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Chemical Management News

Business Should Bear Chemicals Management Cost, EU Delegate Tells ICCM4
Oct 2, 2015 | Chemical Watch
By Leigh Stringer

The cost of chemicals and waste management should be borne by business rather than aid funding, a member of the European Commission's delegation told this week's UN chemicals summit, ICCM4.
Exposure to Endocrine-disrupting Chemicals Links to Rising Diabetes and Obesity Risk
Oct 1, 2015 | The Famuan
By Yemanja Murray

New evidence ties endocrine-disrupting chemical exposure to two major health threats in society: diabetes and obesity, according to the Endocrine Society.
New Use Rules for 30 Chemicals Issued by EPA
Oct 1, 2015 | BNA Daily Environment Report
By Pat Rizzuto

Thirty chemicals, including five the Environmental Protection Agency found analogous to a chemical subject to litigation, would be regulated under direct final new use rules the Environmental Protection Agency will publish in the Federal Register Oct. 2.
Senate Leaders Will Bring TSCA Bill to Floor: Inhofe
Oct 2, 2015 | BNA Daily Environment Report
By Anthony Adragna and Pat Rizzuto

Sen. Jim Inhofe (R-Okla.) told Bloomberg BNA Oct. 1 that Senate leadership has committed to bring legislation modernizing the nation's primary chemicals law to the floor.
Senate TSCA Bill Debate Held Up By Burr
Oct 2, 2015 | PoliticoPro
By Darren Goode

Sen. Richard Burr’s yearlong push to reauthorize the Land and Water Conservation Fund is the last big obstacle to a bill that would overhaul federal oversight of dangerous chemicals from coming to the Senate floor early next week, according to sources closely following the talks.
EPA Denies Environmentalists' Novel Petition For GHG Rules Under TSCA
Oct 1, 2015 | InsideEPA
By Dawn Reeves

EPA is formally denying a petition from the Center for Biological Diversity (CBD) seeking to regulate carbon dioxide under the Toxic Substances Control Act (TSCA), a move the group argued was necessary to limit ocean acidification caused by higher carbon dioxide (CO2) concentrations in the atmosphere.

Chemical Security News

(ACC Mentioned) Regulatory Gap Remains for Chemical Storage Tanks
Oct 2, 2015 | BNA Daily Environment Report
By Jeff Day

The EPA does not require spill-prevention actions by operators of aboveground chemical storage tanks, a regulatory gap that continues to exist 20 months after a chemical tank spill that led to a 10-day public drinking water ban for 300,000 West Virginians.
(ACC Mentioned) DuPont Expert Testifies His Relationship to Industry is “Jesus Hanging out with Prostitutes.”
Oct 1, 2015 | Ring of Fire

The shock factor never ends in the Ohio trial against DuPont involving its Teflon cancer-causing chemical C8.
Fatal Accident At DuPont Probed
Oct 1, 2015 | Chemical & Engineering News
By Jeff Johnson

A cascade of process errors and inadequate safeguards led to the deaths of four workers at a DuPont insecticide plant in La Porte, Texas, says an interim accident report by the Chemical Safety & Hazard Investigation Board (CSB). The board released that report and a related safety video on Sept. 30.

Energy and Environment News

(ACC Mentioned) U.S. to Curb Smog but EPA Stops Short of Toughest Limits
Oct 1, 2015 | Reuters (In The New York Times)
By Valerie Volcovici, Timothy Gardner and Patrick Rucker

The Obama administration on Thursday trimmed the legal limits of smog-producing ozone, in a regulation that will prevent lung ailments like asthma but cost businesses and utilities billions of dollars.
(ACC Mentioned) The EPA's Big New Crackdown on Smog, Explained
Oct 1, 2015 | Vox
By Brad Plumer

The lobbying battle over smog has been one of the most bitter environmental fights of the Obama era. Public health advocates have long argued that US cities still contain dangerous levels of smog, a leading cause of respiratory illness for millions of Americans, and have pushed to tighten existing rules. Industry groups, meanwhile, have been adamant that doing so would be exorbitantly expensive.
(ACC Mentioned) EPA Strengthens Ozone Standards, Upsetting Both Sides
Oct 1, 2015 | BNA Daily Environment Report
By Patrick Ambrosio

The Environmental Protection Agency tightened the national standards for ground-level ozone to a level of 70 parts per billion, a move that upset both industry groups that had cautioned that revised standards would have damaging effects to the U.S. economy and public health organizations that had pushed for even more stringent standards.
(ACC Mentioned) Appeal Poses Novel Superfund, International Law Issues
Oct 1, 2015 | BNA Daily Environment Report
By Steven M. Sellers

A Canadian smelter has no Superfund “arranger” liability for airborne pollutants deposited in Washington State, four U.S. trade associations and the government of Canada told a U.S. federal court, in an appeal that may break new legal ground (Pakootas v. Teck Cominco Metals Ltd., 9th Cir., No. 15-35228).
Defiant Dems Say They Won't Be Shut Out of Budget Talks
Oct 2, 2015 | E&E Daily
By Hannah Northey

Senior Democrats from both chambers of Congress yesterday said Republican efforts to cut them out of budget talks ahead of a potential government shutdown in mid-December will ultimately fail.
House Expected to Vote Next Week on Lifting Export Ban
Oct 2, 2015 | E&E PM
By Hannah Northey

The House is expected to vote next week on lifting the country's decades-old ban on exporting domestic oil, an issue that's triggered multiple campaigns by groups both for and against international oil sales.
Senate Banking Committee Passes Oil Export Bill
Oct 1, 2015 | BNA Daily Environment Report
By Ari Natter

The Senate Banking Committee voted Oct. 1 to approve legislation that would lift the ban on most crude oil exports, but the bill isn't expected to advance to the Senate floor, committee members said.
House GOP Leadership Shakeup Won't Affect Crude Exports Bill
Oct 2, 2015 | E&E Daily
By Daniel Bush and Hannah Northey

House Speaker John Boehner's surprise decision to retire has upended the chamber's short-term legislative agenda, opening the door to potential deals on a highway bill and budget agreement before the Ohio Republican steps down on Oct. 30.
Would Green Groups Cut a Deal to Allow Crude Exports?
Oct 2, 2015 | E&E Daily
By Phil Taylor and Geof Koss

Could green groups ever support legislation to lift the decades-old ban on crude exports if it included provisions to conserve public lands and wildlife, promote renewable energy or invest in low-carbon technologies?
Reactions to Ozone Rule Familiar on Capitol Hill
Oct 1, 2015 | BNA Daily Environment Report
By Anthony Adragna

Lawmakers took familiar positions Oct. 1 in reacting to the Environmental Protection Agency's newly revised ozone standard, as Republicans warned the regulation would harm the U.S. economy while acknowledging it was less stringent than many had feared.
Foes Raise Fists as EPA Rolls Out New Ozone Standard
Oct 2, 2015 | E&E PM
By Amanda Reilly

Opponents of U.S. EPA today quickly called on Congress to prevent the agency's new national ozone standard from going into effect.
EPA Vows Quick Issuance Of Implementation Policy For Tighter Ozone Limit
Oct 2, 2015 | InsideEPA
By Stuart Parker

EPA in a new policy memo is vowing quick issuance of rules and guidance for how states should implement the agency's stricter 70 parts per billion (ppb) ozone national ambient air quality standard (NAAQS), including updates to policies on addressing natural “background” ozone and interstate transport of ozone-forming emissions.
McCarthy Says House Will Take Up Ozone Rule
Oct 2, 2015 | E&E Daily
By Amanda Reilly

House Majority Leader Kevin McCarthy (R-Calif.), who is widely expected to become the next speaker, has pledged that Congress will take up U.S. EPA's new ozone standard.
EPA Toughens Smog Limit, But Health and Business Groups Split on its Impact
Oct 1, 2015 | The Chicago Tribune
By Michael Hawthorne

Polluting industries will be required to do more to curb lung-damaging smog under new restrictions announced Thursday by the Obama administration, but most of the nation is projected to clean up within a decade.
Overnight Energy: EPA Ozone Rule Takes Hits From All Sides
Oct 2, 2015 | The Hill - E2 Wire
By Devin Henry

Federal regulators formally introduced their strong new standard for ozone levels on Thursday, setting up a fight with Congress, industry and environmentalists alike.
Republicans Vow to Fight EPA's New Ozone Rule
Oct 1, 2015 | The Hill - E2 Wire
By Devin Henry

Republicans promised a legislative response to the new ozone standards the Environmental Protection Agency (EPA) released Thursday.
‘Groundhog Day’ Ozone Standard Has GOP, Industry Eyeing Clean Air Act
Oct 2, 2015 | PoliticoPro
By Alex Guillen

EPA critics say the new smog standard it finalized Thursday may breathe new life into efforts to revise the Clean Air Act, one of the nation’s most important environmental laws.
Obama's New Ozone Standard Has Greens Seeing Red
Oct 1, 2015 | PoliticoPro
By Alex Guillen

The Obama administration handed a win to industry groups Thursday on a fiercely debated rule for smog-causing ozone pollution — leaving green groups feeling betrayed once again and threatening legal action.
Reopening the Clean Air Act
Oct 2, 2015 | PoliticoPro (Morning Energy)
By Eric Wolff

With the EPA's decision to lower the ozone standard from 75 parts per billion to 70 ppb yesterday, EPA critics are looking to crack open the Clean Air Act and make changes.
Third Circuit Remands Pennsylvania Haze Plan to EPA
Oct 1, 2015 | BNA Daily Environment Report
By Leslie Pappas

The Environmental Protection Agency's decision to approve a state haze plan for Pennsylvania despite finding multiple flaws in the state's analysis was arbitrary and must be reconsidered, the U.S. Court of Appeals for the Third Circuit has ruled (Nat'l Parks Conservation Assoc. v. EPA, 3d Cir., No. 14-3147, 9/29/15).
Judges Appear To Back Parallel CWA Rule Suits Despite Legal Confusion
Oct 2, 2015 | InsideEPA
By David LaRoss

Federal district and circuit court judges appear likely to allow the myriad parallel legal challenges to EPA's Clean Water Act (CWA) jurisdiction rule to proceed in separate courts, despite what EPA and its allies say will be significant legal confusion when the various courts issue potentially competing decisions on the rule.

Transportation News

(ACC Mentioned) Sparks Fly Over Positive Train Control Phase-In Date
Oct 2, 2015 | E&E Daily
By Sean Reilly

Giving the railroad industry a blanket pass on implementation of automated safety measures is "simply unacceptable," Sen. Richard Blumenthal (D-Conn.) said yesterday.
(ACC Mentioned) In Brief: Report Warns Rail Shutdown Would be Costly
Oct 1, 2015 | Houston Chronicle

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) Looming Railway Shutdown Could Cost US $30B
Oct 1, 2015 | WKBW Buffalo
By Jamal Andress

After avoiding another government shutdown by just a few hours, Congress has yet another economic fire to put out.
Railroads Launch Automated Train Shutdown Clock
Oct 1, 2015 | The Hill - Transportation
By Keith Laing

The group that lobbies for freight rail companies in Washington has launched a countdown clock to a "rail shutdown" if Congress does not extend a deadline for automating most of the nation's trains.
PHMSA Releases Hazardous Liquid Pipeline Proposal
Oct 2, 2015 | BNA Daily Environment Report
By Rachel Leven

The nation's pipeline safety regulator released Oct. 1 its proposal aimed at improving the safety of the nearly 200,000 miles of hazardous liquid pipelines in the U.S., a Linkproposal expected to cost affected operators millions annually.
U.S. Regulators Propose More Monitoring of Oil Pipelines
Oct 1, 2015 | The Wall Street Journal
By Alison Sider

Federal regulators are proposing new rules aimed at strengthening maintenance and monitoring of the pipelines that carry crude oil and other fuels around the U.S. following a series of damaging oil spills.

Industry and Association News - There are no clips to report at this time.

Chemical Management News

Business Should Bear Chemicals Management Cost, EU Delegate Tells ICCM4

Oct 2, 2015 | Chemical Watch

By Leigh Stringer

The cost of chemicals and waste management should be borne by business rather than aid funding, a member of the European Commission's delegation told this week's UN chemicals summit, ICCM4.
Members of a side panel hosted by the UN Environment Programme (Unep) were asked where future funding should come from for programmes like Saicm – the UN's voluntary initiative for improving chemicals management in developing countries.
The issue is important because the main source of finance – the UN's national government funded Quick Start Programme (QSP) – will end in 2019. And NGOs say future funding levels for Saicm must be much higher for there to be any chance of meeting the UN's goal of achieving sound chemicals management globally by 2020.

In response, Jill Hanna, an official in the Commission's environment directorate, said companies should be prepared to pay management fees for the whole lifecycle of a product.
The costs to industry are justified, said Ms Hanna, because chemicals and waste management are “multi-trillion dollar" industries.
“I have a difficult time explaining to my colleagues why we, as aid donors, are propping up and making sure [chemicals and wastes] are handled properly,” she added.

Ms Hanna said there are small-scale sector-led initiatives tackling these issues, such as battery recycling, but as a whole, industry should “take responsibility”. But, she added, there still “isn’t the political will” for companies to accept these responsibilities and costs, and accepted that such a transition would not happen soon.
She had hoped, she said, that the QSP would have "sensitised governments to the notion that this is not something that necessarily has to be paid for by a general taxation".
The QSP will be replaced by the UN’s Special Programme. However, as well as Saicm, this will also have to support implementation of the four UN chemicals-related Conventions on:mercury;persistent organic pollutants (POPs);trade in hazardous waste; andthe prior informed consent procedure for hazardous chemical exports.
Future funding
NGOs and national delegations expressed concerns over the future funding of Saicm. India, for example, asked whether adequate funding would be available after the QSP. “An ambitious goal [like Saicm], can never be met through lip service, it needs some means to achieve it and a [dedicated] financial mechanism is one of those means," said its delegate.
ICCM4 president, Richard Lesiyampe, said he hoped that existing multilateral and bilateral financial mechanisms will take over. However, he invited delegates to identify "new and non-traditional donors".
The QSP was not planned to fund further implementation beyond 2020, but Joe DiGangi, senior science and technical adviser of the International POPs Elimination Network (Ipen), told Chemical Watch that Saicm implementation will not be easy without a dedicated funding system.
“With no implementation mechanism in place," he said, "you have a precarious situation where for the final five years of the mandate there is no substantive, efficient fund to implement activities.”
NGO Sustainlabour told the main conference that finances need to be multiplied to meet the “huge” needs of developing countries. “This is a multi-stakeholder forum and we deserve a multi-stakeholder [funding] mechanism to move us forward.”
In addition to the Special Programme, the Global Environment Facility (GEF) will allocate $13m to Saicm implementation over four years, while the Special Programme has received pledges of around $14m. However, Ipen estimates that the funding needed to fully implement Saicm “in a meaningful way” is $1bn a year.

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Exposure to Endocrine-disrupting Chemicals Links to Rising Diabetes and Obesity Risk

Oct 1, 2015 | The Famuan

By Yemanja Murray

New evidence ties endocrine-disrupting chemical exposure to two major health threats in society: diabetes and obesity, according to the Endocrine Society.
The Endocrine Society experts spoke on the issue after addressing the International Conference on Chemicals Management (ICCM4) in Switzerland along with the importance of using scientific approaches to limit health risk of endocrine-disrupting chemicals exposure (EDC).
EDC is the contribution to the health problems that mimic, block and interface with the body’s natural hormones, because of the chemical messengers that are sent to the body, the EDCs can alter the way the cells in your body grow and develop.
Some of the known EDCs include bisphenol A, which is found in food can linings and cash register receipts; and phthalates, found in plastics, cosmetics and pesticides.
“The evidence is more definitive than ever before. EDCs disrupt hormones in a manner that harms human health,” said Andrea Gore, a pharmacology professor at the University of Texas at Austin and chair of the task force. “Hundreds of studies are pointing to the same conclusion, whether they are long-term studies in humans, basic research in animals and cells or research into groups of people with known occupational exposure to specific chemicals.”
According to the Endocrine Society, the threat is particularly great when unborn children are exposed to EDCs. Animal studies found that exposure to even tiny amounts of EDCs during the prenatal period can trigger obesity later in life.
“Exposure to endocrine-disrupting chemicals during early development can have long-lasting, even permanent consequences,” said Jean-Pierre Bourguignon, Ph.D., professor of pediatrics at the University of Liège in Belgium, in a press release. “The science is clear and it’s time for policymakers to take this wealth of evidence into account as they develop legislation.”
In the statement, the Society calls for additional research for a more “cause-and-effect relationship” between EDC and health conditions, regulations to ensure that the chemicals are tested correctly and education for the public and policy makers to keep EDC out of food, water and air, as well as to protect unborn children from exposure.
“It’s kind of scary to know that the little things that we don’t even think about can affect us in so many ways,” said fourth-year biology student Tiona Settles, from Bradenton, Fla. “These organizations need to prevent the use of PVC and any other chemicals that may be affecting us.”
More research also continues to reveal that EDCs are related to breast and ovarian cancer, prostate conditions, thyroid disorders and neurodevelopmental disorders, according to Gore.
The Society will hold a Twitter chat on EDC exposure and associated health effects on Thursday, Oct. 1 at 1 p.m. ET.

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New Use Rules for 30 Chemicals Issued by EPA

Oct 1, 2015 | BNA Daily Environment Report

By Pat Rizzuto

Thirty chemicals, including five the Environmental Protection Agency found analogous to a chemical subject to litigation, would be regulated under direct final new use rules the Environmental Protection Agency will publish in the Federal Register Oct. 2.
The significant new use rules (SNURs) will be effective Dec. 1 unless the EPA receives by Nov. 2 adverse comments or a notice alerting it to a party's intention to file adverse comments.
The 30 chemicals include nine already subject to consent orders the EPA negotiated with chemical manufacturers using the authority provided under Section 5(e) of the Toxic Substances Control Act.
The SNURs for the nine chemicals subject to the Section 5(e) orders would require any future manufacturer or importer of the chemical to comply with the same protective measures—limitations to water releases, for example—to which the original manufacturer already is bound.
Similarly, the SNURs for the remaining 21 chemicals would oblige any future manufacturer or importer to the manufacturing and use conditions described in the original manufacturers' premanufacture notices (PMNs). EPA reviewed those PMNs and did not object to the chemicals entering commerce.
Any manufacture or use of a chemical that does not take into account the protective measures detailed in the consent orders or PMNs would be considered a new use and require notification to EPA.
Notice must be filed 90 days prior to the proposed new manufacturing or use of the chemical, so that the EPA can determine whether additional protections are needed.
Five Chemicals With Section 5(e) Orders
Manufacturers, importers or processors of nine of the 30 chemicals already have agreed to comply with Section 5(e) orders the original manufacturers of those chemicals negotiated with the EPA.
EPA's concerns for five of the nine chemicals were driven by their similarity to perfluorooctanoic acid (PFOA) and other perfluorinated alkyls.
One of the five PFOA-analogous chemicals—called by a generic name fluorinated acid alkylester—also shared similarities with perfluorooctanol sulfonate (PFOS), the EPA's final rules said.
DuPont, which formerly made PFOA, and 3M, which formerly made PFOS and, many years ago, PFOA, have stopped making both those chemicals due to concerns about their persistence, potential toxicity and ubiquitous presence even far from where the chemicals were made or used.
A bellwether toxic tort case against DuPont spinoff Chemours Corp. involving PFOA began Sept. 15. In this first of 3,500 potential lawsuits, Carla Marie Bartlett, 59, sued DuPont, claiming her exposure to PFOA caused her kidney cancer (Bartlett v. E. I. du Pont de Nemours & Co., S.D. Ohio, No. 2:13-cv-00170, jury selection initiated 9/14/2015; 179 DEN A-4, 9/16/15).
The five PFOA- and PFOS-analogous chemicals are used generically as coating additives and as intermediates to make other chemicals.
Four Other Chemicals With Section 5(e) Orders
Three of the remaining nine chemicals subject to Section 5(e) consent orders are known generically as fatty acids compounded with cyclohexanamine and fatty acids amine salt, which are be used as lubricity additives and ingredients in fuel additives.
EPA's consent order limited the manufacturing processing and distribution of the chemicals to avoid them reaching surface waters where they could harm aquatic organisms.
The final chemical subject to a Section 5(e) order was called generically organophosphorus polymer and is a polymer additive.
The EPA's concerns arose due to analogous chemicals such as the flame retardants tris(2- chloroethyl)phosphate (TCEP) and tris(1,3-dichloro-2 propyl)phosphate (TDCPP), which other agency information has described as known animal carcinogens that also have shown harmful effects on the kidneys, livers and neurological systems of laboratory animals.
The original manufacturer of the chemical must provide the EPA certain toxicity data before making the chemical above certain confidential production volume limits.
Under the SNUR no other manufacturer could make the chemicals above those limits unless it provided the same information to EPA. The agency is seeking information including dermal absorption and the potential for migration from products.
The remaining 21 chemicals covered by the EPA's final new use rules primarily posed aquatic concerns, however the manufacturing and use conditions anticipated did not suggest those conditions would pose unreasonable risks.

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Senate Leaders Will Bring TSCA Bill to Floor: Inhofe

Oct 2, 2015 | BNA Daily Environment Report

By Anthony Adragna and Pat Rizzuto

Sen. Jim Inhofe (R-Okla.) told Bloomberg BNA Oct. 1 that Senate leadership has committed to bring legislation modernizing the nation's primary chemicals law to the floor.
Sens. Inhofe, Shelley Moore Capito (R-W.Va.), Tom Carper (D-Del.) and Joe Manchin (D-W.Va.) said that vote could come as soon as the week of Oct. 5.
The path to that commitment was paved, the senators said, by adding language addressing concerns of Sen. Barbara Boxer (D-Calif.) to the bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697).
“It's time has come,” Manchin told Bloomberg BNA. “It's time for us to move forward on that bill.”
Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) have been crafting legislation that has evolved into S. 697 for about two years.
The bill, which would overhaul the 39-year-old Toxic Substances Control Act, is backed by 56 senators from 36 states.
Senate Majority Leader Mitch McConnell (R-Ky.) hasn't announced when the bill will hit the floor. S. 697 is, however, listed on the Senate's Calendar of Business, meaning he could bring it to the floor at any time.
The House approved related legislation, the TSCA Modernization Act (H.R. 2576), in June by a 398–1 vote (121 DEN A-1, 6/24/15).
Progress on Key Obstacles?
Sens. Boxer, Ben Cardin (D-Md.), Bernie Sanders (I-Vt.), Kirsten Gillibrand (D-N.Y.) and Ed Markey (D-Mass.) have previously detailed changes they sought in S. 697. These included their desire that the bill:
• allow states to regulate chemicals until the Environmental Protection Agency takes a final action;
• require that chemicals or situations dealing with chemicals known to be dangerous, such as asbestos, or chemicals stored near drinking water sources are addressed; and
• improve the scope and speed of chemicals that the EPA would be required to assess under the bill.
“She had valid concerns—I appreciate that and I respect that—she represents the state of California,” Manchin said.
Efforts to address Boxer's concerns about state preemption have been made, he said. “I think the final bill was put together to give her the comfort she needs.”
Boxer Said to Want Bill
Inhofe said Boxer wants a bill and has been willing to give a lot.
“We [also] gave a lot,” he told Bloomberg BNA.
Organizations such as Safer Chemicals, Healthy Families have objected to the duration—up to seven years—during which neither states nor the EPA would be regulating a chemical the federal agency was evaluating.
Several observers tracking the legislation said that the EPA's chemical evaluations would be limited to no more than six years.
Carper, who has backed S. 697 for months even as he worked to make its provisions more consistent with states' and environmental health advocates' goals, said the legislation has gotten better.
The latest “enhancements” to the legislation came from Sen. Ed Markey (D-Mass.) and one other senator and have been accepted, Carper told Bloomberg BNA, adding the legislation is “much improved.”
A Boxer aide confirmed to Bloomberg BNA that efforts have been made to address some of the senator's concerns.
Nevertheless, Boxer plans to vote against S. 697, the aide said.
Preemption Called Key
James Aidala, a research associate with the law firm Bergeson & Campbell P.C., said reaching an agreement on preemption is key.
Aidala was associate assistant administrator of the EPA's Office of Prevention, Pesticides and Toxic Substances from 1993 to 2000, and previously worked in the pesticides program, for two congressional committees and with the Congressional Research Service focusing on TSCA and pesticides.
Senators on both sides of the aisle would have little to lose, Aidala said, by agreeing to add language to S. 697 that would object to asbestos and to provide information in case of chemical spills, such as January's spill into West Virginia's Elk River that left more than 300,000 residents without drinking water for days.
One path forward would be for the Senate to proceed with a vote approving its bill, which would preempt state chemical regulations earlier than would the House's TSCA Modernization Act, Aidala said.
The preemption issue would then be deferred until a formal or informal conference on the bills, he said.
Most States Lack Staff, Money
Although state preemption is important to many parties involved in the TSCA-reform debate, functionally it may be less critical than portrayed for the implementation of a new statute, Aidala said.
A few states will continue to be active on chemical issues, but most do not have the staff or money to get engaged, he said.
If EPA is given sufficient resources, it would be best positioned to evaluate the hazards of, exposures to and resulting risks of a chemical nationwide, Aidala said.
Many states would like to leave that work to the agency, he added.
Preempting state regulations before the EPA has completed a risk assessment, however, could provide a “perverse incentive” for chemical manufacturers to delay the assessment, Aidala said, drawing on his experience with pesticides during the 1980s and early 1990s.
As the end of an assessment approached, companies commonly promised to produce hazard or exposure data that could significantly improve the agency's conclusions and therefore justify a delay, he said.
Distinct From EPA's Chemicals Management
Obstacles unrelated to the EPA's management of chemicals could arise if S. 697 reaches the floor.
Observers have told Bloomberg BNA that some senators are pushing to add language that would reauthorize the Land and Water Conservation Fund or language that would end the 40-year-old ban on crude oil exports.
Sen. Richard Burr (R-N.C.) told Bloomberg BNA he wants to add language reauthorizing the conservation fund, which uses revenues from offshore oil and gas development to establish national parks and other public spaces.
“If TSCA comes to the floor with an amendment process, I'm fine with TSCA coming to the floor,” Burr said.

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Senate TSCA Bill Debate Held Up By Burr

Oct 2, 2015 | PoliticoPro

By Darren Goode

Sen. Richard Burr’s yearlong push to reauthorize the Land and Water Conservation Fund is the last big obstacle to a bill that would overhaul federal oversight of dangerous chemicals from coming to the Senate floor early next week, according to sources closely following the talks.
Burr is a co-sponsor of a bipartisan bill from Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) to update the 1976 Toxic Substances Control Act, which is backed by more than half the Senate and has the official blessing of both parties. But the North Carolina Republican is effectively holding up efforts to quickly bring the measure to the floor under a unanimous consent agreement while he seeks a vote on an amendment permanently reauthorizing LWCF, which expired Wednesday.
“My understanding is that there are one or more unrelated holds in which people are trying to use the prospect of the TSCA bill moving in which to leverage to try to do something unrelated and that there is an effort being made to try to clear those holds,” Sen. Sheldon Whitehouse (D-R.I.) told POLITICO.
Whitehouse didn’t specifically reference Burr, although other sources did.
Other Republicans who previously had holds on the TSCA bill or who were seeking amendments on unrelated items have lifted their opposition. That includes Sen. John Hoeven’s effort to get a vote to end the crude oil export ban and Sen. Dean Heller’s desire to have a vote on EPA’s mercury rule, sources said.
Burr briefly received enough Senate votes to permanently reauthorize the LWCF under an amendment to a bill approving the Keystone XL pipeline in January. But the amendment eventually fell one vote short due to concern that it would become a poison pill in the House because it wasn’t paid for.
A Burr spokeswoman could not immediately confirm that the North Carolina Republican still had a hold on TSCA and did not have an update on the talks.
Proponents aim to bring the TSCA bill to the floor as early as Tuesday. Sen. Joe Manchin (D-W.Va.) told reporters he was planning to go to the floor that day with Udall to talk about the issue.
Meanwhile, negotiations have successfully ended on changes to the underlying TSCA bill.
“I think that we’ve worked through it and I’m hoping that those who have concerns with it, they’re more comfortable, let’s put it that way,” Manchin said.
He was referring to Senate Environment and Public Works ranking member Barbara Boxer (D-Calif.), who has led opposition to the bill mainly over concern that it would trump state toxic controls, especially in California.
Boxer called a meeting with fellow EPW Democrats Wednesday afternoon to announce that, while she won’t be supporting the current version of the Senate bill, she won’t hold it up, sources said.
Boxer had previously pushed to have the Senate take up a far narrower House-passed bill that would not preempt toxic controls in California and other states. But she has now agreed to having the Senate bill as the vehicle to take into bicameral talks with the House, sources said.
Sen. Ed Markey (D-Mass.) and Senate Minority Whip Dick Durbin (D-Ill.) worked together to update the version the EPW panel approved 15-5 in April that “strengthens certain aspects of the bill,” said one Senate Democratic aide, who declined to specify the changes.
Markey was one of the five Democrats who voted against the bill in committee, but he will be supporting the version that goes to the floor, the aide said.

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EPA Denies Environmentalists' Novel Petition For GHG Rules Under TSCA

Oct 1, 2015 | InsideEPA

By Dawn Reeves

EPA is formally denying a petition from the Center for Biological Diversity (CBD) seeking to regulate carbon dioxide under the Toxic Substances Control Act (TSCA), a move the group argued was necessary to limit ocean acidification caused by higher carbon dioxide (CO2) concentrations in the atmosphere.
In a notice signed Sept. 25 but not yet published in the Federal Register, EPA “acknowledged the impacts of CO2 and other greenhouse gases on ocean acidification and the potential impacts of ocean acidification on marine ecosystems in its 2009 [GHG] endangerment finding.”
But the agency said that the petitioners “provided neither adequate specifics on the relief sought under TSCA, nor sufficient information on the costs and benefits associated with a requested regulatory option to allow EPA to make the unreasonable risk finding specified in TSCA.”
EPA also finds that actions to reduce CO2 under “authorities other than TSCA” could reduce the risk more effectively at this time.
A CBD spokeswoman said in response that “it’s disappointing that EPA didn’t seize this opportunity to use the toxic substances law to address ocean acidification. We need bold actions on the part of the EPA to protect marine life from carbon dioxide pollution.”
She said the group is still “reviewing the denial to determine whether to take further legal action.”
The notice rejects CBD's June 30 petition to regulate GHGs under TSCA section 6 to address ocean acidification, or alternatively under section 4 to require manufacturers and processors of CO2 to undertake testing to determine the human health and environmental impacts of CO2.
The novel petition argued that CO2 emissions “satisfy the standard” for regulation under TSCA, noting that EPA “has acknowledged that these emissions have the potential to alter ocean chemistry, thus imperiling important marine ecosystems and presenting an unreasonable risk.”
Section 6 of the law gives EPA the ability to prohibit the manufacture, processing or distribution of a chemical above certain levels, require warning labels, regulate use and disposal, and take other steps.
But EPA's response says the petitioners' argument that EPA make an unreasonable risk finding under TSCA “is hindered by a nearly complete lack of detail as to the TSCA risk management sought.” For example, TSCA allows the public to petition EPA to issue, amend or repeal “a rule” but “petitioners have not identified a particular rule that they believe EPA should issue. Rather, they have identified a global environmental concern and asked that EPA . . . identify a rule that would address the concern.” The petition process “requires considerably more specificity than petitioners have provided.”
EPA does note in the denial that regardless of the petition, “EPA and other federal agencies are working diligently to further our collective understanding of the impacts of ocean acidification” and that some research under way “matches the petitioner's recommendations for information to seek under TSCA section 4.”

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Chemical Security News

(ACC Mentioned) Regulatory Gap Remains for Chemical Storage Tanks

Oct 2, 2015 | BNA Daily Environment Report

By Jeff Day

The EPA does not require spill-prevention actions by operators of aboveground chemical storage tanks, a regulatory gap that continues to exist 20 months after a chemical tank spill that led to a 10-day public drinking water ban for 300,000 West Virginians.
The Environmental Protection Agency has for decades had clear statutory authority to require spill-prevention actions for the tanks, officials told Bloomberg BNA in 2014 (90 DEN B-1, 5/9/14).
Also for decades, the EPA has had spill-prevention regulations on above-ground tanks containing petroleum products or hazardous waste. Since the early 1980s, the agency also has had spill-prevention regulations for chemical storage tanks that are underground.
According to environmental groups, the absence of an EPA spill-prevention requirement for chemical above-ground tanks puts people and the environment at unnecessary risk.
“Millions of people rely on drinking water sources that are unprotected from chemical tank spills because of that loophole,” Rick Hind, legislative director of Greenpeace's toxics campaign, told Bloomberg BNA.
Above-ground chemical storage tank accidents that threaten public health did not stop with the West Virginia spill in January 2014, Hind said.
“Millions of people rely on drinking water sources that are unprotected from chemical tank spills because of that loophole.”
Rick Hind, Greenpeace
That spill of coal-processing chemicals containing 4-methylcyclohexane methanol (MCHM) triggered a state of emergency affecting as many as 300,000 people after the pollutants entered the Elk River just upstream from the intake pipe of a water treatment plant serving Charleston, the state capital (08 DEN A-13, 1/13/14).

The chemical mixture is distributed exclusively by Eastman Chemical and was being stored in a facility owned and operated by Freedom Industries Inc. Freedom Industries has faced litigation in separate lawsuits involving the same previous spill, including criminal charges to which company officials pleaded guilty March 18 (54 DEN A-10, 3/20/15).
According to what Hind called a registry of verified chemical accidents compiled by Greenpeace and other groups, on Aug. 20, an aboveground storage tank containing sodium hydrosulfide caught fire and partially exploded at an aboveground storage tank facility outside Bainbridge, Ga.
The accident killed one worker and forced the temporary evacuation of nearby homes.
Meanwhile, a consortium of environmental groups filed suit in the U.S. District Court for the Southern District of New York, asking the court in July to direct the EPA to promulgate spill-prevention regulations for aboveground chemical storage tanks (140 DEN A-10, 7/22/15)(140 DEN A-10, 7/22/15).
Statutory Authority for Rule Since 1972
Among the sweeping 1972 amendments to the Federal Water Pollution Control Act was a new section—311(j)(1)—requiring the president to promulgate “as soon as possible” regulations to prevent spills of petroleum products and hazardous substances from aboveground storage tanks on or adjacent to the nation's navigable waters.
The EPA established its first Spill-Prevention, Control and Countermeasure regulations to prevent water pollution from aboveground tanks containing petroleum products and other oils, in 1976. As such, all states must have rules at least as rigorous for aboveground petroleum product storage tanks.
Establishing the SPCC rule for aboveground storage tanks holding petroleum products and other oils made sense. The great majority of aboveground storage tanks in the U.S.—85 to 90 percent of them—contain petroleum products and other oils, said Katie Vassalli, manager of member eduction at the International Liquid Terminals Association.
Philip Myers, an aboveground storage consultant, said the vast majority of aboveground chemical storage tank storage installations are run well. He told Bloomberg BNA that the key is for installation owners and operators is to instill and maintain a strong safety culture.
If the EPA is to apply its spill-prevention, control and countermeasure rule to the aboveground chemical storage facilities, the necessary practices would not improve safety or environmental protection at well-run facilities but would reduce operational efficiencies, Myers said.
Asked whether a spill-prevention regulation could be devised that would not conflict with effective safety and environmental practices, Myers demurred. While the vast majority of AST facilities are run well, a few outliers such as Freedom Industries exist, Myers said. He suggested that chemical suppliers cut off such firms. Myers said he was surprised that Eastman Chemical sold MCHM to Freedom Industries.
Eastman Chemical Co. is fighting a lawsuit that accuses it of negligence in delivering MCHM to a facility unable to store it safely(111 DEN A-15, 6/10/15).
Hind, of Greenpeace, said the Freedom Industries spill shows the EPA needs to establish a spill-prevention rule for aboveground chemical tank facilities. If operational efficiencies decline at well-run facilities, it's a small price to pay for protecting workers and the environment at all chemical AST facilities, he said.
Shortly after the Freedom Industries incident, Sen. Joe Manchin (D-W.Va.) introduced legislation (S. 1961) that would have required that states establish regulations to prevent spills from chemical ASTs near drinking water intakes.
On April 3, 2014, the Senate Environment and Public Works Committee approved the bill on a voice vote and sent it to the Senate floor (65 DEN A-16, 4/4/14).
The measure died when Congress adjourned at the end of 2014.
State Spill-Prevention Policies
With no EPA rule requiring spill-prevention action at aboveground chemical storage fatalities, and no federal statute requiring that states establish them, states are free it establish their own requirements but they have no obligation to do so.
Among six states with significant chemical industries examined by Bloomberg BNA reporters, half—Louisiana, New Jersey and New York—have spill-prevention requirements that apply to aboveground chemical storage tanks statewide.
West Virginia requires spill-prevention plans for all aboveground chemical storage tanks close to public water supplies, less than half of the chemical ASTs in the state. The state had no spill-prevention requirements before the 2014 spill.
Texas has spill-prevention requirements for chemical ASTs in eight of its 254 counties. Illinois has no spill-prevention requirements for chemical ASTs.
Fire Marshal Authority Incomplete
State environmental agencies are one source of spill-prevention requirements. State fire marshals can be another source. The National Fire Protection Association's model code, adopted at least in part by most states, requires fire marshal spill-prevention inspections of ASTs holding flammable or explosive liquids.
Even if fully incorporated into state law or regulation, however, state fire marshal inspections only partially make up for the federal regulatory gap, because many hazardous substances are neither flammable nor explosive, Erik Olson, a senior attorney at the Natural Resources Defense Council, told Bloomberg BNA.
The authority of fire marshals to inspect aboveground chemical storage tanks varies widely among the states examined by Bloomberg BNA. In New York and New Jersey, fire marshals have ongoing authority to inspect aboveground chemical storage tank facilities, according to Bloomberg BNA interviews with the State Fire Marshal officials.
But state fire marshals in Illinois, Louisiana and West Virginia have no authority to inspect aboveground chemical storage tanks. In Texas, AST inspections can occur only at retail gas stations, Bloomberg BNA found.
Source Water Protection Shortfalls
As the 2014 spill in West Virginia showed, a major reason to prevent spills of chemicals from aboveground storage tank facilities, also known as liquid terminals, is to protect public water supplies.
Under the federal Emergency Planning and Community Right-to-Know Act, owners or operators of businesses that handle materials that could produce a public health or safety emergency are required to notify the state emergency management agency.
Under the act, state agencies are required to provide site-specific information to local emergency management committees so they can prepare for emergencies, Kevin Morley, security and preparedness manager for the American Water Works Association, told Bloomberg BNA.
Some 3,500 local emergency planning committees are supposed to plan accordingly with local public safety agencies but their performance varies widely, Morley said.
According to Peter Weaver, government affairs chief at International Liquid Terminals Association, owners and operators of aboveground storage tank facilities are providing states with product information, as EPCRA requires.
However, Weaver said the “back end” of the EPCRA process is broken, because the information is very often not used at the local level.
Under the EPCRA process, facilities with potentially hazardous materials must report them to the state. The state is then obligated to distribute the information to the appropriate local emergency planning committee, but that often does not happen, Weaver said.
Recordkeeping, Local Emergency Panel Problems
Morley said the EPCRA process is hobbled by major paperwork problems at the state level and local emergency management committees that range from very active to nonexistent.
Most states have yet to establish a digital process for businesses to report their hazardous product information to state emergency management boards, Morley said.
States are obligated to protect source water under the Safe Drinking Water Act but the EPA cannot require that states do more because the agency by 2003 had accepted every state's source water protection plan.
EPA spokesman
That means the information comes in paper forms that are difficult to compile at the state level. It's also more difficult to put the information in a form that's useful for each local emergency management committee, Morley said.
The EPA cannot take over EPCRA information gathering and distribution, because the statute requires the chemical data be held by the states, Morley stated.
Meanwhile, water utilities do not have the resources or expertise to identify the locations of business operations that could harm local water supplies, Morley said.
Limits of the Safe Drinking Water Act
The EPA is taking steps to encourage state to improve source water protection since the Freedom Industries spill, an EPA spokesman told Bloomberg BNA, pointing to new initiatives by the Source Water Collaborative.
The Source Water Collaborative, formed in 2006, includes the EPA, National Association of Clean Water Agencies, which represents municipal-owned wastewater utilities; Association of Metropolitan Water Agencies, which represents drinking water utilities; and other groups and federal agencies.
After the Freedom industries spill, the EPA updated its Vulnerability Self-Assessment Tool for drinking water utilities.
In April 2014, then-EPA deputy Administrator Bob Perciasepe urged water utilities to update their sourcewater protection programs to be prepared to deal with future threats to supplies (69 DEN A-6, 4/10/14).
The EPA spokesman said Maine, Colorado and North Carolina have taken notable steps to improve source water protection.
States are obligated to protect source water under the Safe Drinking Water Act. But the spokesman said the EPA cannot require that states do more because the agency by 2003 had accepted every state source water protection plan.
The EPA is developing a Drinking Water Mapping Application for Protecting Source Waters (DWMAPS) tool to encourage protective actions, the spokesman said.
He said the mapping tool, which uses global information system (GIS) data, will help states, utilities and watershed groups identify potential sources of contamination.
Morley said DWMAPS will certainly help but added that states will need to take the lead, because many smaller water utilities lack the expertise and staffing needed to make use of the new information.
DWMAPS will identify potential source water threats near water bodies and indicate, based on water flows, how long it would take a contaminant to reach a water utility, Morley said.
Limits of ACC Responsible Care Program
According to the American Chemistry Council, the nation's major chemical manufactures use rigorous and comprehensive procedures to prevent spills at their facilities.
Under the ACC's Responsible Care Program, the chemical companies' distribution partners—some 180 Class 1 railroads, trucking companies, pipeline companies, bulk liquid storage companies and the like, do the same, said Dan Roczniak, senior director of the Responsible Care Program.
Partner companies must submit to triennial third-party audits of their headquarters and facilities to ensure that they have a structure and system in place to measure, manage and verify process safety. The companies must remedy any problems before they can be certified by the auditors, Roczniak said.
But the ACC does not see the audit results, and the Responsible Care program has never expelled a partner company for failure to meet its Responsible Care obligations, ACC spokeswoman Jenny Heumann said. Meanwhile, the 180 Responsible Care Program partners include only eight liquid terminal companies.
West Virginia: Spill-Prevention Mandate Narrowed
The Freedom Industries tank spill that caused a week-long ban on tap water use in Charleston, W.Va., led to the state Legislature in 2014 giving unanimous approval to a statute that, had it gone into effect, would have required spill-prevention plans and annual, spill-prevention inspections for every aboveground storage tank holding chemicals in the state, some 48,000 tanks.
Before the industry mandates of the 2014 legislation came into effect, however, the General Assembly in 2015 narrowed the spill-prevention plan mandate with the enactment of S.B. 423 (61 DEN A-10, 3/31/15).
Under the 2015 legislation, the most rigorous provisions now apply to ASTs holding more than 50,000 gallons of hazardous chemicals anywhere in the state, as well as all chemical ASTs in “zones of critical concern.” That means all ASTs located five river-flow hours or less above a public water intake.
Tank owners or operators subject to the full regulation must have spill-prevention plans that prescribe a preventive maintenance program, monitoring and inspection procedures and employee training. The plans must be certified by a professional engineer or an individual certified to perform tank inspections by the American Petroleum Institute or the Steel Tank Institute and be recertified periodically.
The state Department of Environmental Protection must inspect those facilities once every three years.
Chemical ASTs more than five but less than 10 river-flow hours upriver from a public water intake are not subject to DEP spill-prevention inspections but are otherwise subject to the spill-prevention requirements.
In total, owners and operators of some 12,000 chemical ASTs must have spill-prevention, control and countermeasure plans, 36,000 fewer that under the 2014 stature.
But under 2015 legislation, the head of the Department of Environmental Protections can act to prevent spills from any aboveground chemical storage tank that pose an “imminent and substantial danger” to the environment or public health.
The law also requires that water utilities serving 100,000 residents or more develop detailed source-water protection plans. Only one system serves that many residents—West Virginia American Water, the utility that serves Charleston, DEP spokeswoman Kelley Gillenwater told Bloomberg BNA.
West Virginia's Office of the State Fire Marshal has no authority to inspect aboveground tanks holding chemicals, including tanks holding flammable chemicals, an office spokesman said.
Louisiana: Spill-Prevention Plans Mandatory
Owners and operators of aboveground chemical storage tank facilities in Louisiana must have spill-prevention and control plans, Louisiana Department of Environmental Quality spokesman Greg Langley told Bloomberg BNA.
The state Spill Prevention and Control (SPC) requirement applies to owners and operators of aboveground storage tanks containing any hazardous substance listed under the federal Comprehensive Environmental Response, Compensation, and Liability Act, the federal Clean Water Act, or in LDEQ's emergency notification regulation, Michael Bowman, an environmental attorney with the law firm Baldwin Haspel Burke & Mayer LLP, told Bloomberg BNA.
The EPA requires that most spill-prevention plans for petroleum product ASTs be certified by a professional engineer (PE). Louisiana's rule for chemical ASTs does not, Bowman said.
“That said, the SPC rule does require that the SPC plan be prepared in accordance with ‘sound engineering practice,’ which suggests that PE review is a good idea,” Bowman said.
Periodic In-House Inspections Required.
LDEQ requires that SPC plans include written procedures and schedules for periodic visual inspection of ASTs, which may be done by company staff. The agency also requires that the self-inspections be done according to facility SPC plans, Bowman explained.
Lousiana Administrative Code Section 33:IX.907 outlines details regarding the preparation and implementation of the spill control plan. The plans must:
• include the name of the facility, operator, address and date of initial facility operation;
• describe the facility and indicate the nearest water body; and
• list the identity, location and amount of substances stored at the facility.
SPC plans must be reviewed by the operator every five years.
Asked to comment on the SPC requirements, Guy Ward, environment, health and safety manager at Americas Styrenics LLC, said the company looks at its SPC plans annually. Adjustments to the SPC are a good idea if equipment is added or removed, Ward said.
The Louisiana Office of State Fire Marshal does not have safety inspection authority for aboveground storage tanks, an office spokeswoman told Bloomberg BNA.
AST Construction in Flood Zones.
The biggest hole in LDEQ regulation of aboveground storage tanks is that it doesn't bar locating AST facilities in flood zones, Wilma Subra, president of environmental consulting firm Subra Co., told Bloomberg BNA.
While it is true that LDEQ regulations don't prohibit storage tanks in floodplains, localities have some authority to restrict them, Bowman said.
The Federal Emergency Management Agency maps flood zones in the state, and Louisiana law gives parishes authority to enact flood-protection ordinances. But the relationship between various parish ordinances and state law can be somewhat murky, Bowman said.
Illinois: No Spill-Prevention Plan Mandates
The Illinois Environmental Protection Agency does not require that owners and operators of aboveground storage tank facilities holding chemicals have spill-prevention plans, according to the agency.
IEPA's spill-prevention, control and countermeasure regulation applies only to underground chemical and petroleum storage tanks and aboveground storage tanks holding petroleum products and other oils.
The Illinois Office of the State Fire Marshal regulates all ASTs containing flammable or combustible liquids. Entities establishing ASTs that will hold flammable or combustible liquids must apply to the agency for a permit, a very detailed process.
The marshal's office also requires secondary spill containment for ASTs holding such liquids.
But the office does not require that AST owners or operators have spill-prevention plans.
Matthew Taksin, general counsel for the office, told Bloomberg BNA that ASTs in Illinois are rarely if ever inspected following the permitting process.
“We have generally found pretty good compliance, particularly after a notice of violation.”
Matthew Taksin,
General Counsel for Illinois Office of the State Fire Marshal
Taksin added that the state's bulk storage regulations do not feature ongoing inspection requirements, and the state fire marshal's office does not have the manpower to conduct such reviews.
Inspections occur only if the agency receives a complaint about an existing tank. Taksin said such complaints generally come from a neighboring property owner or another agency that has reviewed the permitted entity's facility.
“We have generally found pretty good compliance, particularly after a notice of violation,” he said. “People have been good about fixing whatever needs to be fixed.”
Taksin said leaks and spills are referred to the IEPA, but such referrals are very rare. An IEPA spokeswoman could not remember any AST spills requiring agency intervention.
Illinois localities are allowed to subject ASTs to requirements beyond those established by the state fire marshal's office, according to a detailed summary of the office's policies for aboveground storage tanks.
New Jersey: Spill-Prevention Plans Mandatory
New Jersey's environmental regulations require spill-prevention, control and countermeasure plans at major aboveground storage tank facilities—those holding 20,000 gallons of chemicals or more.
Meanwhile, aboveground storage of smaller quantities are subject to somewhat similar requirements under a welter of state and local mandates, New Jersey regulators, attorneys, industry leaders and environmental advocates told Bloomberg BNA.
Paul C. Dritsas, a partner in the environment and energy practice group at McCarter & English LLP in Newark, N.J., said New Jersey has “a robust set of environmental laws” and is “more activist than other states.”
The primary spill-prevention requirements for aboveground chemical storage tanks in New Jersey is the Discharge Prevention Program, which operates under the authority of the New Jersey Spill Compensation and Control Act.
The program is administered by the New Jersey Department of Environmental Protection's Bureau of Release Prevention.
Stuart Lieberman, a founding shareholder of Lieberman & Blecher in Princeton, N.J., and a former deputy attorney general for New Jersey in the Environmental Protection Section, called the Spill Act, established in the 1970s, the “granddaddy of toxic regulation in New Jersey.”
Chemical ASTs Regulated Since 1991.
Chemical AST coverage under the Spill Act's Discharge Prevention Program took effect in 1991.
There are about 275 major AST facilities in New Jersey, according to the New Jersey Department of Environmental Protection (NJDEP). The number of aboveground storage tanks at each facility varies greatly, with some holding several hundred aboveground storage tanks and others holding one or two, NJDEP spokesman Larry Hajna told Bloomberg BNA.
Owners and operators of major facilities must prepare Discharge Prevention Containment and Countermeasure (DPCC) plan and a Discharge Cleanup and Removal (DCR) plan. The plan must be submitted for certification by a professional engineer and approval by NJDEP.
The plans must require periodic visual inspections and tank integrity testing, as well as high-level alarms and secondary containment. New plans are required every three years. In between, the facilities are subject to audits and inspections by NJDEP's Bureau of Release Prevention.
“It's very serious,” Lieberman told Bloomberg BNA. “Your plan is really everything, because it describes how you're keeping everything safe, keeping it [toxic chemicals] out of the water, out of the soil.”
While AST facilities storing less than 20,000 of chemicals are not subject to NJDEP's spill-prevention, containment and countermeasure mandates, Dritsas said they must report spills and take remedial action under other state laws.
Fire, Building Codes for Smaller Facilities.
Large and smaller facilities are also subject to New Jersey's Uniform Fire Code and the statewide building code.
Under the building code, AST facilities cannot be built without numerous spill and release prevention features, William Kramer Jr., acting director of the New Jersey Division of Fire Safety and State Fire Marshal, told Bloomberg BNA.
Meanwhile, under New Jersey's fire code, aboveground storage tanks holding flammable or other products that pose public health or safety risks must be registered or permitted by the state, depending on the product stored. Kramer said local fire agencies must inspect registered and permitted facilities annually.
“It would be difficult to find another state that has oversight of everything, from birth to death,” Kramer said.
Industry, Environmental Group Objections.
New Jersey's numerous “redundant” and overlapping regulations can make compliance difficult for industries in the state, a factor that has led some companies to leave the state, said Anthony Russo, executive vice president for government affairs at the Commerce and Industry Association of New Jersey.
Russo told Bloomberg BNA that the majority of violations that facilities receive are “administrative.” NJDEP inspectors should give a “grace period” before issuing a notice of violation, when there's only a paperwork problem, he said.
“We're not saying, ‘Shield the bad actors.’ ” If a facility is doing real harm to the environment, the owner or operator should be fined, Russo said.
Jeff Tittel, director of the New Jersey Chapter of the Sierra Club, said the “biggest problem” with state regulation of aboveground storage tanks is the lack of clear siting requirements, other than banning the storage of hazardous substances in designated floodways. The tanks can be located in areas that are flooded by major surges, he said.
NJDEP's Hajna confirmed that New Jersey's Flood Hazard Area Control Act Rules only bar the placement, storage or processing of hazardous substances in floodways.
New York: Spill-Prevention Mandatory
Owners and operators of aboveground chemical storage tanks in New York state must have detailed spill-prevention plans, said Thomas Mailey, a spokesman for the state environmental agency.
The spill-prevention plan requirement applies to all aboveground ground storage tanks holding more than 185 gallons of any of some 1,000 hazardous substances.
The chemical bulk storage regulations (6 NYCRR 595-599), first imposed in 1988, require that AST facilities be registered with the state Department of Environmental Conservation (DEC), with registration including a record of what chemicals are being stored and how.
AST facility owners or operators must prepare and maintain a spill-prevention plan and comply with requirements for the safe storage and handling of hazardous substances. The plans must include daily inspection of aboveground storage tanks facilities for signs of leaks or spills, and more in-depth monthly inspections.
Still more comprehensive annual checks must include:
• inspection for cracks, corrosion, maintenance problems and leak detection;
• inspection of dikes and secondary containment systems; and
• review of compliance with state regulations for storage of hazardous chemicals.
Owners of aboveground storage tanks with a capacity of more than 10,000 gallons must also have the tanks inspected and certified for structural soundness by a professional engineer.
State Compliance Inspections.
DEC conducts periodic facility inspections of AST facilities to ensure that the state's Chemical Bulk Storage regulations are being met, Mailey said.
Sean Dixon, a staff attorney at Riverkeeper, a New York environmental advocacy group, said enforcement is the key issue for aboveground chemical storage tank safety. He said there have been many small spills.
“You can have the world's best set of regulations” but if you don't inspect the sites, you will never know if the regulations are working, Dixon said. Riverkeeper is concerned about recent staff cuts at the DEC, particularly in the area of inspectors, he added.
The state Office of Fire Prevention and Control doesn't have chemical AST inspection jurisdiction, a spokeswoman told Bloomberg BNA.
On Sept. 30, New York established another policy to prevent spills from aboveground storage tanks. Under new final regulations by the New York State Department of Environmental Conservation, the agency will have the authority to stop the delivery of chemicals, as well as petroleum products, to bulk liquid storage facilities that are significantly out of compliance with the state's existing spill prevention regulations. The rule will also require that the operators of liquid terminal facilities undergo training within 30 days of receiving their operator's designation from the state (190 DEN A-5, 10/1/15).
Texas: Eight-County Spill-Prevention Mandate
Texas requires spill-prevention plans for chemical ASTs located in eight of the state's 254 counties, according to the Texas Commission on Environmental Quality.
Rainfall over those counties, located in south central Texas, feeds the Edwards Aquifer. Those counties are the only ones where spill-prevention plans are required for chemical ASTs, TCEQ spokeswoman Andrea Morrow told Bloomberg BNA.
As the groundwater source serving some 2 million users, including Austin, the state capital, the Edwards Aquifer is tapped for agricultural, industrial, domestic and recreational needs. Chemical AST spill-prevention and control plans are required for all permanent facilities in the eight-county area that store 500 gallons or more, under Title 30, Texas Administrative Code Chapter 213.
Owners or operators of ASTs storing in excess of 10,000 pounds of a chemical anywhere in the state are required to file a chemical inventory report with the Texas Department of Health.
Flammable liquids storage is governed by Chapter 753 of The Texas Health and Safety Code. TCEQ has concurrent jurisdiction with the Office of State Fire Marshal, part of the Texas Department of Insurance (TDI), for inspection of initial installations and other administrative supervision of aboveground storage tanks.
Initial Inspections by Fire Departments.
New aboveground storage tanks that will hold flammable or explosive liquids are subject to initial inspection, typically by state or local fire departments, Texas Fire Marshal office spokeswoman Rachel Moreno said.
The office of State Fire Marshal also has ongoing authority to inspect aboveground storage tanks at retail gas stations to prevent spills, but fire officials can perform spill-prevention inspections of other aboveground tanks holding flammable liquids only after citizen complaints, Moreno said.
ExxonMobil Chemical Co., a Texas-based subsidiary of the oil giant, would not comment on the Texas regulations.
But spokeswoman Margaret Ross said the company uses sound standards, procedures and management systems for facility design, construction and operation of aboveground storage tanks. Ross said that to operate the facilities “within established parameters and according to regulations,” ExxonMobil ensures that effective procedures, structured inspection and maintenance programs, reliable equipment, and qualified personnel are in place to see that they are consistently followed.
Mechanical integrity programs are in place and stewarded to assure the testing, inspection, and maintenance of equipment, Ross said.

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(ACC Mentioned) DuPont Expert Testifies His Relationship to Industry is “Jesus Hanging out with Prostitutes.”

Oct 1, 2015 | Ring of Fire

The shock factor never ends in the Ohio trial against DuPont involving its Teflon cancer-causing chemical C8.
In trial testimony yesterday, Dr. Michael Dourson (of a company called TERA) stated that he was hired by DuPont to establish a health-based screening level of the toxin known as C8 in drinking water. Under cross-examination, however, he admitted to his company having numerous and longstanding ties to industry. In the course of the cross-examination conducted by attorney Gary Douglas (of the NYC law firm Douglas & London), Dr. Dourson stated he likened his relationship to the industry as “Jesus hanging out with prostitutes.”
A review of Dr. Dourson’s company’s website shows that TERA presents itself as toxicology risk assessment group associated with the University of Cincinnati, but records of its funding sources show that in some years more than 50% of its work is “industry or industry-related.” Financial reports from TERA show that its “for-profit project sponsors” have included the American Petroleum Institute, the American Chemistry Council, Eli Lily and Amgen. The company’s Board of Directors includes Vice-Chair Gregery S. Romshe of the Procter & Gamble Company.
Given its dependence on industry funding, one must wonder how these ties affected the “Independence and Transparency” that are part of the Core Values touted by TERA.
Dr. Dourson was hired to defend DuPont against the claims of Carla Bartlett, who lived near the DuPont Washington Works Plant in Parkersburg, West Virginia. It was at this plant that DuPont was discharging mass levels of the Teflon toxin C8 into the local drinking water. Local residents, like Ms. Bartlett, who experienced certain cancers (such as kidney), which have been directly related to C8, have cased pending against DuPont. There are presently 3,500 claims pending.

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Fatal Accident At DuPont Probed

Oct 1, 2015 | Chemical & Engineering News

By Jeff Johnson

A cascade of process errors and inadequate safeguards led to the deaths of four workers at a DuPont insecticide plant in La Porte, Texas, says an interim accident report by the Chemical Safety & Hazard Investigation Board (CSB). The board released that report and a related safety video on Sept. 30.
“DuPont has long been regarded as a safety leader in the chemical industry,” CSB Chair Vanessa Allen Sutherland says, “but this investigation has uncovered weaknesses or failures in DuPont’s safety planning and procedures.”
The interim report is intended to guide DuPont as it restarts the product line that made Lannate, an insecticide, from methyl mercaptan. The Nov. 15, 2014, accident released 24,000 lb of the highly toxic and flammable raw material.
First among CSB recommendations is that DuPont conduct an inherently safer design review for its processes using toxic chemicals. DuPont has carried out such reviews in the past, CSB notes, but not for methyl mercaptan or chlorine, which are used at La Porte.
The accident followed a series of mistakes, which began days earlier with the inadvertent introduction of water into a methyl mercaptan storage tank. The water, methyl mercaptan, and cold temperatures combined to form a hydrate that blocked the tank’s feed line.
Workers warmed pipes to break up the hydrate. They opened and closed valves and vents to redirect the methyl mercaptan while they worked to reduce the hydrate. Eventually operators succeeded, and the piped material began to flow.
Meanwhile, in another part of the production line, two workers began a routine mission to drain a vent in a poorly ventilated manufacturing building. The vent piping contained methyl mercaptan because of a jerry-rigged configuration to reduce the hydrate. The toxic chemical was released and vaporized, exposing the unprepared workers.
The stricken workers immediately called for help. Two others, brothers, responded. All four died.
CSB investigator Dan Tillema says that after initial hesitation, DuPont agreed to comply with recommended changes before restarting the process. DuPont did not respond to C&EN’s requests for comment.

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Energy and Environment News

(ACC Mentioned) U.S. to Curb Smog but EPA Stops Short of Toughest Limits

Oct 1, 2015 | Reuters (In The New York Times)

By Valerie Volcovici, Timothy Gardner and Patrick Rucker

The Obama administration on Thursday trimmed the legal limits of smog-producing ozone, in a regulation that will prevent lung ailments like asthma but cost businesses and utilities billions of dollars.
The Environmental Protection Agency (EPA) set a new standard of 70 parts per billion (ppb) for the amount of ground-level ozone allowed, from the current level of 75 ppb set under former President George W. Bush in 2008.
Ground-level ozone is a main component of smog. The cut will prevent 320,000 childhood asthma attacks, the EPA says.
But the new limit is the least restrictive that the agency said it had been considering, and health experts complained it does not go far enough.
Industry groups warn that stringent ozone rules would harm the economy even more than a sweeping plan to limit carbon emissions from power plants that President Barack Obama announced in August.
Industry will face costs of $3.9 billion under Thursday's plan, the agency has estimated.
States will have years to work with power plants, factories and refineries to limit pollutants like nitrogen oxide and volatile organic compounds - components of smog.
The American Chemistry Council warned that the rule will increase business uncertainty.
"Today's action puts $10 billion in chemical industry investment at risk. We are very concerned that some projects – new facilities, plant expansions and factory restarts – will remain in limbo until EPA explains how to obtain a permit under the new standards," it said in a statement.
The EPA said the new standards were "based on extensive scientific evidence about ozone's effects on public health and welfare," and would help lower the instances of lung ailments and other respiratory illnesses.
The new ozone benchmark might allow the Obama administration to address pollution concerns without provoking either industry or consumer advocates too much.
"The EPA has threaded the needle in strengthening the ozone standard," said S. William Becker, of the National Association of Clean Air Agencies, which represents state regulators that will have to implement the new rules.
Obama has long struggled in the face of opposition from Republicans and businesses to set tighter smog pollution limits.
In 2011, he withdrew a plan to cut smog, citing a U.S. economy that was recovering slowly from recession.
The EPA had been considering a new range of 65 to 70 ppb before settling on the high number announced on Thursday. A 65-ppb cap would have cost industry about $11 billion more than a 70-ppb limit, but would have prevented three times as many childhood asthma attacks, according to the EPA.
A deeper cut to 65-ppb would also prevent 960,000 childhood asthma attacks, the EPA says.

(Reporting by Valerie Volcovici, Timothy Gardner and Patrick Rucker; editing by Alistair Bell, G Crosse)

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(ACC Mentioned) The EPA's Big New Crackdown on Smog, Explained

Oct 1, 2015 | Vox

By Brad Plumer

The lobbying battle over smog has been one of the most bitter environmental fights of the Obama era. Public health advocates have long argued that US cities still contain dangerous levels of smog, a leading cause of respiratory illness for millions of Americans, and have pushed to tighten existing rules. Industry groups, meanwhile, have been adamant that doing so would be exorbitantly expensive.
On Thursday, the Environmental Protection Agency finally weighed in, setting brand-new standards on ground-level ozone pollution, the key ingredient in smog. And the Obama administration appears to have largely sided with industry on this. They've tightened the ozone standard moderately, but not nearly as much as environmentalists and some health experts were calling for.
Right now, US counties are supposed to keep ozone levels in the air below 75 parts per billion (although many still don't). The EPA says even those levels are unhealthy and will lower the legal limit to 70 parts per billion. Hundreds of counties around the country will have to reduce pollution in the coming decade to comply.
The EPA didn't go nearly as far as it could have. Its scientific advisory panel had recommended setting the limit somewhere between 60 and 70 parts per billion and argued that there was some evidence even 70 would have adverse health effects. Environmentalists and public health groups wanted a more stringent standard at the lower end. But manufacturers, refiners, and other industry groups insisted that tightening too much would cost tens of billions of dollars and force factories to relocate. They would have preferred no action at all, but they're a lot happier with 70 than they would've been with 65 or 60
This isn't the first time the Obama administration has tread cautiously (or sold out, if you prefer) on the ozone rule. Back in 2011, EPA scientists first presented evidence that the standard should be updated. But, fearing a backlash, the White House delayed any final rule until after the 2012 election. Indeed, in a sign of how treacherous the politics around ozone are, the White House has barely said anything about today's rule.

What is ozone — and why is it a problem?
Ground-level ozone — the main ingredient in smog — is formed when pollutants such as nitrogen oxides from cars and power plants interact with heat and sunlight. The resulting pollution can "trigger a variety of health problems including chest pain, coughing, throat irritation, and congestion. It can worsen bronchitis, emphysema, and asthma." High levels of ozone can also damage crops and farms.
The American Lung Association estimates that 140.5 million Americans live in areas with unhealthy levels of ozone, putting them at higher risk for respiratory diseases. During the summer, the Clean Air Campaign issues "code red" alerts for cities if smog levels spike, warning those with heart or lung disease to avoid any strenuous activities.
The emissions that create ground-level ozone come from a variety of sources: cars and trucks, refineries, power plants, factories, oil and gas wells. Ozone levels are also partly dependent on the amount of heat and sunlight around. And in California's Central Valley, weather patterns tend to trap pollutants, leading to unusually high levels of smog.
(By the way, when ozone is near the Earth's surface, it acts as a lung irritant. But ozone high up in the stratosphere actually protects us from the sun's harmful ultraviolet rays. So too much ozone on the ground is bad, but too little ozone up high — an "ozone hole" — is also bad.)

Why is the EPA regulating ozone?
Under the Clean Air Act, the EPA is required to conduct a review of its national ozone standards every five years and update them as needed to protect human health. By law, the EPA is not supposed to consider costs when crafting these rules.
Back in 1997, the Clinton administration set the standard at 84 parts per billion. Then, in 2006, the EPA revisited the science on ozone and health and recommended a lower level of 60 to 70 parts per billion. This was based on new data, as researchers realized ground-level ozone might actually be killing people, not just causing respiratory problems.
In 2008, the Bush administration proposed a less-stringent standard of 75 parts per billion. Groups like the American Lung Association sued to stop the Bush rules, which they claimed were too weak, unsupported by science, and would lead to thousands of unnecessary deaths and cases of respiratory disease.
After coming into office, President Obama promised a fresh review. In 2011, the EPA's scientists again proposed a limit between 60 and 70 parts per billion. But industry groups warned that tightening further could cost billions, and the White House decided to postpone any new ozone rules until after the 2012 election. Obama's then-chief of staff, William Daley, was reportedly nervous about the impact the rule might have on industries in swing states.
Outraged environmental groups filed lawsuits to force Obama to comply with the law. The courts agreed and ordered the EPA to come up with a final rule by October 1, 2015. That brings us to today.
How will these new standards work?
The EPA is proposing to tighten the standard for ozone in the air to 70 parts per billion, measured over an eight hour period. Every county in the United States will have to be in compliance by 2025.

At the moment, there are 241 counties that are over that limit:
Many of these counties were expected to reduce their ozone levels in the coming years anyway, thanks to other pollution rules the EPA had already put in place (including the Cross-State Air Pollution rule, the Clean Power Plan, and new vehicle standards). But others will have to do additional work to get below the limit.
By 2017, if any county still has ozone levels over the 70 parts per billion limit for an extended period, the EPA will deem it a "non-attainment area." States then have to figure out how to reduce pollution in these counties, which could take 10 years or more. Areas with the worst smog, like Los Angeles, can sometimes get more time.
States will have a lot of flexibility in how to cut pollution from non-attainment areas. They might, for instance, require anyone hoping to build a new factory or power plant to go through extra permitting hoops, adopt stricter new pollution-control technology, or even pay to offset their emissions.
In practice, some research has found, many companies just end up moving to counties with less smog in order to comply. That reduces the concentration of local pollution, which eases the health impact.
In its final analysis, the EPA calculates that stricter standards would save thousands of lives and lead to fewer heart attacks, asthma attacks, and other respiratory illnesses. Many of those benefits come not just from cleaning up ozone, but a corresponding reduction in particulate matter pollution. All told, the agency estimated that an ozone standard of 70 parts per billion would produce between $2.9 billion and $5.9 billion in annual health benefits by 2025 (in today's dollars).
Still, environmental groups argue that the EPA should've gone even further. "The EPA is legally obliged to set a standard based on public health," said Gretchen Goldman of the Union of Concerned Scientists in a statement. "[The scientific advisory board] said in its recommendation to the agency that a 70-ppb rule may not protect public health with an adequate margin of safety."
"There's a real public health cost of a weaker ozone standard," she added," and that cost falls hardest on the most vulnerable—the elderly, young children and those suffering from respiratory problems.

How much will these regulations cost?
The short answer is that it's still a bit unclear. The EPA estimates that an ozone standard of 70 parts per billion would cost companies around $1.4 billion per year by 2025 (in today's dollars). But outside analysts say it's worth being skeptical of any cost predictions right now.
In part, that's because the rule takes awhile to implement. It will take until 2017 for the EPA to figure out which counties are actually in non-attainment. States will then have a few more years to come up with clean-up plans. Until we know what those look like, it's hard to gauge costs.
"Even after a proposal is signed, cost estimates will be little better than guesses," writes James McCarthy of the Congressional Research Service.
If the rule does end up costing $1.4 billion per year, as EPA thinks, that's considerably lower than the estimated health benefits, though obviously the companies that bear those costs aren't pleased with that trade-off. The American Chemistry Council has warned that a stringent ozone rule could thwart plans for factories and petrochemical plants that were hoping to take advantage of cheap shale gas in fracking areas. These groups have asked EPA to focus on fully enforcing its 2008 standard before rolling out a new one.
Industry groups also point out that this is just one of a number of new EPA rules that have been proposed in recent years. There are forthcoming rules on to curtail mercury pollution from coal plants. There are the Obama administration's new climate regulations to cut carbon-dioxide emissions from the electricity sector. And now this.
It's worth adding a caveat to any predictions of doomsday: Historically, many pollution regulations end up costing less than originally estimated because new, unforeseen technologies helped companies adapt. That could easily turn out to be the case here: new techniques to reduce ozone-forming emissions are already popping up in the oil and gas sector.
Republicans will try to fight this new ozone rule in Congress. Last September, Sen. John Thune (R-SD) introduced legislation that would prevent the EPA from updating its ozone standards until at least 85 percent of counties that aren't meeting the old Bush-era standard are in compliance. Expect bills like that to get a lot of attention.
Is the air in the US getting better or worse?

Better. As the chart below shows, the six most common air pollutants in the US have all fallen 72 percent since 1970 — due, in large part, to the Clean Air Act.
Over that same period, the US economy has grown 219 percent, the number of miles we drive has grown 165 percent, and the amount of energy we use has grown 47 percent.

So that's the very broad view. In the past, at least, the United States has been able to curtail air pollution and still get much, much richer.

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(ACC Mentioned) EPA Strengthens Ozone Standards, Upsetting Both Sides

Oct 1, 2015 | BNA Daily Environment Report

By Patrick Ambrosio

The Environmental Protection Agency tightened the national standards for ground-level ozone to a level of 70 parts per billion, a move that upset both industry groups that had cautioned that revised standards would have damaging effects to the U.S. economy and public health organizations that had pushed for even more stringent standards.
EPA Administrator Gina McCarthy told reporters Oct. 1 that she made her decision on where to set the standards after reviewing more than 1,000 new studies, considering the advice of EPA staff and independent science advisers and weighing more than 400,000 public comments.
The EPA projected that the revised standards will provide billions in public health benefits from reduced premature deaths, asthma attacks and missed work and school days related to adverse health effects.
“This updated standard will substantially increase public health protection; there is absolutely no question about that,” McCarthy said during a teleconference. “A level of 70 will essentially eliminate exposures to the levels that clinical studies clearly show are harmful.”
The final rule (RIN 2060-AP38) updates the 75 ppb ozone standards that were set in 2008 under former President George W. Bush. McCarthy determined that the 2008 primary health-based standard was not requisite to protect public health with an adequate margin of safety. A 70 ppb standard is the least stringent level within the range of 75 ppb to 70 ppb that was proposed by the agency in November.
McCarthy said the benefits that will be achieved under the 70 ppb standards will outweigh the compliance costs by as much as a ratio of four to one.
Ground-level ozone, a main ingredient of smog, is created by reactions between nitrogen oxides and volatile organic compounds in the presence of sunlight. Ozone precursors are emitted from industrial facilities, power plants, motor vehicles and other sources.
Decision Criticized by Health Advocates
While McCarthy touted the revised standards as “another milestone” in the EPA's history of environmental protection, many environmental and public health groups expressed disappointment that the agency didn't go further.
The EPA projected that in 2025 the 70 ppb standards will yield public health benefits of as much as $5.9 billion annually. The agency estimated the new standards would avoid up to 660 premature deaths and 230,000 asthma attacks in children in 2025, even before considering improvements in California, which will get longer to attain the standards due to severe air quality issues in that state (see related story)..
Paul Billings, senior vice president for advocacy and education at the American Lung Association, told Bloomberg BNA the agency missed an opportunity to follow clear advice from the Clean Air Scientific Advisory Committee, which recommended that the EPA consider a range of 60 ppb to 70 ppb but cautioned that there is “substantial evidence” of adverse health effects at 70 ppb.
“There was an opportunity to do a lot better, based on the overwhelming science that was presented to the agency,” Billings said.
Several other environmental organizations, including the Natural Resources Defense Council, Earthjustice and Clean Air Watch, echoed Billings's sentiments in Oct. 1 statements.
Frank O'Donnell, president of Clean Air Watch, said the decision to set the standards at 70 ppb were a “baby step” toward protecting public health, not the “giant stride” that was needed. “No matter how the EPA tries to spin it, this is truly a blemish on the president's environmental legacy,” he said.
David Baron, managing attorney of Earthjustice's Washington, D.C., office, described the ozone decision as a “weak-kneed” action and predicted legal action.
“It will allow thousands of deaths, hospitalizations, asthma attacks and missed school and work days that would be prevented by the much stronger standard supported by medical experts,” Baron said. “It's likely this weak standard will be challenged in court as a betrayal of the Clean Air Act's promise of healthy air.”
McCarthy: I Followed Advice
Baron previously told Bloomberg BNA that a decision to set the standards at 70 ppb would likely trigger lawsuits from environmental and public health organizations over the agency's failure to follow CASAC's advice on what was necessary to provide the requisite level of health protection as required under the Clean Air Act.
Industry groups also are expected to challenge the 70 ppb standards in court, likely over the issues of attainability and consideration of adverse health effects linked to job loss (187 DEN A-1, 9/28/15).
McCarthy defended her decision to set the standards at 70 ppb, telling reporters she is “comfortable” that she listened to the advice of CASAC, which did include 70 ppb in its recommended range.
The current best available clinical data showed that 72 ppb is the lowest exposure level that causes adverse health effects in healthy, exercising adults, McCarthy said. The standards needed to be stronger than 72 ppb in order to protect vulnerable populations, including children, the elderly and people with asthma, McCarthy said.
“A level of 70 will essentially eliminate exposures to the levels that clinical studies clearly show are harmful,” McCarthy said. “I am convinced that at 70, we are doing what CASAC said.”
McCarthy acknowledged there are studies showing effects in adults at levels down to 60 ppb, but there is still uncertainty over whether those effects are harmful. She noted the Clean Air Act requires the EPA to review the standards every five years, so new research could fill those information gaps in future reviews.
Bill Becker, executive director of the National Association of Clean Air Agencies, told Bloomberg BNA it was “predictable” that the agency would move forward with a number on the higher end of the range proposed by CASAC.
“It clearly was never going to be below 65, and it was doubtful that they would have arrived at 65,” Becker said. “It's not surprising at all.”
Industry Groups Alarmed by Decision
The EPA's decision to tighten the standards also drew criticism from many industry organizations that had advocated for the Bush-era standards to be left in place.
Jay Timmons, president of the National Association of Manufacturers (NAM), told reporters the 70 ppb standards are “simply overly burdensome” for the U.S. economy, not just manufacturers. Timmons acknowledged that the EPA did not move ahead with its proposal to issue even stronger standards, but he still expressed concerns that the decision to tighten the standards will have a damaging effect on manufacturing.
“This new standard is going to inflect pain on companies that build things in America,” Timmons said during a teleconference.
The NAM has been one of the leading advocates against stronger ozone standards, launching a significant television advertising campaign and commissioning an economic analysis by NERA Economic Consulting that predicted vastly higher costs than EPA had predicted for the proposed 65 ppb ozone standards.
The EPA projected the 70 ppb standards could cost as much as $1.4 billion in 2025, not including compliance costs in California. The agency stressed that those estimates are intended to be illustrative of the potential costs, because states are given flexibility in choosing how to attain the standards.
Timmons strongly criticized the EPA's claims that it gives states flexibility, telling reporters the EPA never gives states enough flexibility to implement national ambient air quality standards in a way that doesn't hurt the economy. The only way that industry will see any relief from the ozone rule is for “Congress to step in and do their job,” Timmons said.
Many Republicans on Capitol Hill expressed concern about the effect of the ozone rule on jobs and the economy, although they recognized the 70 ppb standards were not as damaging as the stronger standards that were part of the EPA's proposal (see related story).
Several other industry groups, including the American Petroleum Institute and the American Chemistry Council, issued statements that criticized the EPA's decision and predicted the new standards would hurt the economy.
Lengthy Implementation Time
Becker of NACAA said the “rhetoric and hyperbole” over the economic effects of a stronger ozone standard is “getting tired,” particularly because of the significant amount of time that will pass before industries need to do anything to reduce ozone precursor emissions.
“The fact is that industries will have close to a decade before they reduce the first ounce of smog-forming emissions under this standard,” Becker said.
McCarthy also downplayed the economic effects of the EPA's decision, predicting that “all but a few” areas of the country will be able to attain 70 ppb ozone standards by complying with existing regulations. The agency cannot be sure exactly how many areas will fail to attain the standards, since attainment status will likely be based on a three-year average of data collected in 2014, 2015 and 2016, McCarthy said.
Following the data-collection process, there is a designation process that identifies nonattainment areas, then a period of time for states to develop their implementation plans describing how they intend to meet the standards and a compliance period for industry, Becker said.
However, EPA modeling predicts that only 14 counties outside of California are expected to be in nonattainment in 2025, according to McCarthy. A map posted to EPA's website shows those counties include areas around the New York City metropolitan area, Pittsburgh and Houston.
Immediate Effects on Business Planning
Dan Byers, senior director for policy at the U.S. Chamber of Commerce's Institute for 21st Century Energy, disagreed that industry will not see any immediate effects of this ozone rule. While the 70 ppb standards will result in fewer nonattainment areas than the stronger standards that EPA considered, the rule will still be “very problematic” for business growth, he said.
One of the immediate effects will be to discourage businesses from planning on expanding or building new facilities in potential nonattainment areas, Byers said.
A nonattainment designation triggers both pollution control obligations for local air regulators and more stringent permitting requirements for new and modified power plants, manufacturing facilities and other industrial sources of air pollution covered by the EPA's new source review program. In order to obtain a permit to expand into a nonattainment area, companies need to obtain offsets from existing pollution source in their area to balance the projected increased emissions from their new or modified facility.
While areas won't be designated as nonattainment under the 2015 standards for a few years, businesses can look at an area's current ozone levels and get a sense of how difficult it might be to get permits in the future, Byers said.
“There are definitely immediate impacts, even if the compliance horizon is several years away,” Byers said.
Secondary Standard Also Revised
While most of the EPA's focus was on the benefits associated with the primary, health-based standard, the agency's final rule also revised the secondary, welfare-based ozone standard to 70 ppb. The secondary standard is intended to provide public welfare protection, including protection against damage to vegetation.
The agency said a review of available data showed that an updated secondary standard of 70 ppb will provide requisite protection for public welfare, as required by the Clean Air Act.
Baron of Earthjustice previously told Bloomberg BNA that a decision to set the secondary standard at the same level as the primary standard also would likely trigger a lawsuit from environmental and public health groups.
The U.S. Court of Appeals for the District of Columbia Circuit in 2013 remanded the 2008 secondary standard of 75 ppb back to the EPA after determining the agency had not adequately explained its decision to set the secondary standard at the same level as the primary standard (Mississippi v. EPA, 723 F.3d 246, 2013 BL 194344 (D.C. Cir. 2013); 142 DEN A-1, 7/24/13).
Several other entities, including the National Park Service, urged the EPA to set a more protective secondary standard due to mounting evidence of adverse effects of ozone on plants.

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(ACC Mentioned) Appeal Poses Novel Superfund, International Law Issues

Oct 1, 2015 | BNA Daily Environment Report

By Steven M. Sellers

A Canadian smelter has no Superfund “arranger” liability for airborne pollutants deposited in Washington State, four U.S. trade associations and the government of Canada told a U.S. federal court, in an appeal that may break new legal ground (Pakootas v. Teck Cominco Metals Ltd., 9th Cir., No. 15-35228).
“The trade association amici lay out the potential parade of horribles that could follow [the U.S. Court of Appeals for the] Ninth Circuit affirmation of the district court's decision,” Mindy DeYoung of Riddell Williams in Seattle told Bloomberg BNA Sept. 28 in an e-mail.
That parade includes difficulties of proof—because air emissions are by nature diffuse—and the danger that a single, potentially de minimis, source could lead to strict joint and several Superfund liability at dispersed sites, said DeYoung, who litigates environmental cases.
The case involves a Canadian smelter and whether U.S. courts have a role in deciding disputes over the cross-border pollution from it. It raises a question about the reach of the Comprehensive Environmental Response, Compensation and Liability Act.
The Superfund law regulates hazardous substances deposited directly onto land or into water, not pollution emitted into the air, according to an amicus curiae brief filed by the National Mining Association, the U.S. Chamber of Commerce, the National Association of Manufacturers and the American Chemistry Council .
Meaning of ‘Disposal' Significant
The meaning of the term “disposal” is at the heart of the appeal. Superfund liability attaches when an entity “arranges” for the disposal of hazardous substances and those substances are “deposited” or “disposed of” at a site, at which point the site becomes a “facility” under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9607(a)(3)).
The trade associations support the view of Teck Cominco—the owner of the smelter in Trail, British Columbia—that the U.S. District Court for the Eastern District of Washington wrongly held the company liable for aerial emissions that ended up in the Upper Columbia Superfund Site.
The Canadian government agrees but adds in its amicus brief that U.S. courts have no business deciding disputes over the cross-border pollution from the smelter. That issue, Canada says, should be resolved under an “exclusive bilateral regime to reduce and remedy damages caused by cross-border emissions from the Trial Smelter facility” in effect since 1935.
Closely-Watched Case
“They point out the liability quagmire for innocent bona fide prospective purchasers if a so-called disposal lands on their property after purchase,” said DeYoung, who isn't involved in the case. “They also emphasize the imbalance of penalties for minor Clean Air Act permit violations, where the regulating agency often exercises discretion in deciding to even impose a penalty, against the heavy hand of strict joint and several Superfund liability for a site involving multiple parties and millions of dollars in cleanup costs.”
DeYoung added, “It may be difficult for defendants whose disposal is linked to airborne emissions to get out early on liability, because of the fact-intensive nature of the federally permitted release defense and this novel basis for liability under CERCLA.”
The international law wrinkle poses another challenge in the appeal, according to Robert Percival, director of the Environmental Law Program at the University of Maryland School of Law.
“This is the latest chapter in a nearly century-old saga of legal efforts to redress transboundary environmental damage caused by Canada's Trail Smelter,” Percival told Bloomberg BNA Sept. 29 in an e-mail.
Case Goes Back to 1917
“Beginning in 1917, farmers in Washington State sought to stop pollution from the smelter from damaging their crops,” Percival said.
“This led to an international arbitration that established the principle that governments have a responsibility to stop pollution from causing harm in other countries. The current litigation presents novel issues concerning the trans-boundary application of the U.S. Superfund law,” Percival said.
“It may well break new legal ground, just as happened nearly a century ago,” he said.
The State Department declined comment Sept. 30.
Teck argued it had no CERCLA liability for airborne contaminants at the Upper Columbia River Superfund Site because an intervening Ninth Circuit decision in a Resource Conservation and Recovery Act case, Ctr. for Cmty. Action and Envtl. Justice, 764 F.3d 1019 (9th Cir. 2014), limited disposals under RCRA (42 U.S.C. §6903(3)) to solid waste discharged directly onto land or into water.
The same rule applies here, Teck argued, because CERCLA adopted the RCRA definition of “disposal.” But the U.S. District Court for the Eastern District of Washington disagreed and sided with the broader view urged by the Confederated Tribes of the Colville Reservation.
Teck Became CERCLA ‘Arranger.'
Teck became a CERCLA “arranger” once airborne contaminants from its Canadian smelter touched down in the water and on the ground of the Upper Columbia Site, the court said, and it denied a later request to reconsider its ruling.
The district court did agree, however, to allow an immediate appeal to review its ruling that a CERCLA “disposal” includes aerial emissions. That question is one that no federal court has addressed “head-on” and for which there is a “substantial ground for difference of opinion,” the court said.
The U.S. Court of Appeals for the Ninth Circuit agreed to hear Teck's appeal last March.
The trade associations argue that the district court's decision threatens every “air emitter” within the Ninth Circuit's jurisdiction with “a broad and disproportionate form of liability that Congress never intended.”
Those risks include CERCLA liability for any site, near or far, where airborne emissions touch down, and “plaintiffs searching for a new deep pocket will have every incentive to use the District Court's reason aggressively,” according to the brief.
In Tension With CERCLA Purchaser Defense
They also say the ruling is in tension with CERCLA's bona fide prospective purchaser defense (42 U.S.C. §9601(40)), which gives liability protection to buyers so long as no hazardous substance disposals occur after the purchase. That protection could disappear once airborne pollutants fall on the property, according to the brief.
The associations concur with Teck's position in its opening brief that CERCLA regulates only emissions directly disposed in the first instance onto land or into water, citing the law's adoption of a preexisting RCRA definition of “disposal” as a discharge of solid or hazardous waste “into or on any land or water” (42 U.S.C. §6903(3)).
Conflicts with the Clean Air Act (42 U.S.C. §7401 et seq.) are also raised by the associations, who contend CERCLA wasn't intended to regulate aerial pollutants.
Treaty Compounds Complexity
Canada broadly contends that the U.S. courts aren't the proper forum to resolve the dispute and that CERCLA isn't the proper vehicle.
“Instead, these matters should be referred to the long-standing bilateral mechanism specifically established to address Trail Smelter-related claims, in accordance with an existing agreement between the United States and Canada,” according to its brief.
This “permanent regime,” Canada argues, had its genesis in 1935 to supersede a “fragmented” system for resolving pollution claims dating at least until 1928.
Here, the district court's application of CERCLA to emissions from a Canadian smelter “is at a minimum improper to the extent it is applied to the Trail Smelter in contravention of the United States' binding obligations under the Permanent Regime,” according to the brief.
“If the District Court's decision is upheld, application of CERCLA to Trail Smelter air emissions will again result in the profusion of piecemeal claims that Canada and the United States had worked for decades to prevent,” Canada argues.
Reply Briefs Due Oct. 5
The reply briefs of the plaintiffs, the Confederated Tribes of the Colville Reservation and the state of Washington, are due in court Oct. 5.
The law offices of Pillsbury Winthrop Shaw Pittman represent Teck Cominco Metals LTD in the appeal.
Short Cressman & Burgess represent the Confederated Tribes of the Colville Reservation.
Goodwin & Proctor, as well as lawyers with the National Mining Association, the U.S. Chamber of Commerce Litigation Center, the Manufacturers' Center for Legal Action and the American Chemistry Council represent the trade associations in the appeal.
Garvey Schubert Barer, as well as the Canada Department of Foreign Affairs, Trade & Development represented the government of Canada.

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Defiant Dems Say They Won't Be Shut Out of Budget Talks

Oct 2, 2015 | E&E Daily

By Hannah Northey

Senior Democrats from both chambers of Congress yesterday said Republican efforts to cut them out of budget talks ahead of a potential government shutdown in mid-December will ultimately fail.
"There is at least one of the leaders in Congress trying to cut us out, but it's not happening," Senate Minority Leader Harry Reid (D-Nev.) told reporters on Capitol Hill.
Reid said he and House Minority Leader Nancy Pelosi (D-Calif.) had visited the White House twice this week to discuss appropriations, and that Republicans would ultimately need Democratic votes and participation for any budget compromise to succeed.
Reid made the comments after being asked about reports that top Republicans are trying to negotiate directly with the White House over the budget fiasco while circumventing Democrats.
Earlier this week, Senate Majority Leader Mitch McConnell (R-Ky.) reportedly insisted during a phone call with President Obama that House and Senate Democratic leaders not be allowed at the table, a demand the president refused to accept, according to a Tuesday CNNstory.
A spokesman for McConnell did not immediately respond to a request for comment on the CNN report.
Pelosi, also at yesterday's news conference, said congressional Democrats would be part of any solution. "At the end of the day, it has to be a bill the president will sign ... so Republicans know that they have to reach across party lines," she said.
At the White House yesterday, spokesman Josh Earnest indicated there would be no deal without Democrats' participation.
"For any of this business to get taken care of, Republicans will not succeed in passing that legislation along party lines," he said.
Anxiety over a shutdown was delayed this week after the House and Senate passed a continuing resolution keeping agencies working through Dec. 11, sidestepping demands from conservatives to delay funding the government until Democrats and Obama agreed to block federal funds for Planned Parenthood (E&E Daily, Oct. 1).
The Senate passed the legislation 78-20, and hours later, the House approved it 277-151, with opposition coming mainly from Republicans unimpressed with a symbolic vote in the House against Planned Parenthood.

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House Expected to Vote Next Week on Lifting Export Ban

Oct 2, 2015 | E&E PM

By Hannah Northey

The House is expected to vote next week on lifting the country's decades-old ban on exporting domestic oil, an issue that's triggered multiple campaigns by groups both for and against international oil sales.
Minority Whip Steny Hoyer's (D-Md.) office today announced the vote is expected to take place, but he did not specify a day.
Proponents of lifting the ban launched a six-figure television and online campaign today in 15 congressional districts ahead of the vote in hopes of shoring up more support.
Producers for American Crude Oil Exports, or PACE, is running the ad, titled "Level the Playing Field," focusing on the United States' need to export oil to compete internationally, especially if Iran is allowed to export crude oil under the proposed nuclear deal. The ad is slated to run through next week on cable news and digital channels in Arizona, California, Florida, Illinois, Louisiana, Maryland, Minnesota, New Mexico and Texas.
George Baker, PACE's executive director, said in a statement that the ban puts companies at a competitive disadvantage and threatens national security interests. PACE's members include 16 independent exploration and production companies.
"Permanently repealing the ban would provide our global allies with a stable and secure supply of oil, while creating and protecting jobs here at home and putting downward pressure on U.S. gasoline prices," he said. "This ad campaign is part of our ongoing education, advocacy and engagement efforts to remind policy makers and the American people of what's at stake."
Opponents of lifting the ban have also taken to the airwaves to try to persuade the public to keep the ban in place.
Democratic strategist Karl Frisch recently launched a group called Allied Progress that began running ads last month, targeting senators in Colorado, Maine, Montana, New Hampshire and New Mexico (E&E Daily, Sept. 10).

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Senate Banking Committee Passes Oil Export Bill

Oct 1, 2015 | BNA Daily Environment Report

By Ari Natter

The Senate Banking Committee voted Oct. 1 to approve legislation that would lift the ban on most crude oil exports, but the bill isn't expected to advance to the Senate floor, committee members said.
Though the committee voted 13-9 in favor of S. 1372 by Sen. Heidi Heitkamp (D-N.D.), the addition of an amendment related to Iran—outside of the committee's jurisdiction and opposed by the White House—likely spells doom for the bill.
“What we do today will not be the vehicle to move this effort ahead,” Sen. Bob Corker (R-Tenn.) said.
In an interview, he said a policy rider ending the 40-year-old trade restriction “could very possibly end up” in a broader year-end budget deal to fund the government.
“There are a lot of things being talked about, but I think this is something that could be a consideration as a part of the spending bill,” Corker told Bloomberg BNA.
In addition to lifting the trade prohibition put in place in 1975, Heitkamp's bill would give the president the ability to impose restrictions on oil exports, like licensing requirements, for up to one year under certain special circumstances, such as national security threats, emergencies and sustained crude oil shortages.
“We continue to build momentum,” Heitkamp, the only Democrat on the committee to vote in favor of the bill, told reporters after the vote. “There is a number of people within my caucus, they get it ...but they want to know what they would get for it.”
Proponents Cite Booming U.S. Oil Production
The ban, which applies to most domestic crude oil exports, was put in place in the wake of the Arab oil embargo, but proponents of changing the law argue it should be changed now that U.S. oil production is booming thanks to advances in hydraulic fracturing and horizontal drilling.
“We are encouraged by the constructive dialogue at the Senate Banking committee today and look forward to working with senators on both sides of the aisle to end this policy by the end of this calendar year,” George Baker, executive director of Producers for American Crude Oil Exports, said in a statement. The group represents over a dozen oil producers, including Marathon Oil Corp., ConocoPhillips Co. and Hess Corp.
The House is expected to take up and pass similar legislation (H.R. 702) by Rep. Joe Barton (R-Texas) the week of Oct. 5.

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House GOP Leadership Shakeup Won't Affect Crude Exports Bill

Oct 2, 2015 | E&E Daily

By Daniel Bush and Hannah Northey

House Speaker John Boehner's surprise decision to retire has upended the chamber's short-term legislative agenda, opening the door to potential deals on a highway bill and budget agreement before the Ohio Republican steps down on Oct. 30.
But Boehner's departure and the likely ascension of House Majority Leader Kevin McCarthy (R-Calif.) to speaker does not appear to have changed the calculus on an energy policy priority for GOP lawmakers: lifting the decades-old ban on crude oil exports.
The speaker's race, which McCarthy is widely expected to win, will take place Thursday -- the same day that Rep. Joe Barton's (R-Texas) bill to lift the exports ban, H.R. 702, is slated to hit the House floor for final passage.
The timing means McCarthy, should he become the next speaker, would be tasked with negotiating a deal with Senate Majority Leader Mitch McConnell (R-Ky.) on crude exports after taking over the House GOP conference next month.
How McConnell and pro-export senators choose to tackle the issue -- either through advancing a standalone measure or tacking language lifting the ban onto must-pass legislation at the end of the year -- remains to be seen.
But House lawmakers from both parties said the lower chamber's GOP leadership race won't have much of an impact on the final outcome.
"I've worked with Kevin quite a bit on [my] bill to repeal the ban on crude oil exports and he's been very supportive of that, as has John Boehner," Barton said in an interview.
Boehner and McCarthy have both signaled their support for the bill in recent months, joining rank-and-file Republicans, moderate Democrats from oil-producing states and industry groups who all say that lifting the 1970s-era ban would spur economic growth and help the nation become energy independent.
"I would support lifting the ban, and I hope we can work in a bipartisan fashion to try and bring our energy policies into the 21st century," Boehner told reporters in July (E&ENews PM, July. 29).
McCarthy endorsed Barton's proposal in a speech in Houston last month, linking it to national security policy and the nuclear deal with Iran, which will allow the country to ramp up its oil exports (E&E Daily, Sept. 16).
"The speaker was strongly for it, the majority leader is strongly for it, [House Majority Whip Steve Scalise (R-La.)] is strongly for it so the leadership races won't affect the leadership's position on the bill," Barton said.
Energy analysts and pro-export groups agreed.
The bill is headed "to the floor next week, which is an indication that there's been no change in perception in the value of moving this" forward, said George Baker, executive director of Producers for American Crude Oil Exports (PACE), in an interview.
Republican strategist Mike McKenna said the "math remains the same" on the export bill, though he noted that the leadership shakeup makes the deeply divided GOP caucus even more unpredictable as it moves into the post-Boehner era.
"The change in leadership injects uncertainty into the process. That tends to slow everything down," McKenna said.
For now, House Republicans are busy courting Democratic support for the Barton bill ahead of next week's vote. Republicans hope to pick up 20 to 30 Democratic votes, a source said. The bill currently has 16 Democratic co-sponsors, including some members of the conservative Blue Dog Coalition.
"We want to get as many [Democrats] as we can," Rep. Ed Whitfield (R-Ky.) said in an interview.
Rep. Bill Flores (R-Texas), who is helping lead the whipping effort, said a strong bipartisan vote next week would send a message to the Senate that the policy has enough Democratic support to potentially pass in the upper chamber as well.
But the measure still faces significant opposition from Democrats on both sides of the Capitol. The White House also has said it won't back legislation lifting the ban (E&ENews PM, Sept. 15).
Sen. Ed Markey (D-Mass.), part of a block of liberal Democrats who typically vote against GOP-backed energy legislation, cited a poll showing that a majority of voters oppose exporting the nation's oil.
"I'm looking forward to a debate on the Senate floor on this issue," Markey said in a brief interview.
In the House, where the bill is expected to pass easily, Rep. Frank Pallone of New Jersey, the top Democrat on the Energy and Commerce Committee, said most Democrats wouldn't vote for legislation that doesn't include any restrictions on crude exports.
McCarthy's support for the bill and looming speakership won't sway many Democrats to change their mind, Pallone said.
"I said from the very beginning that if Republicans wanted to sit down with us we might have been able to work out some kind of consensus," Pallone said. "But that hasn't happened, and I have no reason to believe that the change in leadership impacts that."

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Would Green Groups Cut a Deal to Allow Crude Exports?

Oct 2, 2015 | E&E Daily

By Phil Taylor and Geof Koss

Could green groups ever support legislation to lift the decades-old ban on crude exports if it included provisions to conserve public lands and wildlife, promote renewable energy or invest in low-carbon technologies?
Or, would they be willing to soften their opposition?
Some groups are debating that internally as momentum for lifting the 1970s-era ban builds in both chambers of Congress.
Yesterday, on a 13-9 vote, the Senate Banking, Housing and Urban Affairs Committee became the latest congressional panel to pass legislation lifting the ban (Greenwire, Oct. 1). The House is expected to take up and pass such a bill next week (E&ENews PM, Oct. 1).
But there are rifts among conservation and sportsmen's groups over the deal-making that will be required to get a bill through both chambers and signed by President Obama.
Many groups are publicly opposed to lifting the ban, noting it would likely result in more oil and gas drilling on lands those groups want to protect for wildlife and recreation while potentially causing more spills and emissions of greenhouse gases.
Lifting the ban would result in a loss of land larger than Delaware to oil and gas infrastructure over the next 15 years, according to a report released in August by the Center for American Progress (Greenwire, Aug. 21). The Congressional Budget Office this week estimated that a House bill lifting the ban would generate $1.4 billion in revenue from additional drilling on public lands and waters.
Until now, however, green groups have stayed mostly on the sidelines of the debate.
That's got to change, according to Collin O'Mara, CEO of the National Wildlife Federation.
"The amount of impacts on wildlife, on public lands, is significant," O'Mara said. "And yet, the vast majority of the debate we're seeing ... the impacts on the landscapes are receiving almost no mention."
O'Mara on Tuesday published an op-ed in The Wall Street Journallisting a handful of proposals -- full funding for the Land and Water Conservation Fund, billions of dollars for state wildlife projects and extension of clean energy tax credits, among others -- that he said ought to be considered if a crude exports bill passes.
The op-ed, which was viewed with some consternation among O'Mara's conservationist peers, was among the first to lay out a potential path to bring green groups on board for lifting the export ban.
O'Mara made clear that NWF remains opposed to exports and is not proposing a deal. But conservationists, if silent, do run the risk of being left out of the discussion, he said.
"This thing is moving fairly quickly," he said. "Unless we actually say there are impacts to be mitigated, the concern is that other folks won't be raising that point."
Officials from other conservation groups said they are willing to cut a deal for crude exports, which they see as the lesser of other evils being pushed by GOP leaders. But none were willing to go on the record.
The Sierra Club is not among them, said Athan Manuel, who lobbies for the group on public lands. But the group is talking with Democrats who are fence-sitters on the exports debate to ensure that if they do back exports, that they cut a good deal for the environment, he said.
"If they do want to make a compromise on this, this is a big, big win for the oil industry," Manuel said. "If they want to lift the ban on exports, we should have a permanent ban on offshore drilling or get a wilderness designation on the coastal plain of the Arctic Refuge."
Democrats who are viewed as potential pickups for exports who may also go to bat for lands and clean energy include Sens. Martin Heinrich of New Mexico, Michael Bennet of Colorado and Jon Tester of Montana.
Tester voted against the export bill before the banking panel yesterday but said he's game for a discussion about a broader package that invests in renewable energy and permanently reauthorizes and fully funds the Land and Water Conservation Fund.
"I think this bill has real merit, but we need to have a more thorough discussion," Tester said.
Yet proponents of LWCF, who span the political spectrum, aren't putting many eggs in the exports basket.
The exports push still faces tall odds of becoming law, considering the opposition from the White House and most Democrats and the panoply of add-ons lawmakers of both parties are proposing, running the gamut from language on renewable fuel standards to victims of Iranian-sponsored terror.
ClearView Energy Partners LLC, a Washington, D.C.-based firm that advises clients on energy policy, says there's a 15 percent chance the export ban will be lifted during the 114th Congress.
"If there was consensus that it was going to move forward, I think [LWCF] definitely would be a chip to play," said former Rep. Steve LaTourette (R-Ohio), a LWCF backer. "I don't know if that is a gimme pot."
The debate over crude exports has such big economic and energy security implications that it is unlikely green groups are going to have major clout, said Paul Bledsoe, president of the energy consultancy Bledsoe & Associates and a former Interior Department official in the Clinton administration.
"Environmental groups are not going to drive or determine whether this deal gets done," he said. "Nor is it a high priority for them."
But Democrats see exports as a major deal-making opportunity, Bledsoe said. Members of both parties have talked about increasing funding for clean energy research and development, a provision that could represent a "sweet spot" that could allay Democratic concerns over climate change without turning off Republicans, Bledsoe said.
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said yesterday she hadn't read the conservation proposals put forth by NWF's O'Mara but that she's encouraged conservationists are willing to come to the table.
"I think this is good because what it indicates is a willingness to engage," she told E&E Daily.
Murkowski said she spoke this week with representatives of conservation groups during a Congressional Sportsmen's Caucus dinner who said they'd like to discuss crude exports further.
"I told them to come by, let's sit down," she said.
But Sen. Heidi Heitkamp (D-N.D.), who is in talks with the Obama administration about lifting the ban, was lukewarm about NWF's wish list.
"I thought it was aggressive," she told E&E Daily after the Senate Banking Committee approved her bill (S. 1372) to end the ban (Greenwire, Oct. 1).
"I think everybody sees this as an opportunity to have a broader discussion," she said, noting that Sen. Pat Toomey (R-Pa.) used yesterday's markup to "re-litigate" the Iran agreement through an amendment that would keep sanctions in place until Teheran pays judgments awarded to U.S. victims of terrorism attacks (E&E Daily, Sept. 25).
"If we re-litigate or pile on all of this, nothing will get done. And I think that's bad for energy independence, I think it's bad for our economy long term, and I think it's horrible national security policy," Heitkamp said.
Heitkamp said she's encouraged by her Democratic colleagues who have signaled they could support ending the ban as part of a broader energy push -- a position echoed by Sens. Mark Warner (D-Va.), Joe Donnelly (D-Ill.) and Tester during the markup, although she was the only Democrat to vote for ending the ban.
"I believe there's a number of people in my caucus, I like to put it this way: They get it, they get the economics of this," Heitkamp said. "They get the challenging economics that we're having right now at $45 a barrel. But they want to know what they can get for it."
Sen. Sherrod Brown (D-Ohio), the ranking member on the Banking panel, warned of "piecemeal changes" to crude export policies that don't address climate change or infrastructure concerns, including safety issues associated with moving crude by rail.
"A broader approach must also include improvements to rail safety," he said yesterday.
During the markup, Sen. Elizabeth Warren (D-Mass.) acknowledged that changes in U.S. crude export policy may be warranted but said lawmakers should first hear from scientists about the climate effects of doing so.
"And for those who listen to these scientists, lifting the ban without further considering and addressing the potential environmental consequences sounds pretty darn reckless," Warren said.
However, export backers are pursuing all legislative avenues to see one of their top priorities advance.
Sen. Bob Corker (R-Tenn.), who yesterday suggested a crude exports repeal could end up as a policy rider in an end-of-the-year omnibus spending bill under discussion to replace the continuing resolution in December, said he doesn't see a repeal clearing the chamber on its own.
"My guess is there's at least a possibility that as part of negotiations toward Dec. 11 -- possibility -- that a policy change like this could be something that ends up being a rider," he told E&E Daily yesterday. "I mean, I'm not in that discussion, but it's possible. I don't think we're going to pass a standalone bill on the floor relative to exportation in the very near future. "
Corker said he would oppose the inclusion of a repeal in exchange for higher spending levels sought by Democrats but would consider other policy changes as part of a deal.
"That's what happens in legislation, right?" he said.
Murkowski isn't ruling out that option.
"I've got multiple tracks going," she told E&E Daily. "I've got the legislative track, we're trying to work it through the administration with the waivers, and if we can use the approps process, I think that's a viable alternative."

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Reactions to Ozone Rule Familiar on Capitol Hill

Oct 1, 2015 | BNA Daily Environment Report

By Anthony Adragna

Lawmakers took familiar positions Oct. 1 in reacting to the Environmental Protection Agency's newly revised ozone standard, as Republicans warned the regulation would harm the U.S. economy while acknowledging it was less stringent than many had feared.
“We've been expecting that and fearing that,” Sen. Jeff Sessions (R-Ala.) told Bloomberg BNA of the more stringent standard. “I believe it's going to be clear the regulations exceed what is justifiable, and it'll be important for Congress to fight back.”
The EPA opted to tighten the ozone standard to 70 parts per billion from the current level of 75 ppb (RIN 2060-AP38). That decision drew fire from both public health groups, which wanted more stringent standards, and industry opponents, who fear the regulation's impact on the U.S. economy (see related story).
Although many in Congress have faulted the agency's approach, the EPA is barred under Supreme Court precedent from considering cost when setting national ambient air quality standards under the Clean Air Act. A senior EPA official said Sept. 29 that the standard would be protective of human health to meet Clean Air Act requirements (189 DEN A-18, 9/30/15).
Many Democrats, for their part, told Bloomberg BNA Oct. 1 they wish the agency had gone further by selecting an even tighter national standard for ground-level ozone, but they praised the decision to tighten the existing standards, which were set under the administration of President George W. Bush.
Not Needed Right Now
Acknowledging the 70 ppb standard is “better than where we heard they were talking about going,” Sen. John Thune (R-S.D.) nevertheless said the lower levels would “concern a lot of people around the country.”
“[Given] we have a lot of counties—227 counties—that aren't in compliance with the existing standard, why would we be lowering it?” Thune, a member of Senate leadership, said. “It's not something we need to be doing right now.”
Thune has introduced legislation—the Clean Air, Strong Economies Act (S. 751)—that would bar the EPA from setting more stringent ozone standards until 85 percent of areas can meet the current 75 ppb standards. He said it is too soon to know if the final rule would boost his bill's chances (52 DEN A-17, 3/18/15).
“Now that it's out there, I think there's going to be a lot more interest in doing something,” Thune said.
Other Congressional Responses Likely
Beyond Thune's bill, lawmakers said they would hold hearings and consider Congressional Review Act challenges to the final rule once it is formally published.
Sessions said the Senate would use the Congressional Review Act to attempt to override the regulation, but also to “highlight the substantive basis to be concerned about what they're doing.” He said he was not sure when the chamber might launch that challenge.
Not wasting any time, the two subcommittees of the House Science, Space and Technology Committee announced they would hold an oversight hearing Oct. 7 on the science used as the basis for the regulation and on potential implementation concerns.
“[This regulation] will most impact financially vulnerable families who already struggle to find employment and pay their bills,” Rep. Lamar Smith (R-Texas), chairman of the full committee, said in a statement. “The EPA did not base its new ozone standard on sound science and has failed to provide this committee with the data it uses to justify this rule.”
Senate Majority Leader Mitch McConnell (R-Ky.) in a statement criticized the standard as “another massive regulation with negligible benefits” that could “lead to massive job loss and cost tens of billions annually in lost economic growth.” He vowed to “continue to fight back against this rule and others.”
Democrats Concerned About Health
While Republicans worried about the impact the regulation would have on the economy and jobs, some Democrats feared the EPA did not go far enough to protect human health by setting the 70 ppb standard.
“While I am pleased with EPA's announcement of a more protective 70 parts per billion standard, it is not as strong as I had hoped,” Rep. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce Committee, said in a statement. “There is certainly more we can do to reduce pollution, but today's announcement is an important next step.”
Sen. Ed Markey (D-Mass.), echoing comments made during a Senate Environment and Public Works Committee hearing Sept. 29, also said he wished the EPA had gone further toward 60 ppb in the final rule.
“I wish that we were approximating that, but I have to say at the same time I support EPA's action,” Markey told Bloomberg BNA.
Other Democrats were less qualified in their praise for the new standard. Sen. Tom Carper (D-Del.) said the EPA's final rule seemed like “an eminently reasonable decision and an eminently reasonable goal.”
Not all members of the party were pleased with the decision. Sen. Joe Manchin (D-W.Va.), the lone Democratic co-sponsor of Thune's bill, told reporters the agency didn't appear to listen to the concerns of communities but added that was “nothing new.”
“It just doesn't make any sense when you have so many states that haven't met the threshold [EPA] already had,” Manchin said. “This is the way EPA has been operating from day one.”

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Foes Raise Fists as EPA Rolls Out New Ozone Standard

Oct 2, 2015 | E&E PM

By Amanda Reilly

Opponents of U.S. EPA today quickly called on Congress to prevent the agency's new national ozone standard from going into effect.
While acknowledging that EPA could have chosen a more stringent standard, business and industry groups said the new limit announced today would be difficult and costly to achieve. Several urged lawmakers to take action.
"It's time for Congress to step in and block this unnecessary and costly regulation to protect American consumers," American Petroleum Institute President and CEO Jack Gerard said.
Republican lawmakers today said they plan to hold hearings, advance legislation and consider using the Congressional Review Act -- a rarely used legislative oversight law -- to block the new standard.
The Obama administration finalized a new national ambient air quality standard for ozone at 70 parts per billion, the upper end of the range that EPA proposed last November. The agency said it determined that the old standard of 75 ppb -- set in 2008 during the George W. Bush administration -- was no longer adequate to protect public health as the Clean Air Act required (Greenwire, Oct. 1).
EPA today also finalized a 70 ppb secondary ozone standard, a separate limit that is aimed at protecting ecosystems.
EPA Administrator Gina McCarthy called the final rule "another milestone in EPA's long history of protecting human health and the environment."
According to EPA and excluding California, the new standard will save up to 660 lives, prevent 230,000 asthma attacks in children and prevent 630 asthma-related emergency visits by 2025. In California, the new standard will prevent up to 220 premature deaths, 160,000 asthma attacks in children and 380 asthma-related hospital visits.
The agency said the standard will cost $1.4 billion annually but achieve benefits in the form of health care savings of up to $5.9 billion in 2025. The analysis excludes California, which is expected to take longer to come into compliance.
Based on modeling, EPA said 14 counties outside of California would be unable to achieve the 70 ppb limit by 2025.
EPA will likely designate areas that are in noncompliance with the standard in 2017 based on 2014, 2015 and 2016 air quality data, McCarthy said.
"This standard is achievable," she added.
But business and industry groups immediately raised concerns about the ability of areas around the country to meet the new level. Under the Clean Air Act, states with areas found to be out of compliance will be required to develop and put in place pollution controls to lower ozone concentrations.
"Noncompliance with the new ozone standard could halt business expansion and employment growth across the country," said U.S. Chamber of Commerce Executive Vice President for Government Affairs Bruce Josten. "We will now look at all available options to help ease the harmful impacts of this rule."
Congressional foes of EPA in Congress expressed a willingness to take on the rule.
Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, today called the new standard a "frivolous mandate" and vowed to "push back" in his committee.
"I will be pursuing legislation in my committee to push back on EPA and prevent red tape from continuing to run abound," Inhofe said.
In a brief interview, House Energy and Commerce Subcommittee on Energy and Power Chairman Ed Whitfield (R-Ky.) today said his panel "absolutely will" hold hearings on the new rule.
"Many parts of the country are still in noncompliance with the last ozone rules," he said, "and this ozone rule is going to throw a big portion of the country in noncompliance, which does have an impact on economic development."
Whitfield also said the Energy and Commerce panel would weigh using the Congressional Review Act, as well as consider legislation, to halt the rule.
Two members of the Energy and Commerce Committee -- Reps. Bob Latta (R-Ohio) and Pete Olson (R-Texas) -- today touted legislation they offered earlier this year that would halt future updates to the standard until 85 percent of counties achieve the existing limit.
The top Republican on the House Science, Space and Technology Committee also said he would play a role in reviewing the standard. The panel already is planning to hold a hearing next week on the final standard.
"The EPA has continually ignored experts and stakeholders to impose its job-killing regulatory agenda on hardworking American families," said House Science Chairman Lamar Smith (R-Texas). "The EPA did not base its new ozone standard on sound science and has failed to provide this committee with the data it uses to justify this rule."
Refining group American Fuel & Petrochemical Manufacturers called on lawmakers to take a holistic look at "high-cost" regulations affecting manufacturing.
"We urge Congress to consider the mounting impact these numerous and sometimes conflicting regulations will have on our nation's manufacturing competitiveness," AFPM President Chet Thompson said, "and take the appropriate steps to protect our country's economic welfare."Lukewarm support
The rule got a lukewarm reception from EPA's allies in Congress.
Sen. Barbara Boxer (D-Calif.), ranking member on the Senate Environment and Public Works Committee, called it a "step in the right direction" but said the administration's chosen level was too weak.
"I strongly believe that protecting air quality based on the science is the right approach and that it brings health benefits and promotes more job growth," Boxer said. "Today's action is a step in the right direction, but I believe following the science is important, and I am disappointed that a more protective standard was not set."
Rep. Frank Pallone (D-N.J.), ranking member on the House Energy and Commerce Committee, called the standard "not as strong as I had hoped."
While vowing to defend the Clean Air Act in Congress, green groups also said they were disappointed in the standard. Frank O'Donnell, president of advocacy group Clean Air Watch, called the rule "truly a blemish on the president's environmental legacy."
Environmental and public health groups had called on EPA to set a tighter standard at 60 ppb based on public health science. But McCarthy today said the science was too uncertain about exposures at the 60 ppb level.
She said the agency determined 72 ppb was the lowest ozone exposure that causes adverse health effects in healthy, exercising adults. Setting the limit at 70 ppb, she said, would ensure an adequate margin of safety for the public, including vulnerable children, and was "no more or less stringent than necessary."
She noted that most areas of the country would wind up below 70 ppb most of the time.
"Because a standard of 70 only allows levels as high as 70 on very few days, areas that meet the new standard will actually be below that level on almost all days," McCarthy said. "That means the 70 ppb standard protects against repeated exposures to ozone concentrations as low as 60 ppb a substantial amount of the time."
Reporter Hannah Northey contributed.

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EPA Vows Quick Issuance Of Implementation Policy For Tighter Ozone Limit

Oct 2, 2015 | InsideEPA

By Stuart Parker

EPA in a new policy memo is vowing quick issuance of rules and guidance for how states should implement the agency's stricter 70 parts per billion (ppb) ozone national ambient air quality standard (NAAQS), including updates to policies on addressing natural “background” ozone and interstate transport of ozone-forming emissions.
EPA's implementation policy is a crucial part of the NAAQS process because -- among other important provisions -- it details technical requirements and explains allowable pollution controls for states' compliance plans.
The Oct. 1 policy memo, issued alongside the final revised ozone standard, will use the implementation policy for the prior 2008 ozone limit of 75 ppb as a guide. “EPA believes that the overall framework and policy approach reflected in this rule provide an effective and appropriate template for the general approach states would follow in planning for attainment of the revised ozone standards,” acting EPA air chief Janet McCabe writes in the memo.
However, EPA plans to go beyond this existing rule to provide guidance to states in several major areas not currently addressed by the guide, says the memo sent to EPA's 10 regional chiefs. Notably, the agency will revise its rule allowing Clean Air Act compliance exemptions for excessive air pollution during “exceptional events,” such as wildfires and wind storms, in order “to simplify and expedite” the process for states to claim such events.
The agency also plans to issue a new rule guiding states on how they will meet their air law “good neighbor” obligation to mitigate their pollution that causes NAAQS attainment problems in downwind states.
The memo is part of the overall rulemaking package also issued Oct. 1 that tightens the existing “primary” health-based ozone standard to 70 ppb and makes the “secondary” limit designed to protect the environment the same level. The decision has prompted wide-ranging criticism, with environmentalists saying only a 60 ppb limit would satisfy a Clean Air Act mandate to protect public health, while industry groups opposed any tightening.
EPA's finalization of the more-stringent standard starts a new process for states to implement the stricter NAAQS, under which states and EPA will together designate areas of the country failing to meet the new standards, and states will then update their air quality plans to come into compliance.
Areas in nonattainment with the standard must craft state implementation plans (SIPs) outlining the potentially costly emissions controls they will impose on industrial sources of ozone-forming air pollution. Critics of a stricter standard argue that these controls will drive business away, hurting local economies -- though environmentalists counter that by law EPA cannot consider costs when deciding the level of a NAAQS.
Implementation Guidance
Prior to the final rule's release, the Association of Air Pollution Control Agencies (AAPCA), representing 18 state air agencies, issued a survey showing that at least 19 states wanted the agency to propose implementing measures at the same time it issues its final NAAQS rule. However, the agency's guidance for implementing NAAQS for ozone and other criteria pollutants often lags long behind an update to the standards.
State regulators have often complained previously of long delays in EPA's issuance of implementation measures for its six NAAQS. For example, the National Association of Clean Air Agencies -- a larger group representing state and local air regulators, many not part of AAPCA -- in its March 23 comments on EPA's then-draft National Program Manager budget guidance called for faster issuance of implementation rules.
On an Oct. 1 call with reporters, EPA Administrator Gina McCarthy stressed that with existing regulations in place, only 14 areas of the country are projected to be in nonattainment with the new ozone NAAQS by 2025 outside of California. That state has unique challenges relating to its topography, climate and economy, McCarthy said, but noted that those California areas with the most severe ozone problems will have until 2037 to comply.
Despite the nature of the ozone problem in California, McCarthy said she did not expect EPA to exercise its sanctions power under the Clean Air Act, which can lead ultimately to withholding of federal transportation funding if areas do not comply. “I don't anticipate sanctions being part of this equation at all,” McCarthy said.
EPA under the air law can also impose sanctions on states that fail to submit adequate SIPs to the agency for complying with the NAAQS. Alternatively, the agency can also impose a federal implementation plan on states with inadequate SIPs, through which EPA directly writes ozone pollution controls for a state.
But McCarthy's comments, combined with McCabe's memo, suggests that the agency is looking to swiftly ensure that states have the guidance and regulations they need to implement the NAAQS.
Policy Updates
The memo flags a host of contentious issues that states and others have raised about a stricter limit, including how to address naturally-occurring and foreign background ozone that some EPA critics say is reaching levels of the ambient air standard. Background ozone by its nature is impossible to regulate, so the closer that those levels reach to the NAAQS, the more difficult it becomes for areas with high background ozone to come into attainment.
On the call with reporters, McCarthy said that “it is unlikely background ozone will affect states' ability to meet the new ozone standards” of 70 ppb.
McCabe in her memo says, “We anticipate that there are only a few locations in the western U.S. where levels in excess of 70 ppb could be due to the overwhelming influence of background ozone.”
McCabe says that high background ozone events stemming from wildfires or intrusion of stratospheric ozone to lower altitudes can be covered by the exceptional events rule.EPA further intends to host a conference on background ozone this fall to discuss an EPA white paper on the topic, the memo says.
“We already work closely with states to review exceptional events submissions, and we are currently developing revisions to the Exceptional Events Rule to simplify and expedite the process for states developing technical demonstrations and for the EPA to approve exclusions for these types of events,” she writes.
McCabe says the new rule, to be proposed this fall, will be accompanied by new guidance on how states can exclude air quality monitoring data gathered during wildfires.
She further says that EPA intends to work with states impacted by international air pollution to develop regulatory exceptions under Clean Air Act section 179B, and will work with the European Union and other countries to further research intercontinental air pollutant transport. Section 179B allows areas to petition EPA to label them in attainment with ozone NAAQS where they can show they would have attained the standard “but for” international pollution.
Planning Deadlines
In the memo, McCabe also says that “good neighbor” SIPs designed to prevent one state's ozone pollution hindering another states' attainment with the NAAQS are due by October 2018.
To help states craft these plans, EPA intends to “provide timely information” on how states can apply the policy framework established by the Cross-State Air Pollution Rule (CSAPR), EPA's interstate emissions trading rule for power plants in eastern states, to meet their obligations. EPA plans to craft a successor proposed interstate rule,currently undergoing White House review, to meet the 2008 NAAQS of 75 ppb.
But in the memo McCabe does not mention a rule for meeting the 2015 NAAQS. Further, for the newly issued 2015 standard, western states may be involved for the first time in efforts to mitigate interstate pollution after being exempted from CSAPR.
McCabe also says EPA will provide a rule to revoke the 2008 NAAQS effective one year after initial area designations for the 2015 NAAQS, which are due in 2017, and the agency will provide guidance on “grandfathering” air permits being developed under the existing 75 ppb standard, and on how states can maintain “transportation conformity,” -- the requirement that transportation projects not contribute to NAAQS violations.
In a forthcoming rule, EPA will also extend the summertime ozone season to require ozone monitoring for a longer period in 32 states and the District of Columbia, McCabe told a stakeholder conference call Oct. 1. This will apply to both the 2015 ozone NAAQS, and the 2008 standard until revoked.

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McCarthy Says House Will Take Up Ozone Rule

Oct 2, 2015 | E&E Daily

By Amanda Reilly

House Majority Leader Kevin McCarthy (R-Calif.), who is widely expected to become the next speaker, has pledged that Congress will take up U.S. EPA's new ozone standard.
"We will hold additional hearings in the coming weeks on this damaging rule and, if necessary, pursue legislative action," McCarthy said in a statement late yesterday that also accused EPA of attempting to "destroy jobs, drag down our economy and impose its centralized standards."
McCarthy's statement came as he seeks to fill the role left by outgoing House Speaker John Boehner (R-Ohio). The House GOP has scheduled leadership elections for next week, and Boehner is slated to leave Congress on Oct. 30.
EPA yesterday finalized the new national ambient air quality standard for ozone at 70 parts per billion. Ozone is a key component of smog, and the agency said that the old limit of 75 ppb set during the George W. Bush administration was no longer adequate to protect the public against its harmful effects (Greenwire, Oct. 1).
McCarthy said he was concerned about the rule's impacts in California's Central Valley, a region of the country with notoriously bad air pollution. He said that the region, which he represents, had worked "hard" to improve its air quality and that the new standard would impose high compliance costs.
"This rule would harm Americans across the country, especially in the Central Valley of California," McCarthy said. "This new rule will not only be impossible for communities like the Central Valley to reach, it will also punish those communities for not reaching them with fines."
He called on EPA to allow areas around the country to meet the 75 ppb limit before it sets a new standard.
Reps. Bob Latta (R-Ohio) and Pete Olson (R-Texas) have introduced legislation that would stop EPA from implementing a new standard until 85 percent of counties meet the old limit. The House earlier this year voted to add that provision to a spending plan for EPA and the Interior Department.
EPA, for its part, has said that most of the country would meet the 70 ppb limit by 2025 due to existing air regulations.

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EPA Toughens Smog Limit, But Health and Business Groups Split on its Impact

Oct 1, 2015 | The Chicago Tribune

By Michael Hawthorne

Polluting industries will be required to do more to curb lung-damaging smog under new restrictions announced Thursday by the Obama administration, but most of the nation is projected to clean up within a decade.
Chicago and most of the Midwest are on track to comply even quicker, largely because of a long, contentious effort to curb noxious air pollution from cars, factories and power plants.
The more stringent limit imposed by the U.S. Environmental Protection Agency is grounded in a growing body of scientific research that suggests smog can trigger health problems and lead to early deaths at levels considerably lower than previously thought.
"These standards are achievable," said EPA Administrator Gina McCarthy, who was involved in a 2011 effort to set a significantly tougher limit that was rejected by the White House. "Science tells us that (smog) is still making people sick and we still have work to do."
But lowering the acceptable threshold — to 70 parts per billion from 75 ppb — ended up disappointing virtually everybody involved in the debate.
Groups representing physicians and pediatricians had called for the strictest possible standard while business interests waged an aggressive campaign to persuade the Obama administration to keep it at 75. The EPA's scientific advisers had recommended a limit of 60 to 70 ppb.
Smog, also known as ground-level ozone, is formed by a reaction between sunlight and pollutants from car tailpipes, power plants and factories, fumes from volatile solvents and gasoline vapors. Breathing even low levels can inflame the lining of the lungs and aggravate asthma and other respiratory diseases; long-term exposure can permanently scar lung tissue.
To help reduce the pollution, Cook County, the collar counties and areas across the Mississippi River from St. Louis have for years been required to enforce local initiatives such as tailpipe emissions checks and vapor controls on gasoline pumps.
Monitoring data from 2012 to 2014 show that McLean County in downstate Illinois is the only part of the state that would be added to the list of areas required to take more aggressive steps to reduce smog-forming pollution.
The official list of counties in "nonattainment" — EPA-speak for having too much dirty air — likely won't be set until 2017. By then, agency projections show, all of the monitored areas of Illinois should meet the new standard, with the biggest improvements coming from national regulations already on the books or in the works that require cleaner cars, trucks and power plants.
Outside of California, nearly all of the U.S. should be in compliance by 2025, according to the EPA's projections.
A surge of abundant, low-cost natural gas and growing reliance on renewable energy is helping clean the air by pushing utilities to shut down or overhaul some of the nation's oldest, dirtiest coal-fired power plants.
Weather also will help dictate how much more states are required to do, said Rob Kaleel, executive director of the Lake Michigan Air Directors Consortium, a group of state officials from Illinois, Indiana, Michigan, Ohio, Minnesota and Wisconsin. Cooler summers generally mean less smog.
Health and environmental groups welcomed the tougher standard but said the Obama administration should have done more to protect children, the elderly and other vulnerable groups. The EPA's scientific advisers had cautioned that exposure to smog at the EPA's new limit could "result in significant adverse effects," including impaired lung development and respiratory disease.
"President Obama has missed a major opportunity," said John Walke, an attorney for the nonprofit Natural Resources Defense Council.
Business groups, meanwhile, generally appeared to be pleased they dodged what one called a "worst-case scenario." But opponents still said the rule still was too tough.
"The new ozone standard will inflict pain on companies that build things in America, and destroy job opportunities for American workers," said Jay Timmons, president of the National Association of Manufacturers.
In 2001, after business lobbyists waged a campaign that at the time was one of the most expensive in history, the U.S. Supreme Court unanimously upheld the EPA's authority to base air-quality standards on public health, without considering economic concerns.
The high court's decision allowed the government to enforce a smog standard of 84 ppb set by the Clinton administration in 1997. Only a handful of counties still exceed that level; most of them are in California.
Like every other time the smog standard has been tightened, communities will get several years to meet the new limit. Any that fail to meet the EPA's deadlines face fines, a loss of federal highway money and restrictions on environmental permits for polluters.

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Overnight Energy: EPA Ozone Rule Takes Hits From All Sides

Oct 2, 2015 | The Hill - E2 Wire

By Devin Henry

WELCOME TO THE OZONE: Federal regulators formally introduced their strong new standard for ozone levels on Thursday, setting up a fight with Congress, industry and environmentalists alike.
The Environmental Protection Agency's new standard -- 70 parts per billion -- is tighter than the 75 parts per billion standard currently on the books.
Industry groups have warned against the prospect of any new ozone standard, saying it will be exceedingly expensive to implement. Environmental and health groups pushed the EPA to set an even tougher standard, calling it a public health necessity.
So on Thursday, both sides hit regulators for the new standard.
"The new ozone standard will inflict pain on companies that build things in America -- and destroy job opportunities for American workers," National Association of Manufacturers President Jay Timmons said.
"The level chosen ... simply does not reflect what the science shows is necessary to truly protect public health," Harold Wimmer, the president of the American Lung Association, said.
EPA administrator Gina McCarthy defended the rule as both attainable and a win for public health.
"This strengthened standard will improve public health protection across the country and provide the adequate margin of safety that is required by law and that the science supports," McCarthy told reporters.
Read more here.
REPUBLICANS VOW TO FIGHT RULE: Republicans on Capitol Hill bashed the new ozone rule on Thursday with some hinting at a legislative response to the release.
"EPA's decision to restrict the ozone standard to 70 parts per billion is yet another example of the Obama administration's enthusiasm for needless regulation," Sen. Jim Inhofe (R-Okla.) said in a statement.
"Our country should have been given the opportunity to fully meet the 2008 standard before implementing another frivolous and costly mandate."
Inhofe chairs the Senate Environment and Public Works Committee, and he said he "will be pursuing legislation" to respond to the rule.
House chairmen, including Reps. Lamar Smith (R-Texas) of the Science Committee and Fred Upton (R-Mich.) of the Energy and Committee, also hit the new rule, which they said could be the most expensive regulation ever to implement.
"Our economy is teetering as wild fluctuations have defined a volatile global market," Upton said in a statement with Rep. Ed Whitfield (R-Ky.).
"And the administration's response? Pushing forward with what many experts predict will be the EPA's costliest regulation in history and could very well be a last straw for our fragile economy."
Read more here.
NEWS BITE:
Supporters of lifting the crude oil ban are hitting the airwaves to make their case.
Producers for American Crude Oil Exports is releasing an ad in 15 congressional districts around the country to plug a bill ending the 40-year-old ban ahead of a House vote on the measure expected for next week.
The ads tie new crude exports to the prospect of Iranian oil hitting the market after sanctions on the country are lifted.
"The crude oil export ban not only puts U.S. companies at a significant competitive disadvantage, but threatens our national security interests," PACE executive director George Baker said.
"Permanently repealing the ban would provide our global allies with a stable and secure supply of oil, while creating and protecting jobs here at home and putting downward pressure on U.S. gasoline prices."
AROUND THE WEB:
Wealthy residents in Los Angeles use more electricity per capita than poor ones, the Los Angeles Times reports.
European officials are looking into reports suggesting TV manufacturers may be gaming energy efficiency tests, BBC News reports.
The rain is coming, but Hurricane Joaquin might be moving out to sea. The Capital Weather Gang looks at the latest forecast.

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Republicans Vow to Fight EPA's New Ozone Rule

Oct 1, 2015 | The Hill - E2 Wire

By Devin Henry

Republicans promised a legislative response to the new ozone standards the Environmental Protection Agency (EPA) released Thursday.
Sen. James Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, said he “will be pursuing legislation” to combat the rules in his committee.
“EPA’s decision to restrict the ozone standard to 70 parts per billion is yet another example of the Obama administration’s enthusiasm for needless regulation,” Inhofe said in a statement.
“Our country should have been given the opportunity to fully meet the 2008 standard before implementing another frivolous and costly mandate.”
The EPA announced Thursday that it would tighten its limit on surface level ozone from 75 parts per billion to 70 parts per billion, a level industry groups and Republicans have said will hurt the economy and lead to job losses.
Republicans have criticized the proposed rule changes throughout the lead-up to its release on Thursday. When an EPA official testified before Inhofe’s committee this week, the senatoraccused the agency of colluding with “extremist environmental groups” to write the regulations.
Industry groups have pushed research they say shows the rule will be among the most expensive to implement in history.
The White House pushed back against that Thursday, with spokesman Josh Earnest saying “there is a strong economic incentive for the U.S. and industries in the U.S. to be more focused on renewable and clean energy."
But Rep. Lamar Smith (R-Texas), chairman of the House Science Committee, disagreed.
“This rule could be the most expensive regulation ever imposed on the American public,” Smith said in a statement.
“It will put millions of Americans out of work and cost the U.S. economy billions of dollars. And it will most impact financially vulnerable families who already struggle to find employment and pay their bills.”
Republicans have tried before to stop the EPA from instituting the rule. House lawmakers included a provision in an appropriations bill this summer to effectively block the regulation, but the bill never hit the floor.
Democrats, though, welcomed the rule.
“I strongly believe that protecting air quality based on the science is the right approach and that it brings health benefits and promotes more job growth,” said Sen. Barbara Boxer (D-Calif.), ranking member of the Senate environment panel.
“Today’s action is a step in the right direction, but I believe following the science is important, and I am disappointed that a more protective standard was not set."

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‘Groundhog Day’ Ozone Standard Has GOP, Industry Eyeing Clean Air Act

Oct 2, 2015 | PoliticoPro

By Alex Guillen

EPA critics say the new smog standard it finalized Thursday may breathe new life into efforts to revise the Clean Air Act, one of the nation’s most important environmental laws.
Any changes to the CAA, which has not been substantially updated in a quarter-century, would be extremely difficult in a Congress where legislative gridlock shows no signs of abating. But with few other viable options to reverse EPA's tighter air quality standard for ozone, lawmakers say they may have to try.
Even President Barack Obama has acknowledged that the law forced EPA's hand on the ozone standard, but it remains highly unlikely that he would accept reforms from a GOP-controlled Congress.
“I think there are some other members of the Energy and Commerce Committee that would like to revisit the Clean Air Act, and if we have someone [Republican] in the White House in [2017], I know that there are groups that want to revisit the Clean Air Act,” Rep. Ed Whitfield (R-Ky.), the Energy and Power Subcommittee chairman, who this week announced plans to retire. “So, I think that that seed has been planted and we’ll see what happens.”
Members of Congress and special interest groups from both sides of the aisle have floated myriad proposals to tweak or overhaul the Clean Air Act since a sweeping package of amendments was enacted in 1990, but virtually none has gained any traction amid worsening legislative gridlock and wariness to meddle with such a marquee law.
The most significant change to the law was the addition of the Renewable Fuel Standard with the 2005 energy law. Congress also came close to adding a carbon cap-and-trade program in the first years of the Obama administration, but the effort fizzled in the Senate and lawmakers have not revisited the law since, even to make minor tweaks.
Unhappy with the tightened ozone standard, the major trade groups for manufacturers and the oil and gas industry are re-upping their calls for changes to the CAA, despite EPA's decision to only lower the ozone decision to 70 parts per billion, the top end of a range recommended by a scientific advisory panel.
“It’s ‘Groundhog Day,’” said Ross Eisenberg, the vice president of energy and resources policy at the National Association of Manufacturers, which is actively floating the idea of changes to lawmakers — particularly to the National Ambient Air Quality Standards program under which ozone is regulated.
“We certainly believe that it’s worth a very objective, bipartisan effort to modernize this statute,” Eisenberg added. “You don’t have to gut it. It’s been an effective statute, a very effective statute. But the reality of the world we live in is much different than 25 years ago, when we had our last substantial process to amend it.”
Senate Environment and Public Works Chairman Jim Inhofe says he will offer a resolution to repeal the ozone standard using the Congressional Review Act, a rarely used mechanism that cannot be filibustered but still can be vetoed. Obama would likely veto a CRA, and Republicans would most likely be unable to muster the two-thirds vote to overturn.
Looking beyond the CRA, Inhofe, who co-sponsored the 1990 Clean Air Act amendments, said it is worth revisiting the law “if it looks like they’ll be successful in getting this done.”
Not all of EPA’s critics in Congress are anxious to reopen the CAA. Sen. Shelley Moore Capito (R-W.Va.) said she wants to see whether EPA addresses her implementation concerns before she decides whether to take another look at the law.
Aside from Congress’ general impasse on energy issues, revisiting a landmark law would provide great temptation for lawmakers, particularly those looking to rein in EPA.
“You can’t really open it up for a surgical strike because it just gets loaded up too fast,” said Stephen Brown, the vice president for federal government affairs at refiner Tesoro.
Even Democrats wary of lowering the ozone standard say reevaluating the CAA would prove disastrous.
“I wouldn’t want the House of Representatives unleashed right now on the Clean Air Act,” Sen. Claire McCaskill (D-Mo.) said in an interview.
McCaskill last week introduced legislation along with Utah Republican Orrin Hatch that would allow EPA and communities to enter into "early action compacts" to address high ozone levels without being designated as a non-attainment area. She insisted such tweaks could be considered without battling over the entire air law.
“We’re really talking about, with the EPA’s approval, allowing a little bit more flexibility on timing, not going after the rules at their essence,” she said. “And that’s what I think my Republican colleagues would be inclined to do if we opened up the bill.”
The Clean Air Act’s NAAQS program requires EPA to revisit its standards for six specific pollutants every five years. Though the standards don't need to be adjusted in those reviews, the schedule has rarely been adhered to by any administration.
The list includes relatively uncontroversial pollutants like carbon monoxide, the standard for which has gone unchanged since 1971. But standards for more ubiquitous pollutants have become perennial battles pitting industries against environmental and public health advocates. Ozone, a precursor to smog, and particulate matter, which contributes to heart disease and respiratory problems, have been among those fought most fiercely.
Lawmakers and lobbyists who want to re-open the Clean Air Act have yet to produce a detailed wish list with specifics, but the top target is the five-year review.
“Every five years we’re having the exact same fight, and it winds up being environment versus the economy in the press and it winds up being this very, very ugly and sometimes personal battle — and then we have to do it all over again two years later,” said Eisenberg.
Environmentalists counter that there is no such thing as a five-year review given the detailed scientific and legal issues and inevitable regulatory delays. Even the Obama administration took an extra two years.
“We have review cycles that occur in the real world on a seven- to 11-year basis… based on a five-year legal deadline,” said John Walke, the Natural Resources Defense Council's clean air director. “So a 10-year legal deadline would be missed for the same reasons that a five-year legal deadline would be missed.”
Industry also argues that EPA's standard is approaching natural background ozone levels in some parts of the country, meaning those areas may not be able to reach compliance no matter how many limits local regulators placed on major sources of ozone, such as vehicles and factories. Environmentalists dispute that claim, pointing to studies showing background levels significantly lower than the new standard.
When EPA proposed its new ozone standard last year, the agency pointed to 2007 modeling data that showed that even in the intermountain West background, ozone typically did not exceed 45 ppb, despite the region being susceptible to ozone that blows over from China. EPA officials also have stressed that the law has mechanisms to account for background levels, though the industry would like to see changes there, as well.
“The Clean Air Act never envisioned… that we’d be talking about moving standards at or below peak background levels,” said Howard Feldman, the director of regulatory and scientific affairs at the American Petroleum Institute. “The way it was written was we’d be bringing levels down that are levels of emissions that we can control, and then we could take steps to do that. But we’re talking about using up all the easy and cheap controls, and now we’ve become more and more challenged to reduce concentrations.”
In any event, greens argue, EPA is supposed to set the standard based on human health, not with implementation concerns in mind.
“If we ever reach the point where the standard we were considering were below or just above background levels in some significant portion of the United States, then maybe that’s a conversation for future elected leaders to have," Walke said. "But we’re not close to that situation now."

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Obama's New Ozone Standard Has Greens Seeing Red

Oct 1, 2015 | PoliticoPro

By Alex Guillen

The Obama administration handed a win to industry groups Thursday on a fiercely debated rule for smog-causing ozone pollution — leaving green groups feeling betrayed once again and threatening legal action.
The new EPA standard is stricter than one the George W. Bush administration had set in 2008, but it’s far laxer than what environmental and public health groups consider necessary to lessen illnesses like childhood asthma.
Thursday’s action came four years after the White House abruptly squelched an earlier EPA attempt to tighten the ozone rule, a move that greens still regard as one of the great betrayals of Obama’s presidency.
David Baron, the managing attorney with Earthjustice, called the standard "weak-kneed" and "a betrayal of the Clean Air Act’s promise of healthy air." He said it is likely his group and other environmentalists would sue.
“Lowering the smog standard ... is a modest step in the right direction, but it doesn’t go far enough to protect the millions of Americans living in communities with dangerously high levels of smog pollution,” said Sierra Club Executive Director Michael Brune.
The EPA set the limit at 70 parts per billion, below the Bush-era standard of 75 parts per billion, a cut that represents a win for business and industry groups that lobbied and advertised furiously against tightening the standard at all, saying stricter rules would wipe out jobs, drive businesses overseas and even put national parks at risk of violating the law.
But, realizing the Obama administration was likely going to lower the standard somehow, those groups urged the administration to at least go no further than 70 ppb.
That’s not stopping them from joining the chorus of critics against the rule.
National Association of Manufacturers President and CEO Jay Timmons acknowledged that "the worst-case scenario was avoided."
"However," he added in a statement, "make no mistake: The new ozone standard will inflict pain on companies that build things in America — and destroy job opportunities for American workers."
American Petroleum Institute President and CEO Jack Gerard urged Congress to kill the rule, saying the administration “ignored science by changing the standards before allowing current standards to work.”
But EPA Administrator Gina McCarthy said research showed that moving standard lower was justiified.
"The science clearly tells us that the 2008 standards of 75 ppb are not adequately protective of public health and needed to be revised," she told reporters.
Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) told POLITICO ahead of the rule's release that he is planning a vote to block the rule under the Congressional Review Act, a rarely used law that allows a simple majority to reject major regulations. That effort will almost certainly have to overcome a veto from Obama, and Inhofe may lack the votes he needs to succeed.
But others said the EPA seemed to have found a middle ground that would benefit the environment, even though neither business groups nor environmentalist were pleased.
Bill Becker, executive director of the National Association of Clean Air Agencies, said in a statement that EPA "threaded the needle" at 70 ppb.
“By following the expert advice of its independent science advisors, EPA has set the stage for state and local air pollution control agencies to begin implementing this important program,” he added.
Obama himself raised eyebrows among environmentalists last month by expressing what seemed like less than overwhelming enthusiasm about taking on ozone again. In an address to told business leaders, he contrasted his administration’s aggressive regulatory push on climate change — which he said “was hatched by us” — with ozone, which he said the administration is legally required to deal with “based on the science that's presented to us."
Environmentalists also complained that the White House's regulatory czar, Office of Information and Regulatory Affairs Administrator Howard Shelanski, attended recent meetings with the NAMand Marathon Petroleum Corp., but not any of the meetings with environmental or health groups at OMB. Shelanski and his deputy spoke by phone with API's Gerard about the ozone rule on Tuesday.
Under the Clean Air Act, EPA is supposed to reconsider the ozone standard every five years, though there is no requirement to change it.
Industry opponents have long portrayed lowering the ozone standard as a costly regulation.
Areas that are not in compliance with the lower threshold have to figure out where to lower emissions. In a worst-case scenario, that can mean manufacturers and other industrial groups avoid areas that are in violation and may decide against locating new ventures in those places, and potentially delay or cancel transportation projects.
NAM put out an analysis pegging a 65 ppb standard, the lowest end of EPA’s proposed range, to a $1.7 trillion hit, and dubbed it the “most expensive regulation in U.S. history.” NAM did not model a 70 ppb standard.
But the White House again dismissed the claim that pollution regulations were a drag on the economy. Spokesman Josh Earnest said today that the "EPA for more than four decades has been working with state and local agencies to cut air pollution, and in that same period of time they have succeeded in cutting air pollution by 70 percent, and at the same time the economy has tripled."
Still, EPA raised its projection that 14 counties outside of California would be in violation of the 70 ppb requirement by 2025, up from the nine counties it had originally forecast.
Still, lawmakers who oppose the tighter ozone rule said EPA had lowered the limits too far.
“This doesn’t make any sense at all when you have so many states that haven’t met the threshold they already have,” Sen. Joe Manchin (D-W.Va.) said. “But it’s nothing new, this is the way EPA has been operating from day one.”
Darren Goode and Eric Wolff contributed to this report.

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Reopening the Clean Air Act

Oct 2, 2015 | PoliticoPro (Morning Energy)

By Eric Wolff

OZONE DECISION PUTS CLEAN AIR ACT CHANGES INTO PLAY: With the EPA's decision to lower the ozone standard from 75 parts per billion to 70 ppb yesterday, EPA critics are looking to crack open the Clean Air Act and make changes. While some rules written under the Clean Air Act may require novel readings of the law (ME is looking at you, Clean Power Plan),the standards set for pollutants such as ozone appear to be made of steel, having been upheld again and again by U.S. courts at every level. As Pro's Alex Guillén reports, industry is now ready to turn to the legislative process: "Any changes to the CAA, which has not been substantially updated in a quarter-century, would be extremely difficult in a Congress where legislative gridlock shows no signs of abating. But with few other viable options to reverse EPA's tighter air quality standard for ozone, lawmakers say they may have to try."
Lead them not into temptation ... "Aside from Congress’s general impasse on energy issues, revisiting a landmark law would provide great temptation for lawmakers, particularly those looking to rein in EPA...Even Democrats wary of lowering the ozone standard say reevaluating the CAA would prove disastrous. 'I wouldn’t want the House of Representatives unleashed right now on the Clean Air Act,' said Democratic Sen. Claire McCaskill."
... they can find the way themselves. "[Sen. James Inhofe], who co-sponsored the 1990 Clean Air Act amendments, said it is worth revisiting the law 'if it looks like [the EPA will] be successful in getting this done.” http://politico.pro/1RjPrRJ
FRIDAY, HAPPY DAY! I'm your host Eric Wolff, and here's the week in review: Boehner retiring, crude oil export ban bill advances, 70 ppb ozone, Effluent limitationguidelines and refinery rules, no government shutdown, and Shell's Arctic exit. Energy world, feel free to put down your news making pens and take the weekend off. But if you don't, send your newsmaking tips to ewolff@politico.com, or follow us on Twitter @ericwolff, @Morning_Energy, and@POLITICOPro.
NOW AVAILABLE: POLITICO PRO EUROPE BRIEF — POLITICO Pro now has a product dedicated to making sense of European policy and politics through an American lens. Drawing on POLITICO resources in both Brussels and in D.C., POLITICO Pro Europe Brief will track and analyze European policy from taxes to trade to mergers and acquisitions, energy and financial services as well as pull back the curtain on who’s influencing who when it comes to politics and regulatory issues. Contact us or your Account Manager to learn more about POLITICO Pro Europe Brief.
ANOTHER RED-STATE GOV. PLANS TO GO ALONG WITH CPP: Utah Gov. Gary Herbert, who chairs the National Governors Association, stopped by POLITICO’s office yesterday, and of course, ME wanted to know about the Clean Power Plan. Herbert said he is directing Utah’s Department of Environmental Quality to play ball with EPA and submit a compliance plan, and he suggested openness to a variety of options without committing to any in particular. For example, he noted the state employs credit-trading in other pollution control programs. “A carbon tax certainly has been talked about; I don’t know if I’m quite with a carbon tax yet, but I certainly think it can be reviewed,” he said. The governor touted Utah’s work on clean energy, but stressed that carbon-based fuels would be sticking around for a while, and said he wanted to make sure that whatever the state does is “productive rather than just raising up the cost of energy."
Asked about NGA’s role helping states who would like to establish trading programs, Herbert said it should “absolutely” have a role in facilitating communication. “The NGA is uniquely positioned to bring together disparate ideas from the respective states that allow laboratories of democracy – all little pilot programs that go on continuously on a lot of issues.” He also said the group would be “teaming up” with other organizations representing local governments, such as counties and mayors.
FERC Commissioner Tony Clark, a Republican, made a similar point earlier yesterday, speaking at POLITICO’s America’s Energy Agenda event. He noted that state officials are skilled at keeping their own power systems running, and they're making plans to keep the lights on when the Clean Power Plan takes effec.t “They may not like the rule, they may sue [over] the rule … on the other hand these are very practical people,” Clark said. But he remained skeptical of the prospects for widespread interstate trading, even though such an approach would probably be cheaper, given the difficult politics surrounding cap-and-trade. “I’ve become a little bit pessimistic on the notion that you’re going to have broad coalitions (of states) coming together to comply with it,” he said. “The benefits of it are diffuse but the politics are precise.”
INDIA COMMITS TO CO2 PLAN: India emits the third most greenhouse gases of any nation, and last night it published a commitment to reduce its carbon intensity by a third from 2005 levels by 2030. The country would build up its non-fossil fuel generation so that 40 percent of its capacity came from renewable sources, and it said it would add trees and forests to absorb 2.5 billion to 3 billion tonnes of carbon dioxide. "Surprisingly, the country's carbon intensity target doesn't fully capture the emissions it would avoid if it succeeds in meeting its renewable energy goals," Nitin Pandit, CEO of World Resources Institute India, said in a statement. "As one of the most vulnerable countries to climate change, India recognizes the domestic benefits to confronting the issue."
Nous somme pret pour Paris! Taken together, the U.S., China, India, and the European Union emit approximately half of the world's carbon emissions. The commitments from China and India are especially important, as they may induce other developing nations to sign on to an accord in Paris.
** A message from the National Association of Manufacturers: As feared, the ozone standard released yesterday is overly burdensome, costly and misguided. Despite a 33 percent drop in ozone levels since 1980, and President Obama’s acknowledgement that we’ve solved ozone problems, the new standard will harm manufacturers across the country. Now Congress needs to protect working families. For more information, visit http://www.nam.org/ozone **
PHMSA ACTS! The Pipeline and Hazardous Materials Safety Administration proposed a pipeline safety rule almost half a decade in the making yesterday. Pro's Elana Schor had the scoop, "The proposal would require inspections of pipelines that operate outside of so-called "high consequence areas" close to population centers or sensitive areas. It also would require annual inspections of pipelines in HCAs where potential damage from a leak might be amplified. The proposal addresses four congressional mandates, two recommendations from the National Transportation Safety Board, and one from the independent Government Accountability Office, according to PHMSA." The agency has been under pressure to produce new rules for months following a POLITICO investigation, which was in turn followed by Congressional hearings, including two last month led by Sen. Deb Fischer, chairman of a key Transportation and Infrastructure subcommittee.
Industry stands ready to advise: “Safety is our top priority," Robin Rorick, an executive with the American Petroleum Institute said in a statement. "We look forward to working with PHMSA when it comes to protecting the public."
But the rule is not enough for some: "The proposed rule is a huge disappointment because it is so narrow,” Lois Epstein, Arctic program director for The Wilderness Society, said in a statement, adding that “there’s a whole industry waiting for leak-detection performance standards to be required by the federal government so companies can sell products that would alert operators quickly when there are spills." Rep. Frank Pallone, Ranking Member on the Committee for Natural Resources, echoed that sentiment. "I remain concerned that the proposal does not contain any standards for leak detection devices," he said in a statement.
LCWF NOT QUITE DEAD (IT'S GETTING BETTER!): The Land and Water Conservation Fund expired on Wednesday, but Sen. Richard Burr is hoping to prevent it from joining the choir invisible by putting a hold on a bipartisan update of the Toxic Substances Control Act. Pro's Darren Goode reports, "The North Carolina Republican is effectively holding up efforts to quickly bring the measure to the floor under a unanimous consent agreement while he seeks a vote on an amendment permanently reauthorizing LWCF." While other senators had at one time or another tried to attach pet policies to the bill, Burr seems willing to dig in.
But who's against LCWF? The fund would seem to be a popular program, attracting support from Democrats like Rep. Raul Grijalva and Sen. Jeanne Shaheen and Republicans like Burr. But Rep. Rob Bishop, Chairman of the Committee for Natural Resources, said last week he would let the fund's authorization expire by never bringing it up in committee. The liberal Bridge Project will be out with a report today that lays the blame at the feet of oil tycoons and Democratic bogeymen Charles and David Koch. The report says, the killing of the fund is "one part of a wide-ranging campaign they back to force control of public lands from the federal government to the states, which then won’t be able to cover the cost of maintaining these lands without opening more and more to industry exploration and leasing."
COLLEGE STUDENTS RALLY FOR CLIMATE, DECLINE TO STAND IN RAIN: Climate activists are trying to rally college students across the country today with a "Day of Action." Events at dozens of campus include concerts and speeches from politicians. But on the East Coast Hurricane Joaquin is threatening to bring torrents of rain and wind. Sen. Ed Markey was supposed to speak to students from 17 Boston-area colleges and universities at an event on the Boston Common, but instead will speak in the somewhat less historically significant environs of the Ritz-Carlton. His office said he will implore students to build momentum for Paris and follow in the footsteps of past movements, including women's suffrage, voting rights, and the movement to end apartheid.

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Third Circuit Remands Pennsylvania Haze Plan to EPA

Oct 1, 2015 | BNA Daily Environment Report

By Leslie Pappas

The Environmental Protection Agency's decision to approve a state haze plan for Pennsylvania despite finding multiple flaws in the state's analysis was arbitrary and must be reconsidered, the U.S. Court of Appeals for the Third Circuit has ruled (Nat'l Parks Conservation Assoc. v. EPA, 3d Cir., No. 14-3147, 9/29/15).
The Sept. 29 decision comes after the National Parks Conservation Association, the Sierra Club and the Clean Air Council asked the court to review the EPA's 2014 approval of Pennsylvania's plan to control air emissions that affect visibility in national parks and wilderness areas.
Section 169A of the Clean Air Act requires states to evaluate polluters and adopt a state implementation plan (SIP) to set emissions limits, compliance schedules and a long-term strategy to improve visibility in certain national parks.
Pennsylvania submitted its regional haze SIP to the EPA in December 2010, identifying 34 sources of pollution sources in the state yet concluding that no additional pollution controls were warranted because such controls “would result in only minimal visibility improvement,” according to the opinion.
Pennsylvania's state implementation plan “would have allowed no pollution controls on any source,” Charles McPhedran of Earthjustice, the attorney who represented the conservation groups, told Bloomberg BNA in a telephone call Oct. 1. “And the EPA signed off on that.”
‘Multiple Flaws’ Found
Pennsylvania's SIP failed to identify or describe what types of pollution control technologies it considered in its analysis or explain why those controls were rejected, the opinion said. The EPA found “multiple flaws” in Pennsylvania's analysis and concluded that the state underestimated the full impact of the pollution coming from sources in the state, because it failed to calculate the cumulative visibility impact from each source, the opinion said. Nevertheless, the EPA approved the SIP anyway, without explaining why.
“In the end, the EPA has identified a host of problems,” the opinion said. “What it has not done, however, is provide a sufficient explanation as to why it overlooked these problems and approved Pennsylvania's SIP.”
The court remanded the case back to the EPA for “further consideration.”
The EPA is reviewing the decision carefully and considering its response, an agency spokesman told Bloomberg BNA in an e-mail Oct. 1.
EPA Could Establish Federal Plan
The EPA now has several options, including establishing a federal plan, McPhedran told Bloomberg BNA. The court didn't set a deadline for the EPA to respond, he said.
“We expect the EPA to respond promptly to the court's decision,” McPhedran said. “The bottom line is, we expect the EPA to take the opinion seriously and fix Pennsylvania's haze plan.”

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Judges Appear To Back Parallel CWA Rule Suits Despite Legal Confusion

Oct 2, 2015 | InsideEPA

By David LaRoss

Federal district and circuit court judges appear likely to allow the myriad parallel legal challenges to EPA's Clean Water Act (CWA) jurisdiction rule to proceed in separate courts, despite what EPA and its allies say will be significant legal confusion when the various courts issue potentially competing decisions on the rule.
At Oct. 1 arguments here, judges on a federal multi-district litigation (MDL) panel signaled they were likely to rule in the future to reject consolidation of the more than a dozen individual district court suits over the rule, which have been filed by industry groups, environmentalists, and many states. One judge suggested competing rulings could be appealed to appellate courts, and any split among those courts could then be resolved by the Supreme Court.
“Circuit splits happen all the time, and we can't sort of centralize everything all the time to avoid a circuit split,” MDL panel member District Judge Ellen Segal Huvelle said during the arguments.
District Judge Lewis A. Kaplan told Department of Justice (DOJ) attorney Martha Mann, “You're going to get rulings in some of these venues you'll be happy with and some you won't, and eventually the Supreme Court will sort it out.”
Observers have said that they expect the CWA rule to eventually be considered by the high court, even though the regulation is the Obama administration's attempt to resolve uncertainty about the scope of the water law following Supreme Court opinions in 2001 and 2006 that created competing tests for CWA jurisdiction.
Huvelle and other judges on the panel said the purpose of MDL consolidation is typically to prevent conflicting findings of fact rather than disparate legal conclusions. Since rulemaking challenges are based on a fixed administrative record that will be the same in every suit, that appears not to apply, they said.
“You have a complete, certified record, there's no doubt as to what's in it. . . . I don't see what the problem is,” Kaplan said, referencing the existing docket for the CWA rule's development.
District Judge Charles R. Breyer added that consolidating the cases could be at odds with the high court's stated preference for allowing judges to argue over legal principles. “The Supreme Court's argument has continually been that we want the issue to be explored by a number of judges, to see if there is consensus there,” and for the high court to step in when a deep divide appears. Consolidating the CWA suits could “short-circuit that,” he said.
In addition to the various federal district court lawsuits over the rule, the U.S. Court of Appeals for the 6th Circuit has consolidated challenges to the waters policy filed in appellate courts.
There is no deadline for the MDL panel to rule on consolidation
Pending Lawsuits
Absent a consolidation order from the MDL panel, each federal district court case over the jurisdiction rule will proceed on its own, and each court will issue separate rulings on whether district or appellate courts have the authority to consider the rule, as well as on the merits of the rule itself. The CWA assigns regulatory challenges to district courts in some cases and circuit courts in others, and it is unclear which category the jurisdiction rule falls into.
Already, federal district judges in Georgia and West Virginia have held that appellate courts have jurisdiction, while a judge in North Dakota said district court is the proper venue -- and has also granted a request from 13 states to temporarily halt implementation of the rule within those states pending resolution of that suit.
EPA is implementing the final rule in all other states, but in those 13 states it has decided to instead continue implementing George W. Bush EPA guidance from 2008 on CWA jurisdiction.
Groups continue to file lawsuits over the CWA rule, for example with railroad industry organizations filing a district court case Sept. 22 claiming the rule's exclusion from jurisdiction for “ditches” is too narrow.
The eventual final rulings in the various district courts suits will be subject to to appeal in a circuit court -- none of which would be bound by the decisions in any of the other cases until the Supreme Court weighs in. Adding to the legal uncertainty, the Georgia order on court jurisdiction is already subject to appeal in the 11th Circuit.
At the MDL arguments, North Dakota attorney Paul Seby told the MDL panel that state challengers will on Oct. 2 file motions to dismiss the 6th Circuit suit, trying to force a ruling on jurisdiction from that court as well.
Rule challengers have generally sought to have the case heard in district court, while EPA and its allies defending the rule have favored appellate court. For the pending district court cases, DOJ's Mann on behalf of EPA and the Corps urged the court to consolidate the cases to help avoid any major legal confusion.
Mann also said that many of the cases are trying to raise evidence outside of the administrative record. The injunction issued by U.S. District Court for the District of North Dakota Chief District Judge Ralph Erickson was based on “a handful of such documents” rather than the record, she said.
But Kaplan -- who noted that some of the district court cases will rule against the Obama administration -- said DOJ seemed to be arguing that the MDL panel should consolidate the challenges to avoid an adverse ruling.
Parallel Challenges
The MDL panel has in the past refused to consolidate parallel regulatory challenges. West Virginia Solicitor General Elbert Lin reminded the judges that they refused to consolidate suits over Endangered Species Act protections for the sage grouse earlier in 2015, although the judges did not speak on that case themselves.
While the judges acknowledged the difficulty of defending a host of separate suits across jurisdictions, “I think what my colleagues are trying to tell you is, this is the price of doing business when you're the government,” District Judge R. David Proctor said to Mann.
The panel also expressed concern over the fate of Erickson's injunction order against the rule if they did back consolidation. For example, District Judge Sarah S. Vance wondered “what would happen to your injunction” if the cases were consolidated outside North Dakota.
“Of course if the [consolidated] court found there was no jurisdiction, that would wipe out your injunction, wouldn't it?” she later asked North Dakota's Seby.
Responding to those questions, Seby and Mann both said they believe the injunction would continue to apply after consolidation as “law of the case.” But they acknowledged that a ruling that the district courts lack jurisdiction could cancel the injunction, which would otherwise last until a decision on the merits.
The panel also seemed to dismiss concerns from the states supporting the rule that maintaining separate district suits forces them to intervene in each one to protect their interests.
“That's the way litigation works -- when you have an interest in a suit, you go there,” Circuit Judge Marjorie O. Rendell said to New York state attorney Phillip Bein, who represented the seven states, plus the District of Columbia, that have intervened in challenges to defend the rule.

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Transportation News

(ACC Mentioned) Sparks Fly Over Positive Train Control Phase-In Date

Oct 2, 2015 | E&E Daily

By Sean Reilly

Giving the railroad industry a blanket pass on implementation of automated safety measures is "simply unacceptable," Sen. Richard Blumenthal (D-Conn.) said yesterday.
Instead, any extensions to the existing Dec. 31 deadline should be granted only on a case-by-case basis accompanied by annual reviews and limited to three years at most, Blumenthal said in a short interview at the Capitol.
On Wednesday, House transportation leaders introduced H.R. 3651, a bipartisan bill rolling back the timetable for final "positive train control" implementation to the end of 2018 but with another two-year grace period possible after that for individual carriers that meet certain conditions.
The Senate has already approved a three-year extension under somewhat different terms as part of H.R. 22, a broader surface transportation funding measure passed in July. The two versions are "reconcilable," Senate Commerce, Science and Transportation Chairman John Thune (R-S.D.) told reporters yesterday.
As influential interest groups ratchet up their campaign for more time, Blumenthal has emerged as perhaps their most forceful foe, with the ability under Senate rules to hold up any deal. He declined to predict whether he would filibuster legislation that permits an industrywide delay, saying that "it depends on the specifics of what eventually emerges."
Positive train control is an umbrella label for an approach that uses a combination of centralized dispatching and wireless signals to stay in touch with a locomotive's computer and thus serve as a safety backup to the train's engineer.
Congress set the existing deadline in a 2008 law signed soon after 25 people died in a commuter train crash in the Los Angeles area. The current debate over allowing an extension has been shadowed by the May derailment of an Amtrak train in Philadelphia that killed eight people. The train was racing at more than twice the 50 mph speed limit when it jumped the tracks; positive train control would have prevented the accident, the chairman of the National Transportation Safety Board told lawmakers at a June hearing, adding that the board first recommended the forerunner to PTC more than 45 years ago.
But in increasingly urgent tones, extension supporters are warning of economic turmoil if nothing is done. Some large freight railroads say they won't allow passenger trains or shipments of some chemicals on their tracks after December for fear of potential liability.
In an analysis released yesterday, the American Chemistry Council, a trade group, predicted that any such service disruptions could cost 20,000 chemical industry employees their jobs and quickly cut into national economic growth. If the disruptions were to last beyond January, the analysis said, the impact "would be truly catastrophic" and likely lead to a recession.
The Association of American Railroads, which is also lobbying intensively for an extension, has launched an online "countdown clock" with the message that action is needed well before December.
"Train systems cannot be shut down or restarted overnight," the association's website says, so railroads and shippers "are being forced to make decisions now to prepare for the severe disruptions in rail service that will occur if Congress does not act soon" on an extension.
But Obama administration regulators have thus far refused to get on board, instead arguing for the flexibility to work with individual railroads to phase in positive train control. They also contend that some railroads have tried harder than others to meet the current deadline.
Without delving into the reasons, the Government Accountability Office last month reported large gaps in the amount of time the major freight railroads say they'll need to wrap up positive train control implementation. Texas-based BNSF Railway Co., for example, predicts a December 2017 completion date; both CSX Corp. and Norfolk Southern Railway Co., headquartered in Florida and Virginia respectively, say the job will take them until the end of 2020.
GAO auditors also noted that two years ago, they urged lawmakers to give regulators the authority to extend the December deadline for individual railroads on a case-by-case basis.
"Congress has not yet provided such authority, and we continue to believe that such authority is needed," they said in their latest report.

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(ACC Mentioned) In Brief: Report Warns Rail Shutdown Would be Costly

Oct 1, 2015 | Houston Chronicle

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 curtail 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 monthlong 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.

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(ACC Mentioned) Looming Railway Shutdown Could Cost US $30B

Oct 1, 2015 | WKBW Buffalo

By Jamal Andress

After avoiding another government shutdown by just a few hours, Congress has yet another economic fire to put out.
The U.S. is facing a potential railway shutdown on Jan. 1, 2016 — a shutdown that American Chemistry Council says would be more detrimental to the economy than the government shutdown of 2013.
The government shutdown in 2013 from Oct. 1 to Oct. 16 cost the US economy $24 billion. The American Chemistry Council estimates the railroad shutdown could cost the US economy $30 billion and 700,000 jobs.
To be fair, those figures are based on a monthlong railroad shutdown. The government shutdown of 2013 lasted only 16 days.
The reason for the potential shutdown is a collision avoidance system called positive train control. In 2008, Congress ordered all the railroad companies to install the system by the end of 2015.
"With a functioning positive train control system, as that train approached that curve, the technology would have actually slowed the train down," said former Federal Railroad Administrator Joseph Szabo.
But executives from major railway companies — like BNSF, Union Pacific and CSX — say the 2015 deadline isn't feasible, and the chairman of the Senate Commerce Committee is urging Congress to extend it.
"Implementation of PTC has not kept pace with an overly ambitious deadline set by Congress," said South Dakota Sen. John Thune.
Lawmakers have drafted a bill to extend the deadline until 2018, but if that bill doesn't pass, railways around the country could see gradual shutdowns in the coming months, just in time for the holiday season.

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Railroads Launch Automated Train Shutdown Clock

Oct 1, 2015 | The Hill - Transportation

By Keith Laing

The group that lobbies for freight rail companies in Washington has launched a countdown clock to a "rail shutdown" if Congress does not extend a deadline for automating most of the nation's trains.
Railroads currently have until Dec. 31 to install the an automated navigation system known as Positive Train Control automated navigation system - which regulates the speed and track movements of trains - but several rail companies have warned they will shut down service in January 2016 if the deadline is not moved.
"Railroads have warned for years that the December 31 deadline for implementing positive train control (PTC) was impossible to meet," the Association of American Railroads (AAR) said in a post on its website noting are 28 days left until a potential service interruption because "train systems cannot be shut down or restarted overnight."
"Railroads have spent nearly $6 billion and hired thousands of workers to install this state-of-the-art technology, but without congressional action, railroads will have little choice but to shut down or severely limit rail traffic," the post continued. "Disruptions would negatively impact the U.S. economy and affect everyone, including farmers, manufacturers, consumers, water treatment facilities, rail passengers, energy companies, government agencies and beyond!"
The mandate that was set in the aftermath of a 2008 commuter rail crash in California, but railroads say they need more time to complete the implementation.
Rail companies have argued that they will no choice but to shut down service at the beginning of next year to avoid fines if Congress does not move the deadline.
A bipartisan measure has been introduced in the House that would push back the deadline for most railroads to install the automated train technology until December 2018. Critics have complained the measure is a "blanket extension" that lets railroads off the hook for improving safety for passengers, 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 after the House measure was introduced.
"Extensions should be granted only to railroads that have demonstrated diligent, good faith efforts to meet the mandate," he continued. "Only by holding railroads’ feet to the fire will this critical, life-saving technology finally be implemented.”
Supporters of the extension say it is necessary to prevent an interruption in passenger and freight rail service at the end of the year, however.
"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 trumpeting the extension.
“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," he continued.
Transportation department officials in the Obama administration have said they have little choice but to enforce the mandate unless Congress can come to agreement on an extension.
"The reality is without Congress doing something, we've got a deadline coming up and we're going to have to enforce that deadline," Transportation Secretary Anthony Foxx told reporters earlier this week.
"Many of the concerns [railroads] raise appear to be legitimate concerns, but as far as we're concerned, the deadline at present is what it is and we have to enforce against it, absent some congressional action," Foxx continued.

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PHMSA Releases Hazardous Liquid Pipeline Proposal

Oct 2, 2015 | BNA Daily Environment Report

By Rachel Leven

The nation's pipeline safety regulator released Oct. 1 its proposal aimed at improving the safety of the nearly 200,000 miles of hazardous liquid pipelines in the U.S., a Linkproposal expected to cost affected operators millions annually.
The Pipeline and Hazardous Materials Safety Administration's proposed rule, which adds or updates inspection, repair, leak detection and gathering line requirements, was chided by a pipeline safety watchdog for not being stringent enough. An oil pipeline industry spokesman and a policy adviser said industry would be examining how benefits compared to costs in parts of the rule.
“Hazardous liquid pipelines crisscross the country and pipeline failures can have profound impacts on local communities and the environment,” Transportation Department Secretary Anthony Foxx said in a statement. “This proposed rule is an important step forward to enhance safety, and protect people and the environment.”
The rule, which has been highly anticipated by groups such as the Association of Oil Pipe Lines and the American Petroleum Institute, would cost hazardous liquid operators an estimated $22.4 million per year with benefits between $3.5 million and $17.7 million annually. That is in addition to unquantifiable safety benefits such as prevented fatalities. PHMSA estimates 421 hazardous liquid pipeline operators may incur costs.
PHMSA is issuing its proposed rule (RIN 2137-AE66) in response to mandates under the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. No. 112-90) and recommendations by the National Transportation Safety Board and the Government Accountability Office. The proposal will be available for public comment through Jan. 8, 2016, under Docket ID No. PHMSA-2010-0229 following its publication in the Federal Register.
Proposal Details
The proposal would largely require pipes located outside of high consequence areas to use in-line integrity inspection tools at least once every 10 years, a requirement expected to cost operators $16.7 million annually. Pipes in high consequence areas—commercially navigable waterways, high population areas or certain other areas, such as those with a sole source drinking water supply—already must conduct these assessments.
Some pipes at this point won't be able to accommodate these tools that are intended to identify problems such as corrosion. To combat this, PHMSA would require these pipelines within 20 years to be able to use these tools and would limit construction of new pipelines that wouldn't be able to use them.
The proposal also would modify existing integrity management repair criteria and timelines that apply to high consequence area pipelines and apply the repair criteria to pipes outside of those areas. This is an area, Mike Friedberg, a senior policy advisor for Holland & Knight, told Bloomberg BNA, where the pipeline industry would aim to make sure the benefits outweigh the costs.
Additionally, the rule would establish a timeline for inspections of pipelines affected by extreme weather incidents or natural disasters following the incident and require installation of leak-detection systems on all hazardous liquid pipelines, as well as clarify certain inconsistencies, the proposal said.
Gathering Lines Reporting
Notably, the proposal adds reporting requirements for hazardous liquid lines currently exempt from regulations, including gathering lines and gravity lines. Friedberg, who was recently the Republican staff director for the House Transportation and Infrastructure's Subcommittee on Railroads, Pipelines and Hazardous Materials Subcommittee, said this move may concern the pipeline industry, largely related to gathering lines.
PHMSA currently regulates less than 4,000 miles of the roughly 30,000 to 40,000 miles of domestic onshore hazardous liquid lines and wants basic data “to effectively analyze safety performance and pipeline risk of gathering lines,” the proposal said.
But Friedberg said this could be a concern because the rule could portend future action.
“What they do is start with non-controversial things,” Friedberg said. “Now that they're doing this, what's the next step?”
Overall, Friedberg said, interest groups and Capitol Hill staff will be reading the proposal to see if PHMSA officials have “worked beyond their mandate.”
John Stoody, spokesman for the Association of Oil Pipe Lines, told Bloomberg BNA that overall PHMSA is addressing areas that the pipeline industry is already working on, such as leak detection.
How Often, What Repairs
However, Stoody said the association will look closely at how often the agency wants operators to make repairs and what repairs it wants them to make.
From a pipeline safety watchdog's perspective, many of these requirements such as the 20-year time frame to get a pipe to accommodate inline inspection tools are not stringent enough, Carl Weimer, the executive director of the Pipeline Safety Trust, said in a statement.
While Weimer said he agreed with many of the provisions, the agency should be going further, for example, to define how a leak-detection system needs to perform in order to keep it from being “meaningless.”
“[W]e are concerned that this level of slow incremental improvement will not be enough to keep our communities and environment safe,” Weimer said. “We hope these proposed rules can be strengthened through the public comment process, but in the past such proposals represent the high watermark regarding safety since the pipeline industry will now apply great pressure to weaken these proposed rules even more.”
The American Petroleum Institute released a statement saying that it looks forward to working with PHMSA on the proposal. The National Association of Pipeline Safety Representatives didn't immediately respond to Bloomberg BNA's message requesting comment.

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U.S. Regulators Propose More Monitoring of Oil Pipelines

Oct 1, 2015 | The Wall Street Journal

By Alison Sider

Federal regulators are proposing new rules aimed at strengthening maintenance and monitoring of the pipelines that carry crude oil and other fuels around the U.S. following a series of damaging oil spills.
The long-awaited proposal from the Transportation Department’s Pipeline and Hazardous Materials Safety Administration would require all hazardous liquid lines to have a system for detecting leaks. Currently, that detection equipmentis only required for pipelines that travel through certain environmentally sensitive or densely populated areas.
The rule would also require more pipeline inspections and stricter guidelines for what problems must be repaired and how quickly those fixes must be made. Complying with the rules could cost the industry millions of dollars, but could also prevent incidents that are costly to clean up and incur large fines, the agency said.
The proposed regulation will be open to public comment for 90 days once it has been published in the Federal Register.
Separately, the Transportation Department said Thursday it would fine Exxon Mobil Corp. $2.63 million for violating federal pipeline safety regulations, which caused a pipeline to rupture and spill more than 3,000 barrels of oil in a neighborhood in Mayflower, Ark.
The fine is about the same amount as the agency originally proposed in 2013, and which Exxon contested. An Exxon spokesman said the company is “evaluating its options with respect to PHMSA’s final order.”

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