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(ACC Mentioned) Controversial New Trade Deal Finalised
Oct 8, 2015 | Chemistry World
By Rebecca Trager
The far-reaching Trans-Pacific Partnership (TPP) trade agreement was finalised on 5 October by leaders from the US and 11 other Pacific rim countries, but there has been backlash. -
Safer Choice Partner, Stakeholder Summit
Oct 8, 2015 | BNA Daily Environment Report
The Environmental Protection Agency will hold the first in a series of Safer Choice Partner and Stakeholder Summits Nov. 12 and 13, the agency announced in an Oct. 7 e-mail. -
Polyurethanes Conference Tackles Auto-Related VOC Issues
Oct 7, 2015 | Plastics Today
By Clare Goldsberry
The 2015 Polyurethanes Technical Conference, hosted by the Center for the Polyurethanes Industry (CPI), was held Oct. 5 to 7 in Orlando, FL, and highlighted automotive innovations as well as industry regulatory issues. This year's conference added a two-part Automotive Industry Panel that focused on global OEM requirements and specifications. -
McCarthy Favored in Today's House GOP Speaker Vote
Oct 8, 2015 | E&E Daily
By Daniel Bush
Majority Leader Kevin McCarthy (R-Calif.) appears poised to win the House Republican caucus' endorsement for speaker today when GOP lawmakers hold a closed-door vote to replace retiring Speaker John Boehner (R-Ohio). -
(ACC Mentioned) EGBE to Stay on Mandatory Toxics Reporting List
Oct 7, 2015 | BNA Daily Environment Report
The Environmental Protection Agency will not remove from its list of chemicals subject to mandatory reporting requirements the solvent ethylene glycol monobutyl ether, also known as EGBE, according to a notice scheduled to be published in the Oct. 8 Federal Register. -
Oct. 8 Vote on TSCA Reform Bill Appears Unlikely
Oct 7, 2015 | BNA Daily Environment Report
By Anthony Adragna and Pat Rizzuto
An Oct. 8 vote on the Senate's bill to overhaul the Toxic Substances Control Act was increasingly unlikely as negotiations to advance the legislation made scant progress Oct. 7. -
NTP Invites Data on Chemicals, Mountaintop Removal
Oct 7, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Exposure, use patterns, toxicity and other data on neonicotinoid pesticides, two flame retardants, two water disinfection byproducts and other chemicals are being sought for hazard assessment by the National Toxicology Program. -
EPA Publishes Mercury Rule Petition Denial
Oct 7, 2015 | BNA Daily Environment Report
The Environmental Protection Agency published in the Oct. 7 Federal Register its previously announced decision denying a petition requesting that it issue a mercury data collection rule under the Toxic Substances Control Act (184 DEN A-19, 9/23/15) (80 Fed. Reg. 60,584). -
Advocates Weigh Legal Challenge After EPA Denies Mercury Data Petition
Oct 7, 2015 | InsideEPA
By Maria Hegstad
Environmentalists are weighing a possible legal challenge among their options for responding to EPA's rejection of a petition from states and environmentalists that urged the agency to collect information on products containing mercury, such as electric switches, as fewer states are gathering the data. -
EPA Needs to Set the Record Straight on Artificial Turf
Oct 7, 2015 | The Hill - Congress Blog
By Darren Gill, Rom Reddy and Heard Smith
Recent headlines have stoked fears across the country with suggestions that synthetic turf fields using recycled rubber are harmful to children. -
Apparel Industry Groups Merge Chemicals Questionnaires
Oct 8, 2015 | Chemical Watch
By Leigh Stringer
Three apparel industry groups are merging their online supplier questionnaires, to reduce the reporting burden on firms up the supply chain. -
(ACC Mentioned) Industries Warn Stricter Ozone NAAQS Creates Clean Air Act Permit 'Limbo'
Oct 7, 2015 | InsideEPA
By Stuart Parker
Industry groups are warning of a Clean Air Act permitting “limbo” created by EPA's failure to issue guidance on implementing its stricter ozone national ambient air quality standard (NAAQS) at the same time as finalizing the standard, saying major projects are unable to proceed as their ozone permit mandates are unclear. -
Senate Dems to Block Energy Bill as Budget Talks LimpAlong
Oct 8, 2015 | E&E Daily
By Geof Koss
Senate Democrats today are expected to filibuster the popular Energy and Water Development appropriations bill, as they continue to prod Republicans toward an end-of-the-year budget deal. -
White House Issues Veto Threat for Oil Export Bill
Oct 7, 2015 | BNA Daily Environment Report
By Ari Natter
The White House said Oct. 7 it would veto House legislation that would lift the 40-year-old ban on crude oil exports, dealing a blow to backers of the legislation who hoped for a less-stringent rebuke. -
White House Threatens Veto of House Crude Exports Bill
Oct 8, 2015 | E&E PM
By Geof Koss
The White House is threatening to veto House Republican legislation to repeal the long-standing ban on exporting crude oil, calling it unnecessary. -
House Export Bill Moves Forward Despite White House Veto Threat
Oct 8, 2015 | E&E Daily
By Hannah Northey and Geof Koss
A controversial bill that would lift the nation's crude export ban is likely to advance through the House today despite a veto threat yesterday from the White House and complaints from House Democrats that their concerns are being ignored. -
Supporters of Ending the Oil-Export Ban Eye a Deal
Oct 8, 2015 | The Hill - E2 Wire
By Devin Henry
A bill to undo the decades-old federal ban on crude oil exports hits the House floor this week, but the measure’s supporters are still looking for the compromise package that can get it through Congress and win President Obama’s signature. -
Ship Owners Get Sweetener in Push to Pass Oil Export Bill — Energy Journal
Oct 8, 2015 | The Wall Street Journal
By Christopher Harder
U.S. House Republican leaders are hoping a boost in Defense Department payments to the shipping industry of more than $500 million over the next five years will increase support for proposed legislation to lift the country’s 40-year-old ban on oil exports, Amy Harder reports. -
Carbon Trading Not a Clean Power Plan Requirement
Oct 7, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency won't require states to pursue carbon trading programs under the Clean Power Plan even though that forms the basis for the agency's model implementation rule, its top air official said. -
States Seek Records on Clean Power Plan Publication
Oct 7, 2015 | BNA Daily Environment Report
By Anthony Adragna
A coalition of 14 states is fed up with the delay in formally publishing the Environmental Protection Agency's Clean Power Plan and has filed a Freedom of Information Act request to get records concerning the lag in publishing the rule. -
Conservation Groups Want Stronger Haze Rules
Oct 8, 2015 | BNA Daily Environment Report
A coalition of 83 conservation and public interest groups wants the Environmental Protection Agency to strengthen federal regional haze regulations to improve visibility in national parks. -
Environmentalists Urge EPA To Tighten Haze Air Rule
Oct 8, 2015 | InsideEPA
A coalition of 83 environmental groups is urging EPA to revise and tighten its regional haze rule that aims to restore visibility to natural conditions in national parks and wilderness areas by 2064, warning that without changes to the existing haze reduction requirements some parks will miss that goal by decades or even centuries. -
Greens Urge EPA to Toughen Rule Protecting Parks, Wilderness
Oct 7, 2015 | E&E PM
By Amanda Reilly
More than 80 conservation and public interest groups today called for an update to the program for reducing visibility-impairing haze at national parks and wildernesses. -
Law Signed Putting California on Path for Renewables
Oct 7, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
Half of the electricity sold in California must come from solar, wind and other renewable sources by 2030 under legislation California Gov. Jerry Brown (D) signed into law Oct. 7. -
(ACC Mentioned) STB Eyes Toxic Materials Transport Amid Safety Tech Fight
Oct 8, 2015 | Law360
By Linda Chiem
The Surface Transportation Boardon Tuesday agreed to examine whether it needs to step in and order U.S. railroads to continue rail service for certain hazardous materials even if Congress doesn’t end up extending a new safety mandate beyond Dec. 31. -
(ACC Mentioned) Boxer: Pass Highway Bill to Keep Trains Running
Oct 7, 2015 | McClatchy DC
By Curtis Tate
Sen. Barbara Boxer, D-Calif., said she would not support extending the year-end deadline for railroads to implement a collision-avoidance system if Congress doesn’t approve a six-year transportation bill that’s languished for the past two months. -
(ACC Mentioned) Railroad Shutoff Threats Complicate Train Technology Deadline
Oct 7, 2015 | CQ Roll Call
By Kellie Mejdrich
Railroads have amped up pressure on Congress to extend a year-end deadline to install upgraded train safety technology by threatening to cut off service — and the nation’s rail regulator isn’t giving lawmakers an easy out by recommending a way to do so. -
(ACC Mentioned) Amtrak Shutdown Would Actually Be a Closure of Entire Rail System
Oct 8, 2015 | NBC News
By Morgan Brennan
Come December it could get much tougher to take the train. Or, for that matter, to ship anything on one. -
EIS Ruled Needed for Washington Crude-by-Rail Terminal
Oct 7, 2015 | BNA Daily Environment Report
By Paul Shukovsky
A proposed crude-by-rail terminal on the Columbia River at the Port of Vancouver, Wash., must undergo an environmental impact statement, a hearing examiner ruled Oct. 6. -
Boxer: No Train Automation Extension Without Highway Bill
Oct 8, 2015 | The Hill - Transportation
By Keith Laing
Sen. Barbara Boxer (D-Calif.) said Wednesday that Senate Democrats will not go along with a Republican plan to extend a deadline for automating most of the nation's trains unless House GOP leaders pass a long-term highway bill. -
PHMSA Proposal May Foreshadow Gathering Line Rules
Oct 7, 2015 | BNA Daily Environment Report
By Rachel Leven
Reporting provisions in a recently released hazardous liquid pipeline proposal may foreshadow expanded regulation of thousands of miles of onshore gathering lines carrying materials such as crude oil.
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(ACC Mentioned) Controversial New Trade Deal Finalised
Oct 8, 2015 | Chemistry World
By Rebecca Trager
The far-reaching Trans-Pacific Partnership (TPP) trade agreement was finalised on 5 October by leaders from the US and 11 other Pacific rim countries, but there has been backlash.
Médecins Sans Frontières (MSF) and other organisations argue that the agreement, which has been years in the making, caves to the demands of multinational drug companies and will raise the price of medicines for millions by unnecessarily extending monopolies and further delaying price-lowering generic competition.
President Obama said this final TPP agreement ‘levels the playing field’ for US farmers, manufacturers and others by eliminating more than 18,000 taxes that various countries put on US products, but others expressed opposition. ‘The big losers in the TPP are patients and treatment providers in developing countries,’ stated Judit Ruis Sanjuan, a US manager and legal adviser for MSF.
Although Sanjuan acknowledged that the text has improved over earlier versions, she said the TPP ‘will still go down in history as the worst trade agreement’. She suggested that developing countries and others will be forced to change their laws to incorporate abusive intellectual property protections for pharmaceutical companies.
This is not the first time that such concerns have been raised. In May, a leaked draft of the TPP prompted the Foundation for Aids Research to warn that the agreement could delay the development of generic competition for key medicines and keep pharmaceutical prices high.
Pharmaceutical industry bodies such as the Biotechnology Industry Organization (BIO) and thePharmaceutical Research and Manufacturers of America (PhRMA) were disappointed that the intellectual property protection measures introduced in the TPP do not go even further. The final version apparently omits previously proposed measures that would have provided 12 years of data exclusivity for biological medicines.
In the chemicals industry, the reaction was more positive. Dow Chemical welcomed the final outcome, saying the agreement will eliminate unnecessary trade barriers and strengthen the US manufacturing base. The American Chemistry Council also applauded the agreement.
Meanwhile, environmental groups are concerned that the pact includes language that could allow companies and foreign investors to challenge government regulations in areas like environmental protection and chemical safety if they believe the regulations could hurt their profitability.
The final text of the new trade agreement is not expected to be available for several weeks, and the measure still awaits approval by the US Congress.
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Safer Choice Partner, Stakeholder Summit
Oct 8, 2015 | BNA Daily Environment Report
The Environmental Protection Agency will hold the first in a series of Safer Choice Partner and Stakeholder Summits Nov. 12 and 13, the agency announced in an Oct. 7 e-mail. The summits will explore issues of interest to stakeholders and the program and provide for discussions to improve the Safer Choice program, EPA said. The Safer Choice labeling program identifies products made with chemicals that the agency has concluded are among the safest for the particular function those chemicals perform. Registrations, due by Oct. 14, can be made athttp://www2.epa.gov/saferchoice/forms/safer-choice-partner-and-stakeholder-summit-registration.
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Polyurethanes Conference Tackles Auto-Related VOC Issues
Oct 7, 2015 | Plastics Today
By Clare Goldsberry
The 2015 Polyurethanes Technical Conference, hosted by the Center for the Polyurethanes Industry (CPI), was held Oct. 5 to 7 in Orlando, FL, and highlighted automotive innovations as well as industry regulatory issues. This year's conference added a two-part Automotive Industry Panel that focused on global OEM requirements and specifications.
Three separate sessions focused on the automotive industry, concentrating on the complexity of global volatile organic compound (VOC) specifications.
Hamdy Khalil, Senior Global Director for Advanced Technologies and Innovation for Woodbridge Foam Corp. (Woodbridge, ON, Canada), told PlasticsToday that there are five major trends in the automotive industry for polyurethane (PU) applications:Lightweighting, which, he noted, is a "very critical consideration"; VOCs, an issue that the industry must address as "OEMs do not want any undesirable materials" in the vehicle interior;comfort in the cabin;cost, of course; and, finally, the holy grail of sustainability, "a big thing globally."
Khalil noted that one of the primary issues the polyurethane industry must help resolve is harmonizing specifications for VOC compliance. "Every automotive company has its own sustainability strategy, and we work with them to help them meet their goals," he said, adding that OEMs are looking at recyclable content as well as renewable materials in the product. "The OEMs would like to have all of this but they won't pay for it," he stated. "We understand the pressure the OEMs are under and we know how important the auto industry is to the economy. We need to find a common ground where we can collaborate, where each person in the supply chain can work together with the hope that we find common ground throughout the value chain."
Another major issue is the mitigation of VOCs in the vehicle cabin. "That new car smell is coming from the foam, leather, interior vinyl (PVC) and possibly from other sources such as adhesives and door gaskets. These products are the sources of that new car smell," explained Khalil. "We‘re working very closely with our suppliers of chemicals and additives to minimize the presence of VOCs in their products and identify what kinds of components can be manufactured in a way to reduce these," he explained. "We've made significant advances to mitigate the polyurethane odor and VOCs, but what makes it complicated is the specs we receive from the automotive industry are not standardized across the global OEMs in all countries."
Khalil noted that the Industry Panel for Flexible Molded FoM has "succeeded" in setting some harmonized standards among U.S. automakers, but there is still a long way to go to globalize these tests. "The purpose of our conference sessions is to highlight the complexity of the specifications for VOCs and to seek the simplification and harmonization of these diverse specifications without compromising the comfort, health or safety of automobile occupants," he said.
The automotive track at the Conference on Tuesday, Oct. 6, featured Dr. Mark Polster of the Ford Motor Co., Mark Weierstall of Woodbridge Foam Corp., Dr. Brian Neil of Covestro (formerly Bayer MaterialScience), and Sebastian Gintl representing Euromolder. These experts introduced the conference to the Industry Panel for Flexible Molded Foam, covered the long history of VOC specification and shared views on the current status of VOC testing, including the European perspective on complex VOC specifications.
On Wednesday, Oct. 7, Part 2 of the automotive track featured a roundtable discussion focusing on innovative approaches to address the challenges surrounding VOCs in vehicles. Participating companies included Air Products, Tosoh Corp., Huntsman, Dow Chemical, Evonik, Momentive and Miliken.
"We want to simplify the specs without compromising the health and safety of the consumer, but to do this requires the entire supply chain to work together," said Khalil. I believe that this problem will vex us for the next 10 years if we don't find a reasonable technical solution. There is a glimmer of hope [that] people will recognize the need to modify the specifications and come up with a harmonized solution to the VOCs."
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McCarthy Favored in Today's House GOP Speaker Vote
Oct 8, 2015 | E&E Daily
By Daniel Bush
Majority Leader Kevin McCarthy (R-Calif.) appears poised to win the House Republican caucus' endorsement for speaker today when GOP lawmakers hold a closed-door vote to replace retiring Speaker John Boehner (R-Ohio).
The Californian is widely expected to win a majority of the vote when the 247-member caucus picks a successor for Boehner, who is stepping down at the end of October.
But McCarthy suffered a setback yesterday when the House Freedom Caucus endorsed Rep. Daniel Webster (R-Fla.), an outspoken Boehner critic who has helped lead the House GOP conservative wing's push for new leadership in the party.
McCarthy, if he wins the GOP nomination today, needs 218 votes in the Oct. 29 floor vote for speaker. The House Democratic caucus plans to vote for Minority Leader Nancy Pelosi (D-Calif.), meaning that McCarthy can only lose 29 Republicans when the full House votes at the end of the month.
If the House Freedom Caucus's 30 to 40 GOP members all vote for Webster on Oct. 29, no candidate would receive the majority needed to claim the speakership. But it's an open question if the conservative caucus -- which does not have an official member list -- will vote as a bloc on the floor.
"I think so, I believe so," Rep. Tim Huelskamp (R-Kan.), a member of the House Freedom Caucus, said in a brief interview yesterday when asked if the group will stick together in the floor vote.
Traditionally, members back their party's candidate in the floor vote for speaker, but McCarthy opponents have so far refused to rule out voting against him on Oct. 29.
McCarthy "only becomes speaker by getting a majority" in the House, noted Rep. Thomas Massie (R-Ky.). "For me, it's all about the floor vote."
Before that, the House Freedom Caucus could also use its leverage as a bargaining chip to secure rule changes and other reforms to the lower chamber's leadership and committee structure in exchange for promising to back McCarthy.
House Oversight and Government Reform Chairman Jason Chaffetz's (R-Utah) late entry into the race has complicated the picture even further, making today's three-way race for the GOP speaker endorsement even more unpredictable.
Chaffetz has argued that he's a more effective communicator than McCarthy, who stirred up controversy in recent days over comments that suggested the House Select Committee on Benghazi was formed to damage Democratic presidential hopeful Hillary Clinton's standing with voters.
But Chaffetz had been courting conservative lawmakers after formally entering the race Sunday, and the House Freedom Caucus's Webster endorsement will make it harder for Chaffetz to pick up support at today's GOP vote.
"It's hard to gauge. I don't have a formal whip operation," Chaffetz said yesterday.
Reporters Manuel Quiñones and Geof Koss contributed.
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(ACC Mentioned) EGBE to Stay on Mandatory Toxics Reporting List
Oct 7, 2015 | BNA Daily Environment Report
The Environmental Protection Agency will not remove from its list of chemicals subject to mandatory reporting requirements the solvent ethylene glycol monobutyl ether, also known as EGBE, according to a notice scheduled to be published in the Oct. 8 Federal Register. The EPA is denying a request from the American Chemistry Council to drop the agency's requirement that manufacturers of EGBE submit data on releases of the chemical to the EPA's Toxics Release Inventory. In the notice, the agency said a review of available scientific studies of the chemical showed that it can cause “serious or irreversible chronic health effects in humans, specifically, liver toxicity and concerns for hematological effects.” In 2008, the EPA raised concerns that then-new studies of EGBE showed that the chemical could have serious non-carcinogenic effects on humans (82 DEN A-2, 4/29/08). A pre-publication copy of the Federal Register notice is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-25674.pdf.
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Oct. 8 Vote on TSCA Reform Bill Appears Unlikely
Oct 7, 2015 | BNA Daily Environment Report
By Anthony Adragna and Pat Rizzuto
An Oct. 8 vote on the Senate's bill to overhaul the Toxic Substances Control Act was increasingly unlikely as negotiations to advance the legislation made scant progress Oct. 7.
Senate aides told Bloomberg BNA members remained in negotiations to see how they could secure floor time for the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) and address the concerns of Sens. Richard Burr (R-N.C.) and Kelly Ayotte (R-N.H.), who have blocked advancement of the bill.
Burr and Ayotte have sought to add an amendment reauthorizing the Land and Water Conservation Fund, which uses oil and gas royalties for recreation and conservation projects, to S. 697 (193 DEN A-7, 10/6/15).
“It's not resolved, but I think [Burr's] made it real clear he likes TSCA,” Sen. Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, told reporters Oct. 7. “It may be he held the wrong hostage here.”
S. 697, which is supported by 60 Republican and Democratic senators, is expected to be approved quickly once it reaches the floor—provided no amendments are added to the manager's amendment for the TSCA reform bill (194 DEN A-2, 10/7/15).
“As soon as you open it up to one amendment, then you've opened it up to a hundred amendments,” Sen. Tom Udall (D-N.M.) said during an Oct. 6 rally for S. 697. “As soon as you get to that point, then you don't get a bill.”
Burr Says Fund Vote Will Come
Burr said no agreement has yet been reached and believes there are at least 80 senators supportive of reauthorizing the Land and Water Conservation Fund.
“It will come up,” he told Bloomberg BNA, referring to a vote on the fund. “It's just a question of when.”
National Wildlife Federation President Collin O'Mara told Bloomberg BNA the federation is urging senators to approve S. 697 and reauthorize the fund separately.
Leveraging attention to an issue—in this case the fund—by holding up a vote on a separate issue—S. 697 here—is a common negotiating tactic in the Senate, Elizabeth Thompson, president of the Environmental Defense Action Fund, told reporters during an Oct. 7 briefing on S. 697.
EDF supports the fund and S. 697 but also wants them to move separately, Thompson said.
The decision on how to proceed with Burr's goal and S. 697 will depend on Majority Leader Mitch McConnell (R-Ky.), she said.
Senate Minority Leader Harry Reid (Nev.) along with Sens. Dick Durbin (D-Il.), Patty Murray (D-Wa.), Chuck Schumer (D-N.Y.), and Maria Cantwell (D-Wash.), ranking member of the Senate Committee on Energy and Natural Resources, sent McConnell a letter Oct. 7.
“We urge you to bring a permanent reauthorization bill to the Senate floor that would provide full funding for the LWCF program as soon as possible,” they wrote.
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NTP Invites Data on Chemicals, Mountaintop Removal
Oct 7, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Exposure, use patterns, toxicity and other data on neonicotinoid pesticides, two flame retardants, two water disinfection byproducts and other chemicals are being sought for hazard assessment by the National Toxicology Program.
The same types of data also are being sought by NTP's Office of Health Assessment and Translation (OHAT) to assess the effects mountaintop removal mining activities have on surrounding communities.
OHAT and NTP's Office of the Report on Carcinogens jointly issued an Oct. 7 Federal Register notice requesting the data for separate health hazard assessments they will conduct on eight chemicals or groups of chemicals and on mountaintop removal (80 Fed. Reg. 60,692).
The offices asked for the information to be submitted by Nov. 6.
Hazard Assessments
Hazard assessments are an initial step within the broader process of assessing risks. Hazard information must be combined with exposure data or assumptions before analysts make conclusions about the risks a particular chemical or situation poses.
The results of hazard assessments conducted by authoritative bodies such as the NTP can, however, trigger the need for companies to update safety data sheets or other hazard communication materials, and they can affect purchasing preferences.
The health assessments the two NTP offices will conduct have distinct purposes.
Report on Carcinogens
NTP's Report on Carcinogens office is requesting information on five chemicals and one chemical group nominated for review for possible inclusion in the congressionally mandated report.
The Report on Carcinogens lists chemicals and other environmental exposures either known to be carcinogenic to people or reasonably anticipated to be carcinogenic to people.
The five chemicals and one group of chemicals nominated for review are:
• two flame retardants: pentabromodiphenyl ether mixture (DE-71) and tetrabromobisphenol A, (Chemical Abstracts Service No. 79-94-7);
• a water disinfection byproduct and a group of them: dibromoacetonitrile (CAS No. 3252-43-5) and di- and tri-haloacetic acids—as a class—provided they have similar functional or structural properties that may cause similar health hazards;
• fluoride (CAS No. 7681-49-4), a mineral added to drinking water to protect teeth from decay; and
• vinylidene chloride (CAS No. 75-35-4), which the Agency for Toxic Substances and Disease Registry says is used to make chemicals become part of adhesives, coatings for steel pipes and plastic packaging material such as clingy household food wraps.
OHAT's Hazard Assessments
OHAT invited information on three subjects:
• mountaintop removal mining's health effects on surrounding communities;
• neonicotinoid pesticides; and
• fluoride's developmental neurotoxic and endocrine disruption potential.
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EPA Publishes Mercury Rule Petition Denial
Oct 7, 2015 | BNA Daily Environment Report
The Environmental Protection Agency published in the Oct. 7 Federal Register its previously announced decision denying a petition requesting that it issue a mercury data collection rule under the Toxic Substances Control Act (184 DEN A-19, 9/23/15) (80 Fed. Reg. 60,584). The EPA said it agreed with many of the statements and goals in the petition, but concluded a strategy it announced in 2014 would be a more effective way to address mercury-containing products.
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Advocates Weigh Legal Challenge After EPA Denies Mercury Data Petition
Oct 7, 2015 | InsideEPA
By Maria Hegstad
Environmentalists are weighing a possible legal challenge among their options for responding to EPA's rejection of a petition from states and environmentalists that urged the agency to collect information on products containing mercury, such as electric switches, as fewer states are gathering the data.
David Lennett, a senior attorney with the Natural Resources Defense Council (NRDC), calls EPA's response “disappointing and it sort of misses the point. EPA lists all these wonderful authorities [to gather data on mercury] but if EPA has all these wonderful authorities, why doesn't it have the information?”
In an interview with Inside EPA, Lennett said that the petitioners are “still weighing the options” for a response. The Toxic Substances Control Act (TSCA), under which NRDC and the Northeast Waste Management Officials' Association (NEWMOA) petitioned EPA, provides 60 days to challenge EPA's response in federal district court, an option that Lennett says they are “weighing but we are considering other options as well.”
NRDC and NEWMOA in June petitioned EPA to collect information about uses of mercury produced, imported, or used in the United States. NEWMOA manages the Interstate Mercury Education and Reduction Clearinghouse (IMERC), the leading state agency-sponsored mercury tracking program.
The activists and states petitioned EPA to use its TSCA Section 8(a) authority, which allows the agency to require chemical manufacturers, processors and importers to keep records of and report the total amount of certain substances manufactured or processed.
The groups argued that Section 8(a) rules are warranted when data is not otherwise available, as they argued was the case. In fact, the groups argue that IMERC no longer collects mercury use in electrical switches and relays, “the largest mercury use in products, and contains significant gaps due to non-reporting.”
They added that such information “can help EPA create 'a total picture of the current situation' of uses of chemical substances . . . this total picture can help the agency attribute risk from the chemical to specific products or industrial processes, which in turn can help EPA identify the best tools and approaches to further reduce that risk.”
But in an Oct. 6 Federal Register notice, EPA rejects the petition, saying that although the general premise behind the petition is correct, the agency's existing strategy on reducing mercury use is more efficient and effective.
“The Agency agrees that mercury poses potential risks to human health and the environment and that there is value in gathering additional information to better understand continuing uses of mercury, to further reduce such uses, and to prevent potential risks to human health and the environment from mercury exposure,” according tothe notice “However, EPA believes that continued implementation of its EPA Strategy is a faster, more efficient pathway towards achieving our shared goals and is confident that the actions contemplated under the Strategy are both sufficient to carry out TSCA and preferable to the requested rulemaking.”
EPA Strategy
EPA says that when it developed its strategy, the agency decided it did not make sense to promulgate a comprehensive information-gathering rule for mercury, on top of the existing regulatory and statutory information collection requirements applicable to chemical substances generally. “Rather, EPA decided to adopt a more targeted approach and to create a framework that was flexible and adaptive to observed trends in the use of mercury,” the notice says.
EPA describes its mercury strategy as consisting “of five phases: (1) update EPA’s information on mercury products and certain processes; (2) analyze updated mercury use information; (3) plan and prioritize mercury reduction activities; (4) take non-regulatory actions to reduce use; and (5) take regulatory actions to reduce use, if needed . . .”
NRDC and NEWMOA, in their petition, however, express concern that EPA's voluntary approach is not working. “EPA’s voluntary effort has not produced and is not likely to produce the comprehensive, reliable data set necessary to inform further risk-reduction activities,” the petition states. “Accordingly, the need for and the utility of a rulemaking that would require mandatory reporting from all mercury, mercury-compound, and mercury-mixture manufacturers and processors has been demonstrated.”
EPA responds that the petitioners focused on just the voluntary phase of its strategy, ignoring the rest of its approach. The agency adds that it followed up its voluntary approach last March with subpoenas to five companies “it believes to be the primary recyclers and distributors of mercury in the United States,” and staff is continuing to analyze resulting information. EPA argues that this approach is quicker than finalizing a Section 8(a) rule requiring industry to provide this information.
But NRDC's Lennett maintains EPA has advanced little beyond a strategy the agency announced in its 2006 Roadmap on Mercury. “It's more than a little disappointing,” he says of the petition rejection. “We offered them a clear path forward that the states could support, and they chose not to” take it up. It was “also a way EPA could support and reinforce states' [actions] and they completely miss . . . that collaborative relationship.”
The states are collecting less and less information on mercury uses in switches and relays because those states that have banned such uses within their borders can no longer collect use information, Lennett explains. Furthermore, the states have limited ability to collect information on imported products -- a role that should belong to the federal agency, Lennett argues.
“Over time IMERC will become less useful as the [state] phaseouts come into full force. The federal government and EPA will have to take on more responsibility,” Lennett says.
He is also unimpressed by EPA's argument that its approach is more efficient, calling the information the agency has gleaned from the five companies “a small piece of the puzzle,” and notes that EPA had to use subpoenas to gather this information. It would be more efficient to craft a rule, especially since there are many more companies using mercury than recycling or supplying it, Lennett says.
International Obligations
Lennett also points to another pending hammer on the agency: the growing number of countries that have ratified the Minamata Convention on mercury is expected to bring it into full force next year, he says. As a result, EPA and the federal government “is going to have international obligations which right now they cannot meet.”
EPA outlines its progress on its strategy in the notice, acknowledging that it is “in the first phase of implementing its Strategy, which lists priority mercury-added product and process categories (switches, relays, new products, and catalysts), describes the progression of stakeholders from whom information is to be collected (mercury manufacturers and importers, mercury processors, and other stakeholders), and commits to conducting outreach throughout the implementation of the Strategy.”
In the next phase, the agency says it will “will assess information gathered and compare data to existing Agency baselines derived from IMERC, the [Toxics Release Inventory] program, the [Chemical Data Reporting] Rule, and other research (Phase 2). Results of the second phase will be used to define or modify product categories and identify remaining data gaps or other limitations that could affect the planning and prioritization of reduction activities (Phase 3). At this juncture, the Agency could consider the use of voluntary efforts to reduce the use of mercury (Phase 4), as well as a Section 8(a) rule or other appropriate regulatory measure (Phase 5). At this point in time, however, EPA believes the implementation of the EPA Strategy, which uses a variety of both voluntary and regulatory measures as needed, is sufficient to carry out TSCA.”
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EPA Needs to Set the Record Straight on Artificial Turf
Oct 7, 2015 | The Hill - Congress Blog
By Darren Gill, Rom Reddy and Heard Smith
Recent headlines have stoked fears across the country with suggestions that synthetic turf fields using recycled rubber are harmful to children. The reality is that an overwhelming amount of scientific evidence has found no connection between these fields and cancer or other health issues. However, it’s unrealistic and unfair to expect worried parents to have to go to peer-reviewed journals for answers. This is why it’s high time for the Environmental Protection Agency (EPA) to set the record straight by conducting its own conclusive analysis of the scientific data on synthetic turf and recycled rubber – and for policymakers to push them to do so. EPA owes this peace of mind to families, coaches and schools throughout America.
Of course, EPA may say that the safety and health of our children is not an issue that should be taken lightly, and more time is needed for thoughtful and science-based analysis. We fully support additional research and will do whatever we can as an industry to make them happen, but we also believe they have what they need. Dozens of studies from academic, federal and state government organizations have looked at fields across variables – location, age, temperature – and found that there is no greater health risk to playing on artificial turf field than playing on urban or rural soil. Of note, certain states have taken it upon themselves to conduct their own studies of the impacts of artificial turf to address public concern, and also found no elevated health risk associated with these fields.
In Connecticut, for example, four state agencies including the University of Connecticut Health Center, the Connecticut Agricultural Experiment Station, the Department of Public Health and the Department of Environmental Protection evaluated the health and environmental impacts associated with artificial turf fields containing crumb rubber infill. The findings were peer-reviewed by the Connecticut Academy of Science and Engineering and indicated that there was no health concern stemming from chemicals in outdoor crumb rubber fields. The same results were found in Massachusetts, and would likely be the case in other states, as the science is overwhelmingly clear.
This should be high on EPA’s priority list. The importance of addressing concerns over the safety of turf fields cannot be overstated, given that schools are increasingly installing them to take advantage of their benefits, including that they actually reduce injuries to players and make it easier for children to play sports and engage in physical activity, which helps combat obesity.
Despite these benefits and the clear scientific evidence, propaganda and hearsay fueled by special interests continue to spread the wrong information about artificial turf and crumb rubber, presenting a major challenge to municipalities, schools and others who operate or are considering installing artificial playing fields. This is why as three of the leading manufacturers of these fields, we recently banded together along with several leading recycled rubber manufacturers to help form the Safe Fields Alliance – a coalition dedicated to educating stakeholders around the safety of synthetic turf fields and crumb rubber.
The bottom line is that as the leading government entity charged with protecting human health and the environment, EPA must provide the right guidance to the hundreds of thousands of Americans who are impacted by and need to make decisions about artificial turf. We have made multiple visits to EPA over the years to press them to act. Policymakers can do their part by calling on EPA to recognize the importance of this issue to ensure that families, schools, teachers and coaches are confident in the safety of artificial turf. Conducting a comprehensive scientific analysis of the issue would go a long way toward setting parents’ minds at ease, and would show that EPA is committed to upholding its responsibility of making sure that families across the nation stay healthy, safe, and well-informed.
Gill is vice president of marketing at Fieldturf; Reddy is managing partner at Sprinturf; Heard Smith is COO at Astroturf.
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Apparel Industry Groups Merge Chemicals Questionnaires
Oct 8, 2015 | Chemical Watch
By Leigh Stringer
Three apparel industry groups are merging their online supplier questionnaires, to reduce the reporting burden on firms up the supply chain.
The questionnaires, used by the Outdoor Industry Association (OIA) and the Zero Discharge of Hazardous Chemicals (ZDHC) group, will be combined and then incorporated into the chemicals management module of the Higg Index – a data reporting platform, used by the Sustainable Apparel Coalition (SAC) to evaluate the environmental and social impact of apparel and footwear products.
Speaking at a side event at last week's UN chemicals summit, ICCM4, OIA director of corporate responsibility, Beth Jensen, said convergence of the tools will start late this year, with the aim of launching the updated Higg Index in mid-2016.Merging the three questionnaires will lessen the burden on suppliers, said Ms Jensen, because there will only be one shared version instead of three separate forms.
The streamlined tool will ask questions on:chemicals procurement;restricted substance list compliance;storage;handling;use;emissions and disposal;product design and intended use(s);alternatives assessment and identification; andbest practices
Suppliers, she said, are currently being asked to fill out and manage multiple questionnaires – which often overlap – and several requests often come from a company which belongs to more than one group.
Meanwhile, the ZDHC group of apparel and retailer brands has updated its action plan – for achieving zero discharge of hazardous chemicals by 2020. The group says this will move it “from the development of foundational tools into the territory of tool implementation”.
It has also replaced its seven work streams with four areas of chemical management:encouraging compliance with its updated manufacturing restricted substances list;engaging with academia and companies to encourage research into the development of safer alternatives and studies on priority chemicals;finalising the audit conformance process and engaging with industry groups to promote adoption of the audit tools; andminimising chemical pollutants, discharged into the environment, and developing wastewater quality guidance.
The group also identified the need to carry out "cross cutting" actions for all four areas. These involve recording data, disclosing the information gathered and training.
"For both focus areas and cross cutting themes, we want to consistently work across three dimensions – standard setting, collaborative implementation and engagement of appropriate stakeholders to support our work," said ZDHC executive director, Frank Michel.
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(ACC Mentioned) Industries Warn Stricter Ozone NAAQS Creates Clean Air Act Permit 'Limbo'
Oct 7, 2015 | InsideEPA
By Stuart Parker
Industry groups are warning of a Clean Air Act permitting “limbo” created by EPA's failure to issue guidance on implementing its stricter ozone national ambient air quality standard (NAAQS) at the same time as finalizing the standard, saying major projects are unable to proceed as their ozone permit mandates are unclear.
As a result, the American Chemistry Council (ACC) is leading calls for EPA to quickly issue guidance on how facilities should craft air permit applications to comply with the Oct. 1 rule tightening the ozone limit from the 2008 standard of 75 parts per billion (ppb) down to 70 ppb. ACC says there is permitting uncertainty for areas that are attaining the 2008 limit but are currently monitoring emissions above the 70 ppb standard.
Without guidance from EPA on what it would consider acceptable in permits for such areas, it is impossible for companies to craft permit applications and this puts planned projects in limbo, ACC says.
The group in an Oct. 1 statement said the new ozone limit will “put $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 takes years for areas to be designated as either “attainment” or “nonattainment” with a NAAQS. Nonattainment status can lead to the imposition of costly new pollution control requirements on industry under state implementation plans that states must craft to detail their strategies for attaining the NAAQS.
When a new NAAQS takes effect -- for the 70 ppb ozone limit, it will be 60 days after its upcoming publication in the Federal Register -- applicants for Clean Air Act new source review or prevention of significant deterioration permits (PSD) must incorporate the new standard into their applications. They must prove their projects will not lead to violations of the new NAAQS, but EPA often fails to supply necessary guidance on how to do so, ACC says.
“When ozone standards are lowered, they take effect immediately. Manufacturers who want to build or expand must apply for permits showing that their project will comply. It's up to EPA to provide the rules and guidance, but it has often taken years for the Agency to do so,” the group argues in its statement.
ACC raised the permitting concerns in its March 17 comments on the proposed version of the ozone NAAQS, saying it “appreciates EPA’s acknowledgment that permitting new facilities may be challenging in some areas with a lower ozone NAAQS. ACC agrees with EPA’s assessment that with a lower ozone NAAQS, some areas presently in 'attainment' with the 2008 standard will need to be re-designated 'nonattainment.'”
Permitting Concerns
The group said that, “Until those areas are formally designated as 'nonattainment,' proposed new major source construction or major modifications located in these areas, will continue to be required to conduct a PSD review. This raises the question as to how a source can be issued a PSD permit where ambient monitoring data indicates violations of the revised NAAQS. This is an issue that ACC has voiced in the past.”
ACC said that its chemical sector members “need assurances that there will be a clear path forward for facilities to obtain preconstruction permits until the area is formally reclassified as 'nonattainment.'”
Other industrial sectors also have concerns over the potential for a permitting limbo under the ozone limit, with an American Petroleum Institute (API) source saying that the group's members “also highlight the permit challenges that come when a NAAQS is changed and the tools (guidance) needed to demonstrate a new project (source) does not cause or contribute to a violation of the NAAQS are not immediately available.”
The source points to problems in this regard with implementation of EPA's 2010 1-hour nitrogen dioxide (NO2) NAAQS rule, in which the agency for the first time set a one-hour limit at 100 ppb. This has been “an ongoing complication,” the source says, because of a lack of implementation guidance.
“Until EPA works with the states to provide the guidance and procedures used in getting a permit, the permitting process is an ad-hoc and a case-by-case exercise. When businesses can’t reasonably know the timing and ultimate control technology required for a project, it adds a significant degree of uncertainly that can weigh heavily as decisions are made to push forward or delay a project,” the API source says.
The source cites as an example complaints made by Louisiana's Baton Rouge Area Chamber of Commerce in a March 2 “Public Policy Commentary” that EPA's mere proposal of tougher ozone standards had adversely affected investment in the region. “Since the EPA first proposed lowering the ozone standard in December, the Baton Rouge Area has seen four major industrial projects totaling 2,000 direct and indirect jobs, and more than $7 billion in capital investment, either put on hold or redirected elsewhere. These losses are in direct correlation with the uncertainty created by the newly proposed ozone standards rule,” the Chamber wrote.
'Grandfathering' Provisions
EPA's final rule does contain “grandfathering” provisions that would exclude complete or near-complete permit applications from having to demonstrate compliance with the new ozone NAAQS. However, these do not cover many permit applications that are not yet as far advanced, ACC says.
In the final NAAQS rule, EPA says, “under the grandfathering provision as finalized, either of the following two categories of pending PSD permit applications would be eligible for grandfathering: (1) applications for which the reviewing authority has formally determined that the application is complete on or before the signature date of the revised [ozone] NAAQS, or (2) applications for which the reviewing authority has first published a notice of a draft permit or preliminary determination before the effective date of the revised [ozone] NAAQS.”
In its response to comments in the rule, EPA rejected calls from industry groups who said in their comments that the agency should expand the range of situations that would qualify projects for grandfathered permits.
The agency further rebuffs environmental groups, who in their comments on the proposed rule objected to any grandfathering provision and alleged that EPA lacks the legal authority to issue such regulatory waivers.
EPA defends its legal right to grandfather some permits, but also rejects various ideas intended to increase the number of permits grandfathered. The agency says, “the addition of this grandfathering provision is permissible under the discretion provided by the [air law] for the EPA to craft a reasonable implementation regulation that balances competing objectives of the statutory PSD program found in [air law] section 165.”
Section 165(a)(3) “requires a permit applicant to demonstrate that its proposed project will not cause or contribute to a violation of any NAAQS, while section 165(c) requires that a PSD permit be granted or denied within one year after the permitting authority determines the application for such permit to be complete. Section 109(d)(1) of the [air law] requires the EPA to review existing NAAQS and make appropriate revisions every five years. When these provisions are considered together, a statutory ambiguity arises” that EPA says it reasonably attempts to resolve.
'Substantial' Application
ACC in its comments on the proposed version of the NAAQS said it was “concerned that EPA’s proposed grandfathering provisions will provide relief for relatively few projects that were well underway prior to this ozone proposal. ACC believes that grandfathering should apply to any PSD permits that have gone through their public notice periods by the time designations pursuant to any revised NAAQS are finalized.”
The group added at the time, “A project that has a substantial PSD permit application submitted close to the time of the NAAQS finalization will have invested years of engineering and resources associated with securing a viable project. It is not uncommon for new projects to take five years from conception to permit application, given the complicated engineering design and multiple rounds of pilot studies before a design can be finalized.”
Highlighting the concern about the potential permitting limbo, ACC argued that, “A permit application submitted near the date of the final NAAQS revision will be based upon the current NAAQS and associated designation at the time. Yet due to the complexity of the project, it is possible that it would not qualify for the grandfathering provision, and have to start the permit process all over again -- or cancel the project entirely.”
A spokesman for the Texas Commission on Environmental Quality (TCEQ), the air regulator in Texas, in response to the concerns suggests existing policies could help answer the “limbo” questions.
“There are existing rules and guidance for prior ozone standards that remain applicable to the new standards,” the spokesman says. The final rule tightening the ozone standard also “provides general timelines for the proposal and finalization of an implementation rule to address any new implementation requirements resulting from revisions to the ozone NAAQS,” according to the spokesman.
Implementation Rule
“The rule indicates EPA’s general intent is to propose this implementation rule within one year after the revised ozone NAAQS are promulgated and finalize the implementation rule by no later than the time the area designations process is finalized,” the TCEQ spokesman adds.
The grandfathering provisions also “provide a reasonable transition for the permitting process and if EPA follows the proposed implementation rule timeline, permit delays should be minimized,” the spokesman says.
In Texas, the home of much of the United States' heavy industry and industrial expansion, TCEQ also says it is unaware of how many air permits will be delayed as a result of the “limbo” ACC describes. “TCEQ has not identified any specific applications that will be delayed at this point in time,” the spokesman says.
He adds, “Because ambient air monitoring data in specific areas of the State may show readings above the new ozone standard, some applicants may need to provide additional application information to demonstrate compliance with the new standard. This demonstration and application information will depend on where the applicant is in the pending permit process as it relates to the grandfathering provision.”
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Senate Dems to Block Energy Bill as Budget Talks LimpAlong
Oct 8, 2015 | E&E Daily
By Geof Koss
Senate Democrats today are expected to filibuster the popular Energy and Water Development appropriations bill, as they continue to prod Republicans toward an end-of-the-year budget deal.
The upper chamber will vote today on cloture on the motion to proceed to the $35.4 billion Energy-Water measure, H.R. 2028, which is generally one of the less controversial of the 12 appropriations bills.
Sen. Dianne Feinstein (D-Calif.), the ranking member on the Appropriations subcommittee that wrote the bill, said Democrats would oppose ending debate.
"That's the plan," she told E&E Daily yesterday.
Sen. Chuck Schumer (D-N.Y.), the vice chairman of the Democratic conference, also told E&E Daily yesterday that he expects Democrats to filibuster the bill -- a tactic the minority has employed for months in an effort to force Republicans into budget negotiations.
Senate Majority Leader Mitch McConnell (R-Ky.) set up today's vote as part of the back-and-forth tussling between the two parties over appropriations. By doing so, McConnell is daring Democrats to vote against a measure that Feinstein noted funds U.S. nuclear weapons programs, science programs at the Energy Department that enjoy broad bipartisan support, and the Army Corps of Engineers, which provides funds for water projects across the country.
Additionally, "they picked that bill because we have a relatively good allocation," Feinstein said, expressing deep frustration over the standoff over appropriations.
"What's happened is sort of a move away from the traditional way of appropriating, which has weakened the committee and provided no ability to get anything done, 'cause you're always just trying to stay even," she said. "It's very frustrating."
After months of prodding by Democrats, Schumer acknowledged that Republicans have started to discuss a budget deal to replace the continuing resolution that expires Dec. 11.
"They've been beginning to talk, but we've got to get serious," he told reporters. "We've got to come up with pay-fors so that we can avoid sequestration."
Rep. Nita Lowey (D-N.Y.), the ranking member on the House Appropriations Committee, said staff on the panel are already making plans for an omnibus spending measure they hope will replace automatic sequestration cuts.
Lowey told reporters the committee has an "aspirational" goal of receiving a topline number on Nov. 11, which would provide sufficient time to ready an omnibus for December.
"They're looking at certain items in the bill but after Nov. 11, and we get a number, then the hard work will continue to Dec. 11," Lowey said.
However, that effort is hamstrung by uncertainty over how much discretionary spending they'll have to work with -- an issue she indicated remains under discussion among congressional leaders and the White House.
Lowey said appropriators don't necessarily need a budget deal signed into law by Nov. 11 but need some certainty that the numbers they're given are supported by leaders in both parties.
Further complicating matters is the question of what will happen after Speaker John Boehner (R-Ohio) steps down at the end of the month (see related story).
"I have no idea what's going to happen with their leadership," Lowey said. "I have no idea -- remember, 151 Republicans voted to shut down the government, and I would hope that wiser heads in the Republican Party can prevail and that they can work together, even though they may not agree on every number or every item. I'm hoping they can work together so I can work with the Republicans to come up with a plan."
Asked if negotiations may have to start again once there's new leadership in the House, she said it's possible. "Anything can happen," Lowey said.
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White House Issues Veto Threat for Oil Export Bill
Oct 7, 2015 | BNA Daily Environment Report
By Ari Natter
The White House said Oct. 7 it would veto House legislation that would lift the 40-year-old ban on crude oil exports, dealing a blow to backers of the legislation who hoped for a less-stringent rebuke.
The bill (H.R. 8), which would lift restrictions put in place in 1975, “is not needed at this time,” the Office of Management and Budget said in a Statement of Administration Policy.
“Rather, Congress should be focusing its efforts on supporting our transition to a low-carbon economy,” the statement said. “It could do this through a variety of measures, including ending the billions of dollars a year in federal subsidies provided to oil companies and instead investing in wind, solar, energy efficiency, and other clean technologies to meet America's energy needs.”
Though White House press secretary Josh Earnest had previously said the administration “wouldn't support” the bill, scheduled to be taken up by the House Oct. 9, proponents of the legislation such as its author, Rep. Joe Barton (R-Texas), had said those statements were designed to give the president negotiating room.
Barton ‘Surprised.'
Barton, in remarks before the House Rules Committee, said he was “surprised” by the veto threat after a number of conversations with White House advisers on the legislation.
“We were led to believe they were following it, and I was not told they were going to recommend a veto,” Barton told reporters. “I am disappointed.”
The veto threat is “not helpful” to hopes for a broader deal with the White House and Democrats, he said.
The veto threat comes as the White House said the issue of allowing oil exports, banned in most cases in a law put in place in the wake of the Arab oil embargo, was a decision left up to the Commerce Department.
Lifting the ban is a priority for companies such as Chevron and Hess Corp., and groups representing them, such as the American Petroleum Institute, expressed anger with the White House's position.
“This is a missed opportunity to demonstrate true leadership while creating U.S. jobs and saving consumers' money,” API Executive Vice President Louis Finkel said in a statement. “This administration needs to reexamine their priorities and work with a bipartisan coalition in Congress on legislation that would help to secure America's energy leadership for generations to come.”
Amendments Ruled in Order
The veto threat came as the House Rules Committee met and voted to rule 10 amendments in order to the bill, including a measure by Rep. Justin Amash (R-Mich.), that would remove a provision added late to the bill that would increase a stipend for ship operators by more than $500 million over five years (193 DEN A-8, 10/6/15).
The provision, backed by maritime unions and meant to increase Democratic support, drew the ire of tea party and conservative groups such as FreedomWorks, which called the language “closed-door crony capitalist” and urged opposition to the bill.
Other amendments approved by the committee included a measure by Rep. John Garamendi (D-Calif.) that would allow “appropriate actions,” including reducing oil exports or revoking the authority to export crude oil if the bill's enactment is found to have caused adverse effects such as crude oil supply shortages or price spikes.
Also approved by the committee was an amendment by Rep. Jared Huffman (D-Calif.), that would require a study on net greenhouse gas emissions that will result from the repeal of the crude oil export ban.
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White House Threatens Veto of House Crude Exports Bill
Oct 8, 2015 | E&E PM
By Geof Koss
The White House is threatening to veto House Republican legislation to repeal the long-standing ban on exporting crude oil, calling it unnecessary.
The Office of Management and Budget spelled out its opposition in a statement of administration policy against H.R. 702.
"Domestic oil production has grown in recent years, strengthening our economy, supporting new American jobs, and enhancing our energy security," it says. "The Administration has taken important steps to support safe and responsible production growth, including actions to cut methane leaks from oil and gas operations, to protect water quality, and to improve offshore safety in order to protect human lives and the environment from oil spills."
The statement says legislation to end the export ban is "not needed at this time," and instead calls for Congress to focus "on supporting our transition to a low-carbon economy."
"It could do this through a variety of measures, including ending the billions of dollars a year in Federal subsidies provided to oil companies and instead investing in wind, solar, energy efficiency, and other clean technologies to meet America's energy needs," the statement says.
If the bill makes it to the president's desk, "his senior advisors would recommend that he veto the bill."
Lead sponsor Rep. Joe Barton (R-Texas) this afternoon said he was disappointed in the White House's position.
"We had been led to believe that there was some hope they might at least be neutral," Barton said. "But it is what it is, and you have to respect the president's decision."
Barton said he hopes to get enough votes to overcome a veto.
Reporter Hannah Northey contributed.
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House Export Bill Moves Forward Despite White House Veto Threat
Oct 8, 2015 | E&E Daily
By Hannah Northey and Geof Koss
A controversial bill that would lift the nation's crude export ban is likely to advance through the House today despite a veto threat yesterday from the White House and complaints from House Democrats that their concerns are being ignored.
The House is likely to vote today on a rule the House Rules Committee adopted yesterday that set up parameters for debate on H.R. 702, Texas Republican Rep. Joe Barton's bill to scrap the ban on exporting domestic crude. The committee adopted the rule by voice vote to allow 10 amendments to reach the floor, and the lower chamber is scheduled to cast a final vote tomorrow.
One amendment from Rep. Justin Amash (R-Mich.) would strip the underlying bill of increased funding for maritime organizations, a controversial provision that drew rare opposition from the Heritage Foundation.
Other amendments to be considered include Democratic proposals that would tie oil exports to climate change, language that set off sharp debate among Rules Committee members yesterday.
But the biggest impediment to the measure could be the Obama administration's opposition (E&ENews PM, Oct. 7). Barton, who has led the charge to end the export ban in the House, toldE&E Daily yesterday that the veto threat runs counter to earlier signals the White House sent on his bill.
"I've had off-the-record conversations with a number of administration officials, I've not had a direct conversation with the president, and in none of those conversations did any of the people who would advise the president -- now, these are off the record, they're not official government policy ... I was not told they were going to recommend a veto," Barton said. "So I am disappointed; we worked very hard to make this a bipartisan exercise in the House, accepted some different kind of amendments from the committee."
However, he said there's still hope that the administration could come around to support the bill, arguing that it makes no sense that the White House would object to a bill that boosts job creation and the U.S. economy.
Barton nonetheless conceded that the veto threat remains a major hurdle for seeing a top priority of Republicans and industry signed into law.
"It's not helpful; I'm not going to sugarcoat it," he said. "We'll still try to maximize the vote in the House, maximize the vote in the Senate, work out an agreeable compromise between the House and the Senate and send it to the president's desk and ask him to sign."
Industry groups criticized the veto threat, which they said run counters to the pro-trade sentiment expressed by President Obama this week in announcing the Trans-Pacific Partnership.
"Earlier this week, President Obama announced an agreement on TPP, which he said would help in 'leveling the playing field for American workers and businesses, so we can export more products stamped Made in America all over the world that support higher-paying American jobs here at home,'" said Producers for American Crude Oil Exports Executive Director George Baker in a statement. "We're disappointed that the White House does not apply this same thinking to crude exports, which would create good paying jobs at home while aiding our allies and trading partners abroad."
Sen. John Hoeven (R-N.D.) expressed a similar sentiment earlier this week before the veto threat surfaced, saying that TPP makes the case for exports of natural gas and crude oil.
"If you just think about it big picture, it absolutely helps us make the case when you say on the one hand, we want to expand exports, but then we're prevented or restricted from exporting LNG or oil," he told E&E Daily. "It doesn't make any sense."
The amendments up for consideration are:An amendment by Reps. John Delaney (D-Md.), Carlos Curbelo (R-Fla.) and Chris Gibson (R-N.Y.) to add a finding to the bill that the United States has reduced its oil consumption over the past decade, and that increased investment in clean energy technology and efficiency will lower greenhouse gas emissions and increase national security.An amendment by Rep. Jared Huffman (D-Calif.) requiring the Energy secretary to study the net greenhouse gas emissions that would result from lifting the ban.An amendment by Rep. Brenda Lawrence (D-Mich.) requiring a study of the effects on consumers and the economy of lifting the ban.An amendment by Reps. Luke Messer (R-Ind.) and Alan Lowenthal (D-Calif.) to ensure the administration can ban crude exports to state sponsors of terrorism.An amendment by Messer to bar the export of crude oil, refined producers and petrochemical products to the Islamic Republic of Iran.An amendment by Rep. Henry Cuellar (D-Texas) to authorize DOE to continue developing partnerships in the areas of gas and oil exploration production and refining with minority serving institutions.An amendment by Rep. Sheila Jackson Lee (D-Texas) requiring the executive branch to report to Congress within 10 years about the impact of lifting the export ban on "energy and national security."A second Jackson Lee amendment would require a report within 180 days on how lifting the ban would help veterans and women in the United States, while promoting energy and national security.The amendment by Amash that would strike a provision added by GOP leaders this week that would expand authorized spending levels for private vessels that assist the U.S. military. The addition of the language earned the support of maritime interests wary of the crude exports push but also drew a rebuke from the conservative Heritage Action for America (E&ENews PM, Oct 5).An amendment by Rep. John Garamendi (D-Calif.) that would hand the federal government the power to reduce exports in the event they cause "sustained crude oil supply shortages or sustained crude oil prices significantly above world market levels."
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Supporters of Ending the Oil-Export Ban Eye a Deal
Oct 8, 2015 | The Hill - E2 Wire
By Devin Henry
A bill to undo the decades-old federal ban on crude oil exports hits the House floor this week, but the measure’s supporters are still looking for the compromise package that can get it through Congress and win President Obama’s signature.
Most lawmakers backing the effort at this point are Republicans, but several Democrats have opened the door to crafting some type of deal to lift the ban while securing concessions of their own.
But the path forward is complicated: Democrats who have indicated potential support for crude exports require different things to do so. And bill supporters need to craft a deal that’s good enough to retain Republican support while securing approval of a reluctant president.
Republicans will get a vote on the issue Friday in the House. The bill’s sponsor, Rep. Joe Barton (R--Texas), predicted a strong contingent of Democrats will back him, though not enough to overcome a veto and with several potential allies still opposing the legislation.
“I think they can pass the bill Friday without me, but I don’t think they’ll be able to get through the Senate,” said Rep. Gene Green (D-Texas), who often votes with Republicans on energy issues but plans to oppose the export bill on the House floor this week.
Green supported the bill in the House Energy and Commerce Committee, but only because he had an agreement with Barton to amend it later, he said.
The Texas Democrat proposed a series of amendments to the bill designed to protect oil refiners in his district, which could be bypassed by expanded crude exports. But Republicans rejected one of those amendments, and Green won’t back the bill when it comes to a vote on Friday.
The amendment fight is more complicated in the Senate, where many Democrats have said they could consider voting for exports, but only if Republicans give them some sweeteners first.
“I think we need to have an open discussion about what people’s ideas are,” said Sen. Heidi Heitkamp (D-N.D.), the top Democrat pushing oil exports.
Last month, Heitkamp proposed tying exports to the expansion of renewable energy tax credits. Her colleagues’ wish lists, though, are longer than that.
At a Senate Banking Committee hearing last week, for example, Sen. Jon Tester (D-Mont.) said the oil export bill should include land conservation funding and renewable energy proposals. Sen. Joe Donnelly (D-Ind.) said the bill needs to protect waterway workers and refinery jobs that could be hurt by expanded crude exports.
Sen. Mark Warner (D-Va.) said he too could support expanding exports, but there are environmental, employment and revenue issues he wants to see addressed first.
“I do think, if there’s a realistic opportunity to get something like this passed, it’s going to require a more comprehensive approach,” he said.
Heitkamp has been meeting with Democrats on oil exports since last fall, according to her office, and she said she’s buoyed by the fact members are still considering the issue rather than writing it off entirely.
“Declared Democrats? Two for sure,” Heitkamp said of herself and Sen. Joe Manchin (W.Va.), the only Democratic sponsors of her export bill. “Willing to talk? Many, many more than that.”
She said the goal now is to win what support she can without bogging down the bill until it collapses under the strain of new amendments.
“I think there’s an opportunity to put together a package,” she said. “The question is whether that’s a package that becomes too laden with extra stuff that we can’t move it with the vast majority of Republicans.”
The GOP isn’t rushing to offer up concessions just yet.
Barton said Tuesday that the economic impact of his bill — expanded production and employment opportunities in the oil industry — should be enough to win Democrats’ votes.
“I’m trying to keep the bill as clean as possible and as simple as possible,” he said.
“My job is to get the best public policy out of the House, and I’m going to try to do that this Friday, and I think we’re going to get a big vote. I think we’ll get a very credible number of Democrats and a super majority of the Republicans.”
Sen. Lisa Murkowski (R-Alaska), Heitkamp’s Senate partner on exports, said this week that she’s still considering ways to entice Democratic support.
“Have I thought at all? Sure,” Murkowski said. “Do I have anything that I can share right now? No. I’m just for lifting the ban.”
If lawmakers can reach a deal on exports, they still would need to send to the White House a package Obama can support.
The White House threatened a veto of Barton’s bill on Wednesday, saying it is “not needed at this time.” In September, press secretary Josh Earnest said the Commerce Department already has the power, in limited circumstances, to approve export agreements.
But Heitkamp said she thinks lawmakers will be able to form a package that Obama could ultimately support.
She said she’s talking with White House officials on the matter, and her goal is to try to pass the bill by the end of the year.
“We have had conversations,” she said. “And I think that people who say there’s no way, no how, that they could ever get to yes on this, I think that overstates the White House’s position.”
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Ship Owners Get Sweetener in Push to Pass Oil Export Bill — Energy Journal
Oct 8, 2015 | The Wall Street Journal
By Christopher Harder
REPUBLICANS HOPE SHIPPING BOOST WILL HELP END U.S. OIL EXPORT U.S. House Republican leaders are hoping a boost in Defense Department payments to the shipping industry of more than $500 million over the next five years will increase support for proposed legislation to lift the country’s 40-year-old ban on oil exports, Amy Harder reports. Backers of ending the ban hope that by, directing more money to the Defense program, they can attract yes votes from Democratic members of Congress representing districts that include ports and who would be more likely to listen to shipping companies and unions than the oil industry.
The bill’s prospects in the Senate, however, are another matter. Few Senate Democrats appear willing to engage on the matter and the White House issued a statement threatening to veto the House bill, saying that “legislation to remove crude export restrictions is not needed at this time.”
Even some conservatives have a problem with the Defense proposal. The Heritage Foundation, an influential conservative group among congressional Republicans, opposes the provision and is calling on Republicans to drop it. “There is no reason lawmakers should cede to the cronyist demands of long-shore unions and a handful of massive, international shipping companies,” said Dan Holler, spokesman for Heritage Action.
Some refineries and consumer groups oppose oil exports, saying they would raise low U.S. gasoline prices. Data from the JPMorgan Chase Institute indicates Americans arespending about 80% of the money saved at the pump instead of paying off debt, the Financial Times reports.
OIL CHIEFS DIFFER ON CARBON STRATEGY
The chief executives of ExxonMobil Corp. and Royal Dutch Shell PLC havedemonstrated contrasting visions for cutting fossil-fuel emissions in a reflection of a divide between American and European oil companies, Sarah Kent and Amy Harder report. Exxon’s Rex Tillerson said innovation, free markets and competition were the best tools for reducing emissions, but Ben van Beurden of Shell said governments need to play a role.
VOLKSWAGEN WITHDRAWS DIESEL CERTIFICATION REQUEST
Volkswagen AG withdrew a request for U.S. regulators to approve new diesel-powered vehicles in the wake of the emissions-cheating scandal, an admission that the auto maker won’t be able to sell diesel-powered vehicles in the U.S. for a prolonged period, Mike Spector and William Boston report. This follows Volkswagen saying it will launch a huge recall in January of diesel-powered cars, Volkswagen’s South Korean chief offering an official apology, and the car maker electing its former finance chief as chairman of its supervisory board. Meanwhile, its U.S. chief, Michael Horn, brings a reputation for a friendly and levelheaded demeanor to the embarrassing cheating admission, Mike Ramsey and William Boston report.
MARKETS
Oil futures rose on Thursday as the dollar weakened and Russia continued its offensive in Syria, though the global glut of crude continued to weigh on prices.
Russia escalated its assault on opponents of Bashar al-Assad’s regime with its first naval bombardment on Wednesday, a week after Moscow began its campaign in the war-torn country. The intervention added to the uncertainty in the Middle East, one of the world’s biggest oil producing regions.
Brent crude, the global oil benchmark, rose 0.3% to $51.94 a barrel on London’s ICE Futures exchange. On the New York Mercantile Exchange, West Texas Intermediate futures were trading up 0.3% at $47.93 a barrel. Read our latest market report atwsj.com.
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Carbon Trading Not a Clean Power Plan Requirement
Oct 7, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency won't require states to pursue carbon trading programs under the Clean Power Plan even though that forms the basis for the agency's model implementation rule, its top air official said.
While trading won't be a requirement, Janet McCabe, the EPA's acting assistant administrator for air and radiation, said Oct. 7 that market mechanisms have proven to be the most flexible and cost-effective means of reducing air pollution in the past.
“Trading has been shown through the acid rain program and a number of other programs to be the most flexible way for operators to manage their assets,” she told the House Energy and Commerce Committee's Subcommittee on Energy and Power.
McCabe faced skeptical committee Republicans who dismissed the EPA's carbon dioxide standards for new (RIN 2060-AQ91) and existing (RIN 2060-AR33) power plants as illegal and economically disastrous.
Rep. Ed Whitfield (R-Ky.), subcommittee chairman, accused the EPA of establishing a cap-and-trade program for carbon dioxide that was previously rejected by Congress.
He said the agency is rushing states to comply with the standards before legal challenges can be resolved. That means states and utilities must take immediate steps to curb their carbon dioxide emissions, which jeopardize jobs and electricity prices, for a rule that could later be overturned by the courts.
“We perceive that is precisely what is going to happen with this existing and new plant rule,” Whitfield said. “Your goal is to have this implemented. Lawsuits we know will be filed. You want this to be implemented so if the Supreme Court rules against you, everything has been done.”
The EPA's Clean Power Plan sets unique carbon dioxide emissions standards for the power sector in each state. State regulators are tasked with developing their own compliance plans, but the EPA will issue a federal plan for those states that choose not to write their own.
States Coerced Into Trading
Despite the EPA's assurances, committee Republicans said the Clean Power Plan would coerce states into pursuing trading programs through the threat of a federally drafted compliance plan.
With the Clean Power Plan, the EPA in August also proposed its model federal implementation plan (RIN 2060-AS47) based on two different types of emissions trading programs (149 DEN B-4, 8/4/15).
Reading from the EPA's proposed federal plan, Rep. Morgan Griffith (R-Va.) said the only option being presented by the agency is a trading program.
“Every time I turn around it's talking about this rule pushing on the states a trading plan similar to cap and trade if not cap and trade,” he said.
McCabe denied the EPA would force states into a trading program, because the draft federal plan isn't yet final and could be revised. When asked, McCabe couldn't say how quickly the EPA might choose to impose a federal plan on states that choose not to write their own compliance strategy.
Agency Will Work With States
“We'll work with those states and move in a prompt manner,” she said.
Though Republicans argued the EPA is defying the legislature by pursuing a cap-and-trade program that Congress previously rejected, Democrats said the administration was forced to act because Congress would not.
“We're here today because Republicans stopped Waxman-Markey,” Rep. John Yarmuth (D-Ky.) said. “If they want to complain about that, they can blame themselves.”
McCabe said the Clean Power Plan and carbon dioxide new source performance standards for new power plants, both finalized in August, are expected to be published in the Federal Register in the “second half” of October.
Fourteen states have filed a Freedom of Information Act request with the EPA seeking an explanation for purported delays in publishing the final rule, which triggers the window for legal challenges to the standards (see related story).
“We've moved this along very expeditiously given the size of the rule,” McCabe said.
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States Seek Records on Clean Power Plan Publication
Oct 7, 2015 | BNA Daily Environment Report
By Anthony Adragna
A coalition of 14 states is fed up with the delay in formally publishing the Environmental Protection Agency's Clean Power Plan and has filed a Freedom of Information Act request to get records concerning the lag in publishing the rule.
Led by West Virginia, the states asked for all communications between the EPA and the Office of Federal Register about the regulation's publication. They also asked for internal agency communications discussing when the rule would be published.
The states argue the delay in publication is unusual, prevents them from formally challenging the rule in court and imposes immediate burdens on the states because they must devote resources to deciding how—or if—to comply with the agency's push to slash carbon dioxide emissions from existing power plants.
“We want to help the public understand why one of most widely criticized rules in our nation's history is being subject to such unexplained delays,” West Virginia Attorney General Patrick Morrisey said in a statement. “This harms the states and undermines the availability of review by our courts.”
Joining West Virginia in filing the request are Arizona, Arkansas, Colorado, Florida, Georgia, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, Wisconsin and the Commonwealth of Kentucky.
The states requested responsive records “as soon as possible” but no later than 20 business days after receipt of the letter. The EPA has previously said the regulation will be published in late October.
Announced by the EPA Aug. 3, the Clean Power Plan (RIN 2060-AR33) tasks state regulators with developing plans to meet emissions reduction targets, which will be phased in between 2022 and 2030. The regulation, the centerpiece of President Barack Obama's strategy to address climate change, aims to reduce overall carbon dioxide emissions from the power sector by 32 percent below 2005 levels by 2030.
West Virginia and most of the other states involved in the FOIA request were unsuccessful in earlier attempts to have a federal appeals court immediately delay the rule's effective date and consider legal challenges. They filed lawsuits almost immediately after the EPA announced the final rule in August (190 DEN A-1, 10/1/15).
McCabe Defends Publication Practices
Testifying before a House Energy and Commerce Committee subpanel, the EPA's top air official said there was nothing unusual about how long it was taking to publish the final Clean Power Plan (see related story).
“We expect it to be the second half of October, and we're working with [the Federal Register] on all the formatting things that are a routine part of getting them published,” Janet McCabe, EPA acting administrator for air and radiation, said. “We've moved this along very expeditiously given the size of the rule.”
McCabe previously said the publication timeline for the Clean Power Plan was “actually quicker” than several other major rules during testimony before the Senate Environment and Public Works Committee Sept. 29 (189 DEN A-5, 9/30/15).
Other observers defended the FOIA effort from the states and called the lengthy wait for the rule's publication puzzling.
“The Federal Register's delay in publishing the final Clean Power Plan is inexplicable and EPA may have nothing at all to do with that delay,” Thad Lightfoot, a partner with Dorsey and Whitney, said in an e-mail. “However, if it turns out that the agency was involved in the publication delay, such involvement by EPA would be unprecedented and highly unprofessional.”
With assistance from Andrew Childers in Washington.
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Conservation Groups Want Stronger Haze Rules
Oct 8, 2015 | BNA Daily Environment Report
A coalition of 83 conservation and public interest groups wants the Environmental Protection Agency to strengthen federal regional haze regulations to improve visibility in national parks. The organizations, in an Oct. 7 letter to EPA Administrator Gina McCarthy, urged the agency to address flaws in existing regulations that make it uncertain when air quality will be restored in Yosemite National Park and other areas. The letter, signed by the National Parks Conservation Association, the Natural Resources Defense Council and others, asked the EPA to establish reasonable progress requirements that specify what states and pollution sources must do to improve air in national parks and wilderness areas. The groups also urged the EPA to establish that each state has an independent responsibility to reduce emissions that contribute to poor air quality in protected areas. The letter is available at http://www.npca.org/assets/pdf/clean-air/Final_StrengthenRHR_Letter_10-7-15_1.pdf.
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Environmentalists Urge EPA To Tighten Haze Air Rule
Oct 8, 2015 | InsideEPA
A coalition of 83 environmental groups is urging EPA to revise and tighten its regional haze rule that aims to restore visibility to natural conditions in national parks and wilderness areas by 2064, warning that without changes to the existing haze reduction requirements some parks will miss that goal by decades or even centuries.
In an Oct. 7 letter to EPA Administrator Gina McCarthy, the coalition seeks “strategic” changes to the rule, such as establishing that each state has “an independent responsibility to reduce pollution that contributes to air quality impairment at protected places to make reasonable progress towards achieving the national goal.”
The coalition also wants the agency to revise the haze regulation to “ensure that natural air quality goals be reached by establishing reasonable progress requirements that specifies what states and polluters must do to clean up their share of each park and wilderness area’s pollution for every ten year planning period.”
EPA should “strengthen accountability” and “measure the success of a state’s pollution reduction plan against emissions they can control, which will result in meeting the clean air goal. If a state projects its plan will fall short of the 2064 goal, require a technical demonstration to show that reductions needed to meet the goal are infeasible,” says the coalition that includes the Environmental Defense Fund and Sierra Club.
Further, the groups want to “strengthen federal land managers’ voice. The staff at the National Park Service, the Forest Service, and other federal and tribal agencies know these public lands better than anyone. They need to have a stronger role in the process of identifying pollution problems and developing clean air restoration plans.”
The groups write that, “flaws in the rule allow polluters to evade clean up requirements and make uncertain whether and when clean, natural air quality will be achieved. Current projections show that if swifter emission reductions are not required, many national parks and wilderness areas will not achieve the regulatory goal of restoring natural air quality by 2064. In fact, many parks will not achieve the target for decades or centuries after the goal. For example, absent stronger rule requirements, Yosemite will likely miss the 2064 natural air goal by a century.”
The groups note the significant role the haze program has played so far in not only reducing conventional air pollutants, but also curbing greenhouse gases, by driving the closure of coal-fired power plants.
States are due to submit the next round of state implementation plans (SIPs) for implementation of the haze program by 2018, but EPA may to extend this deadline until 2021, a suggestion environmentalists oppose. States in those plans must demonstrate how they will achieve “reasonable further progress” (RFP) toward restoring visibility.
EPA has said it is considering revising the haze rule, including the SIP deadline, or revising the haze's framework to reduce anthropogenic, or manmade sources of air pollution emitted from motor vehicles and power plants, rather than natural sources, like windblown dust and soot from wildfires, agency officials have said.
The environmentalists' demands are similar to those made by the National Parks Conservation Association (NPCA), a signatory to the Oct. 7 letter, in its “Polluted Parks” report on the haze program.
In that report, released in July, NPCA said it wants to see firmer requirements included in EPA's assessment of RFP, including four statutory components: costs of compliance, time necessary for compliance, energy and non-air impacts, and the remaining useful life of any existing source subject to such requirements.
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Greens Urge EPA to Toughen Rule Protecting Parks, Wilderness
Oct 7, 2015 | E&E PM
By Amanda Reilly
More than 80 conservation and public interest groups today called for an update to the program for reducing visibility-impairing haze at national parks and wildernesses.
In a letter to U.S. EPA Administrator Gina McCarthy, the groups said the program contains "flaws" that hinder national parks from achieving clean air.
The groups urged EPA to act on the rule "in the spirt of the Centennial anniversary" of the National Park Service, which will happen next year.
"We ask that you act promptly, making needed changes to the Regional Haze Rule including reasonable progress requirements to establish a certain clean air future for these special places," their letter says.
The National Parks Conservation Association led the effort. Among the 83 signatories of the letter: Sierra Club, NAACP, Moms Clean Air Force, Appalachian Mountain Club, Earthjustice, Environmental Defense Fund and the Wilderness Society.
Congress wrote the regional haze program into law nearly 40 years ago, but EPA didn't issue its rule to implement the program until 1999. The program requires states to clean up visibility-impairing air pollution at the nation's national parks and wildernesses. The goal: return air quality in America's most important outdoor treasures to its "natural" state by 2064.
Through the program, states craft plans to achieve emission reductions of sulfur dioxide, nitrogen oxides and other haze-forming pollutants through the use of best available pollution control technology.
According to the groups, the haze program has so far helped reduce 500,000 tons a year of SO2 and NOx from the western United States.
"However, flaws in the rule allow polluters to evade clean up requirements and make uncertain whether and when clean, natural air quality will be achieved," the groups wrote.
Green groups have long complained about the length of time it has taken to get a final regional haze plan in place in every state. Many states' plans have been mired in lawsuits over the pollution-control technology chosen for coal-fired power plants.
"Current projections show that if swifter emission reductions are not required, many national parks and wilderness areas will not achieve the regulatory goal of restoring natural air quality by 2064," the letter says. "In fact, many parks will not achieve the target for decades or centuries after the goal."
The letter urges EPA to establish requirements that specify what states and pollution sources need to do in each 10-year planning period in the program, as well as boost the requirements for states to show that emission reductions are infeasible.
It also encourages EPA to give the Park Service a stronger role in identifying air pollution problems in parks.
"The staff at the National Park Service, the Forest Service, and other federal and tribal agencies know these public lands better than anyone," the letter says.
EPA has said it plans to begin a rulemaking on the regional haze program this year, primarily to bump back states' 2018 deadline for submitting updated 10-year haze plans.
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Law Signed Putting California on Path for Renewables
Oct 7, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
Half of the electricity sold in California must come from solar, wind and other renewable sources by 2030 under legislation California Gov. Jerry Brown (D) signed into law Oct. 7.
The Clean Energy and Pollution Reduction Act (S.B. 350) also calls for new annual targets to double the efficiency savings in end uses of electricity and natural gas over the next 15 years.
The law will maintain California's global leadership in establishing ambitious climate and clean energy policies, the author of S.B. 350, State Senate President Pro Tempore Kevin de Leon (D), said at a signing ceremony in Los Angeles.
“No state in this nation, or in the world, for that matter, has adopted targets more ambitious in scale,” de Leon said.
As passed by lawmakers in September, S.B. 350 is a scaled down version of the measure de Leon and other Democratic leaders had written to implement an ambitious executive order Brown issued earlier this year. The earlier version of the bill included a mandate to cut vehicle-related petroleum use 50 percent by 2030 (178 DEN A-3, 9/15/15).
An oil industry campaign that targeted moderate Democrats forced de Leon to scrap the petroleum mandate (176 DEN A-16, 9/11/15).
At the time, Brown said the cutbacks in petroleum use could be achieved administratively through regulations.
Brown Expects Others to Follow
“California, through this bill, is taking a major step, and other people are going to follow,” Brown said before signing the bill.
S.B. 350 will help keep California on track toward its goal of transitioning to a low-carbon economy and cleaning up the air in Los Angeles and other areas, Brown said.
The new law boosts the state's 2020 renewable portfolio standard of 33 percent in three steps: 40 percent by 2024, 45 percent by 2027 and then 50 percent by 2030. It applies to all sellers of electricity and publicly owned utilities.
Other provisions call on state agencies to establish annual targets to double the energy efficiency in heating, cooling, lighting and other uses of electricity and natural gas by 2030; boost the installation of electric vehicle charging facilities in all neighborhoods; develop plans to accelerate the electrification of the state's transportation systems; and study and remove barriers for low-income customers to have access to solar and other sources of renewable energy.
The new law calls for changes in the governance of the California Independent System Operator, which operates the state's electric grid, to transform the entity into a regional organization.
S.B. 350 also includes provisions that make construction and other work on the electricity transmission system, within California, subject to prevailing wage requirements, which helped win the support of labor organizations.
Called Major Step Forward
“This bill creates something that has been missing in our transportation market for nearly a century—legitimate competition for oil as the predominant source of fuel,” de Leon said. “This is a quiet revolution for consumers, public health, and the California economy.”
At the signing event, Martha Dina Arguello, director of Physicians for Social Responsibility in Los Angeles, said the success of S.B. 350 is partly due to efforts of the environmental justice community.
“Communities of color are standing up,” Arguello said. “We worked very hard for a very long time.”
Arguello said the environmental justice community will monitor efforts to ensure the clean energy investments the law calls for come to low-income neighborhoods and communities of color.
In a written statement, Rob Lapsley, president of the California Business Roundtable and a member of the coalition called Californians for Affordable and Reliable Energy, a business group that opposed the bill, said the groups would work to see that the bill is implemented in a way that doesn't raise costs for families and businesses.
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(ACC Mentioned) STB Eyes Toxic Materials Transport Amid Safety Tech Fight
Oct 8, 2015 | Law360
By Linda Chiem
The Surface Transportation Boardon Tuesday agreed to examine whether it needs to step in and order U.S. railroads to continue rail service for certain hazardous materials even if Congress doesn’t end up extending a new safety mandate beyond Dec. 31.
The STB agreed to move forward with proceedings on a petition filed last week by theAmerican Chemistry Council, the Chlorine Institute, and the Fertilizer Institute seeking to have the board step in and declare that, because of their common carrier obligations under federal law, U.S. railroads will still have to transport toxic inhalation hazard, or TIH, materials even if their main lines aren't yet equipped with new government-mandated safety technology called positive train control.
Positive train control, or PTC, is a system that uses advanced communications technology to alert train operators and slow down or stop trains altogether in order to avoid collisions and accidents.
The trade groups for the chemical and fertilizer industries are seeking to have the regulator throw up a roadblock to the railroads’ plans to suspend TIH shipments, as early as Thanksgiving, in light of a looming Dec. 31 federal deadline to get PTC installed on their railcars. It’s a deadline that most railroads have said they will not meet and have asked Congress to extend to give them more time to get the safety technology properly tested and equipped on their locomotives.
The trade groups filed their petition with the STB at the same time they launched a federal lawsuit in D.C. federal court seeking to get the court to block the railroads from making good on their threats to curtail rail service. The lawsuit seeks declaratory and injunctive relief on grounds that the railroads’ threatened embargoes would violate the common carrier obligation and as such, the railroads would still have to accept commodities such as chlorine and anhydrous ammonia after Dec. 31.
The railroads had put lawmakers and its customers on alert that they'd have to suspend rail service for anyone shipping the types of hazardous materials covered under the federal mandate for fear of being held liable for violating the letter of the law because they wouldn’t have PTC installed in time. Adding to the uncertainty is that the Federal Railroad Administration has indicated that it would comply with the law and pursue enforcement actions, including levying thousands of dollars in daily fines, against railroads that don’t have PTC installed or continue operating on lines that should have it but don’t, the railroads have said.
Meanwhile, Congress hasn’t yet moved on extending the PTC deadline — despite plenty of pressure to jump on it quickly — but they’re taking steps toward potentially doing so. Leaders of the House Transportation and Infrastructure Committee on Sept. 30introduced a bipartisan bill giving U.S. railroads a three-year cushion until the end of 2018 to install PTC.
The government’s current Dec. 31 deadline — as carved out in the Rail Safety Improvement Act of 2008 — was viewed by the railroads and their backers as unrealistic given the complexity of getting the communication technology installed, the billions of dollars expended to develop and install it and the regulatory hoop-jumping required to do it. The PTC mandate applies to all passenger railroads, commuter railroads and freight railroad lines carrying certain toxic materials, such as chemicals and fertilizers.
A representative for the American Chemistry Council was not immediately available for comment on Wednesday.
American Chemistry Council and the Fertilizer Institute are represented by Jeffrey O. Moreno, Jason D. Tutrone, David E. Benz and Madeline J. Sisk of Thompson Hine LLP.
The Chlorine Institute is represented by Paul M. Donovan of LaRoe Winn Moerman & Donovan.
The Association for American Railroads is represented by Raymond A. Atkins and Hanna M. Chouest of Sidley Austin LLP and by Kathryn D. Kirmayer and Timothy J. Strafford of the Association of American Railroads.
The STB case is American Chemistry Council, The Chlorine Institute, and The Fertilizer Institute — Petition for Declaratory Order — Positive Train Control, docket number FD 35964 0, before the Surface Transportation Board.
The federal court case is American Chemistry Council et al. v. BNSF Railway Co. et al, case number 1:15-cv-01584, in the U.S. District Court for the District of Columbia. -
(ACC Mentioned) Boxer: Pass Highway Bill to Keep Trains Running
Oct 7, 2015 | McClatchy DC
By Curtis Tate
Sen. Barbara Boxer, D-Calif., said she would not support extending the year-end deadline for railroads to implement a collision-avoidance system if Congress doesn’t approve a six-year transportation bill that’s languished for the past two months.
Boxer is the ranking Democrat on the Senate Environment and Public Works Committee, which in an increasingly rare demonstration of bipartisanship on Capitol Hill, unanimously approved a six-year transportation bill over the summer. The bill then passed the full Senate on a vote of 65 to 34.
If Congress doesn’t extend the federal highway trust fund by Oct. 29, payments to states for their road, bridge and transit projects could stop the next day.
Another deadline could be coming on Dec. 31. By then, railroads are required to install positive train control, but few will make the deadline, which Congress set in 2008.
On the Senate floor, Boxer blamed the House of Representatives for not following through on the Senate’s action on the transportation bill.
“I had received assurances that the House would follow the lead of the Senate and introduce and pass a long-term transportation bill,” she said. “It has not done so.”
The Senate’s six-year transportation bill actually averts a rail system shutdown with a three-year extension on the positive train control deadline. It also provides $200 million in grants and loans to help commuter railroads, which lag behind on installing it.
Last week, the American Chemistry Council calculated that a monthlong shutdown of rail service could cost the economy $30 billion. That’s $6 billion more than the estimated cost of the 2013 government shutdown.
But Boxer warned her House colleagues against any attempt to deal with it separately.
“I will oppose any attempts to cherry pick issues and deal with them outside of the long-term bill,” she said.
Read more here: http://www.mcclatchydc.com/news/nation-world/national/article38104521.html#storylink=cpy -
(ACC Mentioned) Railroad Shutoff Threats Complicate Train Technology Deadline
Oct 7, 2015 | CQ Roll Call
By Kellie Mejdrich
Railroads have amped up pressure on Congress to extend a year-end deadline to install upgraded train safety technology by threatening to cut off service — and the nation’s rail regulator isn’t giving lawmakers an easy out by recommending a way to do so.
“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,” Transportation Secretary Anthony Foxx said in an interview with reporters on Sept. 29, when asked about giving railroads more time to install the technology, known as positive train control.
The Federal Railroad Administration’s acting head Sarah Feinberg stuck to that ground at her Senate confirmation hearing earlier in September. Feinberg, who was selected to lead the agency by President Barack Obama, declined to specify an extension despite sustained criticism from senators.
Congress’ search for a way out of the deadline it imposed in 2008 (PL 110-432) comes after years of railroads reporting that the work to get new safety systems up and running would take much longer than the current statutory deadline, which requires implementation by Dec. 31.
Amtrak amplified the railroad warnings this week, when it said it would suspend service on the national network by mid-December if the deadline isn’t extended. Even the agency’s most profitable route along the Northeast Corridor, where most of the infrastructure is owned by Amtrak, could be subject to disruptions on segments owned by other railroads which haven’t been able to update their systems in time.
Congress’ PTC mandate came after a series of high-profile rail accidents, including a deadly train collision in the Chatsworth neighborhood of Los Angeles in 2008 that killed 25 — an accident caused by a distracted train operator who ignored a red signal while sending text messages on his cellphone.
The PTC is designed to stop or slow a train to prevent some collisions or derailments such as those caused by train operators ignoring signals or speeding.
The FRA hasn’t recommended a way for Congress to extend the deadline, but issued an August report acknowledging that by Jan. 1, 2016, the agency expects widespread noncompliance with the current law. Railroads subject to the deadline are those carrying passengers and certain kinds of hazardous materials.
The FRA asserted in its August report that it plans take enforcement action against railroads by the beginning of 2016 and could impose daily penalties between $1,500 and $25,000 per violation for those that don’t upgrade in time.
Industry groups have responded by forecasting steep economic losses if railroads shut down service to avoid the legal consequences of operating in defiance of federal law.
The American Chemistry Council, a trade group, published a report in October that found service cutoffs could result in $30 billion in economic losses and 700,000 lost jobs.
Railroads have also warned lawmakers that operating out of compliance could expose them to legal risk. The BNSF Railway, for example, sent a letter to Senate Commerce, Science and Transportation Chairman John Thune in September warning of the legal risk and potential service shutoff that could result.
“This is a looming economic and safety disaster that is completely avoidable,” Thune said at Feinberg’s confirmation hearing before the committee he chairs in September.
But Feinberg wouldn’t specify a preferred length of extension.
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(ACC Mentioned) Amtrak Shutdown Would Actually Be a Closure of Entire Rail System
Oct 8, 2015 | NBC News
By Morgan Brennan
Come December it could get much tougher to take the train. Or, for that matter, to ship anything on one.
This week Amtrak made waves when it threatened to suspend service on some of its routes unless Congress extends the deadline for the rail carrier to get a major safety upgrade in place.
In a letter to the Senate Commerce Committee, Amtrak warned that the "vast majority" of its network would become inoperable starting in mid-December if the current Dec. 31 mandate for U.S. rail carriers to implement something called "positive train control" stands as is.
Positive train control, or PTC, is a wireless communications system that, once fully operable, will essentially connect and monitor every train on every track across the United States in order to prevent accidents.
If PTC had been in place when an Amtrak train derailed outside of Philadelphia this year, the technology likely would have prevented the accident, which killed eight people. On the heels of that tragedy, Amtrak President Joseph Boardmanpromised to "continue to focus on completing Positive Train Control implementation in the Northeast Corridor by December of 2015."
But the rail line is just one of a ballooning number of passenger, commuter and freight railroads that are warning about potential disruptions. Last month the U.S. Government Accountability Office (GAO) concluded that most U.S. railroads will not meet the deadline, and that legislation to extend it is necessary. If the law is not changed, railroads face significant fines and increased liability if service continues on the parts of the network still lacking the technology. Their other option is to stop running trains.
Volkswagen Dealer: This Was Fraud
Passenger, commuter and freight rail carriers were given a five-year window to implement the system; however, the industry has warned for quite some time that the installation deadline won't be met. Nearly 100 carriers must collaborate to make the system work.In this aerial photo taken May 13, 2015, emergency personnel work at the scene of a deadly train wreck in Philadelphia. Patrick Semansky / AP
Therein lies the problem: Amtrak will have PTC in place along the parts of the so-called Northeast Corridor that it owns, but it won't be ready on the tracks that Amtrak uses that are owned by a commuter rail line in the New York metro area.Freight railroads also want extension
Freight railroads were among the first to begin lobbying for an extension. "We are committed to getting it done and we will get it done, but Congress needs to give us more time so we don't have to disrupt service to stay in accordance with the law," said Ed Hamberger, president and chief executive of the Association of American Railroads (AAR), the trade group for the freight rail industry.
AAR estimates that freight railroads have spent $6 billion on PTC so far, with an additional $4 billion expected in order to finish the job. By the end of this year, 12,000 route miles owned and operated by freight carriers will have the system ready, but that's only a fraction of the 60,000 miles requiring it. More than 22,000 locomotives must have the system installed, and routes must be equipped with some 30,000 antennae. And that's just the freight railroads.
Airline Bunk Beds? You Have to See to Believe …
Passenger and commuter line costs are also expected to run into the billions. The American Public Transportation Association estimates it will take $3.5 billion to fully implement PTC on all consumer railroads.
All of the biggest U.S. freight railroads, from Union Pacific to CSX, have sent letters to Congress, as have operators of dozens of passenger rails from the Metropolitan Transportation Authority in New York (which oversees the Metro North and Long Island Railroad lines) to the Metrolink in Los Angeles.
In Chicago, the busiest rail hub in the country, the city's Metra system estimates it will cost $350 million to install PTC on its lines, meaning the commuter line would have to spend 100 percent of its annual $150 million in federal funding for 2 1/2 years to afford the installation.
"Time is now running out," Metra Executive Director and CEO Donald Orseno wrote in a letter to Congress. "In the absence of an extension, there is a strong possibility that Metra will not be able to operate our trains beginning Jan. 1, 2016."
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If rail service really were to shut down on key parts of the nation's network, the economic impact would be fierce. As many as 1.7 million daily commuters would be stranded from taking their regular trains to work, forced to find alternatives.
The American Chemistry Council recently estimated that a single month of rail service disruptions could result in a 2.6 percent reduction to U.S. real GDP in the first quarter of 2016 — pulling $30 billion out of the economy. According to the ACC's report, the unemployment rate would rise by 0.3 percent, with a loss of 700,000 jobs, and household incomes would fall by more than $17 billion.Avoiding shutdown requires congressional action
"The United States is staring down the tracks of an unprecedented shutdown of freight rail service that could seriously harm our entire economy unless Congress acts quickly to extend the PTC deadline," Cal Dooley, ACC president and chief executive, warned in the report. "A prolonged shutdown would be truly catastrophic, likely resulting in a recession."
Avoiding a shutdown likely depends on Congress' passing legislation in the next handful of weeks. Over the summer, the Senate passed a six-year transportation bill that includes an extension of the PTC deadline for up to three years, but the House of Representatives has not.
Last week, however, the House Transportation and Infrastructure committee introduced a bill of its own that would extend the deadline by three years and grant the Department of Transportation the ability to allow extensions of up to an additional two years.
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EIS Ruled Needed for Washington Crude-by-Rail Terminal
Oct 7, 2015 | BNA Daily Environment Report
By Paul Shukovsky
A proposed crude-by-rail terminal on the Columbia River at the Port of Vancouver, Wash., must undergo an environmental impact statement, a hearing examiner ruled Oct. 6.
NuStar Terminal Services Inc. plans to repurpose existing methanol operations to handle about 22,000 barrels of crude oil per day, which would be delivered by 96-car unit trains and then transferred to vessels on the river. The project would require no new structures, and only minor, if any, construction or ground disturbance.
NuStar appealed the city determination that the project will have probable, significant adverse environmental impact as defined by the State Environmental Policy Act and that an EIS should be conducted. City Hearing Examiner Sharon A. Rice denied the appeal, citing the possibility of a catastrophic oil spill or fire and the need for further study to determine the Vancouver Fire Department's capability to deal with it.
The ruling on the relatively small project takes on added significance because of the much larger proposal by Tesoro Savage Petroleum Terminal LLC to move 360,000 barrels of crude-by-rail per day at the Port of Vancouver. While environmental analysis of the Tesoro proposal—among the largest such facilities in the nation—is being handled by state regulators rather than the city, both projects are being evaluated under the requirements of SEPA and there is significant overlap in the issues being considered.
‘Overwhelmed' in a Catastrophe
Rice wrote in her decision: “The response ability of the Vancouver Fire Department (VFD) would be stressed and could be overwhelmed in the event of a catastrophic release.”
Rice also said that a fire department official testified that “a gap analysis is required in order to look at VFD's capabilities and compare them to the potential risks, identifying deficiencies and proficiencies,” and the official “noted that a gap analysis is being prepared for the Tesoro Savage crude project.”
Vancouver Assistant City Attorney Brent Boger, asked by Bloomberg BNA in an Oct. 7 telephone interview about relevance of the Nustar decision to the Tesoro Savage project, said: “It's only about 5 percent of the size of the Tesoro project. But it has an impact in that a neutral hearing examiner looked at it and determined that the City of Vancouver doesn't have the capacity to handle an emergency there.”
In an e-mail statement to Bloomberg BNA, a Nustar representative said, “While we respect the decision of the hearing examiner, we are disappointed in the ruling as we believe we thoroughly addressed all of the safety and environmental concerns in our original permit application, which was approved by the Southwest Clean Air Agency. Our top priority is safety, and we are taking all appropriate measures to ensure that this proposed rail project is designed, built and operated safely. In addition, our Vancouver terminals have an outstanding safety and environmental record, and NuStar has an industry-leading safety record. We will continue working cooperatively with the City of Vancouver while weighing our options to determine the best way to move forward with the project.”
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Boxer: No Train Automation Extension Without Highway Bill
Oct 8, 2015 | The Hill - Transportation
By Keith Laing
Sen. Barbara Boxer (D-Calif.) said Wednesday that Senate Democrats will not go along with a Republican plan to extend a deadline for automating most of the nation's trains unless House GOP leaders pass a long-term highway bill.
Railroads currently have until Dec. 31 to install an automated navigation system known as Positive Train Control (PTC), which regulates the speed and track movements of trains.
House Republicans have introduced legislation to extend the deadline until December 2018, but Boxer said Wednesday the Senate would only consider it if House Republicans pass a long-term highway bill this month.
"If they think that they are going to pull out their favorite issue, such as getting an extension for Positive Train Control on a short-term extension or as a stand-alone bill, they are wrong," she said during a speech on the Senate floor on Wednesday.
"I understand that many have argued that addressing the approaching PTC deadline is extremely critical, and failing to do so will have dramatic financial consequences," Boxer continued. "But, you know what? There are a lot of issues addressed in the DRIVE Act that are critically important and that have financial ramifications on this country."
Republicans have focused intently on the automated train deadline because several rail companies have warned they will shut down service in January 2016 to avoid fines if the deadline is not extended.
Boxer said it is "inexcusable" that the House has not shown the same urgency about passing a long-term highway bill, noting that an Oct. 29 deadline for the expiration of federal road funding is rapidly approaching.
Boxer, who is the top ranking Democrat on the Senate committee that oversees transportation projects, noted the upper chamber has already passed a measure known as the DRIVE Act that contains three years' worth of guaranteed infrastructure funding.
"More than two months ago, the Senate acted in a bipartisan fashion to pass a long-term transportation bill that increases funding for road, bridge, and transit projects," she said. "Now we are up against this deadline and what has the House done?"
Boxer and other Senate Democrats have pressured House Republicans to pass a six-year highway bill after they rejected the Senate's bill during the summer because it contained six years' worth of transportation commitments, but only three years' worth of funding.
The House instead passed a three-month highway bill that is set to expire on Oct. 29, legislation the Senate was forced to accept to prevent an interruption in federal transportation spending.
Boxer negotiated over the terms of the Senate's highway bill with the chamber's majority leader, Sen. Mitch McConnell (R-Ky.). She said she expected the House to have passed a transportation funding measure of its own by now since lawmakers have been back in Washington for a month following the August recess.
"I had received assurances that the House would follow the lead of the Senate and introduce and pass a long-term transportation bill," Boxer said. "It has not done so. So I ask -- where is the House bill?"
House Republicans have vowed to pass a long-term highway bill, but they have been sidetracked with a leadership election that became necessary when Speaker John Boehner (R-Ohio) announced his retirement last month.
"We’re going to make sure we get the highway bill done," Boehner's likely replacement, Rep. Kevin McCarthy (R-Calif.), said on MSNBC's "Morning Joe" last week, when asked how he would differ from the departing Boehner.
Boxer said Wednesday that the House has to act quickly to prevent an interruption in federal transportation funding.
"Short-term extensions prevent states from moving forward with any significant transportation projects," she said.
"It is like going to a bank to get a mortgage to buy a house, but the bank would only agree to a six-month mortgage," Boxer continued. "There is no way someone would go ahead with making such a large investment without that long-term certainty that funding will be available when they need it."
The Department of Transportation (DOT) has warned that it will have to begin cutting back on payments to states and local governments for infrastructure projects in November if Congress does not reach an agreement on a highway bill extension this month.
Boxer said Wednesday transportation funding interruption would have catastrophic consequences.
"The federal government provides over 50 percent of the capital expenditures for state highway projects nationwide, which means that states and local governments rely heavily on federal funding to maintain and improve their transportation systems," she said.
"Everyone knows we need a long-term, bipartisan, robust transportation bill, and nobody wants our bridges falling down. But we need to see the House step up to the plate."
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PHMSA Proposal May Foreshadow Gathering Line Rules
Oct 7, 2015 | BNA Daily Environment Report
By Rachel Leven
Reporting provisions in a recently released hazardous liquid pipeline proposal may foreshadow expanded regulation of thousands of miles of onshore gathering lines carrying materials such as crude oil.
The move by the Pipeline and Hazardous Materials Safety Administration to compile data from unregulated gathering line operators to determine the need for regulations—that one environmentalist said is too modest—isn't drawing immediate fire from the oil pipeline industry. However, others tracking the rule said the industry may be concerned that this minimal requirement will lead to more future regulation.
“I don't think it's a question of if [these lines will be regulated], but when and by how much,” Brigham McCown, former acting administrator for PHMSA, told Bloomberg BNA. “The ‘how much’ is what has industry concerned.”
Gathering lines are used to move hazardous liquids from a production facility to a processing facility, refinery or transmission line. Roughly 3,644 miles of the 30,000 to 40,000 miles of hazardous liquid lines are regulated. Twenty-three operators run the other lines, ones that would be affected by the reporting requirement in the proposed rule (RIN 2137-AE66) released Oct. 1 (191 DEN A-25, 10/2/15).
State of Gathering Lines
Nonrural onshore hazardous liquid gathering lines are regulated similarly to transmissions lines.
However, Congress initially didn't give pipeline safety regulators the authority to regulate onshore rural gathering lines, lines that are generally smaller than transmission lines and operate at moderately low pressures. In 1992, Congress allowed regulators to regulate certain rural gathering lines.
PHMSA used that authority when it finalized in 2008 a rule (73 Fed. Reg. 31,634) that required operators of certain rural gathering lines near “unusually sensitive areas”—near critical drinking water resources, for example—to file certain reports and established a maximum operating pressure, among other needs.
Now there has been a growth in the number of rural gathering lines. Newer gathering lines tend to be larger and operate at a higher pressure, especially natural gas lines, and more gathering lines in rural areas are closer to people than previously, said McCown, now chief executive officer of consulting group Nouveau Inc.
In the 2012 reauthorization of pipeline safety programs, Congress required PHMSA to examine whether unregulated gathering lines and certain other gathering lines should be newly regulated. To answer this congressional mandate and in response to the “increasing development of gas in shale rock areas which is resulting in the new construction of many unregulated rural gathering pipelines,” PHMSA proposed its reporting requirement, Damon Hill, a spokesman for PHMSA, said in an e-mailed statement.
The reporting requirement in its proposal is intended to help PHMSA determine whether new regulations are needed, offering the means for PHMSA and operators “to identify trends, provide performance measures, and understand the causes and consequences of pipeline incidents,” Hill said. PHMSA said 23 operators would be affected by the reporting requirement, but Hill told Bloomberg BNA that a specific list of those who would be affected was unavailable.
Too Little Action
Lois Epstein, engineer and Arctic program director for The Wilderness Society, disputed that PHMSA needed more data to make the case that all gathering lines should be regulated, although she said the data collected under reporting requirements would help with crafting future regulations.
PHMSA should have altered the definition for gathering lines and taken additional steps to prevent releases to the environment and to protect the public, Epstein said. Onshore hazardous liquid gathering lines should be regulated similarly to transmission lines, she said.
“These gathering lines look like transmission lines. They act like transmission lines,” Epstein told Bloomberg BNA. “Its not a big leap for a federal regulator to regulate them like transmission lines.”
Epstein also noted that Congress should give PHMSA the authority to regulate currently nonregulated lines, the smaller hazardous liquid rural gathering lines not caught under the agency's 2008 rule. In 2010 comments, Epstein pointed to late 1990s and early 2000s instances in Alaska and elsewhere where unregulated onshore gathering lines have accounted for a large number of incidents.
Limited Industry Response
The industry's response to PHMSA's move has been more muted. The American Petroleum Institute said the organization is still reviewing the rule, while John Stoody, spokesman for the Association of Oil Pipe Lines, said his group hasn't taken a formal position yet.
When asked whether Stoody's group is concerned about unregulated gathering lines becoming regulated, Stoody responded, “Well, we'll see.”
“This proposal may confirm our priority that we really should be doing what best protects the public and the environment” by focusing resources on pipelines in environmentally sensitive and urban areas, Stoody told Bloomberg BNA.
Mike Friedberg, recent Republican staff director for the House Transportation and Infrastructure's Subcommittee on Railroads, Pipelines and Hazardous Materials, said industry hasn't lobbied Congress hard on this rule right now.
“They're [industry] kind of OK with it,” Friedberg, now a senior policy adviser for Holland & Knight LLP, told Bloomberg BNA. “The concern would be if Congress sees stuff that they deemed didn't go far enough, then you're going to see … Congress forcing PHMSA to regulate on stuff.”
Even state regulators who previously initially opposed eliminating the exemption for currently unregulated pipelines are amenable to the proposal of collecting data.
“We believe it's appropriate to understand what's out there,” Peter Chace, vice chair of the National Association of Pipeline Safety Representatives, told Bloomberg BNA.
Future Regulation
Several individuals tracking the proposal told Bloomberg BNA that industry would most likely be concerned that this reporting requirement would foreshadow future action by PHMSA in regulating these lines.
And McCown said that wasn't a wrong assumption. The agency may feel it has a grasp on mitigating risk on the larger lines “so, it's natural to move down to the next item on your shopping list,” he said.
Chace also said it seemed possible that currently unregulated gathering lines would be the subject of more regulation, following in the path of previously unregulated rural hazardous liquid gathering lines that were regulated under the 2008 rule.
Under this latest proposal, those regulated rural lines would see increased assessment, repair and leak detection requirements, on top of the 2008 rule.
The question would be how the federal agency addressed its ramp up of rules on these lines to better ensure safety.
Making all hazardous liquid gathering lines regulated similarly to the 2008 rule would be appropriate, but certain actions such as expanding the current integrity management program to all of these lines would be too much, McCown said.
Legal Vulnerability
Sara Peters, senior associate for King & Spalding, told Bloomberg BNA there could be a good argument to challenge the reporting requirement in court.
PHMSA maintained in its proposal that it has the legal authority under 49 U.S.C. Section 60117(b) to require reporting from all onshore, offshore, regulated and unregulated gathering lines.
However, Peters said there could be room to challenge that PHMSA overstepped its jurisdiction under 49 U.S.C. Section 60101 where certain gathering lines are wholly exempt from PHMSA regulation.
Peters pointed to a challenge against the Federal Energy Regulatory Commission by the Texas Pipeline Association, where the U.S. Court of Appeals for the Fifth Circuit ruled that the federal agency couldn't “require wholly intrastate pipelines to disclose and disseminate capacity and scheduling information” (Texas Pipeline Ass'n v. FERC, 661 F.3d 258 (5th Cir. 2011) ).
“There's a lot of parallels there in terms of whether PHMSA's exceeded its authority in this instance,” Peters said.
McCown said PHMSA was within its legal authority to require this reporting.
Voluntary Partnership
Peters said that the reporting requirement itself could burden operators, but it was “a fair concern” by PHMSA to want to understand what gathering lines are out there.
Peters recommended that PHMSA instead go the voluntary route of partnering with industry to get the same information.
Chace also emphasized that is appropriate to gain more knowledge about what onshore hazardous liquid gathering line risks are out there.
“Despite the fact that gathering lines have a different function and different regulatory requirements, a release from a gathering line can be every bit as hazardous as a release from a transmission line,” Chace said.
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