitter (R-La.) and Environment and Public Works Committee Chairman James Inhofe (R-Okla.) announced the Frank R. Lautenberg Chemical Safety for the 21st Century Act has 33 Republican Senate cosponsors, bringing the total of bipartisan cosponsors to 56 representing 36 states. The bipartisan legislation would overhaul the outdated Toxic Substances Control Act to better protect the public while still allowing American businesses to thrive and innovate.
“Now with 33 Republican cosponsors, the excitement for passing the Frank R. Lautenberg Chemical Safety for the 21st Century Act is tangible. Our country has lived under a broken chemical law for nearly four decades now, and this comprehensive, bipartisan reform bill will make necessary changes to provide Americans and our chemical industry with the certainty they deserve without stifling industry success,” said Vitter. “We’ve worked hard to make sure the Frank R. Lautenberg Chemical Safety for the 21st Century Act has common sense conservative reforms, including holding federal agencies accountable for their decisions and ensuring they use sound science and rigorous cost-benefit analysis, which unfortunately is not something they are currently required to do.”
“The Lautenberg Act has garnered the support of a majority of Republicans because it is common-sense regulatory reform. Not only will it help to better safeguard Americans, but it also gives job-creators the certainty they need with one clear rulebook that protects interstate commerce. The legislation will require any federal decisions to be based on sound science and take into consideration regulatory costs as well as benefits. Most importantly, this legislation will prevent one or two states, working only with the environmental community, from determining regulations that impact businesses and families across the entire nation. It instead promotes collaboration among all the states and the federal government, empowers governors to make recommendations on what substances are being reviewed, and gives states like Oklahoma a greater role going forward. I applaud the 33 Republicans who recognize that now is the time to update this outdated and broken law in a reasonable way,” said Inhofe.
The current list of Republican cosponsors includes: Senators Vitter, Inhofe, Roy Blunt (R-Mo.), John Boozman (R-Ark.), Shelley Moore Capito (R-W.V.), Bill Cassidy (R-La.), Mike Crapo (R-Idaho), John Hoeven (R-N.D.), Rob Portman (R-Ohio), Mike Rounds (R-S.D.), John Thune (R-S.D.), John Barrasso (R-Wyo.), John Cornyn (R-Texas), Tom Cotton (R-Ark.), Johnny Isakson (R-Ga.), Lisa Murkowski (R-Alaska), Marco Rubio (R-Fla.), Tim Scott (R-S.C.), David Perdue (R-Ga.), Daniel Coats (R-Ind.), Pat Toomey (R-Pa.), Orrin Hatch (R-Utah), Kelly Ayotte (R-N.H.), Steve Daines (R-Mont.), Pat Roberts (R-Kan.), Lindsey Graham (R-S.C.), Roger Wicker (R-Miss.), Richard Burr (R-N.C.), Thom Tillis (R-N.C.), Lamar Alexander (R-Tenn.), Deb Fischer (R-Neb.), Jeff Flake (R-Ariz.), and Mike Enzi (R-Wyo.).

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Senate Moves Closer to Floor Action on TSCA Reform

Sep 30, 2015 | Shopfloor

By Rachel Jones

The rumors are true; the Senate is set to consider major chemical reform. Taking up S. 697, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, demonstrates that bipartisan partnership is still possible amid partisan gridlock.
From introduction of S. 697 by Senator Tom Udall (D-NM) to the current slate of 23 Democrat and 33 Republican Senate cosponsors, efforts to fix our broken chemical system have been a real team effort. In addition to the NAM, hundreds of groups have come out supporting S. 697, from industry, labor, and public health, to environmental, wildlife, and animal welfare organizations. This unprecedented effort to modernize the Toxic Substances Control Act (TSCA) reminds us that there’s still hope for Washington as long as people are willing set differences aside and work together for the greater good.
Given how polarizing environmental issues have been in Washington recently, it’s truly refreshing to see lawmakers taking their responsibility to provide solutions seriously. It’s time for more than talking-points; it’s time for the hard work of hammering out compromise. And taking up serious TSCA reform legislation is a big step in the right direction.

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Senate Chemical Bill Draws Fresh Concerns from States

Sep 30, 2015 | Safer Chemicals, Healthy Families

By Tony Iallonardo

With rumors swirling that the Senate could call a vote very soon on S.697, the Vitter-Udall chemical bill, four governors are raising fresh concerns about the bill, even as they encourage Congress to pass reform.
They wrote to Senate leaders today expressing “significant continued concern with a number of elements” of the bill that’s intended to update the nation’s chemical safety policy. It expresses particular concern about sections that would limit the ability of states to rein in toxic chemicals: preemption, grandfathering of statutes, and getting federal waivers. Previously, the National Conference of State Legislatures, the National Governors Association and nine state AGs have been on record with concerns about S.697.
With so much concern from so many quarters, one has to wonder why the bill hasn’t been fixed to address these serious flaws. Help us get the message across to your senators,click here to send them an email now!

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EPA Lists Extensive Data Needs for Bioengineered Algae

Sep 30, 2015 | BNA Daily Environment Report

By Pat Rizzuto

Guidance the Environmental Protection Agency is developing for new types of genetically engineered algae submissions may require a wide range of genetic, production, disposal and other information, officials said at a Sept. 30 workshop.
The EPA's oversight over this increasingly important commercial technology will raise anew the long-standing tension between businesses and public right-to-know advocates over access to information, said Jeffrey Morris, deputy director for programs within EPA's Office of Pollution Prevention and Toxics (OPPT).
That office is updating guidance it issued in 1997 for chemical manufacturers and processors making or processing genetically modified organisms to produce chemicals sold in commerce.
The update is part of a broader governmentwide effort to overhaul federal regulations of genetically modified organisms, Morris said. He referred to agencies' response to a memorandum President Obama issued in July (128 DEN A-3, 7/6/15),
TSCA gives the agency regulatory authority over certain microorganisms. The microorganisms must be new, meaning they aren't on the Toxic Substances Control Act inventory, and they must be intended for the commercial production of chemicals regulated under TSCA.
According to a final rule the EPA issued in 1997, the EPA's oversight also applies only to “intergeneric” microorganisms, which may include algae, bacteria and fungi. The term “intergeneric” means the microorganisms contain DNA from more than one genus, the taxonomic classification of organisms above the level of species.
The agency reviews these new microorganisms as well as tests of them in which the microorganisms could be released to the environment.
Chemical manufacturers and processors making or working with new microorganisms must submit either “microbial commercial activity notices,” called MCANs, or TSCA Experimental Release Applications (TERAs) or both.
Significant Technological Developments
Significant technological developments since 1997 coupled with the burgeoning number of biotechnology submissions OPPT is receiving is prompting the need to update the guidance, said Mark Segal, a microbiologist working in the office's risk assessment division.
Biotech submissions the agency has analyzed increased from less than five in 2003 to more than 40 by mid-2015, according to information OPPT released this summer.
Chemical manufacturers and processors already are engineering or are expected to genetically engineer algae to make fertilizers, fuels, oils, building materials, plastic precursors and other products, he said.
Applications the office has already seen or expects to include waste remediation, plant growth promotion and the desulfurization of fossil fuels, according to information Segal presented.
Information, Data Needs
Prior to the workshop, the EPA identified information and data it may want to receive through its MCANs and TERAs to enhance its oversight of the new technologies it is reviewing. The information is described in two “considerations” documents the agency posted on the workshop's website.
Both documents detail extensive genetic, worker exposure and environmental fate information that could be of interest. The considerations for risk assessment document also describes information and data needs to address questions about photoreactors that companies may use to contain algae, open ponds in which the algae could grow as well and antimicrobials or pesticides used.
Dana Perls, food and technology policy campaigner with Friends of the Earth U.S., was among the participants voicing caution during the workshop's public comment sessions.
“Friends of the Earth urges a firm moratorium on the environmental release and commercial use of synthetic biology organisms, as well as a full independent Environmental Impact Statement for all federally funded research in the field of synthetic biology,” she said.
Confidential Business Information
Jaydee Hanson, policy director for emerging technologies at the International Center for Technology Assessment, said EPA's staffing is inadequate for the flood of MCANs and TERAs the agency will be seeing.
The short time frame TSCA provides for the EPA's reviews—90 days—raises questions about the quality of the reviews its limited staff can conduct, Hanson said.
As Congress considers legislation to overhaul TSCA, it could enhance the agency's ability to oversee these emerging technologies, he said, offering several suggestions.
Hansen and Steve Suppan, a senior policy analyst with the Institute for Agriculture and Trade Policy, were among the public speakers who raised particular concern about the extent of confidential business information claims companies are making in their biotech submissions.
Hansen pointed to the public version of an MCAN previously submitted to the EPA that had what he said was essential environmental, health and safety information redacted as confidential.
Agency staff don't have the time to challenge the extensive use of CBI claims, Hansen told Bloomberg BNA.
Engineering Genes for Safety
Scientists, Suppan said, don't yet know how to reliably engineer genes for safety, for example, how to be sure algae were genetically engineered to die if released into the environment.
“We strongly urge the EPA to prohibit commercialization applicants from classifying containment studies and any related environmental or human/animal health data as confidential business information,” Suppan said.
EPA's Morris said federal agencies will discuss CBI protections and the public's right to know as part of their broader response to the White House memorandum.
Agencies expect to hold a public workshop later this fall to officially launch their effort, Morris added.
Benefits, Solutions Cited
In contrast to the concerns voiced by advocates, companies focused on benefits they said their products offer the public and ways the EPA could make its forthcoming guidance effective.
Microbes are the world's original oil producers, said Jill Kauffman Johnson, sustainability director at Solazyme Inc.
Some of the world's smallest organismsoffer solutions to some of the world's largest problems, she said. Kauffman Johnson referred to climate change among other problems.
David Glass, a consultant and former regulatory affairs director at Joule, a biotech fuels firm, offered several approaches that he thought the EPA could use to promote the responsible development of genetically engineered algae.
For example, he suggested the EPA compile, or sponsor the compilation of, a database of algae and cyanobacterial strains known in the scientific literature not to express toxins or have other deleterious effects.
Applicants could then be encouraged to select such strains as recipient strains for genetic modification, Glass said.
MCANs for Contained Manufacturing
EPA's guidance also should make it clear that MCANs for contained manufacturing would be evaluated and regulated in a manner different from TERAs or MCANs for open-pond uses, he said.
Morris said the agency will consider all comments received and prepare draft guidance for additional public comment.

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Osha to Update HazCom 2012, Says Ruskin

Oct 1, 2015 | Chemical Watch

By Dinesh Kumar

The US Occupational Safety and Health Administration (Osha) will update its chemicals classification and labelling standard, HazCom 2012, to bring it in line with the sixth revised edition of the UN Globally Harmonized System (GHS).
Updating the standard is “very important to the agency” and it has “put resources on to start working on this update”, said Maureen Ruskin, director of standards and guidance, at this week's meeting of the Society for Chemical Hazard Communication in Virginia.
Osha will examine the changes that were introduced by each of the revised editions, since the third. Highlights among these, said Ms Ruskin, are criteria involving aerosols, desensitised explosives and final updates to the skin and eye chapters. No target dates have been set for completing the updates, she added.
HazCom 2012, which aligns the US standard with the GHS, took effect on 1 June this year (CW 30 June 2015).
Meanwhile, the US and Canada will continue to collaborate on GHS implementation under phase 2 of the work of the Regulatory Cooperation Council (RCC), Ms Ruskin said. The main objectives are:to continue to work to reduce and prevent US-Canada variances in GHS standards;to coordinate common positions before the UN's GHS Subcommittee; andalign US-Canada positions on future updates and implementation of the GHS.
Canada, which is implementing its GHS-aligned Hazard Products Regulations (HPR) (CW 12 February 2015), will use communication and education as key components to seek compliance, Health Canada's Rosslynn Miller-Lee told the conference. Her agency will seek “voluntary compliance in most cases”, she added, rather than make use of its authorities to prosecute violators or to seize non-compliant products.
It also plans to develop compliance promotion and worker training material.
Meanwhile, a Health Canada spokesman told Chemical Watch that the vast majority of labelling and safety data sheet requirements in Canada and the US are now aligned but “some additional requirements in both countries were necessary to maintain the current level of protection for workers or due to the requirements of the respective legislative frameworks.” For example, the US retained a classification and communication requirement for combustible dust, whereas Canada has requirements for carcinogen labelling and bilingual labels.
“While the US and Canada have each retained additional requirements, we have agreed to accept them in each other's system,” he said. Companies in both countries can “harmonise up” and create a single label and SDS, which meets all the requirements in both countries, he added. For instance, the US would accept Canadian requirements for French and carcinogen labelling.

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ECHA Outlines Updates to REACH Guidance

Sep 30, 2015 | BNA Daily Environment Report

By Stephen Gardner

The European Chemicals Agency (ECHA) Sept. 30 said that it would update “in the coming months” REACH guidance on hazardous substances in manufactured products, following a Sept. 10 European Union Court of Justice ruling on substance notification thresholds.
The court ruling clarified that a 0.1 percent by weight threshold for hazardous substances in products—or articles in REACH terminology—applies not only to whole complex articles, such as vehicles, but also to component parts as long as they retain a “special shape, surface or design” (177 DEN A-7, 9/14/15).
The presence of hazardous substances above the threshold triggers obligations for companies that supply articles, including a requirement to notify ECHA if the use of the substance in the article is not already covered by a REACH registration dossier, and a requirement to provide information on request to consumers.
ECHA said Sept. 30 that in light of the ECJ ruling, it would carry out a “quick update” of REACH guidance, followed by a more detailed revision of the guidance that would include new case studies that are “fully aligned with the court judgement.” REACH is the EU law on the registration, evaluation and authorization of chemicals (Regulation No. 1907/2006).
As part of the more comprehensive update of the guidance, there would be “consultation of accredited stakeholders,” ECHA said.

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Wilson Center Finds Limited Federal Research On Synthetic Biology Risk

Sep 30, 2015 | InsideEPA

By Maria Hegstad

A new report from the Wilson Center's Synthetic Biology (synbio) Project finds federal agencies spending little on environmental and health risk research related to nascent synbio technologies, despite the growing number of applications EPA has received seeking permission to test or produce synbio products in recent years.
"Between 2008 and 2014, the United States invested approximately $820 million dollars in synthetic biology research," says the report released this month, noting that 67 percent of this funding comes from the Defense Department (DOD). "There is little focus on risk research. Less than one percent of the total U.S. funding is focused on risk research and approximately one percent addresses ethical, legal, and social issues."
DOD spending on synbio research has increased dramatically in recent years, according to the report. "One of the biggest changes since 2010 has been the increase in Defense Advanced Research Projects Agency (DARPA) funding, from no spending in 2010 to more than $100 million in 2014."
Todd Kuiken, a senior program associate with the Wilson Center Synthetic Biology Project and one of the report's authors, explains that they found no evidence of EPA synbio research or funding in any of the databases and other sources they referenced. Kuiken acknowledged that "there's obviously [EPA] money being spent on the regulatory side. [But] in terms of the research office, there's no project that we found focused on synbio."
Kuiken continued, "That's hopefully something people will ask about . . . given that they're going to have lots of submissions utilizing synbio techniques."
Kuiken references the growing number of applications that EPA's toxics office has received in recent years, seeking permission to produce or test synbio technologies as part of the agency's new chemicals review program under its Toxic Substances Control Act (TSCA) authority.
As part of its reaction to the surge in applications, EPA is crafting new guidance aimed at improving its reviews of companies' proposals to develop synbio projects, with a focus on synbio algae technology. Last month, the agency announced a workshop on the project for public participation that it held Sept. 30.
In its announcement, EPA explained that "the number of TSCA biotechnology submissions to EPA is increasing rapidly," citing a chart where submissions in 2012 tripled from previous years, and have spiked again so far in 2015.
At the time, Kuiken praised the agency for undertaking the guidance document update and the public workshop, adding that "a lot of people argue that [EPA doesn't] have the bandwidth, and some say the expertise," to deal with the increasing number of synbio submissions.
Missing Information
Kuiken explains that the information EPA needs to make regulatory decisions regarding synbio is the kind of information that is missing in existing federal research spending on synbio. "At least what we found, none of the agencies are funding risk research," Kuiken said. "It's hard to see even where EPA would get any scientific information about how to evaluate a product."
The situation described in the Wilson Center's report is "very similar" to what its researchers saw with nanotechnology several years ago, Kuiken said, with the vast majority of the National Nanotechnology Initiative's (NNI) budget going toward development of new nanotechnologies and very little toward environment, health and safety research.
The result was increasing pressure on NNI from environmentalists and public health advocates, who argued that as much as 10 percent of the nation's nano spending should go toward such risk-related research. This led, in 2008, to EPA and the National Science Foundation funding a pair of Centers for Environmental Implications of Nanotechnology at Duke University and the University of California Los Angeles, intended to provide relevant environmental risk research, and this could be a model for synbio risk research, Kuiken says.
"EPA was perhaps unfairly bashed for not doing" nano research, Kuiken says. "Their budget is constantly getting shrunk. That's why [what] we're saying [here is that] there's no real synbio research strategy."
Industrial biotechnology, or synbio, "is evolving so rapidly that no widely accepted definitions exist," according to the Wilson Center Synthetic Biology Project's website. The site describes synbio as recent advances in science that allow researchers to create new organisms by engineering new DNA sequences.
These new organisms can do things like "produce biofuels or excrete the precursors of medical drugs. To many people, this is the essence of synthetic biology," the website says.
The Wilson Center report and EPA's workshop follows a report last March from the National Academy of Sciences, which recommended that EPA and other agencies prepare to assess the risks that the rising uses of industrial biotechnology pose to human health and the environment.
The report also highlighted gaps in existing laws that may provide challenges to federal agencies seeking to regulate the new technology. Further, the report heralded these new types of technology as new, sustainable production processes that can move chemicals away from their traditional petroleum base.

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Chemical Security News

DuPont Urged to Adopt Safety Reforms at Plant Where 4 Died

Sep 30, 2015 | E&E PM

By Sam Pearson

DuPont used poor safety procedures, encountered design problems and failed to plan for a leak of toxic chemicals at its La Porte, Texas, plant where four workers were killed last year, the U.S. Chemical Safety Board said today.
The CSB said that DuPont's poor procedures contributed to the release of nearly 24,000 pounds of methyl mercaptan, a toxic chemical used to make the insecticide Lannate and to odorize natural gas.
Under interim recommendations set to be voted on by the board at a public meeting this evening in Houston, CSB staff suggest DuPont take immediate steps to improve safety at the site. These steps are necessary before DuPont reopens the insecticide unit, which has been shut down since the incident occurred Nov. 15, 2014 (Greenwire, Nov. 17, 2014).
Recommendations include performing an inherently safer design review, analyzing process safety hazards, improving workforce participation in safety operations, and increasing public accountability and transparency, the CSB said.
The board also released a safety video describing the series of events.
"We value the CSB's perspective, and we are taking their recommendations seriously," plant manager James O'Connor said in a statement. "The La Porte plant is shut down and will remain so until DuPont has executed a comprehensive and integrated plan to safely resume operations."
According to CSB, water had mixed with liquid methyl marcaptan within piping at the plant days before the incident -- a common occurrence at the plant in cold weather. Workers planned to clear the blockage by spraying hot water on the pipes to melt the material.
Though the blockage was cleared, during the operation, a valve was mistakenly left open, allowing the water to flow into another set of piping leading to a methyl mercaptan storage tank. That water then mixed with methyl mercaptan and blocked the piping again. Workers then heated the piping with warm water to break the blockage. But during the process, methyl mercaptan -- vaporized by the heat -- was unable to leave the piping except through the venting system, where it wasn't intended to travel.
When the unit failed to start up again, workers left to take a break but left a valve emitting methyl mercaptan open and continued to heat the pipe. At about 2:45 a.m., storage levels in the methyl mercaptan tank dropped, and the chemical was fed into the venting system. That triggered high-pressure warnings, but that wasn't unusual because of "flawed equipment design," the CSB said.
It happened so often that workers were forced to drain fluid from the venting system on a regular basis, the CSB said. But when two workers -- Wade Baker and Crystle Wise -- were sent to drain the system, methyl mercaptan vapors entered the building, filling the room with the toxic gas. Baker and Wise weren't wearing protective gear to prevent them from inhaling the chemical, which wasn't required for the procedure even though it was available.
At the time, ventilation fans that were the subject of an urgent work order almost a month earlier were not working, but they might not have protected the workers because so much of the gas was released, CSB lead investigator Dan Tillema said.
Four other employees responded to a distress call, including brothers Gilbert and Robert Tisnado, who were later killed.
The leak continued another 90 minutes before emergency response workers with protective gear entered the plant and closed the valves, the CSB said.
The plant operation that prompted the release was conducted without written procedures, the CSB said.
CSB Chairwoman Vanessa Sutherland said that while DuPont was long thought of as a safety leader, three CSB investigations in the past five years of fatal incidents called into question whether the company's safety tools are sufficiently protective.
Adopting the CSB's recommendations would be the "first step to fully restore DuPont's global reputation for safety," Sutherland said.
The board's four members are set to vote on the interim recommendations this evening. Tillema said the agency did not know how long it will take to prepare a final report, which will seek to identify in more detail the root cause of the incident.

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Energy and Environment News

Federal Court Blocks Obama Administration’s Fracking Rule

Sep 30, 2015 | The Wall Street Journal

By Amy Harder

A federal judge in Wyoming on Wednesday blocked Interior Department rules setting stricter standards for hydraulic fracturing on public lands, the second set of major regulations from the Obama administration to be faulted in court in as many months.
U.S. District Judge Scott Skavdahl issued a preliminary injunction barring implementation of the rules, saying the Interior Department lacked the authority to issue them.
The rules, issued by department’s Bureau of Land Management in March, apply to oil and gas drilling on federal lands, which produce 11% of the natural gas consumed in the U.S. and 5% of the oil, according to government data. Much of this drilling is concentrated in Western states, such as Colorado and Wyoming, two of the states challenging the standards. More than 90% of new land-based wells in the U.S. use hydraulic fracturing, known as fracking.
“Congress has not authorized or delegated to the BLM authority to regulate hydraulic fracturing and, under our constitutional structure, it is only through congressional action that the BLM can acquire this authority,” the judge wrote.
The government could appeal the order. A spokeswoman for the Interior Department said the agency is consulting with the Justice Department about the decision.
“While the matter is being resolved, the BLM will follow the Court’s order and will continue to process applications for permit to drill and inspect well sites under its pre-existing regulations,” she said.
In late August, another federal judge blocked an Environmental Protection Agency rule that seeks to put more bodies of water and wetlands under federal protection.
Fracking involves injecting water, sand and chemicals into a well to break up dense rock and release oil and gas. Energy companies have employed the technology for decades, but increased use of it has helped unlock vast reserves of oil and gas across the U.S. in recent years. Fracking is controversial among environmentalists and some landowners, who worry about water contamination and continued dependence on fossil fuels.
The rules set stricter standards for disposing of wastewater and disclosing chemicals used in fracking and were slated to go into effect this summer.
The same Wyoming judge delayed implementation of the regulations until he decided whether to block them during the litigation mounted by the Western states and energy trade groups, which cheered Wednesday’s order.
“We are overjoyed that we are finally getting relief from the courts regarding the regulatory overreach of the Obama administration,” said Kathleen Sgamma, vice president of government and public affairs at Western Energy Alliance, an association representing more than 400 energy companies, such as Encana Corp., Devon Energy Corp. and Halliburton Co. The alliance is a party to the lawsuit against the government.
Referring to last month’s court order blocking EPA’s water rule, Ms. Sgamma added: “We hope BLM, EPA and other agencies that are rushing to implement even more regulations on the very businesses that create jobs will pause and actually follow the law and regulatory procedure.”
Environmentalists criticized the court order. “Rather than blocking these protections and letting the gas industry endanger our health, our communities and our wildlife, we need to focus on growing our clean energy economy and holding polluters accountable,” saidMichael Brune, executive director of the Sierra Club, one of the environmental groups that intervened in the lawsuit on the government’s behalf.
Drilling on private or state-owned land wasn’t subject to the new federal standards, but federal officials have said they hope the Interior Department’s fracking rule could provide a common baseline throughout the U.S., an effort that Wednesday’s ruling casts doubt on. Most energy-producing states such as Colorado, North Dakota, Pennsylvania and Texas regulate fracking already, but there are no national standards.

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Judge Blocks Obama Administration Rules on Fracking

Sep 30, 2015 | The New York Times

By Coral Davenport

A federal judge on Wednesday blocked the Obama administration’s first major regulations on hydraulic fracturing, a technique for oil and gas drilling that has led to a boom in American energy production but has also raised concerns about health and safety risks.
The United States District Court for Wyoming issued a preliminary injunction preventing the Interior Department from carrying out the rules, which were issued in March by the department’s Bureau of Land Management. The ruling, however, stops regulations aimed at only a small fraction of the nation’s domestic oil and gas production.
The Interior Department began drafting the rules, focused on drilling safety, in Mr. Obama’s first term after breakthroughs in the technology, also known as fracking, led to a surge in the production of oil and gas.
The rules were the Obama administration’s first effort to regulate fracking, but they applied only to oil and gas production on federal and tribal lands. The vast majority of fracking in the United States — almost 90 percent — is done on state and private land and is governed by state and local regulations.
Almost as soon as the rules were released, oil and gas industry groups, including the Independent Petroleum Association of America and theWestern Energy Alliance, sued the administration to block them, charging that they were unnecessary and duplicated state regulations.
In siding with the plaintiffs, the court concluded that the Bureau of Land Management lacked the authority to regulate energy extraction on public lands.
“The fracking rule creates an overlapping federal regime, in the absence of congressional authority to do so, which interferes with the states’ sovereign interests in, and public policies related to, regulation of hydraulic fracturing,” Judge Scott Skavdahl wrote in the ruling.
The decision delays execution of the rules in every state until the Wyoming court hears arguments on their legal merits. The case is expected to be argued later this year.
“While the matter is being resolved, the B.L.M. will follow the court’s order and will continue to process applications for permit to drill and inspect well sites under its pre-existing regulations,” an Interior Department spokeswoman, Jessica Kershaw, said in a statement.
Industry groups cheered the decision, which was a blow to environmental groups that had pushed for more regulation of fracking.
“We are overjoyed that we are finally getting relief from the courts regarding the regulatory overreach of the Obama administration,” Kathleen Sgamma, vice president for government and public affairs for the Western Energy Alliance, said in a statement.
The fracking boom has put the United States on track to become the world’s largest oil and gas producer. But environmentalists fear that the technique, which involves injecting a cocktail of chemicals deep underground to break up the rocks around oil and gas deposits, could contaminate surrounding water supplies and harm wildlife.

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Judge Halts Fracking Rules Until Legal Challenge Decided

Oct 1, 2015 | PoliticoPro - Whiteboard

By By Elana Schor

A federal judge in Wyoming today issued a preliminary injunction against the Interior Department's landmark fracking regulations that prevents them from taking effect until a lawsuit brought by states and industry groups runs its course.
The ruling from District Judge Scott Skavdahl came in response to a challenge filed by the Independent Petroleum Association of America and the Western Energy Alliance, two industry groups, and backed by the states of Wyoming, Utah, North Dakota and Colorado. Interior's Bureau of Land Management finalized the fracking rules in March.
"This ruling confirms the reservations Judge Skavdahl expressed at the preliminary injunction hearing about the viability of BLM’s rule," BakerHostetler attorney Mark Barron, who represented the industry groups, said in a statement. "The Court recognized that both substantive infirmities with the rule itself and procedural inadequacies in BLM’s rulemaking process compromise the validity of BLM’s hydraulic fracturing rule."

The rule aims to set the first national standards for well construction, chemical disclosure, and other elements of the fracking process conducted on federal lands.

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New Federal Fracking Rules Blocked by Judge in Wyoming

Sep 30, 2015 | BNA Daily Environment Report

By Andrew Harris and Mark Drajem

New federal fracking regulations have been blocked by a U.S. judge in Wyoming, who said the Bureau of Land Management lacks the authority to control hydraulic fracturing (Wyoming v. Interior, D. Wyo., No. 15-CV-43, 9/30/15).
The Sept. 30 ruling by U.S. District Judge Scott Skavdahl puts a temporary hold on the most closely watched effort by the Obama administration to ensure that fracking doesn't contaminate water supplies. While the rules apply only on federal lands, they are designed to spur states to toughen their safety protections as well.
About 90 percent of the wells on federal land rely on hydraulic fracturing, or fracking, the pumping of sand, water and chemicals to free natural gas and oil within subterranean rock. While fracking has catapulted the U.S. to world leadership in oil production, it's also been blamed for air pollution, tainted groundwater and even earthquakes.
Dual Lawsuits
The challenged rules were announced in March. Skavdahl issued a temporary order putting the regulations on hold after a hearing on June 23, the day before they were to take effect. His preliminary injunction comes in a pair of lawsuits, one pressed by the states of Wyoming, North Dakota, Colorado and Utah, and another by the Independent Petroleum Association of America and the Western Energy Alliance.
Those suing argued the rules duplicated state regulations and increased costs of extracting resources from oil-rich shale formations in the U.S.
The U.S. asserted it could set the standards for more than 100,000 wells making up 11 percent of the nation's natural gas output and five percent of it's oil. The government also said the land management bureau would work closely with states and native American tribes to avoid duplication.
Blocking the rules, the government argued, could leave a regulatory gap on some federal and Indian lands.
Rejecting the government's rationale, the judge found it likely those suing could later win an order permanently barring enforcement.
Final Resolution
“Congress has not authorized or delegated to the BLM authority to regulate hydraulic fracturing and, under our constitutional structure, it is only through congressional action that the BLM can acquire this authority,” he said in a 54-page decision.
Skavdahl's ruling sets the case on course for a final resolution early next year, barring an attempt to have the outcome reversed on appeal. The U.S. Justice Department is reviewing the decision, spokesman Wyn Hornbuckle said in an e-mail. The Interior Department also said in an e-mailed statement that it would follow the court's order and “continue to process applications for permit to drill and inspect well sites under its pre-existing regulations.”
“We are overjoyed that we are finally getting relief from the courts regarding the regulatory overreach of the Obama administration,” Western Energy Alliance vice president Kathleen Sgamma said in an e-mailed statement.
Neal Kirby, a spokesman for the Independent Petroleum Association, said in a statement that the court's decision, “essentially shows BLM's efforts are not needed an that states are—and have for 60 years been—in the best position to safely regulate hydraulic fracturing.”
Petroleum association attorney Mark Barron said separately by phone that the ruling shows Skavdahl thinks their case is strong and that his client and the others who sued are likely to ultimately prevail. The case will be decided on the strength of additional briefing and oral argument, not a trial, he said. The regulations will remain on hold at least until then.

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Judge in Wyoming Blocks Fracking Rule

Sep 30, 2015 | The Hill - E2 Wire

By Devin Henry

A federal judge has issued an injunction against new Department of Interior regulations for hydraulic fracturing on federal land.
Judge Scott Skavdahl of the U.S. District Court of Wyoming ruled Wednesday that the Bureau of Land Management (BLM) cannot institute its new fracking rule until lawsuits against it are settled.
In a 53-page opinion, Skavdahl cast doubt on the federal government’s ability to issue the rule. He issued the injunction because he decided the states and industry groups suing against the rule proved it would harm their operations and that their lawsuit is likely to succeed on its merits.
In his opinion, Skadvahl said he doesn’t think the Interior Department has the right to regulate fracking on federal land because Congress had, at one point, taken that power away from another agency.
“One of the fundamental questions presented in this case is whether Congress granted or delegated to the BLM the authority or jurisdiction to regulate fracking - despite having specifically removed such authority in the Energy Policy Act of 2005 from another federal agency [the Environmental Protection Agency],” he wrote.
“At this point, the Court does not believe Congress has granted or delegated to the BLM authority to regulate fracking … It is hard to analytically conclude or infer that, having expressly removed the regulatory authority from the EPA, Congress intended to vest it in the BLM, particularly where the BLM had not previously been regulating the practice.”
The rule will now be put on hold while the courts decide the underlying lawsuits around it. In a statement, the Interior Department said it would respect the ruling.
"The BLM is consulting with the Office of the Solicitor and the Department of Justice about the decision of the U.S. District Court in Wyoming to issue a preliminary injunction of the hydraulic fracturing rule,” the agency said in a statement.
“While the matter is being resolved, the BLM will follow the Court's order and will continue to process applications for permit to drill and inspect well sites under its pre-existing regulations."
The Interior Department finalized the broad new fracking rule in March, marking the Obama administration’s biggest foray into regulating oil and gas production on federal lands around the U.S.
The rules look to regulate well design and set requirements for the disposal of fracking wastewater, as well as require drillers to disclose what chemicals they use in their operations.
When they announced the rule, Interior Department officials said it was meant to protect the environment and update old federal standards in light of new fracking technologies.
But Republicans, oil and gas producers and oil-rich states blasted the proposal as federal overreach that would hurt their fracking operations.
Colorado, Utah, Wyoming and North Dakota, as well as the Independent Petroleum Association of America and the Western Energy Alliance, sued over the rule. In June, Skadvahl blocked the rule hours before it was scheduled to take effect so he could later rule on the injunction request against it.
Opponents of the rule praised the decision on Wednesday.
“We are overjoyed that we are finally getting relief from the courts regarding the regulatory overreach of the Obama Administration,” said Kathleen Sgamma, the vice president of government and public affairs at Western Energy Alliance.
“The United States has experienced a regulatory onslaught from an administration that acts as if it is not bound by the limits of the law. The regulatory overreach has cost hundreds of thousands of jobs and prevented considerable economic growth.”
Republican lawmakers also supported the injunction.
“The Interior Departments new rules … would create a second regulatory layer on top of the states’ regulation, creating unnecessary delays and increased costs for energy producers,” Sen. John Hoeven (R-N.D.) said.
“That translates into increased costs for energy consumers. The energy industry needs certainty to make the kinds of investments that will create more energy more efficiently with better environmental stewardship.”
Rep. Rob Bishop, the chairman of the House Natural Resources Committee, called the ruling “the right decision.”
“The BLM’s hydraulic fracturing rule will cause major harm to states, industry, and the American people if implemented, so much so that the Wyoming District Court blocked the implementation until further analysis,” Bishop said.
“This judicial decision is the right decision because it stops the Obama Administration from shoving this harmful policy down the states’ throats.”

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Federal Court Blocks BLM Fracking Rule

Sep 30, 2015 | E&E PM

By Ellen M. Gilmer

The Obama administration's long-awaited hydraulic fracturing rule won't take effect until a federal court reviews its legality.
The U.S. District Court for the District of Wyoming today enjoined the new fracking regulation, finding the Interior Department's Bureau of Land Management lacks clear authority to regulate the oil and gas production technique on federal and tribal lands.
"The Fracking rule creates an overlapping federal regime, in the absence of Congressional authority to do so, which interferes with the States' sovereign interests in, and public policies related to, regulation of hydraulic fracturing," Judge Scott Skavdahl wrote in the opinion.
The decision is a major setback for BLM and environmentalists, who pushed for the new requirements for years.
"We respectfully disagree with the court," said Earthjustice attorney Michael Freeman, who represents environmental groups to defend the rule. "BLM has well-established authority to regulate hydraulic fracturing and other downhole aspects of drilling on federal lands."
The final rule, released in March, set new requirements for well construction, wastewater management and chemical disclosure for fracked wells. It faced immediate challenges from the oil and gas industry and states that saw it as an overreach and a duplication of state regulatory efforts (Greenwire, March 20).
Attorneys for Wyoming, Colorado, North Dakota and Utah argued in briefs to the court that Congress used the Safe Drinking Water Act and Energy Policy Act of 2005 to give states sole authority over fracking. Skavdahl agreed.
"Through the EPAct's amendment to the SDWA, Congress clearly expressed its intent that non-diesel hydraulic fracturing be removed from the realm of federal regulation, thereby lodging authority to regulate that activity within the States and Tribes," the judge wrote.
Industry representatives cheered the court's ruling today, saying the decision casts serious doubt on the viability of the rule overall.
"The Court recognized that both substantive infirmities with the rule itself and procedural inadequacies in BLM's rulemaking process compromise the validity of BLM's hydraulic fracturing rule," BakerHostetler attorney Mark Barron, who is representing the Independent Petroleum Association of America, said in a statement. "We appreciate Judge Skavdahl's thoughtful consideration of the motion and are eager now to move on to the merits of this litigation."
The Western Energy Alliance's Kathleen Sgamma said the ruling showed that BLM relied on "unfounded claims" of fracking's harms.
"BLM provided no evidence that its rule is necessary or that state regulation is not already protecting the environment," she said in a statement. "That is a significant finding for the oil and natural gas industry, since for several years, the environmental lobby has fomented fear in the public about an engineering process that has been safely regulated by states for decades."
A BLM spokeswoman said the agency was still reviewing the decision. The agency and environmentalists are expected to appeal to the 10th U.S. Circuit Court of Appeals.

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Toxics, Water Use Top Fracking Concerns: Researcher

Sep 30, 2015 | BNA Daily Environment Report

By Pat Ware

Public concerns about hydraulic fracturing to extract oil and natural gas include the toxicity of the compounds and the quantity of water used in the procedure, a researcher with the Environmental Protection Agency's Science Advisory Board said Sept. 30.
The public also is concerned about how wastewater is handled and the lack of available data on the safety of the practice, Susan Brantley, a member of SAB's Hydraulic Fracturing Research Advisory Panel, said in a teleconference. Brantley also is a professor of geosciences at Pennsylvania State University.
Brantley summarized 257 comments received on the EPA's draft hydraulic fracturing report that was released in June.
As concerns about potential contamination of drinking water by hydraulic fracturing, or fracking, have arisen in recent years, the EPA has begun to look at the issue more closely. The report is considered significant because it could serve as a critical resource for federal, state, local and tribal authorities, as well as industry, to better protect drinking water.
The report, which is undergoing peer review, said there are risks associated with hydraulic fracturing but that contamination of drinking water sources hasn't been found on a widespread basis (108 DEN A-1, 6/5/15)(108 DEN A-1, 6/5/15)
Bradley said the research panel put the comments on a spreadsheet and sorted them into broad categories. She didn't list the categories in any particular order during the teleconference.
Lack of Transparency
Other comments expressed concerns that the fracking water-injection process itself could contaminate water, the overall scope of the EPA study was too limited, there was a lack of transparency about data and that the study was reported differently around the country, Brantley said.
Others commented that their personal experiences with fracking didn't line up with the EPA report's conclusions, she said.
Some parties commented that hydraulic fracturing is safe and expressed concern that unnecessary regulations would be imposed on the petroleum industry, she said. Other parties expressed approval of the EPA's study and gave kudos to the agency for undertaking the research, she said.
The advisory panel is scheduled to hold another teleconference later in October and to meet Oct. 28-30 in Washington.

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Congress Averts Government Shutdown With Hours To Spare (Video)

Sep 30, 2015 | Roll Call

By Emma Dumain

Though conditions on the ground looked eerily similar to those that caused a two-week government shutdown two years ago, the House on Wednesday passed legislation to keep federal operations afloat through Dec. 11.
With hours to spare, the chamber voted on the stopgap spending bill, 277-151, with every Democrat, joined by 91 Republicans, voting “yes” and 151 Republicans voting “no.”
In a move to appease conservatives who wanted to tie defunding Planned Parenthood to the must-pass spending bill, the House also advanced a so-called “correction enrollment” to “correct” the continuing resolution to strip the embattled women’s health organization of federal funds.

Members voted 241-185 on what was ultimately a messaging vehicle that won’t even advance in the Senate, with three dissatisfied Republicans joining nearly every Democrat (only three voted yes) in opposition.
President Barack Obama will sign the 10-week CR before midnight, when current government funding was set to expire. The Senate sent the House the legislation earlier in the day.
GOP leaders who didn’t want to risk the potential political nightmare of another government shutdown ahead of a presidential election year breathed a sign of relief, but a larger fight remains.
Before Dec. 11, Republicans and Democrats in the House and Senate will have to negotiate new spending levels to replace sequestration, as Obama has said he would veto any long-term spending bill that adheres to current caps. Republicans will still likely fight to strip funding from Planned Parenthood, and they might also demand leaders try to extract concessions from the White House as a condition of raising the debt limit, which must be dealt with soon.
The next big fiscal battle will also be the first big test for the new GOP leadership slate, to be installed in early November after Speaker John A. Boehner officially resigns Oct. 30.

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Congress Clears Funding Bill Minus Environmental Riders

Sep 30, 2015 | BNA Daily Environment

By David Schultz

A short-term federal spending bill without policy provisions that affect environmental programs cleared both chambers of Congress with hours to spare before a government shutdown.
The bill, a continuing resolution, funds all federal agencies through Dec. 11 at levels slightly below those passed for the 2015 fiscal year, which ended at midnight Sept. 30.
Unlike the appropriations bills considered in Congress earlier this year, this resolution contains no so-called policy riders that would have significantly reined in the Obama administration's ability to develop and implement new regulations on carbon emissions, ozone pollution and waters jurisdiction (186 DEN A-12, 9/25/15).
The Senate passed the resolution on a 78 to 20 vote, with all 20 nay votes coming from Republicans. Many of these Republicans had voted in favor of an earlier version of the bill that included a provision stripping all federal funding from the group Planned Parenthood. (Bloomberg Philanthropies, set up by Michael Bloomberg, owner of Bloomberg BNA, provides financial support for Planned Parenthood.)
Hours later, the House passed the continuing resolution on a 277 to 151 vote. All of the nay votes came from Republicans.
Though a majority of the chamber's Republicans opposed it, House Speaker John A. Boehner (R-Ohio) brought the measure to the floor without fear of reprisal from his party's conservative wing because, as he announced on Sept. 25, he will be stepping down as speaker and resigning his seat at the end of October.
Attention will now turn to passing an omnibus federal spending bill before the expiration of this continuing resolution Dec. 11.
Senate Majority Leader Mitch McConnell (R-Ky.) has said in recent days he is open to beginning negotiations with congressional Democrats and with the White House on setting new spending levels for the 2016 and 2017 fiscal years to avoid having another fiscal crisis erupt during a presidential election year.

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House Panel Approves Energy Bill, Overrules Democrats

Sep 30, 2015 | BNA Daily Environment Report

By Ari Natter

The House Energy and Commerce Committee voted Sept. 30 to approve a broad energy bill after a marathon markup session during which scores of Democratic amendments were defeated.
The bill (H.R. 8) was approved by a vote of 32-20 amidst Democratic objections that bipartisan negotiations on the package were abandoned at the last minute when Chairman Fred Upton (R-Mich.) introduced a substitute amendment the day before the markup.
“This bill only aims to help polluters,” Rep. Frank Pallone (D-N.J.), the committee's ranking member, said in his opening remarks. “Meanwhile, it continues to ignore the impacts of climate change, which remain the biggest threat to our energy security and way of life.”
As approved by the committee, the legislation would expedite the Energy Department's consideration of licenses to export liquefied natural gas, repeal a 2007 law requiring that federal buildings phase out the use of fossil fuels and suspend an Energy Department rulemaking setting energy efficiency standards for furnaces, according to a summary (189 DEN A-30, 9/30/15).
Those measures, and others opposed by committee Democrats, had been removed from a version of the bill approved earlier this year by the Subcommittee on Energy and Power, only to return via the Upton substitute amendment.
“America has the resources to become an energy superpower,” Upton said in a statement after the vote. “All we need are the right 21st century laws to fulfill our promise.”
Path to Law Questioned
While the change to the bill drew praise from groups representing companies such as Cabot Oil & Gas Corp. and Range Resources Corp. and the American Public Power Association, which represents utilities, Pallone and others said it moved the bill too far to the right, casting doubt on whether President Barack Obama would sign the measure into law if it made it to his desk.
Upton said he would “continue working toward building a bipartisan consensus as our goal remains getting something to the president's desk that will be signed into law.”
It remains to be seen when the bill will be brought to the floor for a vote.

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House Panel Approves Energy Reform Bill

Sep 30, 2015 | The Hill - E2 WIre

By Devin Henry

The House Energy and Commerce Committee approved an overhaul of the nation’s energy laws on Wednesday, though the legislation shed much of the bipartisan support it once enjoyed.
The committee passed its energy reform bill on a 32-20 vote, with only three Democrats in favor. The legislation focuses on modernizing infrastructure, improving energy efficiency and updating other federal energy policies.
The bill is the House equivalent of energy legislation a Senate panel passed in August. Rep. Fred Upton (R-Mich.), the chairman of the committee, said it was an important step forward for rewriting federal energy policies during this Congress.
“This is our first attempt at significant energy legislation since 2007 and a great deal has changed in less than a decade,” he said during the markup.
“Fears of America running out of energy have been replaced by a once incomprehensible rise in domestic oil and natural gas production. But our laws and regulations need to be updated in order to reflect this new reality.”
But while the Senate bill secured some bipartisan support in August, and an early draft of the House bill cleared a subcommittee on a unanimous vote, Energy and Commerce Democrats were mostly opposed to the final legislation on Wednesday.
Rep. Frank Pallone (D-NJ), the ranking Democrat on the committee, said Republicans included a series of “significant and controversial changes” in the final bill.
During the hearing, he faulted the bill for omitting funding for new infrastructure projects or pipeline repairs and replacement. He said the bill doesn’t include a grant program for state and local governments to improve their electricity infrastructure, something he and other Democrats had wanted.
“This bill only aims to help polluters,” Pallone said during the markup.
“Meanwhile, it continues to ignore the impacts of climate change, which remain the biggest threat to our energy security and way of life. At the end of the day, we are now faced with a contentious markup on a bill that could have been a bipartisan consensus product.”
The bill won plaudits from a major oil trade group for its focus on expanding liquefied natural gas exports and boosting infrastructure improvements and job training programs.
“This legislation would accelerate America’s energy revolution, bringing thousands of jobs to communities across the country,” said Louis Finkel, the executive vice president for government affairs at the American Petroleum Institute.
But environmental groups hammered the legislation for its focus on supporting fossil fuels over renewable energy.
“The House Energy bill that passed out of the Energy & Commerce Committee today marks yet another missed opportunity to combat climate change, reduce carbon pollution and expand clean energy,” said Sara Chieffo, the vice president of government affairs at the League of Conservation Voters.
“The final legislation pushed by extreme members of the committee puts a heavy thumb on the scale for fossil fuels and entrenched polluter interests.”
During the hearing, Upton acknowledged that the bill didn’t have “bipartisan consensus on as many fronts as I would have liked.”
In a statement after the vote, he said, “We will continue working toward building a bipartisan consensus as our goal remains getting something to the president’s desk that will be signed into law. We are on to the floor.”

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House Energy Bill Advances on Mostly Party-Line Vote

Sep 30, 2015 | PoliticoPro

By Darren Goode

The House Energy and Commerce Committee voted mostly along party lines on Wednesday to advance a sweeping energy bill after the collapse of months of negotiations aimed at securing broader bipartisan support.
The House bill faced a tough road from the start, and lawmakers' enthusiasm for a grand bargain has waned with the approach of the 2016 election. Wednesday's 32-20 vote delivered an unsurprising conclusion to the markup, after Republicans on Tuesday introduced a new version of the bill that included several items Democrats firmly opposed. Three Democrats — Gene Green of Texas, Jerry McNerney of California and Kurt Schrader of Oregon — sided with Republicans in supporting the bill.
Democrats said the measure fell far short in addressing climate change and spent most of the five-hour-plus markup offering amendments to underscore that point. For example, Rep. Frank Pallone (D-N.J.), the committee’s ranking member, offered an amendment to prevent the bill from taking effect until the Energy Information Administration analyzed its "carbon impacts." The amendment failed on a 23-29 party-line vote.
House Democrats were also unsuccessful in offering amendments to remove some of the late GOP changes, such as a provision requiring FERC to study the reliability impacts of EPA power plant rules and language to speed approvals for liquefied natural gas exports.
Green successfully attached an amendment to add $100 million to replace aging natural gas pipelines after Democrats unsuccessfully sought $1.5 billion in additional funding.
Despite objections from Democrats, Energy and Commerce Chairman Fred Upton (R-Mich.) said he remained committed to enacting the first significant update to federal energy policy since 2007. “We’re looking at the long term, getting a bill to the president that in fact he can sign,” Upton said early in the markup.
But Pallone said the bill won’t pass muster with the White House either.
“The suggestion that somehow this bill is going to lead toward the president’s signature I think is totally wrong,” he said. “The effort that we had initially to come together and include some of the Democratic initiatives … that would have made a difference.”
A separate bipartisan energy bill won easy approval from the Senate Energy and Natural Resource Committee this summer, but it is in limbo awaiting available floor time in the full Senate.

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Rough Road ahead as House Bill Advances with Meager Dem Support

Oct 1, 2015 | E&E Daily

By Geof Koss and Hannah Northey

The House Energy and Commerce Committee yesterday approved a broad energy package with the support of just three Democrats, raising questions over the measure's prospects.
The panel voted 32-20 to approve H.R. 8, the "North American Energy Security and Infrastructure Act of 2015," which leaders from both parties labored on for months in hopes of getting a bipartisan bill to the president's desk for the first time since 2007.
Texas' Gene Green, California's Jerry McNerney and Kurt Schrader of Oregon were the only Democrats to join Republicans in backing the measure.
Democrats' decision to oppose the bill is a blow to Energy and Commerce Chairman Fred Upton's objective of sending President Obama a bipartisan energy bill that could actually be signed into law -- although the Michigan Republican reiterated throughout yesterday's all-day markup that his goal of seeing the measure enacted remains intact.
Energy and Commerce Committee ranking member Frank Pallone (D-N.J.) said Republicans would have to first agree to include $5 billion that was previously under discussion to modernize the Strategic Petroleum Reserve and upgrade the electric grid and pipeline networks.
"They would have to, at a minimum, put that funding back in before we could even start negotiations again," Pallone told E&E Daily after the markup. "And then we'd have to talk about other provisions as well."
In a further sign of the rough road ahead for winning Democrats over to the bill, environmentalists quickly slammed the measure after passage.
"What started off as a productive bipartisan collaboration has imploded as the allies of fossil fuel corporations have hijacked energy legislation in the House," Sierra Club Legislative Director Melinda Pierce said in a statement, calling the bill a "polluter grab bag giveaway" disguised as energy legislation.
"This reckless bill pushes dirty fuels, increases dangerous carbon pollution and fattens the wallets of oil and coal CEOs," Pierce said.
But Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.) expressed hope after the vote that House and Senate Republicans can work together to advance the bill to the president's desk. Whitfield said the energy package will reach the lower chamber floor soon and that GOP staffers are continuing to talk with Sen. Lisa Murkowski (R-Alaska), the chairwoman of the Energy and Natural Resources Committee, about merging the two chambers' language.
"[Murkowski has] indicated she's had difficulty getting floor time, but I think she's committed to doing this and we have hopes that she'll have a bill, we'll have a bill, and we'll bring them together," Whitfield said.
Whitfield also criticized his Democratic colleagues for giving up on reaching a compromise. "We've been discussing this with them for five, six months, we had $5 billion set aside, we had four issues, and they weren't willing to give on any of those issues," he said. "I think we gave on a number of issues but building codes, reliability analysis by FERC, capacity markets, which we even watered that down significantly and then the fourth, repeal of efficiency standards."What's in the bill
The bill won applause from the top trade group for the oil and gas industry for its inclusion of a deadline for the Department of Energy to make decisions on natural gas exports.
"This legislation would accelerate America's energy revolution, bringing thousands of jobs to communities across the county," Louis Finkel, the American Petroleum Institute's executive vice president for government affairs, said in a statement. "America is now the world's largest natural gas producer, and our exports have the potential to generate billions in economic opportunities for U.S. workers while supporting our allies against hostile nations."
Republicans accepted a handful of narrow minority amendments but continued to beat back more contentious Democratic amendments to the bill.
The committee rejected by voice vote a Pallone amendment that would have struck language in the underlying bill that requires the Energy Department to decide on liquefied natural gas export projects within a month of the environmental review being completed.
Pallone, whose district is home to a proposed LNG export terminal off New Jersey's coast, said DOE has established a record of acting expeditiously and there's no backlog or record of delay to speak of. Pallone also argued that LNG exports from the United States will go to Asia -- not European countries in Russia's grip -- and that expediting LNG exports is not a pressing issue for the average American. The country should instead focus on offshore wind and other renewables to curb carbon emissions, he said.
"These permits alone could have the ability to become the largest exports of natural gas in the world, so legislation to impose an arbitrary ... deadline ... is simply unnecessary," Pallone said. "We should think twice about giving away this advantage for short-term profits."
Republican Reps. Bill Johnson of Ohio and Pete Olson of Texas shot back that the language is crucial for massive export projects seeking certainty, and they noted that Energy Secretary Ernest Moniz has said the 30-day timeline is workable.
The panel voted 23-25 against an amendment offered by Rep. Bobby Rush (D-Ill.) that would have created a competitive grant program within DOE to help states improve the safety of natural gas distribution systems. Republicans balked over the $3.5 billion authorized level contained in Rush's amendment.
The panel rejected an amendment by Rep. Paul Tonko (D-N.Y.) that would have reauthorized the weatherization assistance program at $450 million annually for five years; the plan would also have reauthorized state energy assistance programs at a total of $375 million over five years.
Tonko, who once headed the New York State Energy Research and Development Authority, argued the money would be well-spent and would strengthen the bill's focus on efficiency. "These programs address real problems," he said.
But Whitfield countered that the weatherization program is "already well-funded," noting it received $5 billion in the 2009 economic stimulus law. The amendment fell by a 22-24 margin.
Republicans also turned back an amendment by Rep. Jan Schakowsky (D-Ill.) that would have established an Office of Consumer Advocacy and Compliance Assistance within the Federal Energy Regulatory Commission.
Schakowsky said the proposal would "give consumers the voice they deserve" when it comes to energy prices, but Republicans noted that the bill already creates an Office of Compliance Assistance and Public Participation within FERC that would perform a similar function.
"We feel like the language in the existing bill sufficiently covers this," Whitfield said before the panel voted 22-25 against Schakowsky's amendment.
Republicans also voted 23-25 to kill an amendment by Rep. Dave Loebsack (D-Iowa) that would have created a distributed wind energy research program within DOE.
Upton noted that DOE already conducts extensive research into wind and has been awarding grants in support of the work since 2013.
Republicans also noted the extensive federal support for solar in rejecting an amendment by Rep. Tony Cardenas (D-Calif.) that would have created a loan and grant program to boost solar installations in low-income areas. It fell 23-28.
The panel rejected 20-28 a Pallone amendment that would have struck a section of the bill imposing new requirements on DOE in setting building codes.
Republicans also turned back, on a 23-28 vote, an effort by Rep. G.K. Butterfield (D-N.C.) to create a program within U.S. EPA that would provide grants to support up to 15 percent of the costs of landlords who participate in the federal Energy Star program for efficiency upgrades.Climate debate rears its head
While climate change has been a recurring source of tension between the two parties in drafting the bill, the final amendment offered to the bill brought the issue to a head.
The proposal, offered by Pallone, would have delayed the bill's effective date until the U.S. Energy Information Administration conducted a review of the measure's reduction of carbon emissions.
Members deserve to know "the full story" on whether the measure will address climate change, Pallone argued.
But Whitfield noted multiple ongoing federal efforts to cut emissions. "There hasn't been any administration" so focused on climate as the Obama administration, he argued.
The amendment was defeated on a 23-29 vote.

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OMB Finishes Review of Ozone Rule, Expected To Be Released Today

Oct 1, 2015 | PoliticoPro - Whiteboard

By Alex Guillen

The White House Office of Management and Budget today wrapped up its review of EPA's new ozone standard, as expected, according to a notice on the agency's website. The notice gives no indication of what the final standard is.
EPA is under a court deadline to finish the rule today.
It is widely expected to set a standard of 70 parts per billion, down from the 2008 standard of 75 ppb. Administration officials have declined to comment on the final rule ahead of its release.

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OMB Starts Review Of EPA Ozone Transport Rule

Sep 30, 2015 | InsideEPA

The White House Office of Management & Budget (OMB) has started its review of a proposed EPA rule to curb interstate transport of ozone-forming emissions that aims to help states attain the agency's 2008 ozone standard, while the agency is poised to issue a decision under an Oct. 1 judicial deadline on tightening the standard.
EPA on Sept. 29 sent the “backstop” rule for mandatory OMB pre-publication review and plans to publish the proposal in December, with a final rule slated for release in August 2016. The rule would set requirements for states to curb emissions to meet the 2008 ozone air standard of 75 parts per billion (ppb).
The rule would replace the Cross-State Air Pollution Rule (CSAPR), EPA's transport rule designed to meet the 1997 ozone air limit expressed as 84 ppb and the 2006 fine particulate matter (PM2.5) national ambient air quality standard (NAAQS) of 15 micrograms per cubic meter. CSAPR has survived a Supreme Court challenge, but state emissions “budgets,” or pollution allowances, have been remanded to EPA by the U.S. Court of Appeals for the District of Columbia Circuit for revision, after the D.C. Circuit found EPA was demanding excessive pollution cuts from some states.
Because CSAPR only addresses the older 1997 ozone standard, a successor rule is required to implement the 2008 ozone standard. The Clean Air Act requires states to craft “good neighbor” plans to stop their emissions that interfere with downwind states' NAAQS attainment, but EPA is working on a rule that would regulate states directly as a “backstop” in the event they fail to produce an acceptable plan.
The pending ozone transport rule will not address interstate PM2.5 pollution because those emissions have declined nationally, nor will it address EPA's imminent rule to revise the ozone standard.
EPA has proposed to tighten the 2008 ozone NAAQS of 75 ppb down to a limit within the range of 65 to 70 ppb. Its Clean Air Scientific Advisory Committee backs a standard in the range of 60 to 70 ppb, while advocates want a 60 ppb NAAQS and industry opposes any change.
If EPA issues such a tougher standard, interstate ozone transport will become a much bigger issue once more, as many more areas of the country would find themselves in nonattainment with the limit.
While most areas are meeting the 1997 ozone NAAQS, and most will soon meet the 2008 standard, with a standard of 70 ppb or less in place many more parts of the country would once again face ozone transport issues, sources say, which could potentially spur EPA to craft another rule to help curb ozone air transport.

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Updated Ozone Transport Proposal Under OMB Review

Sep 30, 2015 | BNA Daily Environment Report

By Patrick Ambrosio

The White House Office of Management and Budget is reviewing a proposal to update requirements for states to control emissions of ozone precursor emissions that cross state lines and affect downwind areas.
The Environmental Protection Agency proposal is based on the 2008 ground-level ozone standards of 75 parts per billion. The agency submitted the proposal for review on Sept. 29, just two days before a court-ordered deadline of Oct. 1 for the agency to issue a final decision on whether the 75 ppb ozone standards should be revised.
The updated transport rule (RIN 2060-AS05) would be a successor to the cross-state air pollution rule (RIN 2060-AP50), which set limits on power plant emissions of sulfur dioxide and nitrogen oxides in 28 states. The emissions budgets included in the cross-state rule, which was upheld by the U.S. Supreme Court in 2014, is based on the 1997 ozone standards, the 1997 annual fine particulate standards and the 2006 24-hour fine particulate standards (EPA v. EME Homer City Generation LP, 134 S.Ct. 1584, 78 ERC 1225, 2014 BL 118432 (2014).
While the Supreme Court upheld the structure of the cross-state rule, the U.S. Court of Appeals for the District of Columbia Circuit held in July that the rule impermissibly overcontrolled emissions in 13 states by requiring those states to implement controls beyond what was needed for all downwind areas to achieve national air quality standards (EME Homer City Generation LP v. EPA, 795 F.3d 118, 80 ERC 2005, 2015 BL 239912 (D.C. Cir. 2015); 145 DEN A-6, 7/29/15).
The updated transport rule will not address national standards for particulate matter, according to the EPA's spring 2015 regulatory agenda. The agency's agenda projects the proposed transport rule will be issued in December, with a final rule issued by August 2016.

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If It's October, It's Ozone

Oct 1, 2015 | PoliticoPro (Morning Energy)

By Eric Wolff

IF IT’S OCTOBER, IT’S OZONE: Today is the deadline for EPA to finalize its new ozone standard, and in a video published to YouTube yesterday, the agency promised that it would indeed lower the standard from its present level of 75 parts per billion, though it did not specify by how much. The administration is widely expected to set a standard of 70 parts per billion, a five-point drop from the Bush-era 2008 standard, but a far cry from what environmentalists and public health advocates sought. That’s at the high end of EPA’s proposed range of 65-70 ppb. A standard of 70 ppb isn’t going to truly please either side. Environmentalists indicated this week that they are likely to sue EPA if that's the number.. Industry sources have remained mum on the prospect of litigation, explaining that they want to see the final product first.
Greens haven’t fully trusted President Barack Obama on the ozone standard since 2011, when he pulled the plug on a reconsideration of the Bush-era rule. Obama told business leaders last month that he is simply following the law, which requires EPA to revisit the ozone standard every five years (though not necessarily to change it). That distancing hasn’t given greens much hope of the strongest standard this time around, and they note that this rule has fallen a bit outside the administration’s higher-profile climate change agenda.
History lesson: Public health groups want 60 ppb, but the standard used to be a lot higher. Jimmy Carter actually raised the ozone standard from 80 ppb to 120 ppb in 1979. Bill Clinton returned it to 80 ppb in 1997, and seven years ago the Bush administration shaved it down to 75 ppb. For readers living or working inside the Beltway, Washington in the autumn is pretty safe — the city yesterday afternoon was at 31 ppb ozone, according to the D.C. Department of Energy & Environment.
SURVIVOR: MARSHALL ISLANDS: The president of the Marshall Islands is worried about his country's literal surival. The chain of South Pacific atolls is in danger of sinking beneath the waves as climate change causes sea levels to rise. As Pro's Andrew Restuccia reports, Marshall Islands President Christopher Loeak and his top aides will be D.C. this week to meet with Interior Secretary Sally Jewell, Obama Senior Advisor Brian Deese, and Sens. Lisa Murkowski and Jeff Flake. His missions: Get the United States to throw its weight behind significant carbon restriction at negotiations in Paris and to persuade Congressional Republicans to follow through with Obama's $3 billion green fund commitment. The money is intended to help poorer countries adapt to the effects of climate change. "Just as the Marshallese people have fought in defense of the United States, we are now asking the United States to join us in our fight for survival," he told Andrew.http://politico.pro/1FK0ouA
Flake, a Republican, knows the islands well, having spent some weeks on one of the Marshall Islands, Eru, last year with Democratic Sen. Martin Heinrich. The two let Discovery Channel film their attempts to survive using nothing but their wits and a few tools. If Loeak is not successful, Discovery may have to call Flake and Heinrich's next visit to Eru Survivor: Atlantis.
WELCOME TO THURSDAY! I'm your host Eric Wolff. Send your tips, quips, and comments to ewolff@politico.com, or follow us on Twitter@ericwolff,@Morning_Energy, and @POLITICOPro.
** A message from the National Association of Manufacturers: President Obama recently noted that we’ve solved ozone problems that challenged areas across the United States three decades ago and he’s right. Ozone levels have dropped 33% since 1980. So why is the EPA considering a new ozone standard that could be the costliest in U.S. history? Keep the current standard.http://www.nam.org/ozone **
SENATE COMMITTEE HAS CRUDE INTENTIONS: The Senate Banking Committee will host a markup today on a bill that would lift the decades-old crude oil export ban. The office of the bill's chief Democratic backer, North Dakota Sen. Heidi Heitkamp, previewed the markup with a seemingly meaningful declaration: "If it passes in the Committee, the bill will head to the Senate floor for a vote." But Senate Majority Leader Mitch McConnell is believed to be eyeing a deal that can ensure any exports bill will make it to the magic number of 60 votes before scheduling floor time. Asked if any commitments had been made, McConnell spokesman Don Stewart told ME that no decision had been made beyond the Department of Veterans Affairs funding bill teed up next for floor action. Other bills, notably Sens. Lisa Murkowski and Maria Cantwell's bipartisan energy bill, languish for want of floor time.
PARTISAN HOUSE ENERGY BILL FACES DEMOCRATIC RESISTANCE:Fred Upton, Chairman of the Energy & Commerce Committee, still hopes President Barack Obama will sign the energy bill that passed out of his committee yesterday on a party line vote, but the original dream of bipartisanship lay in tatters, Pro's Darren Goode reports. Democrats balked after Republicans added a string of new provisions they objected to during markup. Yesterday the bill passed out of committee on a party line vote, and it may get through the House, but Ranking Member Frank Pallone said it was unlikely to get support from the White House. “The suggestion that somehow this bill is going to lead toward the president’s signature I think is totally wrong,' he said. 'The effort that we had initially to come together and include some of the Democratic initiatives … that would have made a difference."
BLM STILL DECIDING WHETHER TO APPEAL JUDGE'S SUSPENSION OF FRACKING REGS: A U.S. District Court judge put new fracking regulations on hold with a preliminary injunction yesterday. Judge Scott Skavdahl wrote, "It seems the BLM is attempting to do an end-run around the [Energy Policy Act of 2005]; however, regulation of an activity must be by Congressional authority, not administrative fiat. The Court finds the intent of Congress is clear, so that is the end of the matter." An Interior Department spokesman told ME it is consulting with federal lawyers to determine its next court of action, but "The BLM will follow the Court's order and will continue to process applications for permit to drill and inspect well sites under its pre-existing regulations."
Congressional Republicans are pumped: Sen. John Hoeven: “The Department of the Interior needs to recognize that states have successfully regulated oil and gas development within their boundaries for years and they should be allowed to continue to do so." ... Rep. Rob Bishop, Chairman of the House Natural Resources Committee: "This judicial decision is the right decision because it stops the Obama Administration from shoving this harmful policy down the states’ throats."
ADIOS, LAND AND WATER CONSERVATION FUND: The decades old program expired today. Sen. Jeanne Shaheen of New Hampshire sang its dirge: “It’s disgraceful that a program that has done so much to preserve and protect New Hampshire’s beautiful spaces will be forced to wind-down. A broad bipartisan coalition in Congress recognizes the value of conservation for its economic and environmental benefits yet no effort was made by this Republican-led Congress to save this program."
OMB WATCH — EPA SHIPS OVER OZONE TRANSPORT PROPOSAL: The White House Office of Management and Budget has begun reviewing EPA’s proposed rule addressing ozone that floats across state lines under the 2008 standard. The Clean Air Act has a "Good Neighbor" provision intended to pin responsibility for emissions on upwind states — Pros will remember that provision was part of the legal challenge to EPA's Cross-State Air Pollution Rule, which governed other pollutants. CSAPR, which was upheld by the Supreme Court, is helping guide EPA’s ozone transport rule. EPA projects proposing the rule by December and finalizing it by next August.
THE TAKING OF WASTE ONE TWO THREE: A House Energy and Commerce subcommittee is planning to plow into one of the more underappreciated challenges in disposing of the nation’s nuclear waste this morning: Getting it from all the Points A to Point — or Points — B. Building the Yucca Mountain repository or any other site is one thing, but moving all those spent fuel canisters presents an interesting social and infrastructure hurdle. Chris Kouts, the former acting director of the Energy Department’s dismantled Office of Civilian Radioactive Waste Management, will point to a 2006 report from the National Academy of Sciences when he tells the Environment and Economy subcommittee that moving waste is doable. The report’s authors “could identify no fundamental technical barriers” to safely transporting nuclear waste around the country. Moreover, naval reactor waste has been transported for decades. But the report also says that getting such a massive program going for commercial spent fuel presents a “number of social and institutional challenges,” such as reduced property values and the difficulty of gaining public acceptance, and the challenge of maintaining it for more than two decades “should not be underestimated.” Besides the usual rail traffic from coal and ag products, those nuclear shipments may also have to compete with the spike in the amount of oil being shipped by rail, an issue dramatically different than in 2006. Kouts will be joined by five other witnesses, including GAO’s Frank Rusco. The hearing starts at 10:15 a.m. in Rayburn 2123.
THINK POSITIVE TRAIN CONTROL THOUGHTS: If Congress does not extend a deadline for implementing train safety technology, the economy stands to take a beating, according to a report out today from the American Chemistry Council. All rail lines carrying hazardous materials must implement positive train control, a GPS technology that improves train operational safety, by the end of the year. Many lines are not up to date, despite having been ordered to do so by Congress in 2008. The report says that failing to extend the deadline could stop train traffic on lines across the country, costing the economy $30 billion.
PENCILS DOWN: COMMENT PERIOD ENDS ON TRUCK RULE: The comment period for the heavy-duty truck rule ends today. The rule proposed by the Department of Transportation and the EPA aims to slash carbon emissions from freight-hauling tractor trailers by 24 percent, and vocational vehicles, and pick-up trucks, and light vans must become 16 percent more efficient. The agencies said the proposed rule would save 1 billion metric tons of carbon dioxide and 1.8 billion barrels of oil over the life of vehicles and engines sold during the program.
SHUTDOWN WATCH: ME's Government Shutdown-o-meter read zero yesterday when the House of Representatives passed a continuing resolution to fund the government through Dec. 11. ME spent yesterday evening disassembling the ol' meter, cleaning and oiling its valves and gears, and packing it into its case for a few months.
CLUB FOR GROWTH KNOCKS KASICH FOR TAX PROPOSAL: The Club for Growth is skeptical of GOP presidential candidate and Ohio Gov. John Kasich, in particular for his effort to raise taxes on the oil and gas industry, the conservative organization says in a report released today. According to POLITICO's Daniel Strauss, the club is concerned that Kasich backed a substantial increase in oil and gas severance taxes in the state. The Cleveland Plain Dealer reported in August that the legislature ultimately stripped the provisions from the state's budget.http://politi.co/1jzX4IE
SENATORS TO CHRISTIE: DON'T LET OFF-SHORE WIND OPPORTUNITY BLOW BY: Both of New Jerseys senators and Rep. Frank Pallone sent a letter to New Jersey Gov. Chris Christie yesterday urging him to take advantage of an imminent auction of off-shore wind leases of the state's coast. POLITICO New Jersey's David Giambusso reports, "'In order to ensure a successful federal lease auction, the State must move ahead with the implementation of [the Offshore Wind Economic Development Act],' the legislators said, referring to a law Christie signed in 2010, directing state utility regulators to develop an incentive system for offshore wind. The state Board of Public Utilities, controlled by Christie, has not moved on the law for five years.

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D.C. Circuit Won't Rehear Early Clean Power Plan Lawsuits

Sep 30, 2015 | BNA Daily Environment Report

By Anthony Adragna

A federal appeals court has said it will not rehear an initial volley of challenges from states and several industry groups to the Environmental Protection Agency's Clean Power Plan (In re Murray Energy Corp., D.C. Cir., No. 14-1112, order filed 9/29/15; West Virginia v. EPA, D.C. Cir. , No. 14-1146,order filed 9/29/15).
Fourteen states had asked the U.S. Court of Appeals for the District of Columbia Circuit in late July to rehear arguments or to issue a stay of the regulation. Murray Energy Corp., a large coal company, and mining and utility groups made a similar request before the court.
The court's decision likely means petitioners have exhausted their options for challenging the regulation in the D.C. Circuit before its formal publication, which is expected in late October.
“Given their overzealousness, I also wouldn't be surprised if the early challengers ask the Supreme Court to hear the case,” Brian Potts, a partner at Foley & Lardner LLP, who wasn't involved in the lawsuit, told Bloomberg BNA. “But since the EPA is planning to publish the final rule in October, I think the next major step will be the challenges to the final rule.”
The petitions for rehearing argued that the court, in its June decision to dismiss the challenges to the then-proposed regulation to curb carbon dioxide emissions from existing power plants, read its authority under the All Writs Act far too narrowly (143 DEN A-2, 7/27/15).
Merits Untouched in Case
The groups had asked the court in their initial litigation to bar the EPA from even issuing a final Clean Power Plan, arguing the agency had drastically exceeded its authority under the Clean Air Act. The court never touched the merits of the argument, though, deciding it would not take the unprecedented step of blocking a regulation before its promulgation.
Multiple lawsuits challenging the Clean Power Plan, which sets unique carbon dioxide emissions rates or alternatively mass-based targets for the power sector in each state, have been dismissed by courts in several different jurisdictions. All of those challenges were filed before the rule's formal publication in the Federal Register, which kicks off the statutory period to challenge regulations.
The Clean Power Plan (RIN 2060-AR33), finalized Aug. 3, will task state regulators with developing plans to meet the targets, which will be phased in through 2030. The regulation, the centerpiece of President Barack Obama's strategy to address climate change, will aim to reduce overall carbon dioxide emissions from the power sector by 32 percent below 2005 levels by 2030.
The agency has said it anticipates the final regulation will be formally published by late October, and states are expected to challenge the rule in the D.C. Circuit shortly thereafter (189 DEN A-5, 9/30/15).

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Texan Launches Congressional Review Act Bid to Kill Rule

Sep 30, 2015 | E&E PM

By Jean Chemnick

The House appears to have its first set of Congressional Review Act resolutions aimed at toppling U.S. EPA's Clean Power Plan, despite the fact the rule has not yet been published in the Federal Register.
Staff for freshman Rep. John Ratcliffe (R-Texas) confirmed that the two joint House-Senate resolutions, H.J. Res. 67 and H.J. Res. 68, their boss introduced yesterday disapproving the existing power plant carbon rule are brought under the rarely used legislative oversight law, despite not referring to it in their text.
Republicans in both chambers have long discussed the 1996 law as a vehicle for congressional action against the rule because it would allow a resolution to pass the Senate without the 60-vote majority usually required for controversial legislation. But the Government Accountability Office ruled last year that any resolution offered before a rule is published would be premature, and the Clean Power Plan has not yet met that threshold.
In a statement on his resolutions, Ratcliffe expressed concern that the Lone Star State would be hit hardest by "these indiscriminate rules." Texas is required to cut its power-sector emissions by nearly one-third by 2030 under the rule -- a slightly larger cut than the national average of 30 percent.
"Families are flocking to Texas because of our conservative, pro-growth policies. In fact, Texas has created more jobs since 2008 than all other states combined," he said. "It's beyond me why President Obama would want to obstruct our success with regulations created out of thin air by unelected bureaucrats based on a radical political agenda."
The measures join a rapidly growing stack of House bids to scuttle the Obama administration's flagship climate change rule even though the House already voted in June to allow states to opt out of it without fear that EPA would implement a federal plan instead.
Rep. Ed Whitfield (R-Ky.), who has led the House's charge against the rule, reiterated as recently as yesterday that House and Senate Republicans would use the CRA to combat the rule. The Senate has yet to vote on its own version of the opt-out bill, and no CRA resolutions have been introduced yet in the upper chamber.
Kristina Baum, spokeswoman for Senate Environment and Public Works Chairman James Inhofe (R-Okla.), declined to say when the chairman would release his own CRA resolution.
"What I can say is the Senate is coordinating the introduction of CRAs with members on the committees of jurisdiction in both chambers," she said in an email. "We are not far off from dropping these CRAs that will be the ones to move through both the House and the Senate, but given the EPA's delay in Federal Register publication, certain congressional action is also delayed."
An aide on the House Energy and Commerce Committee said Whitfield would introduce his own CRA resolution "at the right time."
The agency has said it will be published by the end of October.

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New Regulations on Smog Remain as Divisive as Ever

Sep 30, 2015 | The New York Times

By Coral Davenport

In August 2011, as President Obama prepared to unveil a major new environmental regulation on smog, his political advisers issued a warning: The rule would affect power plants and factories throughout the Midwest, slowing the economy in states like Ohio that would be crucial to the president’s re-election.
In a move that enraged environmentalists, Mr. Obama ordered the Environmental Protection Agency to delay what industry groups were calling the most expensive regulation in history.
Four years later, Mr. Obama has no more re-election worries, and environmentalists have won a court-ordered deadline of Thursday for the E.P.A. to release the smog rule. But the regulation remains as divisive as ever. Over the past month, as the agency and White House senior officials have worked to complete it, the nation’s most powerful business groups — including the Chamber of Commerce, National Association of Manufacturers, Business Roundtable and American Petroleum Institute — have united on an all-fronts lobbying and advertising campaign to ensure that the rule, when it comes this week, is as weak as possible.
“The costs of doing this are not going to be absorbed by a magic sponge,” said Jay Timmons, the chief executive of the manufacturers group, which has been joined by dozens of mayors and governors, including many Democrats. “The impact is going to be largest on manufacturing. The tighter the standard, the more localities are impacted.”
On the other side are environmental and public health groups just as invested in a strict ozone rule.
“This is a battle royale,” said Paul Billings, a vice president at the American Lung Association, which is leading a news media and lobbying blitz urging the Obama administration to issue the toughest rule possible. “This is a chance for the president to right a wrong, to fix a mistake.”
At stake is the Clean Air Act standard for ozone, the technical name for the smoggy substance that often forms on hot, sunny days when chemical emissions from power plants, factories and vehicles mix in the air. It is produced by chemical emissions from power plants and factories. Lung doctors have cited ozone as a major threat to public health, particularly among children and older adults. The American Lung Association compares breathing ozone to “getting a sunburn on your lungs.”
But manufacturers say the high cost of installing ozone control equipment could kneecap American manufacturing and threaten jobs across the country.
The national standard for ozone was last set in 2008 by the Bush administration at a level of 75 parts per billion, above the range of 60 to 70 parts per billion recommended by the E.P.A.’s scientific advisory panel at the time. Environmental and public health groups challenged the Bush standard in court, saying it would endanger people’s health and had been tainted by political interference. Smog levels have declined sharply over the last 40 years, but each incremental improvement comes at a significant cost to business and government.
In November, the Obama administration released a draft proposal of an updated ozone regulation, which would lower the current threshold for ozone pollution to 65 to 70 parts per billion. That range is less stringent than the standard of 60 parts per billion sought by environmental groups, but the environmental agency’s proposal also sought public comment on a 60 parts-per-billion plan, keeping open the possibility that the final rule could be stricter.
Now, in the final days before the rule’s release, industry groups are pushing for a new standard of 70 parts per billion or higher, while health and environmental groups want it as low as 60 parts per billion. Both sides say that every notch on that scale can make a big difference.
“There are significant health benefits as the standard is tightened,” Mr. Billings said.
An analysis in the E.P.A.’s draft proposal found that an ozone standard of 70 parts per billion would prevent 325,000 cases of childhood asthma and 1,440 premature deaths. A standard of 65 parts per billion would prevent about a million cases of asthma and 4,300 deaths. And a standard of 60 parts per billion would prevent 1.8 million asthma attacks and 7,900 premature deaths.
But each notch ratchets up the cost to industry as well. A tighter smog standard would require the owners of factories and power plants to install chemical scrubbers and other technology on their smokestacks to remove the chemicals. Scrubbers can cost tens of millions of dollars apiece, and industry groups say that with each degree the standard is tightened, their costs will soar.
“Cutting 90 percent of pollution is one thing, but cutting 95 percent can be double the cost of getting to 90,” said Howard J. Feldman, the director of regulatory affairs for the American Petroleum Institute, which lobbies foroil and gas companies.
Ross Eisenberg, a vice president at the manufacturers association, said that even a change of two parts per billion in the standard could make a difference. “At a standard of 68, there are 40 percent more counties in America that would be in noncompliance than there are with a standard of 70,” he said. “A lot of counties would be dealing with this for the first time.”
A standard of 65 parts per billion, Mr. Eisenberg said, could require the use of pollution control technology that does not exist yet. “That’s when you have to start shutting things down,” he said.
Both sides spent the final days before the rule was to be released in a sustained lobbying push. While the president has committed to putting forth aggressive rules aimed at tackling climate change, which he sees as a legacy issue, he has said almost nothing about the smog rule. That has industry advocates hopeful that their push could once again prevail in the final rule.

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California Draft Targets Short-Lived Climate Pollutants

Sep 30, 2015 | BNA Daily Environment Report

By Carolyn Whetzel

California unveiled a draft plan Sept. 30 to reduce emissions of methane and fluorinated gases 40 percent from 2013 levels by 2030 and cut non-forest black carbon emissions in half by the same date.
Legislation enacted in 2014 requires the California Air Resources Board to develop a strategy by Jan. 1 to reduce emissions from the potent, short-lived climate pollutants, which also are harmful air pollutants.
Released Sept. 30, the proposal also aims to help achieve Gov. Jerry Brown's (D) goal of reducing statewide greenhouse gas emissions 40 percent below 1990 levels by 2030, CARB said in releasing the document.
“California has set ambitious climate goals and has the most comprehensive set of policies and programs in place to reduce air pollution and carbon emissions from all sources,” CARB Chairman Mary D. Nichols said in a Sept. 30 written statement. “Now, we're doing the same for short-lived climate pollutants. They're the missing link on our global path to limiting warming below 2 degrees Celsius.”
Last week, U.S. Sens. Susan Collins (R-Maine) and Chris Murphy (D-Conn.) introduced the Super Pollutants Act of 2015 (S. 2075) to reduce emissions of short-lived climate pollutants nationally(187 DEN A-3, 9/28/15).
CARB's draft plan would build on and accelerate existing CARB climate policies, including rules that target the leaks of hydrofluorocarbons from commercial refrigeration systems, reduce methane emissions from many sources, including oil and gas systems, and reduce toxic diesel exhaust, the agency said.
The proposal outlines mandatory and voluntary measures, incentives and other policies to achieve additional reductions in black carbon emissions from off-road and non-mobile sources; reduce and prevent methane emissions; maximize the reuse of generated methane as a transportation fuel or for clean power generation; and accelerate the transition to refrigerants with low global warming potential.
Integration of Black Carbon Measures
Some of the proposed new measures for black carbon would be integrated into clean air plans to reduce particulate emissions, according to the plan.
Wildfires are the largest source of black carbon in California. Even though the draft strategy only targets non-forest black carbon, the plan would examine measures to protect forests.
Other measures would target methane emissions at dairy and livestock operations, landfills, oil and gas facilities and operations, wastewater treatment facilities and industrial plants. The plan also proposes the phase out of hydrofluorocarbon supplies and bans on some refrigerants and some equipment to reduce emissions of fluorinated gases.
CARB said the document is based on a concept paper released in May and other information that has found cost-effective measures are available to achieve the proposed goals.
As part of the strategy, California would encourage national and international deployment of its already proven rules and policies that target black carbon for mobile and stationary sources.
Addressing Problems Outside State's Borders
Throughout the draft plan, CARB stressed efforts that go beyond the state's borders are necessary to address short-lived climate pollutants.
CARB said it plans to present the draft plan to its governing board in 2015. Any regulatory measures developed based on the proposal would have to undergo a public rulemaking process, the agency said.

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3rd Circuit Faults State's EPA-Approved Haze Plan

Sep 30, 2015 | InsideEPA

The U.S. Court of Appeals for the 3rd Circuit has ruled to partially reject EPA's approval of Pennsylvania's state implementation plan (SIP) for reducing haze-forming emissions, saying the agency wrongly overlooked errors and omissions by state air regulators based on a theory of “harmless error” that the court says is mistaken.
Under the regional haze program, states must submit SIPs identifying their sources of air pollution that contribute to visibility impairment, determine which of those sources require best available retrofit technology (BART) to reduce emissions, and then define BART for those sources. The plans aim to help states comply with EPA's regional haze program that aims to restore visibility in national parks and wilderness areas.
Environmentalists sued EPA in the 3rd Circuit over Pennsylvania’s SIP crafted in 2010, claiming the state did not require additional pollution controls through BART on any of the sources it reviewed.
The state countered that larger power plants in the state were covered by EPA-sponsored emissions trading plans and would therefore reduce their haze-forming emissions anyway, while smaller plants did not contribute enough to haze to warrant additional controls.
But advocates said Pennsylvania's analysis was flawed and failed to follow EPA guidelines to determine BART. EPA approved the state's plan even though the agency found the state failed to justify its policy choices in several instances, because the agency reasoned that the state's overall conclusion was correct and its power plants did not warrant additional controls because of haze concerns, given that several plants were in the process of shutting down.
A three-judge panel of the 3rd Circuit in a unanimous Sept. 29 opinion in National Parks Conservation Association, et al. v. EPA, et al. partially rejects EPA's 2014 rule that approved the SIP.
The court agrees with EPA that the issue of emissions trading programs qualifying as equivalent or “better than BART” is properly the subject of separate litigation in the D.C. Circuit.
The 3rd Circuit, however, disagrees with EPA's theory of “harmless error.” In his opinion for the court, Judge Thomas Vanaskie says, “while we reject some of the arguments advanced by the Conservation Groups, we are nevertheless compelled to conclude that the EPA arbitrarily approved Pennsylvania’s SIP given the multiple flaws in Pennsylvania’s BART analysis and the EPA’s insufficient explanation as to why it could overlook them.”
Vanaskie on behalf of fellow panel Judges Thomas Ambro and Patty Shwartz writes, “EPA’s claim of harmless error is unpersuasive since the agency has offered scant justification for this position, apart from its own assurances that the multiple flaws in Pennsylvania’s analysis did not impact the reasonableness of its conclusions. Similarly, the EPA has not identified, nor have we located, any legal support for the EPA’s contention that it may excuse errors in a state’s BART analysis as moot based on events that are yet to transpire.”
The court therefore vacates EPA's approval of the state's haze SIP with respect to the source-specific BART analysis, and remands the rule to the agency for revision.

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Whitehouse Sees GOP ‘Epiphanies' on Climate Change

Sep 30, 2015 | BNA Daily Environment Report

By Anthony Adragna

Republican presidential candidates will have to talk seriously to voters about how they will address climate change before the 2016 elections, and that will create an opening for renewed discussion of a carbon fee, Sen. Sheldon Whitehouse (D-R.I.) told Bloomberg BNA Sept. 30.
“I don't think a Republican presidential candidate, any of them, can win if they won't talk seriously to the American people about the carbon problem,” Whitehouse said. “When they go somewhere, the one place that all the Republican think tanks, the former Republican administration officials and all the former Republican former state legislators agree is a carbon fee. So, we want to meet them at the place when they're ready.”
Recognizing the need to broaden their appeal to other voter groups, Whitehouse said “it's reasonable to anticipate a lot of epiphanies” on the climate change issue before the 2016 elections. That followed comments from Whitehouse at the American Sustainable Business Council's Sustainable Business Summit 2015, hosted by the law firm K&L Gates, that there were 10 to 15 Republican senators ready in private to embrace a carbon fee to address the problem but afraid of the political consequences of doing so.
In June, the Rhode Island Democrat and Sen. Brian Schatz (D-Hawaii) introduced the American Opportunity Carbon Fee Act (S. 1548). The bill sets a $45 per ton fee on carbon dioxide and other greenhouse gas emissions beginning in 2016 and would return any revenue collected to U.S. citizens by a number of possible options (112 DEN A-6, 6/11/15).
Could Help Coal Communities
One idea to spend the dollars collected through the fee is to invest it in communities hit hard by the downturn in the coal industry and to help coal miner pensions that are at risk.
“Their airplane is headed for the ground, and they'll either have a soft landing—which a carbon fee would be a big piece of—or it'll be a hard landing,” Whitehouse said of those reliant on the coal industry at the summit. “My heart goes out to these miners who are watching this industry collapse beneath them…The pension promise they've been made is crumpling in their hands.”
Bob Inglis, a former Republican congressman from South Carolina who backs a carbon fee, also urged his party to shift the discussion from questioning the science of climate change to identifying the proper solutions to the problem.
“If you just keep on holding out, you're going to lose any opportunity to negotiate,” Inglis said. “Don't wait for the plane to hit the ground.”

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Army Corps Chief Defends Role in Developing WOTUS Rule

Oct 1, 2015 | BNA Daily Environment Report

By Anthony Adragna

The head of the U.S. Army Corps of Engineers staunchly defended the agency's role in writing a final Clean Water Act jurisdiction rule with the Environmental Protection Agency before skeptical Republicans on a Senate Environment and Public Works subcommittee.
Jo-Ellen Darcy, assistant secretary of the army for civil works, acknowledged internal disagreement within the agency about the approach taken with the waters of the U.S. regulation but said she was not pressured by the EPA or anyone else to sign off on the final regulation.
“I am proud of the Army's role in developing the rule,” Darcy told the Senate Environment and Public Works Subcommittee on Fisheries, Water and Wildlife. She added the corps is “unequivocally committed” to implementing the rule “as effectively and efficiently as possible.”
At issue in the hearing was a series of memorandums, sent from Maj. Gen. John Peabody, deputy commanding general for civil and emergency operations, that concluded the rule's technical, economic and legal rationale was not based on “sound science,” described supporting documents as “flawed in multiple respects” and called the regulation “legally vulnerable” and “difficult to implement” (144 DEN A-1, 7/28/15).
Memo Prompted Change
Republicans on the subcommittee, led by Chairman Dan Sullivan (R-Alaska), asked Darcy why she opted to sign off on the regulation given those significant reservations. She responded that the EPA and the corps incorporated changes to the final rule to address many of the concerns.
“Much of the technical expertise and experience of the field corps was considered when making these decisions,” Darcy said. “Some of the issues were addressed and changed as a result of that” memorandum.
EPA Administrator Gina McCarthy told a House hearing in late July that the EPA had “fully satisfied” concerns raised by the Army Corps of Engineers before it moved ahead with the final regulation (146 DEN A-2, 7/30/15).
Both agencies jointly published the final clean water rule (RIN 2040-AF30) on June 29 (80 Fed. Reg. 37,054). The regulation, which is in effect in all but 13 states, seeks to clarify which waters and wetlands receive Clean Water Act protections under federal permitting, oil spill prevention and state water quality certification programs.
Currently, multiple industry groups and 31 states are challenging the regulation in legal venues around the country. Sullivan and other Republicans said the memos would play a major role in the litigation, although Darcy said she was unsure if they could be considered.
Republican Concerns Unresolved
Republicans, though, seemed unconvinced by the reassurances from Darcy and said the memos further showed the agencies lied about the factual basis for the rules.
“I was surprised to learn of the degree of conflict between two agencies,” Sullivan said. “To me, this is further confirmation that the EPA is truly an agency that answers to no one and that needs to change.”
Sullivan further accused the EPA of “arrogance” and of being a “rogue agency” for not responding promptly—or at all—to oversight requests from the Senate Environment and Public Works Committee.
In response to statements from Sen. John Barrasso (R-Wyo.) that the corps may have been intimidated by the EPA in the rulemaking process, Darcy said, “I do not believe we were pushed around, bullied or marginalized by any federal agencies in this process.” She added that the “differing opinions” within the corps about how to proceed with the regulation were normal.
What remains unclear is whether the controversy over the agency's regulatory process will boost the chances of legislation (S. 1140) that would force a rewrite of the final rule. Barrasso said he continues to work with Senate Majority Leader Mitch McConnell (R-Ky.) in hopes of securing floor time for the measure.
Democrats on the committee, for their part, said they were puzzled by the purpose of the hearing. Internal agency disagreement during the regulatory process is normal and happens frequently, they said.
“It's pretty clear there was a thorough consultation process, there was a very thoughtful set of discussions that took place,” Sen. Ed Markey (D-Mass.) said. “I think the Army Corps did a good job.”

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GOP Senators Say Corps Memos Undermine 'Waters' Rule

Oct 1, 2015 | InsideEPA

GOP senators say internal Army Corps of Engineers memos faulting the Obama administration's Clean Water Act (CWA) jurisdiction rule undermine the legal basis for the policy, with Republicans predicting that courts will refuse to defer to agencies' discretion on crafting the rule -- though a top Corps official is downplaying the memos.
At a Sept. 30 Senate Environment & Public Works Committee (EPW) water panel hearing, subcommittee Chairman Dan Sullivan (R-AK) said the memos show that the final rule, which was jointly signed by the Corps and EPA, lacks a scientific basis and was driven by politics, and should thus be held unlawful by the courts.
“The problem here is that we have memo after memo from the top people in your organization saying that 'this was not based on our expertise and experience,' and that kind of undermines this Chevron deference. . . . That's why I think you're going to continue to lose in the federal courts,” Sullivan said to Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, the civilian head of the Corps, who was the hearing's sole witness.
Under the landmark 1984 Supreme Court ruling Chevron v. Natural Resources Defense Council, courts will defer to an agency's "reasonable" interpretation of ambiguous statutory text even when other interpretations are valid, based on the principle that each agency is expert in the areas it regulates.
That deference will be central to eventual court rulings in the myriad challenges to the CWA rule's legality pending in federal district and appellate courts.
There are still a long series of procedural hurdles before any substantive court ruling. For example, the federal courts' multi-district litigation panel is set to hear oral arguments Oct. 1 on whether to consolidate the many parallel district court suits seeking to modify or vacate the rule.
Sullivan and other Republicans on the committee said the Corps memos, which were written in the run-up to signing the final CWA rule on May 27 and later posted online by the House Committee on Oversight & Government Reform, show that agency heads avoided their subordinates' expertise in crafting the jurisdiction rule.
“We have a situation where the political appointee to the Corps of Engineers does indeed support the rule, but the great body of fact-finding behind it is not there,” Sen. Roger Wicker (R-MS) said.
The letters include often strongly worded critiques of the rule and EPA's economic and scientific analysis supporting it. For instance, an April 24 letter signed by Major General John Peabody, Deputy Commanding General for Civil and Emergency Operations, says, “The rule's contradictions with legal principles generates multiple legal and technical consequences that, in the view of the Corps, would be fatal to the rule in its current form.”
However, Darcy countered in her testimony at the EPW fisheries, water and wildlife subcommittee hearing that the memos represent a normal part of internal dialogue over a high-profile rulemaking, and that many of the Corps concerns over the draft rule were remedied before it was finalized.
“The exercise of my discretionary authority is always informed by, among other valuable inputs, the technical expertise offered by the experienced regulators and program officials at the Corps and on my staff. . . . The inevitable internal differences of opinions encountered along the way to this final rule were not unusual in the course of a rulemaking process,” Darcy said.
She added that she had a panel of economic and scientific experts review the rule in response to the memos, and that their review backed the rule. In response to a request from Sen. Deb Fischer (R-NE) she agreed to produce those reviews for the committee.
Democrats on the panel pointed out that many of the Corps memos argued for a more expansive rule, including asking to strike an “arbitrary” limitation on how far apart two waterbodies can be before agencies can no longer consider them “similarly situated” for purposes of CWA jurisdiction.
“My guess is that if the rule had been broader, my colleagues who are being critical of the process would have been more critical of the result,” Sen. Ben Cardin (D-MD) said.

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Corker Letter Fires Opening Shot Against Paris Talks

Oct 1, 2015 | E&E Daily

By Jean Chemnick

Senate Foreign Relations Chairman Bob Corker (R-Tenn.) questioned Secretary of State John Kerry in a letter yesterday about plans the administration might have to circumvent the Senate's role in sanctioning an international climate deal.
The letter fired the GOP's opening salvo against President Obama's hopes of helping to broker a deal on emissions and finance in Paris in December.
Lead negotiators for the United States, France and other countries are preparing to tailor the agreement so that the United States can comply without triggering the two-thirds Senate approval required for treaty ratification, but Corker's letter made it clear that the chamber's Republican majority would not accept that quietly.
"The Senate's advice and consent treaty role under the U.S. Constitution is a right as well as a responsibility," he said. "Longstanding consultation and precedent as well as current law requires the executive branch to engage in meaningful consultation with the Senate on the form that as significant and far-reaching international agreement such as the Paris agreement will take."
Some of the considerations Corker said should affect whether the Paris accord takes the form of a treaty requiring ratification include its level of "commitment or risk" for the United States, whether it will impact state laws and whether it will require enabling legislation.
He asked Kerry for a detailed explanation of any legal obligations the United States would take on under the agreement, whether it would be "binding upon the U.S. under the principals of international law" and why the Paris accord should be considered not a treaty for purposes of ratification when the U.N. Framework Convention on Climate Change and the Kyoto Protocol both were.
But it is questionable whether the Paris accord will create new legal obligations for the United States. Other countries have submitted their own emissions-reduction commitments -- dubbed intended nationally determined contributions (INDCs) -- ahead of Paris. The last of these were due yesterday, though the U.S. INDC was unveiled in March. The agreement would make these and other commitments politically binding, but the administration has said repeatedly that no enabling legislation will be required. The pledge of a 26 to 28 percent cut compared with 2005 levels by 2025 can be achieved, the administration says, using laws already on the books.
Corker asked Kerry whether the United States would be bound by international law to deliver on its INDC pledge, but the administration has said those reductions are already required under a series of domestic laws including the Clean Air Act.
President Obama has set his sights on success in Paris, which would burnish his climate legacy as he enters his final year in office.
But Republicans in Congress, including staff for Senate Majority Leader Mitch McConnell (R-Ky.), have already begun their outreach to international negotiating partners to warn that the policies that undergird the U.S. climate commitments -- such as U.S. EPA's Clean Power Plan -- are on shaky legal footing and should not be depended upon.

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Transportation News

(ACC Mentioned) Rail Service Shutdown Could Cost Economy $30 Billion, Group Says

Sep 30, 2015 | Miami Herald

By Curtis Tate

A looming shutdown of the nation’s rail system could have a bigger economic impact than the 2013 government shutdown and could even trigger a recession, according to a new report.
Railroads have warned that they will suspend freight and passenger operations on Jan. 1 if Congress does not extend a year-end deadline for them to install a collision-avoidance system called positive train control.
The American Chemistry Council calculated that a month-long rail service disruption could cost the economy $30 billion. By comparison, the Standard & Poor’s credit ratings service estimated that the government shutdown two years ago cost $24 billion.
Cal Dooley, the chemistry council’s president and CEO and a former congressman from California, said in a statement that a freight service shutdown could harm the entire economy.
“A prolonged shutdown would be truly catastrophic, likely resulting in a recession,” he said. “We cannot afford to let this self-inflicted crisis happen.”
$30 billionCost of a month-long shutdown of rail service, according the American Chemistry Council.
The top-ranking leaders of the House Transportation and Infrastructure Committee have introduced a bipartisan bill to give railroads until 2018 to complete the installation of the system, which Congress mandated in 2008.
“Railroads must implement this important but complicated safety technology in a responsible manner,” said Rep. Bill Shuster, R-Pa., the panel’s chairman, “and we need to give them the necessary time to do so.”
Executives from the country’s largest railroads wrote Sen. John Thune, R-S.D., chairman of the Senate Commerce, Science and Transportation Committee, in early September that they could not meet the Dec. 31 deadline for positive train control.
Absent an extension, they concluded that their only legal alternative would be to curtail operations, in some cases before Thanksgiving.
Ordinarily, railroads see higher shipping volumes in October ahead of the holiday season. Railroads serve major container ports on the East and West coasts through which consumer goods manufactured overseas enter the U.S. market.
UPS and FedEx, often thought of as truck and air shippers, are major rail shippers as well.
Grain producers, coal-fired power plants, auto manufacturers, chemical companies and oil refineries rely on rail service to transport raw materials and finished products.
$24 billionCost of 2013 government shutdown, according to Standard & Poor’s.
Millions of passengers use Amtrak and commuter railroads, and a suspension of rail service could force train riders onto crowded roadways or to just stay home.
Amtrak carries about 1.2 million passengers a month, while commuter railroads move about 38.5 million, according to recent figures from Amtrak and the American Public Transportation Association.
Amtrak and some commuter railroads have said they will be finished with their positive train control systems by the current deadline. According to the Government Accountability Office, however, most commuter railroads need another three to five years.
Outside the Northeast, Amtrak and commuter railroads generally operate over lines owned by freight carriers. If those companies shut down their operations, no passenger trains will operate, either.
A head-on collision between a commuter train and a freight train near Chatsworth, Calif., in 2008 prompted Congress to pass the Rail Safety Improvement Act, which required the installation of positive train control on passenger train routes by Dec. 31, 2015.
The system has proved to be expensive and complicated to install. But the National Transportation Safety Board has recommended it for decades and has noted that it could have saved dozens of lives in accidents over the years.
The system can prevent trains from running past stop signals. In the Chatsworth crash, the commuter train’s engineer was texting and missed a stop signal, crossing into the path of the freight train. The engineer and 24 others were killed.
The system also can prevent trains from exceeding speed limits when approaching curves or when railroad maintenance workers are present. In Philadelphia in May, an Amtrak train sped into a 50 mph curve at 106 miles per hour and jumped the tracks. Eight people were killed.

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(ACC Mentioned) H.R. 3651: PTC Relief?

Sep 30, 2015 | Railway Age

By William C. Vantuono

That whooshing sound you may have heard early on Wednesday, Sept. 30 was a collective sigh of relief expelled by everybody who has been beating their head against the wall since 2008, when the Rail Safety Improvement Act mandating fully operational Positive Train Control by the stroke of midnight Jan. 1, 2016, was passed.
The House Transportation & Infrastructure Committee, after flogging railroaders and regulators in numerous let’s-beat-another-dead-horse hearings on why PTC won’t get done on time, and egged on by the Thune in its side, finally did the right thing by introducing H.R. 3615, the Positive Train Control Enforcement and Implementation Act of 2015. If H.R. 3615 becomes law—and I have little reason to believe it won’t—the industry will have at least three more years to turn on a fully operational and interoperable PTC network.
I now have at least some faith that PTC will not become an acronym for “Perpetually Tardy Congress.” You can thank House Transportation & Infrastructure Committee Chairman Bill Shuster (R-Pa.) and Ranking Member Peter DeFazio (D-Ore.), and House Railroad Subcommittee Chairman Jeff Denham (R-Calif.) and Ranking Member Michael Capuano (D-Mass.) for introducing this bipartisan legislation. (I suppose it’s bipartisan because PTC applies to passenger as well as freight operations). You can also thank Senate Committee on Commerce, Science, and Transportation Chairman John Thune (R-S.Dak.) and Ranking Member Bill Nelson (D-Fla.) for pushing very hard on this matter.
Visions of a doomsday scenario, prompted by more letters than even Santa Claus gets, have been swirling around Capitol Hill: embargoed hazmat trains, contaminated drinking water, untreated sewage, deadly diseases like cholera and typhoid running rampant, passenger rail service shut down, and the economy grinding to a halt, if there is no PTC extension. The Big Seven Class I railroads all said that without an extension, they “would be forced to suspend shipments of certain chemicals, including some used in treating drinking water and in fertilizers; commuter railroads would need to cease operations, significantly impacting commutes in major metropolitan regions; and all Amtrak service outside of portions of the Northeast Corridor would be suspended.” The Federal Railroad Administration and the Government Accountability Office previously recommended extending the PTC deadline. Additionally, groups such as the American Water Works Association, Alliance of Automobile Manufacturers, American Chemistry Council, American Farm Bureau Federation, National Association of Manufacturers, National Retail Federation and U.S. Chamber of Commerce all expressed support of a PTC deadline extension.
See? If everyone screams loudly, something might get done. Whoever said Congress wasn’t a reactive body?
Here are the basics of H.R. 3651: The bill gives railroads until Dec. 31, 2018 to implement PTC. The Secretary of Transportation has the discretion to extend the deadline for up to 12 months if the railroads “are able to demonstrate to the satisfaction of the Secretary that they: (1) are unable to meet the deadline due to technical, programmatic or operational challenges, such as availability of public funding, spectrum, technology and interoperability standards; (2) have taken actions to address any challenges and mitigate risks to successful implementation of PTC; and (3) have made good-faith efforts to implement their plans. If carriers still face challenges, the Secretary has the discretion to provide a one-time additional extension of up to 12 months if a carrier is able to demonstrate to the satisfaction of the Secretary that (1) implementation of PTC was delayed due to one or more circumstances beyond the carrier’s control, such as a delay in federal approval of a plan, testing or certification; or (2) the carrier has experienced additional technical, programmatic or operational challenges; demonstrated due diligence in fully implementing PTC; and has made substantial progress in fully implementing PTC. Any such carrier must commit to the Secretary in writing that they will fully implement PTC by the end of the extension.”
The legislation also requires the railroads to revise and transmit to the Secretary their PTC Implementation Plans, “which must include a detailed schedule and sequence for full implementation of PTC. Under current law, the Secretary has authority to enforce the plan.”
Finally, H.R. 3651 authorizes the Secretary “to phase-in PTC deployment so the railroads do not have to wait until the end to ‘turn it on.’” T&I noted that “a phase-in is not authorized under current law or federal regulation.”
So, it looks like we will have an extension, and the bill seems to contain enough flexibility to allow for even moredelays—even though Shuster & Co. have said that “Congress will not accept any more delays.”
Basically, the railroads have been handed a Get Out of Jail Free card. I’m betting that they won’t blow this opportunity. I don’t recommend assuming two more years will be available, on top of the three that have been promised. You never know who’s going to be running things in the White House or at the DOT or on Capitol Hill, and politicians tend to have very short memories.
So, here are the marching orders from Shuster and Denham. Note the disciplinarian-like tone: “Railroads must implement this important but complicated safety technology in a responsible manner, and we need to give them the necessary time to do so.” (Shuster). “Passenger and freight railroads have stated they can’t meet the current deadline and will shut down later this year. This includes ACE in my district. We must protect communities across the country from a railroad shutdown, which would damage local economies nationwide.” (Denham).
As rookie Apollo 13 Command Module Pilot Jack Swigert said to Commander Jim Lovell and Lunar Module Pilot Fred Haise when attempting to dock the CM with the LM (in the movie, three days before the oxygen tank exploded), “Don’t worry guys. I’m on it.”
The reaction from the railroads was enthusiastic and optimistic: “The freight rail industry is pleased the House T&I bipartisan leadership has introduced legislation to extend the PTC deadline,” AAR chief Ed Hamberger said. “The Committee leadership clearly recognizes the need for immediate action to forestall the looming economic crisis that would result from widespread freight and passenger rail service disruption. We look forward to working with both the House and Senate bipartisan leadership to quickly get the PTC extension across the finish line and to the President’s desk for signature.”
“Looming economic crisis.” Nice touch, Ed. Keep driving that point home. I don’t think you need to go as far as mentioning cholera and typhoid epidemics, as several water treatment industry associations predicted would break out if railroads stopped moving chlorine and anhydrous ammonia.
Of course, Congress is always willing to engage in a little back-slapping (when members from opposite sides of the aisle aren’t engaging in back-stabbing). “I applaud Reps. Shuster, DeFazio, Denham and Capuano for introducing legislation to extend the deadline and avert a disastrous rail service shutdown, the effects of which we will start to see in November,” said Thune (who can now extract himself from the side of the T&I Committee). “The Senate has passed a bipartisan proposal to avoid commuter and freight rail service disruptions with case-by-case oversight to ensure continued progress is made toward full implementation. Along with my colleagues, I am committed to securing enactment of an extension that meets the needs of railroad passengers, railroads and freight customers while important safety enhancements move forward. Our country’s economy cannot afford the significant disruptions that will occur if we don’t act soon. Reaching an agreement and passing legislation in the coming weeks is the only way to avert a rail service shutdown.”
Recall that on July 30, 2015, the Senate approved the DRIVE (Developing a Reliable and Innovative Vision for the Economy—another clever acronym!) Act on a bipartisan vote of 65-34. The DRIVE Act is described as “a significant bill creating forward-looking policies for building transportation infrastructure and improving safety. The DRIVE Act included a PTC extension provision (Section 35442), passed by the Commerce Committee. The proposal is specifically designed to maintain the need for railroads to install and activate PTC systems as soon as safely possible, while recognizing that review by regulators after installation will take additional time.”
The DRIVE Act would extend the deadline through 2018. According to Capitol Hill Contributing Editor Frank Wilner, “The Senate extension is part of a massive highway bill that will not pass this year. Thus, the House version most likely is what will have to move and find something bigger and passable on which it can be appended.”
Nothing is ever simple in Congress. Most legislation has to be “attached” or “appended” to something else. Seems to me as though every member of Congress should be given an honorary membership in Monty Python’sSociety For Putting Things On Top Of Other Things.
To make matters more complicated, the day before H.R. 3615 was introduced, three chemical industry trade associations—the American Chemistry Council, Chlorine Institute and Fertilizer Institute—applied for a preliminary injunction to prevent the “Defendant” railroads from “refusing to accept or transport toxic inhalation hazard (‘TIH’) materials offered for rail transportation on grounds that such transportation cannot be performed over main lines due to Defendants’ failure to equip those lines with an operable positive train control (‘PTC’) system, as required by 49 U.S.C. § 20157(a).” The complainants have sought a hearing within 21 days on their preliminary injunction application. The application is supported by affidavits from seven chemical companies, along with the chief economists from the ACC and The Fertilizer Institute.
I can imagine what the reaction at the AAR was to that one. Probably something like, “Jeez, don’t these pains in the posterior ever let up? I mean, we want their business, but enough is enough!” (For the record, it’s not polite to say “ass.”)
The AAR’s actual reaction (not chemical) was more measured:
“The legal action taken by shippers is regrettable, but not surprising considering the situation that has been created by the lack of a PTC deadline extension. This situation highlights the difficult position in which railroads find themselves as the clock ticks down on getting a PTC extension and avoiding real-world consequences for millions of commuters and the consumer and industrial goods moved each day by rail in support of the American economy. Congress can ensure all of this can be avoided—legal action by shippers, the very real potential for a nationwide rail shutdown—by doing the right thing and quickly taking legislative steps to extend the PTC deadline, a deadline that has proven to be unworkable. The decision by some shippers to turn to the courts is a stark example of how serious this situation is and the urgency that exists for Congress to find the legislative will to extend the PTC deadline before the end of October.”
What does our erstwhile Capitol Hill sleuth/transportation law guru Frank Wilner have to say about the American Complaining Council/Swimming Pool Quick Tabs Institute/Cow-Pie Institute shot across the tracks? (Yes, I know—it should be “shot across the bow,” but this isn’t Marine Log talking.)
“Perhaps the AAR should enquire of the complainants’ attorneys whether they, were the positions reversed, would advise their clients to carry these hazardous materials in the face of open-ended liability were there to be an accident. I cannot fathom what they are asking a court to do, as it would seem that the right of embargo, as an exception to the common carrier responsibility, was intended precisely for such a situation as is now faced.”
“My understanding of the law and regulation is that railroads, in the first instance, issue an embargo, which can be for a definite or indefinite period,” Wilner notes. “Such an embargo can be appealed to the Surface Transportation Board. Said the Interstate Commerce Commission way back in 1917 with regard to embargoes: ‘The Act to Regulate Commerce (renamed the Interstate Commerce Act in 1920) does not inhibit the declaration of an embargo by a carrier, and the advisability or the necessity of declaring embargoes is a matter of policy to be determined in the first instance by the carriers.’ (Baltimore Chamber of Commerce v. B.&O. R.R., 45 ICC 40 (1917).)”
If you haven’t read enough by now and are interested in something free of my Newark, N.J.-bred wisecracks (yes, I’m an Italian originally from Newark), click on this link to H.R. 3615, the actual bill, as published in the Congressional Register.

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(ACC Mentioned) House T&I Committee Introduces Legislation for Three-Year PTC Deadline Extension

Sep 30, 2015 | Railway Track & Structures

By Mischa Wanek-Libman

The U.S. House of Representatives Transportation and Infrastructure Committeeleadership introduced legislation to extend the deadline for U.S. railroads to implement Positive Train Control (PTC).

The bill, Positive Train Control Enforcement and Implementation Act of 2015, gives railroads until the end of 2018, a three-year extension, to implement PTC, provides limited authority for the U.S. Department of Transportation Secretary to extend the deadline beyond 2018 if railroads demonstrate they are facing continued difficulties in completing the mandate, but have made every effort to install PTC as soon as possible and requires railroads to complete progress reports on implementation.
Association of American Railroads (AAR) President and CEO Edward R. Hamberger provided the following response to legislation, "The freight rail industry is pleased the House T&I bipartisan leadership has introduced legislation to extend the PTC deadline. The committee leadership clearly recognizes the need for immediate action to forestall the looming economic crisis that would result from widespread freight and passenger rail service disruption. We look forward to working with both the house and senate bipartisan leadership to quickly get the PTC extension across the finish line and to the President's desk for signature."
The Rail Safety Improvement Act of 2008 mandates that freight rail lines carrying certain toxic materials, passenger railroads and commuter railroads implement PTC by December 31, 2015. However, it is no secret that most of those rail providers required to install the technology will not meet the deadline. A recent Government Accountability Office (GAO) study on the issue confirmed that railroads have faced a number of challenges in implementing the complex technology and most will not be able to meet the deadline.
"Completion of the Positive Train Control mandate by the end of the year is not achievable, and extending the deadline is essential to preventing significant disruptions of both passenger and freight rail service across the country," said Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA), one of the sponsors of the Positive Train Control Enforcement and Implementation Act of 2015 (H.R. 3651). "Railroads must implement this important but complicated safety technology in a responsible manner, and we need to give them the necessary time to do so."
"This extension will ensure our nation's railroads can continue to function and hold them accountable to implement necessary safety measures on a public timeline," said Railroads, Pipelines, and Hazardous Materials Subcommittee Chairman Jeff Denham (R-CA), also a sponsor of the bill. "Passenger and freight railroads have stated they can't meet the current deadline and will shut down later this year. This includes ACE in my district. We must protect communities across the country from a railroad shutdown, which would damage local economies nationwide."
All seven Class 1 railroads have said that without an extension, they will be forced to suspend shipments of certain chemicals, including some used in treating drinking water and in fertilizers; commuter railroads will need to cease operations, significantly impacting commutes in major metropolitan regions and all Amtrak service outside of portions of the Northeast Corridor will be suspended.
The Federal Railroad Administration and the GAO have also previously recommended extending the PTC deadline. Additionally, groups such as the American Water Works Association, Alliance of Automobile Manufacturers, American Chemistry Council, American Farm Bureau Federation, National Association of Manufacturers, National Retail Federation and the U.S. Chamber of Commerce have all expressed support of a PTC deadline extension.
U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, released a statement on the legislation that read, "I applaud Reps. Shuster, DeFazio, Denham and Capuano for introducing legislation to extend the deadline for [PTC] and avert a disastrous rail service shutdown, the effects of which we will start to see in November. The Senate has passed a bipartisan proposal to avoid commuter and freight rail service disruptions with case-by-case oversight to ensure continued progress is made towards full implementation. Along with my colleagues, I am committed to securing enactment of an extension that meets the needs of railroad passengers, railroads, and freight customers while important safety enhancements move forward.
“Our country’s economy cannot afford the significant disruptions that will occur if we don’t act soon. Reaching an agreement and passing legislation in the coming weeks is the only way to avert a rail service shutdown.”

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Bill to Extend Safety System Deadline Would Avert Rail Shutdown, Help Metra

Sep 30, 2015 | Chicago Tribune

By Richard Wronski

A measure introduced in the U.S. House on Wednesday seeks to avert the threatened year-end shutdown of the nation's freight and commuter railroads, including Metra.
Leaders of the Transportation and Infrastructure Committee said their bipartisan legislation would give U.S. railroads an additional three years to implement the congressionally mandated safety system known as positive train control.
The lawmakers acknowledged that the Dec. 31 deadline for installation of PTC on the vast majority of the railroads is not achievable, and that extending the period until the end of 2018 will prevent significant disruptions of both passenger and freight rail service across the country.
"Railroads must implement this important but complicated safety technology in a responsible manner, and we need to give them the necessary time to do so," committee Chairman Bill Shuster, R-Pa., one of the sponsors, said in a statement.
Without an extension, railroads say their crews would be prohibited by law from operating trains beyond that date. They say freight shipments will be halted, commuter lines will cease operations, and Amtrak service outside of portions of the Northeast Corridor will be suspended.
A shutdown could have a huge impact on Chicago, the nation's rail hub. Each day, the city has 500 freight trains pass through, Metra operates 753 trains, and 56 Amtrak trains come and go.
After attending a congressional briefing Wednesday in Washington, Executive Director/CEO Don Orseno said Metra "will do everything we can" to meet a 2018 deadline.Metra workers Eliceo Martinez, left, and Rechia Alexander install positive train control equipment on a Metra train Sept. 4, 2015, in Chicago. (Zbigniew Bzdak / Chicago Tribune)
The agency has said previously that installing PTC will cost $350 million and won't be fully in place until at least mid-2019.
The bill would give the U.S. Transportation Department secretary the power to grant an additional 12-month extension if a railroad faces certain technical or operational challenges and shows "good faith efforts" to implement the safety system.
The measure was introduced as pressure heightened on House leaders to avert the pending shutdown. Rep. Mike Quigley, D-Ill., co-wrote a letter to House leadership signed by over 160 members urging an extension of the deadline.
"If freight trains don't run, trucks don't operate," Quigley said. "This is recession-threatening. This could shut down the economy."
Rep. Dan Lipinski, D-Ill., the senior member from Illinois on the Transportation and Infrastructure Committee, said the bill "will avoid (a) catastrophe while also ensuring that railroads continue to make progress on installing this important safety equipment."
Positive train control uses a network of GPS, radios, computers and other equipment to slow or stop speeding trains, prevent train collisions and override human errors.
Congress ordered the nation's railroads to install PTC in 2008 after the collision of a Los Angeles-area commuter train and a freight train. Twenty-five people were killed.
Railroads say PTC technology is too complex and expensive to be installed by the deadline. The Association of American Railroads says railroads have already spent over $5 billion on PTC development and deployment.
Officials say the system would have prevented crashes like the Amtrak wreck May 12 in Philadelphia that killed eight people, as well as two derailments in 2003 and 2005 on Metra's Rock Island tracks on Chicago's South Side.
The Federal Railroad Administration and the Government Accountability Office have also recommended extending the implementation deadline.

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House Moves to Delay Deadline for Automating the Nation's Railways

Sep 30, 2015 | The Hill - Transportation

By Keith Laing

Lawmakers in the House are moving to extend a federal deadline for automating trains that most railroads say they will not be able to meet.
A bipartisan measure has been introduced in the lower chamber that would push back the deadline for most railroads to install automated train technology until December 2018. The bill is known as the Positive Train Control Enforcement and Implementation Act of 2015 (H.R. 3651).
Supporters of the measure say the extension is necessary to prevent an interruption in passenger and freight rail service at the end of the year.
"Completion of the Positive Train Control mandate by the end of the year is not achievable, and extending the deadline is essential to preventing significant disruptions of both passenger and freight rail service across the country,” House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.) said in a statement.
“Railroads must implement this important but complicated safety technology in a responsible manner, and we need to give them the necessary time to do so.”
Railroads currently have until Dec. 31 to install the Positive Train Control automated navigation system — which regulates the speed and track movements of trains — under a mandate that was set in the aftermath of a 2008 commuter rail crash in California.
Several rail companies have warned they will shut down service in January 2016 to avoid fines for not meeting the deadline.
Democrats on the House Transportation Committee said they are reluctantly supporting the extension of the automated train deadline to prevent a widespread interruption in train service.
"Over the years, numerous accidents could have been prevented had PTC been installed," said Rep. Peter DeFazio (Ore.), who is the ranking Democrat on the panel.
"Unfortunately, according to the Federal Railroad Administration and the GAO, nearly every railroad will fail to meet the deadline set back in 2008," DeFazio continued. "This one-time extension is now a necessity to prevent disruptions to rail service across the nation and to ensure that PTC will finally be fully implemented. Stakeholders must use this time to get PTC online as soon as possible — Congress will not accept any more delays."
Democrats in the Senate were critical of the House effort, however.

"It has been more than 45 years since the National Transportation Safety Board first urged railroads to implement positive train control — an unacceptable delay in implementation of this critical, life-saving technology that has allowed numerous, preventable tragedies," Sen. Richard Blumenthal (D-Conn.) said in a statement.

"Instead, the House Transportation and Infrastructure Committee’s bill provides a blanket extension to 2018, a troubling move considering that some railroads are on track to meet the current deadline," Blumenthal continued. "Extensions should be granted only to railroads that have demonstrated diligent, good faith efforts to meet the mandate. Only by holding railroads’ feet to the fire will this critical, life-saving technology finally be implemented.”
The House measure to extend the PTC deadline until December 2018 will allow the Transportation Department to grant exemptions to individual rail companies "if railroads demonstrate they are facing continued difficulties in completing the mandate, but have made every effort to install Positive Train Control as soon as possible."
Railroads would have to report on their progress with the PTC installation under the proposed legislation.

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