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(ACC Blog) MacArthur Foundation Declares Nanotechnologist a Genius
Oct 6, 2015 | American Chemistry Matters
Each year the John D. and Catherine T. MacArthur Foundation selects between 20 and 40 individuals to receive one of the McArthur Foundation Fellowships, which are better known as “genius grants.” http://blog.americanchemistry.com/2015/10/macarthur-foundation-declares-nanotechnologist-a-genius/ -
Industry, Labor and Environmental Groups Gear Up to Oppose TPP Trade Deal
Oct 6, 2015 | The Washington Post
By Catherine Ho
Powerful interest groups are already lining up to oppose various provisions in the Trans-Pacific Partnership — the sweeping trade agreement reached Monday by the United States, Japan and 10 other Pacific Rim nations ... -
Trans-Pacific Partnership Is Reached, but Faces Scrutiny in Congress
Oct 6, 2015 | The New York Times
By Jackie Calmies
The United States, Japan and 10 other Pacific Rim nations on Monday reached final agreement on the largest regional trade accord in history, teeing up what could be the toughest fight President Obama will face in his final year in office: securing approval from Congress. -
GOP lawmaker says TPP Votes Should be Contingent on White House Support for Oil Exports
Oct 6, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Rep. Kevin Cramer, a House Energy and Commerce Committee member, today floated a new tactic to lift the decades-old ban on crude oil exports. -
(ACC Mentioned) Unlikely Group Urges Senate to Act on 'Window' for TSCA Bill
Oct 6, 2015 | E&E - Greenwire
By Sam Pearson
Hoping to clear what one lawmaker called a "stalemate" on bringing a bipartisan chemical safety bill to the Senate floor, supporters this morning rolled out a broad coalition of supporters in a bid to show the effort had gone too far to stall now. -
(ACC Mentioned) Global Panel on Pollution, Health Launched
Oct 6, 2015 | Business Standard
A global commission on pollution, health and development has been launched to help push concrete action on toxic pollution that stares at the developing world. -
(ACC Mentioned) Pittsfield Committee Chilly to Ban on Foam Food Containers
Oct 6, 2015 | Berkshire Eagle
By Jim Therrien
Prospects for an ordinance to ban expanded polystyrene foam food containers appear dire after the City Council's Ordinance and Rules Committee voted 3-2 to recommend filing the measure. -
(ACC Mentioned) Styrofoam Ban To Go To Pittsfield Council Without Subcommittee Support
Oct 6, 2015 | iBerkshires.com
By Andy McKeever
A City Council subcommittee has voted against instituting a ban on polystyrene containers. -
Senators Dismiss Tying Conservation Fund to Chemical Reform
Oct 6, 2015 | The Hill - E2 Wire
By Devin Henry
Senators pushing for an overhaul of federal chemical safety laws are dismissing a push to link the measure to one reviving a lapsed conservation fund. -
Vermont Delays Decision on Chemical Reporting Rule
Oct 6, 2015 | Chemical Watch
Vermont has extended the review period of a proposed rule to implement its chemical reporting programme for children's products, amid concerns from industry stakeholders (CW 22 September 2015). -
Texas Plant Restarts 1 Week After Explosion
Oct 6, 2015 | E&E - Greenwire
A Pasadena, Texas, chemical plant where four workers were burned in an explosion last week will resume operating even though little has been disclosed about how the facility will ensure safety. -
(ACC Mentioned) Congress To Examine New EPA Standard On Ground-Level Ozone
Oct 6, 2015 | Chemical & Engineering News
By Jeff Johnson
Congress this week will scrutinize a new air pollution regulation that the chemical industry says will put its expansion investments at risk but that health advocates say doesn’t offer enough protection for the public. -
EPA's Ozone Decision Is about Politics, and That's OK
Oct 6, 2015 | The Hill - Pundits Blog
By Stuart Shapiro
Earlier this week, the Environmental Protection Agency (EPA) issued its much-awaited ozone standard. The EPA regulation lowered the standard to 70 parts per billion (ppb) of ozone. -
Moniz Says U.S. Oil Production Not 'Hemmed In' by Export Ban
Oct 6, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Energy Secretary Ernest Moniz today threw cold water on the congressional push for unrestricted crude exports, noting that "it's hard to argue there's been a lot of production being hemmed in by" the decades-old export ban. -
GOP Grills Energy Secretary on Oil Exports
Oct 6, 2015 | The Hill - E2 Wire
By Timothy Cama
Republican senators repeatedly pushed the secretary of Energy Tuesday to support lifting the ban on oil exports and explain why President Obama does not agree. -
Why Lifting Oil Export Ban Can Help U.S. Foreign Policy
Oct 6, 2015 | Reuters
By Emma Ashford
A House of Representatives bill is due to go to the floor this week, one step closer to lifting the 40-year-old ban on the export of U.S. crude oil. -
Senate Sets Energy Appropriations Vote for Thursday
Oct 6, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Senate Majority Leader Mitch McConnell set a vote for Thursday to start debate on a $35.4 billion spending bill for the Energy Department next year. -
McConnell Moves to Advance Energy, Water Spending Bill
Oct 6, 2015 | E&E - Greenwire
By Hannah Northey
Senate Majority Leader Mitch McConnell (R-Ky.) today moved to proceed with the $35.4 billion fiscal 2016 energy and water development spending bill. -
Critics Of EPA's ESPS Consider Pursuing Two-Phase Litigation Strategy
Oct 6, 2015 | InsideEPA
By Dawn Reeves
States and industry groups planning to challenge EPA's final existing power plant greenhouse gas rule are discussing a litigation strategy that would include two separate court reviews of the rule: the first challenging threshold legal issues and the second addressing issues that are more specific to the requirements of the rule. -
Regulators Urge EPA to Start Crackdown on NOx Emissions
Oct 6, 2015 | E&E - Greenwire
By Amanda Reilly
Two state regulators' groups and California are calling on U.S. EPA to set a new national limit for nitrogen oxides pollution from big trucks as the agency puts in place a more stringent ozone standard.
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(ACC Blog) MacArthur Foundation Declares Nanotechnologist a Genius
Oct 6, 2015 | American Chemistry Matters
Each year the John D. and Catherine T. MacArthur Foundation selects between 20 and 40 individuals to receive one of the McArthur Foundation Fellowships, which are better known as “genius grants.” The honor is awarded to individuals working in any field, who “show exceptional merit and promise for continued and enhanced creative work” and are citizens or residents of the United States.
Based on the 24 Fellows selected this year, geniuses can be choreographers, biologists, economists, set designers, chemists, educators, photographers, musical composers – and even puppeteers.
Geniuses also work in nanotechnology.
This year, the foundation honored an inorganic chemist at the University of California, Berkeley – Peidong Yang – noting that “his advances in the science of nanomaterials are opening new horizons for tackling the global challenge of clean, renewable energy sources.”
Yang created a synthetic leaf that uses the same ingredients as photosynthesis – water, sunlight and carbon dioxide – to produce liquid fuels like methane, butane and acetate with the help of semiconductor nanowires. And like nature’s photosynthesis, this process also releases oxygen into the air.
These nanowires, similar to normal electrical wires except for their size – 100 to 1,000 times thinner than a human hair – have a variety of fascinating properties, including that they are extremely capable at capturing solar energy.
While the technology is still several years from being commercially viable, it represents an important step on the road to creating a carbon-neutral and sustainable fuel system.
Jay West, manager of the American Chemistry Council’s Nanotechnology Panel, says that the Panel’s main objective is to promote the safe and responsible development of nanotechnology – in projects like that of Yang and many others.
ACC’s Nanotechnology Panel works to advance good product stewardship practices among nanomaterial producers and users. The Panel regularly supports and participates in partnerships with universities, regulatory agencies and other organizations to identify and communicate best practices concerning the responsible development and use of nanotechnology.
To learn more about ACC’s Nanotechnology Panel and its mission visit its website athttp://nanotechnology.americanchemistry.com or contact Jay West at Jay_West@americanchemistry.com.
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Industry, Labor and Environmental Groups Gear Up to Oppose TPP Trade Deal
Oct 6, 2015 | The Washington Post
By Catherine Ho
Powerful interest groups are already lining up to oppose various provisions in the Trans-Pacific Partnership — the sweeping trade agreement reached Monday by the United States, Japan and 10 other Pacific Rim nations — in hopes they can sway the votes of enough wavering lawmakers to have the deal rejected by Congress.
[Deal reached on Pacific Rim trade pact in boost for Obama economic agenda]
Negotiators announced completion of the the deal Monday morning and Congress isn’t expected to vote on it until the spring, due to the lengthy congressional review period that is required. Under the fast-track trade rules enacted earlier this year, the deal will be subject to an up or down vote in Congress and lawmakers will not be able to amend or filibuster the pact.
[A long road ahead for newly minted Pacific Rim trade agreement]
The lengthy time-frame for considering the trade pact ensures its opponents will have plenty of time to lobby Congress. Here’s a look at the industries and interest groups that are pushing back against parts of the agreement:
Automakers
Their complaint: The deal does not address alleged currency manipulation by Japan, which the auto industry has long said hurts U.S. automakers by keeping the price of Japanese cars artificially low. A Ford spokeswoman said the company’s top priority was and is to include rules prohibiting currency manipulation in trade deals.
Earlier this year, the company supported a failed amendment sponsored by Sens. Rob Portman (R-Ohio) and Debbie Stabenow (D-Mich) to the Trade Promotion Authority legislation, which gave the White House the ability to fast-track trade bills through Congress, that would have increased enforcement efforts against nations considered to be currency manipulators.
“To ensure the future competitiveness of American manufacturing, we recommend Congress not approve TPP in its current form, and ask the administration to renegotiate TPP and incorporate strong and enforceable currency rules,” Ford said in a statement.
Brand-name pharmaceutical companies
Their complaint: Pharmaceutical companies wanted the deal to include intellectual property protection for biologic medicines for 12 years, which is the length of time granted under U.S. law, but the pact only grants protection for up to eight years. PhRMA chief executive John Castellani said in a statement Monday that he is “disappointed,” but a spokesman for the leading pharmaceutical trade group said he could not elaborate on what steps the industry may take, if any, until they review the full text of the agreement.
Environmental groups
Their complaint: The pact includes what’s called an investor-state dispute settlement provision, or ISDS, which is common in trade agreements. It allows multinational corporations and investors to bring cases against foreign governments over environmental, public health and other regulations — if they find that those rules cut into their profits — before international arbitration panels instead of U.S. courts.
Critics of the system say it favors companies because arbitrators are often corporate lawyers that side with businesses. The Sierra Club said Monday that TPP would “empower big polluters to challenge climate and environmental safeguards in private trade courts.” Friends of the Earth expressed a similar sentiment, saying the deal would “stymie environmental regulation.”
The tobacco industry
Their complaint: The deal includes changes that would exclude tobacco companies from accessing the ISDS system, meaning tobacco companies could have a harder time challenging anti-smoking regulations abroad. This could be an issue for lawmakers representing states that produce tobacco, such as North Carolina and Kentucky.
A spokesman for the cigarette giant Altria said the company is “opposed to singling out one industry for differential treatment under the TPP. We think singling out one industry for differential treatment is bad policy and could become a precedent for similar actions directed at other industries.” He declined to comment on whether the company will be engaging lawmakers on the issue.
Labor unions
Their complaint: Labor unions have argued that the negotiation process was not transparent and that TPP would encourage the outsourcing of U.S. jobs. “Many problematic concessions were made in order to finalize the deal,” AFL-CIO president Richard Trumka said in a statement Monday. “Rushing through a bad deal will not bring economic stability to working families, nor will it bring confidence that our priorities count as much as those of global corporations.”
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Trans-Pacific Partnership Is Reached, but Faces Scrutiny in Congress
Oct 6, 2015 | The New York Times
By Jackie Calmies
The United States, Japan and 10 other Pacific Rim nations on Monday reached final agreement on the largest regional trade accord in history, teeing up what could be the toughest fight President Obama will face in his final year in office: securing approval from Congress.
The conclusion of the Trans-Pacific Partnership, after years of negotiations and a series of sleepless nights here, was merely “an important first step,” conceded Michael B. Froman, the United States trade representative, as he and other weary officials announced their accord.
Now the deal faces months of scrutiny in Congress, where some bipartisan opposition was immediate. That debate will unfurl against the backdrop of a presidential campaign in which populist anti-trade talk against the deal is already prominent.
Still, for Mr. Obama the accord could be a legacy-making achievement, drawing together countries representing two-fifths of the global economy, from Canada and Chile to Japan and Australia, into a web of common rules governing trans-Pacific commerce. It is the capstone both of his economic agenda to expand exports and of his foreign policy “rebalance” toward closer relations with fast-growing eastern Asia, after years of American preoccupation with the Middle East and North Africa.
“When more than 95 percent of our potential customers live outside our borders, we can’t let countries like China write the rules of the global economy,” Mr. Obama said in a statement. “We should write those rules, opening new markets to American products while setting high standards for protecting workers and preserving our environment.”
That argument — that the Pacific pact would be a bulwark against China’s power and a standard-setter for global commerce — will be central to the president’s hard sell ahead to Congress, administration officials said.
For Mr. Obama to win Congress’s approval, he will have to assemble a bipartisan coalition of lawmakers, building out from the political center to marginalize resistance on the left and right. Earlier this year, the president relied heavily on Republicans to win approval of so-called fast-track trade authority, which will allow a vote on the Pacific accord without threat of amendments or filibuster.
This time, the president probably will need more Democrats’ votes. Final concessions his team made in Atlanta angered the tobacco and brand-name pharmaceutical industries, which in turn could cost the president support among Republicans who were allies on the fast-track issue. Also, many conservatives oppose giving Mr. Obama any big accomplishment. And anti-trade talk from presidential candidates — the Republican front-runner, Donald J. Trump, called it “a terrible deal” on Twitter on Monday — most likely will embolden the conservatives.
Among Democrats, too, opposition from the presidential arena is certain to bleed into debate over the Pacific pact.
Senator Bernie Sanders of Vermont, who is running for the Democrats’ 2016 nomination, began a fund-raising appeal within hours of the deal’s announcement. “Wall Street and big corporations just won a big victory to advance a disastrous trade deal,” he said in a statement. “Now it’s on us to stop it from becoming law.”
The pressure now builds on Hillary Rodham Clinton to take a stand. She promoted the trade talks as Mr. Obama’s secretary of state, but as a presidential candidate she has expressed enough wariness before liberal audiences that her support for an agreement is widely in doubt.
The Pacific accord would phase out thousands of import tariffs as well as other barriers to international trade, like Japanese regulations that keep out some American-made autos and trucks. It also would establish uniform rules on corporations’ intellectual property, and open the Internet even in communist Vietnam.
The Office of the United States Trade Representative said it eventually would end more than 18,000 tariffs that the participating countries have placed on American exports, including autos, machinery, information technology and consumer goods, chemicals and agricultural products as varied as avocados in California and wheat, pork and beef from the Plains states.
The trade ministers who negotiated it predicted the overall economic and political heft of the 12-nation group would turn the accord into a model for future trade agreements. It would overhaul the system for settling disputes between nations and foreign companies, while barring tobacco companies from using that process to block countries’ antismoking initiatives. Negotiators said it also would enforce higher standards for labor conditions and environmental protection, including wildlife-trafficking.
By law, Congress will have months to deliberate, perhaps to next April. Mr. Froman said he did not know when Mr. Obama would officially notify Congress that he intends to sign the accord, but once he does, that notice will give Congress 90 days to first consider it. Additional time most likely will be needed, congressional and administration officials said.
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GOP lawmaker says TPP Votes Should be Contingent on White House Support for Oil Exports
Oct 6, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Rep. Kevin Cramer, a House Energy and Commerce Committee member, today floated a new tactic to lift the decades-old ban on crude oil exports.
Republicans should make their support for President Barack Obama's landmark Trans Pacific Partnership deal contingent on the White House easing its resistance to legislation ending the ban, he said.
"We have to be prepared to use our TPP vote, or at least I am," to help secure the White House's support for a quick end to the export ban, Cramer told POLITICO today, adding that he is "not crazy about" backing Obama on the trade deal, "especially if he's unwilling to give us oil exports."
Cramer acknowledged that he has yet to consult fellow Republican conference members on the issue. But even a handful of GOP members embracing his approach could significantly alter the politics of a final vote on the trade pact that's already expected to be close, thanks to an aggressive campaign by liberal groups to peel off Democratic votes.
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(ACC Mentioned) Unlikely Group Urges Senate to Act on 'Window' for TSCA Bill
Oct 6, 2015 | E&E - Greenwire
By Sam Pearson
Hoping to clear what one lawmaker called a "stalemate" on bringing a bipartisan chemical safety bill to the Senate floor, supporters this morning rolled out a broad coalition of supporters in a bid to show the effort had gone too far to stall now.
Should the logjam clear, the Senate has a "window" to consider it as soon as Thursday, said Sen. Tom Udall (D-N.M.), who introduced S. 697, the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," earlier this year with Sen. David Vitter (R-La.).
Senate Majority Leader Mitch McConnell's (R-Ky.) staff have held "a number of meetings" to discuss how to bring the bill to the floor in the past few weeks, Udall said.
At a news conference outside the Capitol building this morning, Bonnie Lautenberg, the widow of the late New Jersey senator the bill is named for, warned that lawmakers who block the bill's progress are "holding up the health and safety of our children."
It was an unlikely group, including lawmakers who have been on opposing sides of a variety of other energy and environmental issues. But the senators said there were many reasons for politicians of all stripes to push for the plan.
"What you see before you really says it all," said Senate Majority Whip Dick Durbin (D-Ill.).
It wasn't easy to reach this point, said Sen. Sheldon Whitehouse (D-R.I.), and it involved considerable political risk by Udall to take a stand on an issue that is contentious among his colleagues. That led to criticism of Udall after the bill's introduction -- including from some of his traditional supporters -- that the legislation was too favorable to the chemical industry (E&E Daily, April 28).
"Prometheus was chained to a rock and had his liver eaten every day by an eagle," Whitehouse said, "and sometimes I think the suffering of Tom Udall as he brought this through those early stages was Promethean."
Sen. Tom Carper (D-Del.) had talked to many skeptics who thought the idea of Toxic Substances Control Act reform would never find bipartisan support.
"That will happen when pigs fly," Carper said someone told him. "Let the record show, we were just walking over here from the Hart Building. ... I looked over toward the Capitol, and we saw a formation of pigs flying."
Listed as a participant in the news conference, Cal Dooley, president of the American Chemistry Council -- which has made TSCA reform one of its top lobbying priorities this year -- watched from the audience instead.
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) said he thought the prospect of TSCA reform was fueling job growth in the chemical industry, which would mean more investment in the United States. That would help his home state's natural gas industry, the main feedstock for petrochemical production, Inhofe said.
None of this will happen if two lawmakers -- Republican Sens. Richard Burr of North Carolina and Kelly Ayotte of New Hampshire -- fail to back down from a vow to object to floor consideration of S. 697 without a promise of a vote on an amendment to reauthorize the Land and Water Conservation Fund, which expired earlier this month, advocates said.
Burr said yesterday he thought the TSCA bill was a good vehicle to secure reauthorization of LWCF, which he said should never have been allowed to lapse (E&E Daily, Oct. 6). But "as soon as you open it up to amendments, then you open it up to 100 amendments," Udall said.
Though his group is a strong supporter of LWCF, National Wildlife Federation President Collin O'Mara said Ayotte and Burr had picked the wrong strategy to protect the fund.
"The two deserve to pass, but they deserve to pass separately," O'Mara said.
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(ACC Mentioned) Global Panel on Pollution, Health Launched
Oct 6, 2015 | Business Standard
A global commission on pollution, health and development has been launched to help push concrete action on toxic pollution that stares at the developing world.
The commission launched at the fourth session of the International Conference on Chemicals Management (ICCM4) in Geneva in Switzerland last week, would help provide world leaders a complete picture of the pollution burden.
The commission brings together former heads of state, leaders, a nobel laureate, economists and scientists to address the global crisis of life-threatening toxic pollution.
Congress leader Jairam Ramesh, a former Environment and Forest Minister, is also part of the commission.
"The Commission aims to give world leaders a complete picture of the burden that pollution places on individuals and countries to help them justify concrete action.
"The commission report will be published next year in 'The Lancet', one of the world's widely read medical journals," a statement said.
Ramesh while agreeing for need for a global commission said that pollution was an "enormous" burden while its health impacts are large.
"Pollution is such an enormous problem. We really have to come to grips with it. In my country, we are dealing with it in all sectors of society. The health impacts are so large and far-reaching, it just breaks your heart," he said.
The Global Commission on Pollution, Health and Development is an initiative of The Lancet, the Global Alliance on Health and Pollution (GAHP), and the Icahn School of Medicine at Mount Sinai, with input and coordination from the United Nations Environment Programme and the World Bank.
The Commission aims not just to inform the public dialogue and increase awareness but to reduce poverty, illness and death caused by toxic pollution and building healthy, prosperous economies.
The Commission's goal is to lay the foundation for solving the global pollution problem by defining pollution's many effects on health, economics and development and then presenting these data to world leaders to raise the priority of pollution control in the international development agenda.
"We need to dispel the myth that pollution is inevitable. In fact, pollution is a problem that can be solved in our lifetime," said Richard Fuller, President, Pure Earth, which serves as Secretariat of the Global Alliance on Health and Pollution. -
(ACC Mentioned) Pittsfield Committee Chilly to Ban on Foam Food Containers
Oct 6, 2015 | Berkshire Eagle
By Jim Therrien
Prospects for an ordinance to ban expanded polystyrene foam food containers appear dire after the City Council's Ordinance and Rules Committee voted 3-2 to recommend filing the measure.
The split vote on Monday followed several statements in favor of the ban and counterclaims from industry representatives.
Rinaldo Del Gallo proposed a ban similar to those in effect in Great Barrington, Amherst and other communities in December 2012. But progress toward a council vote was slowed after the Ordinance and Rules Committee asked for a recommendation from the Green Commission and actively sought input from businesses likely to be affected by a ban.
Committee member and council President Melissa Mazzeo made the motion to recommend to the full council that the petition be filed, which would effectively kill it unless that or another proposal is resubmitted.
"I don't think Pittsfield is ready for this," Mazzeo said, adding that the state Legislature has been considering a statewide ban and she would rather postpone action here until that has a chance to be acted on.
The city should keep the conversation going, she said, but wait for the state to enact a law and then decide whether to add local provisions to that. At this point, Mazzeo said, she will vote against a ban.
There are four proposed bills before the Legislature that propose regulation or study of polystyrene products. House bill H-2066 (https://malegislature.gov/Bills/189/House/H2066) would regulate both expanded polystyrene foam containers and harder surfaced polystyrene drink or other containers.
Del Gallo said his proposal focuses only on the disposable, light, crumbly foam products used for prepared or take-out foods but not typical market packaging used for meats, poultry or fish. It also would not cover building materials.
"I too would like to see what the state is doing," Ward 2 Councilor Kevin Morandi said. But he added that, in his view, "this is taking a choice away. I don't think any business should have the choice [of food containers] taken away from them."
Ward 5 Councilor Jonathan Lothrop, while not actively supporting the ban, said the alleged health risks from foam food containers and the effects foam waste on the environment are proper topics for the council to consider.
Lothrop said he would oppose the motion to file.
"Let's just get this to the council and have a vote on it," he said. "It has been here [before the committee] long enough."
In voting, Councilor at large Kathleen Amuso agreed with Lothrop, although she also said she'd like to get an update on what the Legislature might do in regard to a statewide ban.
Del Gallo, a local attorney, said the two main reasons communities enact a ban are that the material is a suspected carcinogen, based on studies, and that "it is beyond dispute that it doesn't break down in the environment."
Traces of the foam material can be found throughout the environment, he said, including in fish and wildlife, and in humans as well.
He added that communities that have enacted foam container bans have seen smooth transitions to the use of other containers, in large part because many restaurants and stores are already using other containers, such as paper or cardboard products.
Consumers are wary of foam containers and are dictating that trend, especially in upscale restaurants, Lothrop said.
Matt Fisher, representing Dart Container Corp., which manufactures the products, said polystyrene containers are a "legitimate, regulated product" and have been for many years. He added that it is regulated by the Federal Drug Administration.
"I have faith in our government and the science as it stands," Fisher said.
He also argued that a ban "is ultimately a tax" in the form of higher cost containers.
Representing the American Chemical Council, attorney Stephen Rosario said that while chemistry can sometimes sound disturbing the people, "there is chemistry in absolutely everything." Foam products, he said, "are very heavily regulated."
But Charles Lake, of Cairo, N.Y., said he suffered severe health issues that took eight years for doctors to diagnose, after he worked as a trucker hauling foam products and other materials. Grease in foods and citric acid, for example, break down the foam surface when foods are placed in a container and contaminate it, he said.
Tim Wright said he holds a doctorate in chemistry and once worked in the plastics industry before leaving to become a medical ultrasound technician. He said the foam containers are a poor material for recycling or reprocessing, unlike other plastics, and they are believed to emit hazardous chemicals when incinerated.
Anything that is not recyclable, said Jeff Turner, "is like stealing from future generations. There is no reason to do it."
The Green Commission in March unanimously recommended to the Ordinance and Rules Committee that the city enact a ban. Commissioner Nancy Nylen said Monday that the trend is toward communities enacting such bans, and she recommended that Pittsfield "be a leader on this."
She said there are alternatives to foam containers and the proposal would allow ample time for businesses to institute the change.
Committee Chairman Ward 4 Councilor Christopher Connell asked Del Gallo if the ban would cover school lunchrooms. The attorney said it is unclear as the ban is based on the one enacted in Amherst and he would have to research that point.
But he added that details of the ordinance could be changed by the council. He said "subjecting children" to the material "is not advisable," but he would rather see something enacted than for the proposal to be rejected entirely.
The ban as drafted would be enforced by the Board of Health as part of its regular inspections of food service establishments, and it would involve an escalating system of fines.
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(ACC Mentioned) Styrofoam Ban To Go To Pittsfield Council Without Subcommittee Support
Oct 6, 2015 | iBerkshires.com
By Andy McKeever
A City Council subcommittee has voted against instituting a ban on polystyrene containers.
The ban on what is better known as Styrofoam is eyed to extend only to restaurant to-go containers. Proponents and opponents have argued over the matter for more than two years through a number of commissions. The matter will finally go before the City Council.
The ordinance has received endorsement from the Green Commission. But with a 3-2 vote, the City Council's Ordinance and Rules subcommittee filed the petition. Now it will be up to the full council to determine the fate of the proposed law.
"Let's just get it to the full council and have a full discussion," said Ward 5 Councilor Jonathan Lothrop, who along with Councilor at Large Kathleen Amuso voted against filing the petition.
For Lothrop, the issues of litter and health exceeds the impacts the ban will have on businesses. He said the trend is of companies moving away from the containers and there have been a number of products throughout the years that were OK at the time but then found to be hazardous - such as polychlorinated biphenyls and leaded gasoline.
He said it is up to communities to ban hazardous materials and the federal and state governments will follow. Council President Melissa Mazzeo, however, said Massachusetts is already considering a statewide ban and the city should wait for that.
"It may come to become a statewide ban or a federal ban," Mazzeo said. "I didn't really want to sit down and say we are going to ban it. You hear so many different sides."
Mazzeo said businesses and residents are smart enough to make their own decisions. Ward 2 Councilor Kevin Morandi said ultimately a ban would restrict businesses from choosing a product, which could be detrimental to those small companies that would be force to buy more expensive materials.
"It is taking a choice away and to me, that is something that shouldn't be taken away," Morandi said. "I don't think any business should have a choice taken away from them. If they don't want to use Styrofoam then they don't have to."
That sentiment is what attorney Matthew Fisher, who represents the Dart Container Corp., told the committee.
"This is ultimately a tax. It will ban a product," Fisher said, reminding the committee that polystyrene is approved by the U.S. Food and Drug Administration.
Steven Rosario of the American Chemical Council said manufacturers of the product are under scrutiny from 14 different federal agencies as well as numerous state and local agencies. Polystyrene go through the same level of scrutiny as all of the alternatives.
But federal approval doesn't mean much for Charles Lake.
Lake spent two years as a truck driver transporting the containers. He suffered with a series of health issues including several strokes. Doctors couldn't figure it out. Eight years later, the cause was narrowed down to the carcinogenic chemicals in polystyrene, he said.
"I ended up being poisoned and it took doctors eight years to figure out it was from the Styrofoam," Lake said. "It is no good for our health. It is no good for children. It is something that needs to be done away with."
Lake said when acidic or hot foods are in the containers, the chemicals begin to break down and soak into food, providing more harm to those ingesting the food. Resident Tim Wright added that the product is bad for the environment because it isn't recyclable.
Jeff Turner said switching to alternatives doesn't cost businesses that much and will protect the environment.
"Anything we use that can't be recycled is stealing from future generations," Turner said.
Given the health and environmental concerns, the Green Commission approved the ban. Nancy Nilan called on the city to be "leaders" in the state by banning the product.
However, Mazzeo said that the petition before the council was "too restrictive and too inconsistent." She said the public conversation about it should help guide decisions and eventually the state will answer the questions through its process, with legislation already filed.
"I think having the conversation we've been having in the community and across the country are pushing people in the direction of coming up with new products or recycling," Mazzeo said. "I don't think it is something we should do right now. It is way too restrictive. It is inconsistent."
One restriction under debate is a clause banning restaurants from using "non-biodegradable" materials for containers, which would expand beyond Styrofoam.
Rinaldo Del Gallo, who submitted the petition, said if that was a hold up, it could be removed.
"I don't want the perfect to be the enemy of the good," Del Gallo said.
Meanwhile, subcommittee Chairman Christopher Connell said where the ban isn't restrictive concerns him. It doesn't include schools because they would not be considered a food establishment. Nor are there restrictions on building materials. Connell said if the concerns were about health, then the schools should be the focus.
Del Gallo agrees that the containers shouldn't be used in schools or in building supplies. But, he limited his petition knowing there'd be backlash.
"I picked what I picked for political reasons," Del Gallo said.
The petition was primarily aimed as an environmental one, he said.
Del Gallo protested being cut off from speaking on the petition on Monday, saying at a previous meeting the opponents of the ban were allowed to speak at length on the subject. Del Gallo was granted only three minutes, but councilors did follow up with some questions.
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Senators Dismiss Tying Conservation Fund to Chemical Reform
Oct 6, 2015 | The Hill - E2 Wire
By Devin Henry
Senators pushing for an overhaul of federal chemical safety laws are dismissing a push to link the measure to one reviving a lapsed conservation fund.
Sen. James Inhofe (R-Okla.) said a pair of Republican senators will have to find a different way to bring a renewal of the Land and Water Conservation Fund (LWCF) to the floor rather than blocking a chemical bill they hope to attach it to.
Sens. Richard Burr (R-N.C.) and Kelly Ayotte (R-N.H.) are stopping the Toxic Substances Control Act (TSCA) reform bill from hitting the Senate floor unless they get a vote on the LWCF as well. On Monday, Burr told Politico, “I’ll allow it to the floor if it’s open for amendment, even if it’s limited to one amendment.”
But Inhofe said TSCA isn’t the right vehicle for the measure.
“It’s not a germane amendment,” he said after a press conference plugging TSCA on Thursday. “They need to find something else for their amendment and I think they will.”
Sen. Tom Udall (D-N.M.), a lead TSCA sponsor, agreed.
“I think he wants a vote [on LWCF], and he should get a vote, and we’re going to work with him on that,” Udall said. “We’re going to try to work through this so we can get the bill to the floor as it is.”
Backers of the TSCA bill secured their 60th co-sponsor last week, setting up an effort to soon push the legislation through the Senate, with Udall suggesting a window as early as this Thursday.
A varied group of senators and interest groups — ranging from the Environmental Defense Fund to the U.S. Chamber of Commerce — rallied outside the Capitol to promote the bill on Tuesday.
But Burr and others, still stinging from seeing the LWCF’s authorization lapse last week, want to tie the two popular provisions together into one package.
Burr is a co-sponsor of the TSCA bill and Udall said he supports an extension of the conservation fund. But Udall said Tuesday that linking them together could end up sinking the chemical legislation.
“The thing that happens: As soon as you open up one amendment, then you’ve opened it up to 100 amendments,” he said.
“You’ve seen that happen many times around here, where as soon as you get to that point, you don’t get a bill. And I think all of us want to see a bill.”
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Vermont Delays Decision on Chemical Reporting Rule
Oct 6, 2015 | Chemical Watch
Vermont has extended the review period of a proposed rule to implement its chemical reporting programme for children's products, amid concerns from industry stakeholders (CW 22 September 2015).
The state's Legislative Council of Administrative Rules' (LCAR) 45-day review is set to expire on 9 October.
A spokesperson for the Vermont Department of Health – the agency that drafted the proposed rule – said that they have requested that the LCAR extend its review period “in order for the department to consider next steps”.
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Texas Plant Restarts 1 Week After Explosion
Oct 6, 2015 | E&E - Greenwire
A Pasadena, Texas, chemical plant where four workers were burned in an explosion last week will resume operating even though little has been disclosed about how the facility will ensure safety.
The Occupational Safety and Health Administration "released the Pasadena facility to resume operation," SunEdison spokesman Gordon Handelsman said.
OSHA, though, has no authority to shut a plant down. And safety experts say it takes well longer than a week to determine the root cause of a chemical safety incident.
SunEdison said in a report to Harris County's pollution control agency it believed the explosion resulted from a release of silane gas, which it uses to produce silicon wafers for electronics and the solar industry. OSHA cited the company for several workplace safety violations in 2011.
"You can replace a valve and have the confidence to start up again," said Shakeel Kadri, executive director of the Center for Chemical Process Safety, "but if you've had multiple issues with leaking valves, it can be a false confidence" (Collette/Dempsey, Houston Chronicle, Oct. 5). -- SP
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(ACC Mentioned) Congress To Examine New EPA Standard On Ground-Level Ozone
Oct 6, 2015 | Chemical & Engineering News
By Jeff Johnson
Congress this week will scrutinize a new air pollution regulation that the chemical industry says will put its expansion investments at risk but that health advocates say doesn’t offer enough protection for the public.
At issue is the Environmental Protection Agency’s new air pollution standard for ground-level ozone, a chemical created when hydrocarbons and nitrogen oxides react in the presence of sunlight. The new standard of 70 ppb, issued on Oct. 1, is slightly lower than the previous cap of 75 ppb. The agency had considered 65 ppb in a draft proposal but later backed off that number.
Ozone, a powerful oxidant, irritates lungs and bronchial airways, damaging tissue and leading to wheezing and shortness of breath. It aggravates lung diseases and is particularly harmful to people with bronchitis, emphysema, or asthma. If the level of ozone in an area exceeds the standard, state, regional, and local air regulators have authority to require NOx and hydrocarbons emissions reductions from vehicles, industrial facilities, and electric utilities.
The American Chemistry Council, a chemical industry trade association, warned of difficulties in implementing the new ozone standard. “Today’s action puts $10 billion in chemical industry investment at risk,” ACC says. New facilities, plant expansions, and factory restarts will remain in limbo while EPA determines how these plants, which may emit chemicals that are precursors to ozone, can obtain air pollution permits that are necessary for them to be built or to operate, ACC explains.
Other industry groups promised to turn to Congress to block implementation of the standard and lawmakers are responding. Key Republicans on the House Science, Space & Technology Committee, who are critical of the new rule, scheduled a hearing this week to delve into the new standard, calling witnesses who oppose it.
The rule does have supporters. For instance, the American Lung Association, joined by other health organizations, sought an ozone limit of 60 ppb. “Nonetheless,” the association says, “the standard announced today offers significantly greater protection than the previous, outdated standard.”
EPA considered lower levels to meet arecommendation from its science advisers of 60 to 70 ppb. The agency, however, found itself caught between health organizations that sought deep reductions and industry groups that argued tighter levels would be too expensive.
In the end, EPA Administrator Gina McCarthy picked the weakest level within the science advisers’ range. She told reporters that thousands of new studies led her to believe 72 ppb was a safe level for healthy adults, and she chose 70 ppb as it would provide a protective margin for children and those with compromised lungs.
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EPA's Ozone Decision Is about Politics, and That's OK
Oct 6, 2015 | The Hill - Pundits Blog
By Stuart Shapiro
Earlier this week, the Environmental Protection Agency (EPA) issued its much-awaited ozone standard. The EPA regulation lowered the standard to 70 parts per billion (ppb) of ozone. The Obama administration had considered a change in 2011, but postponed it in part due to strong industry opposition and the approach of the president's reelection.
The reaction to last week's EPA standard was predictable. Environmentalists screamed that the Obama administration ignored the science behind ozone pollution and should have set the standard at 65 parts per billion or lower. Industry argued the opposite, saying that the science demonstrated that there should be no change to the standard, and that the costs would "make it harder for the economy to expand," as noted in The Wall Street Journal.
But focusing the debate on the science or the economics behind the EPA decision is misguided. Susan Dudley, a former administrator of the Office of Information and Regulatory Affairs, points out that "though scientific information is essential for understanding matters of fact, it can't be the sole basis for making policy decisions about what should be." Similarly, economics can help predict the consequences of a policy but not whether you should pursue the policy. In this case, the economic benefits of the standard as calculated by the EPA (though disputed by others) outweigh the costs. The economic benefits, again as calculated by EPA, of a 65 ppb standardwould be even greater.
We desperately want to believe that public policy decisions, especially those in complex areas such as environmental protection, are made on the basis of science or economics. What's more, politicians are desperate to convince us that their decisions are grounded in these same disciplines in order to inoculate themselves from criticism. Finally, the interest groups on either side of an issue have a clear incentive to base their criticisms of the agency not on their self-interest, but rather on some objective criteria that suggests the agency made the wrong decision.
However, the same law that gives the EPA the ability to set an ozone standard gives the agency leeway to decide how to set it. It tells the EPA to "protect public health" with an "adequate margin of safety." Those words are deliberately vague. Standards of either 70 or 65 parts per billion could both be defended as protecting public health with an adequate margin of safety. Meanwhile, agencies are supposed to do economic analysis and show that the costs are "justified by the benefits." Standards of 70 or 65 ppb (and perhaps even the existing standard of 75 ppb) would meet this standard. So the EPA has to make a choice.
How does it choose? It makes a political decision. Politics is a dirty word when making decisions on complex policy issues. The EPA (under the Obama administration as well as all of its predecessors, both Democratic and Republican) does not want to admit that it makes political decisions. That would give validity to the critics who cite the insufficient science or economics behind the standard as evidence that the agency caved to interest groups on the other side of the issue. But in deciding between multiple options that can be justified by economics and science, agencies and the presidents they work for weigh the reactions of the groups that care about their policies. In other words, they make political decisions.
But are political decisions on complex issues bad things? Many of those who criticize regulations do so because they are issued by agencies whose leaders do not face the public in an election. If, despite this lack of an electoral connection, politics does influence those decisions, we should be relieved, not upset. In any case, we can’t have it both ways. We can't criticize the executive branch for being a bunch of unelected bureaucrats, and then also criticize them for making decisions influenced by politics. If they have to err one way or the other, perhaps we should be happy that it is in the direction of democratic accountability.
Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.
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Moniz Says U.S. Oil Production Not 'Hemmed In' by Export Ban
Oct 6, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Energy Secretary Ernest Moniz today threw cold water on the congressional push for unrestricted crude exports, noting that "it's hard to argue there's been a lot of production being hemmed in by" the decades-old export ban.
U.S. oil production would have to rise would have to rise past 12 million barrels per day before "there might be an impact" in terms of shut-in production tied to the export ban, Moniz told the Senate Energy and Natural Resources Committee today, citing research from the Energy Information Administration. Current production is around 9.3 million bpd.
"But right now, the evidence does not suggest a major impact," Moniz added, highlighting the Commerce Department's previous decisions to approve exports of ultralight crude and facilitate a swap of crude oil grades with Mexico.
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GOP Grills Energy Secretary on Oil Exports
Oct 6, 2015 | The Hill - E2 Wire
By Timothy Cama
Republican senators repeatedly pushed the secretary of Energy Tuesday to support lifting the ban on oil exports and explain why President Obama does not agree.
Energy Secretary Ernest Moniz told the lawmakers at a Senate Energy and Natural Resources Committee hearing that oil exports are not within his purview, but nonetheless defended Obama’s opposition to the bills in both chambers to lift the ban.
“Do you agree that U.S. crude oil exports would benefit the energy security of our allies and trading partners?” Sen. John Barrasso (R-Wyo.) asked.
“Does the Obama administration oppose all legislative efforts to repeal this crude oil ban?” he also asked.
Moniz said that oil exports are the Commerce Department’s responsibility.
But lifting the ban would not make sense, he added, because the United States still imports a significant amount of oil and exports are not likely to significantly decrease domestic fuel prices.
“We are a 7 million barrel-a-day importer of crude oil, a much greater exporter now of oil products,” Moniz said.
“It is also true that recent studies, including the last summary study of the [Energy Information Administration] on the congressionally requested studies on exports, show that the impacts for the next 10 years or so are likely to be pretty modest, to put it mildly, in terms of exports,” Moniz continued.
But the panel’s Republicans, who voted unanimously in August to pass a bill lifting the export ban, continued to drill Moniz.
Sen. Steve Daines (R-Mont.) said the export ban, put in place in 1975, is outdated, citing many cultural references from that time period.
“It was Abba, it was Captain and Tennille, it was the Eagles. I was in seventh grade,” he said. “But it was a response to an acute crisis that we had.”
Daines said that once Western sanctions on Iran are lifted, the United States will have the strongest limits on oil exports in the world.
“Why should the United States be the only country in the world with a ban on most oil exports?” he asked.
Moniz would only repeat his previous statement, outlining the oil imports the United States still relies upon and the limited price impacts.
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Why Lifting Oil Export Ban Can Help U.S. Foreign Policy
Oct 6, 2015 | Reuters
By Emma Ashford
A House of Representatives bill is due to go to the floor this week, one step closer to lifting the 40-year-old ban on the export of U.S. crude oil. The window of opportunity was opened by the continuing plunge in oil prices, now at a six-year low, as falling demand and booming production have created an overabundance of global supply.
Congress must seize this opportunity: Lifting the ban on crude oil export would not only be good for the economy, it could also benefit U.S. foreign policy.
U.S. firms have been unable to export crude oil since 1974 — a legacy of the energy security fears in the wake of the Arab oil embargo. The only exceptions are crude oil exports to Canada, and oil produced in Alaska. There are similar, if less draconian, export restrictions on natural gas, which requires a Department of Energy waiver.
These restrictions were an overreaction. But recent changes in the global oil market have made matters worse. Over the past decade, new technologies — particularly hydraulic fracturing or “fracking” — have enabled the extraction of oil and natural gas in previously inaccessible areas. The result has been a shift away from some traditional energy-producing countries — such as Russia or members of the Organization of Petroleum Exporting Countries – and toward newer producers.
The biggest beneficiary of these technological advances has been the United States, now the world’s largestproducer of oil and natural gas. Even under current restrictions, U.S. crude exports to Canada have risen dramatically, from essentially zero in 2007 to more than 100,000 barrels a day by March 2013. U.S. producers could contribute far more globally, but are largely prevented from doing so under the current bans.
The new oil produced is also at odds with U.S. refining capacity, which complicates domestic consumption. Fracking usually produces light sweet crude oil. U.S. refineries, however, are primarily set up to process heavier crude oils from Mexico and Venezuela.
This has led to domestic market distortions. Refiners can buy oversupplied crude on the cheap, but then charge consumers world market prices for gasoline, pocketing the difference.
Various studies have shown, however, that ending the ban would help the U.S. economy. It would add an estimated 630,000 jobs, increase manufacturing and boost the gross domestic product in the long-term. Though some supporters of the ban argue that lifting it could raise pump prices, as more oil it made available for export, it is most likely to lower them in the long run.
A lack of domestic refining capacity now discourages production by lowering the prices that refineries pay for crude oil. If producers are instead able to export their excess crude oil, they would likely increase production, which would lower global oil prices.
Lifting the ban would also produce real benefits for U.S. foreign policy. Authoritarian regimes would no longer be able to cite Washington’s reluctance to open its energy markets to free trade as an excuse for their own unfair practices. It is harder, for example, for the United States to chide China on issues like currency manipulation while maintaining protectionist economic policies like the crude export ban.
More important, exporting U.S. oil and natural gas increases diversification within world energy production. Though energy security concerns can be overblown, increasing production in the United States would reduce global reliance on oil from volatile regions like the Middle East.
It’s certainly true that today’s low oil prices may make increased production less attractive to U.S. producers in the short-term. Yet states like those in Eastern Europe may well choose to switch to U.S. suppliers from Russia for non-economic reasons. Then, once oil prices rise again, the influx of U.S. oil and natural gas into the world market from new domestic production would certainly keep prices lower than they would have been otherwise. That would reduce the income and influence of various authoritarian states, which have long been among the world’s biggest producers of oil, such as Venezuela or Russia.
Valves and pipelines at the Gaz-System gas distribution station in Gustorzyn, central Poland, September 12, 2014. REUTERS/Wojciech Kardas/Agencja Gazeta
Lifting export bans on liquefied natural gas would be particularly helpful for U.S. allies in Central and Eastern Europe. These states rely on Russia for the majority of their energy, which limits their range of political and economic responses to Moscow’s recent aggression. By building liquefied natural gas terminals, these states would be able to import U.S. liquefied gas, and divest themselves of dependence on Russian gas over the long-term.
There has been other recent momentum in Congress on lifting the export ban. A bill passedthe Senate Energy and Natural Resources Committee this summer, and is awaiting full hearings. House Speaker John Boehner (R-Ohio) in July had also signaled his support for ending the ban, comparing it to the sanctions on Iranian oil and gas producers.
Today’s depressed oil market is an ideal time to remove these outdated export restrictions. With oil prices so low, any protests about potential increases in gasoline prices would be muted. Lifting the ban on crude oil exports is long overdue. Increased U.S. production has also removed any solid justification for keeping it. Congress should seize the opportunity now to lift the ban, and reap the economic and foreign policy benefits so sure to follow.
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Senate Sets Energy Appropriations Vote for Thursday
Oct 6, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Senate Majority Leader Mitch McConnell set a vote for Thursday to start debate on a $35.4 billion spending bill for the Energy Department next year.
But the measure is almost certain to fall victim to the partisan budget impasse that is holding up Senate consideration of individual fiscal year 2016 spending bills.
McConnell moved to file cloture today on taking up the FY16 Energy and Water Appropriations bill, setting up the Thursday vote. But it's likely to fall short of the needed 60 votes as Democrats press for a new budget deal that would remove the caps for all spending bills.
"It's a waste of the Senate's time and energy," Senate Minority Whip Dick Durbin told reporters today. "If Senator McConnell would dedicate that same energy to ... reach agreement with the leaders of both parties and the president then we would get something positive done instead of just show votes that are repetitious."
Late last month, Democrats blocked McConnell's move to bring up a defense spending bill that had wide support in committee. Democratic appropriators have promised to block all individual FY16 spending bills from being debated on the floor until a new budget deal is agreed.
The Senate Appropriations Committee approved the energy and water spending measure on a 26-4 vote in May.
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McConnell Moves to Advance Energy, Water Spending Bill
Oct 6, 2015 | E&E - Greenwire
By Hannah Northey
Senate Majority Leader Mitch McConnell (R-Ky.) today moved to proceed with the $35.4 billion fiscal 2016 energy and water development spending bill.
The Senate could vote as early as Thursday on a procedural motion deciding whether to take up H.R. 2028.
The measure passed the Senate Appropriations Committee in May on a 26-4 vote, with Democratic Sens. Patty Murray of Washington, Jack Reed of Rhode Island, Jon Tester of Montana and Chris Murphy of Connecticut opposed (Greenwire, May 21).
The spending measure, which funds the Department of Energy and the Army Corps of Engineers, steers clear of the battle over the Obama administration's controversial water rule, leaving that for another venue. It includes an additional $50 million to offset drought gripping broad swaths of the West.
Sen. Dianne Feinstein (D-Calif.), the ranking member of the Senate Energy and Water Development Appropriations Subcommittee, said she wasn't expecting McConnell's move.
"This is a real surprise to me," Feinstein said, adding that Democrats will be preparing for Thursday's votes. "It gives us a little bit of time."
McConnell has vowed to continue to bring up appropriations bills to force Democrats to make good on their pledges to filibuster the measures, a strategy that the minority has followed for months to try to prompt broader budget negotiations.
Besides potentially bringing up spending measures as stand-alone bills, McConnell also has begun procedural steps to bring up packages of appropriations bills known as "minibuses."
The four minibuses would combine the agriculture, energy and water, and transportation-Housing and Urban Development appropriations bills; the Defense, energy and water, homeland security, military construction-Veterans Affairs, and state and foreign ops appropriations bills; the Commerce, Justice and science, and Homeland Security appropriations bills; and the Interior, Labor-Health and Human Services, and financial services bills.
Reporter Amanda Reilly contributed.
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Critics Of EPA's ESPS Consider Pursuing Two-Phase Litigation Strategy
Oct 6, 2015 | InsideEPA
By Dawn Reeves
States and industry groups planning to challenge EPA's final existing power plant greenhouse gas rule are discussing a litigation strategy that would include two separate court reviews of the rule: the first challenging threshold legal issues and the second addressing issues that are more specific to the requirements of the rule.
Supporters say the phased approach is designed with judicial economy in mind, because if the rule is halted due to overarching Clean Air Act structural prohibitions, then a court need never address the concerns that states or utilities have over specific requirements.
It is unclear whether there is any consensus among those expected to challenge the rule on whether to pursue such an option in the U.S. Court of Appeals for the District of Columbia Circuit, where suits will be filed once EPA publishes the rule in the Federal Register -- which is expected this month.
And the Obama administration and supporters of the existing source performance standards (ESPS) are expected to oppose such an approach, especially over concern that the litigation could drag into a new administration and that the approach would give opponents two opportunities to challenge the rule.
Threshold legal issues that could be addressed in a first phase include what one source describes as “go/no go statutory issues,” including whether EPA can regulate power plants under section 111 at all, as the ESPS does, because it already regulates their air toxics emissions under section 112, as well as EPA's conclusion that the best system of emission reduction under the ESPS includes the entire electric system -- a definition that allows the agency to regulate beyond a facility's fence line.
It could also provide an opportunity to consider issues such as whether the ESPS -- which sets GHG reduction targets each state must meet -- violates states' roles under cooperative federalism. Opponents have argued that section 111(d) only allows EPA to set guidelines, not specific reduction targets.
Critics could also seek to include constitutional and other issues that have been raised in regard to the ESPS, such as charges that it is overly coercive and that EPA should not be granted deference to interpret certain statutory provisions.
The threshold phase could involve any issues that “don't get into the specific standards for states,” a source familiar with the discussions says. The source says that the benefit of a phased approach is that “if the challengers prevail, it would basically invalidate the whole rule” and spare the court from spending time on the other issues.
If the ESPS survives a phase one challenge, then the second phase would address issues such as “whether EPA had made the correct judgment about the percentage of efficiency that can be increased within block one and a lot of . . . as-applied issues that would be relevant if the general approach EPA is taking here is indeed legal under the Clean Air Act,” the source says, adding that this would “obviously be a more efficient way to present the case” to the court.
The phased litigation approach could also help critics overcome concerns expressed earlier this year that EPA's decision to release its rules for existing and new power plants simultaneously would bolster the agency's defense by coordinating litigation and limiting the briefing space available to petitioners.
“If you have these rules that are all part of one case, and the court gives you a certain number of words for your brief, and you have a certain number of minutes for your oral argument -- part of this is to disadvantage the challengers as much as possible in the litigation,” EPA's Bush-era air chief Jeff Holmstead said at the time.
Phased Approach
A supporter of the phased approach acknowledges that the Department of Justice (DOJ) “at this point may be rather cold” to the phased litigation approach.
DOJ could not be reached for comment, but one environmentalist attorney who will be involved in defending the EPA rule says, “I can't imagine my clients thinking this could be a good idea.”
The environmentalist attorney adds that a phased approach is inappropriate “since what they're litigating at this point is the rule. They had their several attempts at litigating the legal issues first over the summer, and those failed. . . . If there was merit in a legality problem that could be addressed early, wouldn't a court have [already] done that? . . . At this point I think we're onto a conversation about the rule.” The source notes the question of what EPA is specifically requiring in the rule and its legal authority is “all bound up.”
A source following the rule says it is unclear whether ESPS opponents have reached consensus on whether to pursue the phased approach but notes that one of DOJ's reasons to oppose the option is the Obama administration's concern that a final court ruling could be delayed until after it has left office.
EPA and DOJ will also argue that a court should consider all of the challenges to the rule at once because splitting them up “draws out and extends” any period of uncertainty, the source predicts. However, the source explains that one reason why the phased approach is being considered is because the “final rule looks vastly different when compared with the proposal” and a number of those issues will go through an administrative reconsideration process before they can be heard by a court.
As a result, the court could sever those issues and consider them separately.
But the source also says that bifurcating the challenges could streamline the litigation. “There was a thought if you can resolve the core legal issues first and quickly, on an expedited basis, either you'll never have to litigate those secondary issues because the rule will be invalidated. Or if it is upheld then those secondary issues would narrow. So it might be a more efficient way to litigate,” the source says.
This “makes a lot of sense in a situation like this, where I think a lot of serious legal issues have been raised by many different parties over EPA's authority for this type of framework, and it certainly departs from the framework of every other 111(d) rule that EPA has put forth,” the source argues.
Supporters of the phased approach also say there is court precedent for such procedures, including where courts have severed and held in abeyance issues that were being reconsidered administratively, particularly where there is “one big-ticket issue that is dispositive of the entire case,” the source familiar with the discussions says.
However, the environmentalist says while courts may have severed “discrete issues” they have not separated “the entire content of the rule.” Opponents “are suggesting they want to talk legal issues early, and leave the substance until later, but that's not the same thing as a reconsideration petition where there is one discrete issue that is severable.”
Court Precedents
The environmentalist says the D.C. Circuit adopted a phased approach in litigation over the Bush administration's clean air mercury rule (CAMR), where the court decided on its own volition to only consider the threshold question of whether the administration's determination that power plant mercury emissions were not subject to strict air toxic regulation under section 112 was lawful.
The environmentalist says the court in the mercury case, State of New Jersey v. EPA, decided to bifurcate the litigation only after comprehensive briefing had occurred. As a result of the decision, the court eventually struck CAMR after finding the threshold determination to be unlawful and did not address any other issue in its 2008 ruling.
A second environmentalist also points to phased litigation over EPA's Cross-State Air Pollution Rule (CSAPR) as a bad precedent that resulted in a long period of uncertainty. But in that case, EME Homer City Generation v. EPA, like the CAMR one, the outcome -- where the D.C. Circuit rejected the rule, the Supreme Court reversed and the appellate court then heard as-applied challenges -- was a result of the judicial process and not at the request of any party to the case.
The second environmentalist also opposes the bifurcated litigation approach, saying, “It seems like someone has the idea of looking at multiple bites of the apple.” The source adds that there is “a close connection” between the abstract legal issues and the rule.
“I think there must be people on the other side who believe they would be better off if they could make this question as abstract as possible and remove from the record any pertinent facts” of the rule's requirements.
If opponents opt to pursue the phased approach, then they will make their request when the D.C. Circuit asks for input on the timing and format of briefing -- a routine step. The litigants would ask the court for expedited briefing on core legal issues and to set aside the other issues until the core legal case is resolved, the source following the rule says.
The source familiar with the discussions says the parties would talk amongst themselves before such requests are filed to see if they can reach agreement on how to proceed with the challenge. But if not, then each side would submit its request and the court could choose one or the other, or come up with its own approach. “Ultimately, it's up to the court,” the source says.
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Regulators Urge EPA to Start Crackdown on NOx Emissions
Oct 6, 2015 | E&E - Greenwire
By Amanda Reilly
Two state regulators' groups and California are calling on U.S. EPA to set a new national limit for nitrogen oxides pollution from big trucks as the agency puts in place a more stringent ozone standard.
Emitted by vehicle tailpipes, NOx is a key component of ground-level ozone. The regulators say a lower limit for heavy-duty vehicles would help them achieve the reductions called for under the ozone standard that EPA finalized last week.
"We urge EPA to begin a rulemaking without delay," a coalition of Northeastern states wrote to EPA last week, "to ensure that the next generation of trucks is not only more fuel efficient but also much less of a contributor to states' air quality and public health problems."
EPA last Thursday finalized the new national ambient air quality standard for ozone at 70 parts per billion -- a reduction from the 75 ppb limit set in 2008 during the George W. Bush administration (Greenwire, Oct. 1).
Ground-level ozone is formed when NOx reacts with volatile organic compounds in the presence of sunlight.
NOx is released by both industrial facilities and vehicles. In some areas of the country that are home to a lot of vehicular traffic, such as the Northeast, mobile sources represent a significant proportion of total NOx pollution.
In 2011, cars and trucks accounted for 45 percent of the Northeast and Mid-Atlantic region's total NOx emissions, according to information presented last month at a meeting of the Ozone Transport Commission, an EPA advisory body (Greenwire, Sept. 11).
In the eight states that are part of the Northeast States for Coordinated Air Use Management, heavy-duty trucks represent the second-largest source of NOx emissions. Forty-two million people live in the NESCAUM region.
EPA's most recent NOx exhaust emission standards for trucks limited the air pollutant to 0.2 gram per brake horsepower-hour for all trucks model year 2010 and later. According to the Diesel Technology Forum, heavy-duty trucks manufactured beginning in 2010 have 98 percent lower NOx emissions than vehicles built in 1988.
In public comments submitted last week on EPA's proposed Phase 2 greenhouse gas standards for heavy-duty vehicles and engines, NESCAUM urged EPA to take another look at the NOx standard, noting that emissions continue to contribute not only to adverse public health problems such as respiratory illness but also to ground-level ozone.
Some of the most populated areas in the Northeast still have trouble meeting the 75 ppb ozone standard. Lowering the truck NOx standard further will be "critical" to meeting EPA's new ozone standard of 70 ppb, NESCAUM wrote.
EPA "should commence rulemaking to reduce NOx from heavy-duty vehicles at the earliest possible date," the Northeastern group wrote.
The National Association of Clean Air Agencies, which represents most state and local air regulators across the country, last week also called for a stronger NOx standard in a comment on the greenhouse gas proposal.
Although EPA's greenhouse gas rule may result in some NOx reductions, it is "not sufficient" in light of the strengthened ozone standard, NACAA said. According to the Diesel Technology Forum, the proposed standards would reduce NOx by 90,000 tons by 2025 and 260,000 tons by 2035.
The regulators' group called on EPA to include in its final greenhouse gas rule a "clear discussion" about the need for more NOx reductions from big trucks and make an "explicit commitment" to immediately begin a rulemaking.
"We are very disappointed that EPA has not included such a discussion in this proposal," NACAA said.California
California regulators are also calling for a stronger nationwide limit on NOx emissions from heavy-duty vehicles and engines.
While there's been improvement in California air quality, the state still contains some of the worst areas in the country for ozone pollution. Regulators estimate that just meeting the 75 ppb standard will require an 80 percent reduction in NOx emissions in the South Coast Air Basin.
In a draft analysis last week, the California Air Resources Board (ARB) found that more NOx reductions could be achieved by heavy-duty vehicles through a combination of strategies, including reducing NOx that is emitted during cold starts and at low speeds, as well as increasing the use of zero-emission technologies.
The board said it plans to develop its own mandatory lower NOx standards for heavy-duty vehicles while petitioning EPA to take up a new national standard.
"ARB will develop new heavy-duty diesel engine emissions standards within the next several years, while simultaneously petitioning U.S. EPA to establish a corresponding national standard," the agency said, "in order to maximize emission reductions from all vehicles operating in California, regardless of whether they were purchased in a different state."
California already has optional statewide limits on NOx emissions that are 50, 75 and 90 percent lower than the national standard. The state put them in place to encourage engine manufacturers to develop new low-NOx technologies.
According to the California analysis, regulators are now considering a standard as low as 0.02 gram per brake horsepower-hour -- a level that they predict will cost about $500 per vehicle averaged over the entire heavy-duty fleet.
ARB said its proposed strategy laid out in the draft document "provides a comprehensive foundation for the ongoing transformation of the state's vehicle fleet putting California on a path to likely meet the new more health-protective federal ozone standard."
The Advanced Engine Systems Institute, which represents makers of vehicle emissions control technology, has pledged to "work very hard" to meet the stricter standard that California is considering.
In a recent interview, AESI Executive Director Chris Miller said a key challenge is making sure that NOx reductions do not offset fuel economy, and vice versa. But he said the control industry is confident that it can both lower NOx and make engines more efficient.
Vehicles and engine makers will not pay to put in place lower-NOx technologies without a new standard in place, though, he said.
"Even if the technology is out there, it needs a regulatory regime to go along with that," he said.
The Diesel Technology Forum, whose goal is to raise awareness about diesel, meanwhile touted new diesel technology for heavy-duty vehicles as a means for states to achieve the new ozone standard.
"The increasing use of new generation of clean diesel technology will be an important asset for states in helping to achieve these more stringent standards," said Allen Schaeffer, executive director of the forum.
In a comment last week on the greenhouse gas rulemaking, the Truck Renting and Leasing Association said, however, that it is important to have "national uniformity" in standards. It urged EPA to work closely with California.
"It will be imperative for the EPA in particular to work with CARB going forward," the association said, "to ensure that California regulators do not stray from this approach by, for example, targeting additional NOx reductions that would upset the carful balances struck in this rulemaking."
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